Institutional Arbitration - Singapore International Arbitration Centre SIAC - An overview

 

 Prepared by the 

Academic Team of 'Complete Lawyer'

The term ‘Institutional Arbitration’ is not defined in the arbitration law^[1], however it is used at least in a few places.  The term ‘institution’ has fifteen, an ‘arbitral institution’ has two and ‘permanent arbitral institution has one reference^[2], these statistics have been true before 9th August 2019^[3].

The term Arbitration has an inclusive definition, which would take in an arbitration administered by a permanent arbitral institution^[4].  The role of an arbitral institution is to arrange administrative assistance for the conduct of arbitral proceedings^[5].  An arbitral institution designated by the High Court or the Supreme Court, alone is considered as an arbitral institution^[6] The fees for administrative assistance paid to an arbitral institution, is recoverable as cost of arbitration^[7]

Ad Hoc arbitration

Ad hoc arbitration refers to an arbitration conducted without the assistance of an arbitral institution. This may mean that the parties and arbitral tribunal will make up the procedural rules as they go along.   An important consequence of this option is that the arbitration law of the place of arbitration may frequently establish the procedures which will be used by the parties and tribunal^[8].  In India, ad hoc arbitration was extensively used as there are very few arbitral institutions. The Arbitration law was amended inorder to encourage institutional arbitration in India^[9]

Designation of arbitral institutions

The designation of the arbitral institution, may be done from among the institutions graded by the Arbitration Council of India^[10].  The arbitral institution designated by the Supreme Court can make appointment of Arbitrator, in case of the international commercial arbitration and those designated by the High Court, appoint arbitrators in case of domestic arbitrations, on an application of a party^[11].

Arbitration Council of India (ACI)

The establishment and incorporation of the Arbitration Council of India, and its composition is on of the major changes introduced in the arbitration law^[12].  The important functions of the Council includes, framing policies governing the grading of arbitral institutions, make recommendations regarding personnel, training and infrastructure of arbitral institutions, promotion of institutional arbitration by strengthening arbitral institutions etc^[13]..  General norms for grading of arbitral institutions^[14] and accreditation of arbitrators^[15] are also provided for.  The Council shall also maintain an electronic depository of the awards made in India^[16]

Arbitral Institutions in India

          Delhi Arbitration Centre is one of the statutorily constituted arbitral institution^[17].  There are other arbitral institutions or centres, which are not constituted by a statute, but those functions under the arbitration law.  Mumbai Centre for International Arbitration^[18], Nani Palkhivala Arbitration Centre^[19] etc are examples.

          Singapore International Arbitration Centre SIAC - a case study

          In the international arena, there are many institutions, however, the institution focused for the present study is Singapore International Arbitration Centre (SIAC)^[20].  The important bodies of the Arbitration centre are the Board of Directors, Court of Arbitration, and the CEO & Secretariat.  The primary function of the Board of Directors is to administer the Arbitration Centre, while the Court of Arbitration and the Secretariat discharge functions relating to the administration of arbitration.

          Arbitration Clause of SIAC

          The inclusion of the SIAC Arbitration Clause in the Contract is a pre- requisite for the Arbitration Centre to assume jurisdiction, in case of a dispute arising out of such contracts.   The parties have the option to decide on the seat of arbitration, specifing the number of arbitrators, language and the applicable law.  The number of arbitrators shall be odd numbers, and either one or three. 

          Singapore Arb-Med-Arb Clause

          Arb-Med-Arb is a process where a dispute is first referred to arbitration before mediation is attempted, if parties are able to settle their dispute through mediation, their mediated settlement may be recorded as a consent award.  The consent award is generally accepted as an arbitral award, and, subject to any local legislation and/or requirements, is generally enforceable in approximately 150 countries under the New York Convention.  If parties are unable to settle their dispute through mediation, they may continue with the arbitration proceedings^[21]. 

