Last month, the Singapore International Arbitration Centre (SIAC) started a review and revision of its 2016 Rules (the “2020 Review”). The 2016 Rules introduced a number of novel provisions to address “early dismissal of claims and defences”; “delocalisation of the seat of arbitration” and “practical enhancements to the popular Expedited Procedure and Emergency Arbitration provisions”. It is likely that the 2020 Review will:
SIAC states that the purpose of the 2020 Review is to “take into account recent developments in international arbitration practice and procedure, and is aimed at better serving the needs of businesses, financial institutions and governments that use SIAC.”1 SIAC has formed an Executive Committee overseeing six sub-committees which will look at:
The 2020 Review comes at a time when Institutions have embarked on updates to the various Institutional rules. The Institutional drive for procedural efficiency has elevated expedited procedures, summary dismissal and emergency procedures. The London Court of International Arbitration (LCIA) will release its new Arbitration Rules last updated in 2014. The LCIA has not shared information about its new Rules although one could expect revisions in line with other leading arbitral rules including the 2016 SIAC Rules.
The last major institutions to update rules are the International Chamber of Commerce (ICC) and the Stockholm Chamber of Commerce (SCC). In 2017, the ICC introduced new Expedited Procedure Rules applicable to cases where the amount in dispute is less than US$2 million; a shortened time limit for establishing the ICC Terms of Reference; enhanced transparency through the ICC Court’s communication of reasoned decisions; and changes to the ICC’s fee scale, including for expedited proceedings. Overall, the 2017 ICC Rules made incremental improvements. The SCC Rules made similar incremental advancements. Institutions that delay revisions risk losing relevancy. One example is the Dubai International Arbitration Centre (DIAC), which last revised its Rules in 2007. An update to reflect regimes for electronic filing of requests for arbitration; swift procedures for tribunal constitution; emergency arbitration; expedited arbitration and early dismissal are needed. Many of these features became “standard” several years ago (as evidenced by the Swiss Rules 2012 issued by the Swiss Chambers’ Arbitration Institution (SCAI)).
Institutional rules need to give arbitrators a full set of tools needed to handle complexities in arbitral procedure yet render a fully enforceable award. The 2016 SIAC Rules are one of (if not the most) innovative and efficient set of rules and so one would expect the 2020 Review to only refine or nuance the framework. Areas for specific attention are:
1 SIAC Announces Commencement of Revisions for SIAC Arbitration Rules dated July 7, 2020, available at https://siac.org.sg/index.php.
2 For example, the Arbitration Foundation for Southern Africa (AFSA) draft Rules which are an excellent example incorporating many of the current best practices in international arbitration have added expedited procedures to their new draft Rules, but have not provided for a sliding scale of time/complexities commensurate with the value in dispute.
3 Note that this issue was also explicitly addressed in the context of International Construction Arbitration in the ICC Commission Report on Arbitration and ADR on Construction Industry Arbitration.
4 H. Lal and B. Casey, Ten Years Later: Why the ‘Renaissance of Expedited Arbitration’ Should be the ‘Emergency Arbitration’ of 2020, Journal of International Arbitration Vol. 37(3) (Kluwer 2020).
5 See, e.g., H. Lal, B. Casey and L. Defranchi, Re-Thinking Issue Conflicts in International Commercial Arbitration, IBA Dispute Resolution International Vol. 14(1) (IBA 2020).
6 ICC Practice Note 2019, at para. 23. The ICC recommends taking into consideration if the arbitrator or prospective arbitrator or his/her law firm: “advises, or has represented or advised, one of the parties or one of its affiliates; acts or has acted against one of the parties or one of its affiliates; firm has a business relationship with one of the parties or one of its affiliates, or a personal interest of any nature in the outcome of the dispute; acts or has acted on behalf of one of the parties or one of its affiliates as director, board member, officer, or otherwise; is or has been involved in the dispute, or has expressed a view on the dispute in a manner that might affect his or her impartiality; has a professional or close personal relationship with counsel to one of the parties or the counsel’s law firm; acts or has acted as arbitrator in a case involving one of the parties or one of its affiliates; acts or has acted as arbitrator in a related case; has in the past been appointed as arbitrator by one of the parties or one of its affiliates, or by counsel to one of the parties or the counsel’s law firm.”