SIAC MODEL CLAUSE Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of arbitration shall be [Singapore]* The language of arbitration shall be ……………... APPLICABLE LAW Parties should also include an applicable law clause.  The following is recommended. This contract is governed by the laws of…………………..*** ________________________________________ *Parties should specify the seat of arbitration of their choice.  If the parties wish to select an alternative seat to Singapore please replace “[Singapore]”, with the city and country of choice [City, Country] **State an odd number, Either State one or state three ***State the Country or Jurisdiction

 

The Singapore Arb-Med-Arb Clause   SIAC MODEL CLAUSE Any dispute arising out of or in connection with this contract, including any question regarding tis existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of arbitration shall be [Singapore] The language of arbitration shall be ……………… The parties further agree that following the commencement of arbitration, they will attempt in good faith to resolve the Dispute through mediation at the Singapore International Mediation Centre (“SIMC”), in accordance with the SIAC-SIMC Arb-Med-Arb Protocol for the time being in force.  Any settlement reached in the course of the mediation shall be referred to the arbitral tribunal appointed by SIAC and may be made a consent award on agreed terms. *Parties should specify the seat of arbitration of their choice.  If the parties wish to select an alternative seat to Singapore please replace “[Singapore]”, with the city and country of choice [City, Country] **State an odd number, Either State one or state three ***State the Country or Jurisdiction

SIAC Arbitration Rules^[22]

The SIAC Rules are an adaptation of the UNCITRAL Model Rules^[23].  A comprehensive study of the SIAC Rules with reference to the Model Rules is important to understand the process of institutional arbitration.  The topics covered in the SIAC Rules are enumerated in the table below.

Sl No.	Topics	Sl No.	Topics
1.	Scope of Application and Interpretation	23.	Seat of the Arbitration
2.	Notice and calculation of period of time	24.	Language of the Arbitration
3.	Notice of Arbitration	25.	Party Representation
4.	Response of the Notice of Arbitration	26.	Hearings
5.	Expedited Procedure	27.	Witnesses
6.	Multiple Contracts	28.	Tribunal Appointed-Experts
7.	Joinder of Additional Parties	29	Additional Powers of the Tribunal
8.	Consolidation	30.	Jurisdiction of Tribunal
9.	Number and Appointment of Arbitrators	31.	Applicable law, Amiable Compositeur, Ex Aequo of Bono
10.	Sole Arbitrators	32.	The Award
11.	Three Arbitrators	33.	Correction of Award, interpretation of Award and additional award.
12.	Multi-party appointment of Arbitrator(s)	34.	Fees and deposits
13.	Qualification of Arbitrators	35.	Cost of Arbitration
14.	Challenge of Arbitrators	36.	Tribunal’s Fees and Expenses
15.	Notice of Challenge	37.	Costs of Arbitration
16.	Decision on Challenge	38.	Tribunal’s fees and expenses
17.	Replacement of an Arbitrator	39.	Parties Legal and other costs
18.	Repetition of Hearing in the event of replacement of Arbitrator	40.	Exclusion of Liability
19.	Conduct of Proceedings	41.	Confidentiality
20.	Submission of Parties	42	Decisions of the President, Court and the Registrar,
21.	Early dismissal of claims and defences	43.	General provisions
22.	Interim and Emergency Interim Relief

 

President, Court and the Registrar

These bodies, constituted under the SIAC Arbitration Rules, offer administrative assistance of the Arbitral Tribunals, where SIAC Arbitration Rules are applied.

“President” means the President of the Court, and includes any Vice President and the Registrar.  He has the powers to constitute the committees of the Court, consisting of not less than two members^[24].  The Court means the Court of Arbitration of SIAC, and includes the committees of the Court. The President, Court and the Registrar shall have such functions as are provided in the SIAC Rules.

 In all matters not expressly provided for in the SIAC Rules, the President, the Court, the Registrar and the Tribunal shall act in the spirit of the Rules and shall make every reasonable effort to ensure the fair, expeditious and economical conclusion of the arbitration and the enforceability of any Award^[25].  The decisions of the President, the Court and the Registrar with respect to all matters relating to an arbitration shall be conclusive and binding upon the parties and the Tribunal. The President, the Court and the Registrar shall not be required to provide reasons for such decisions, unless the Court determines otherwise or as may be provided in these Rules^[26]. 

Conclusion

Institutional Arbitration does not offer any surprises, as everything is placed before the parties in black and white.  Whether it is arbitrator’s fees or institutional fees, and all matters relating to the institutional procedure, including the time frame within which the arbitration proceedings will be completed.  In short Institutional Arbitration, offers a cost effective and efficient dispute resolution method, for commercial disputes, where time is considered as equivalent to money.

---

^[1]AC 1996

^[2] Part I of AC 1996

^[3] Act No. 33 o 2019, amending AC 1996 came into force.

^[4] Section 2(1)(a) of AC 1996

^[5] Section 6 of AC 1996

^[6] Section 2(1)(ca) of the

^[7] Explanation (iii) to Section 31 A (1)AC 1996

^[8] Introduction to International Commercial Arbitration, (2014), CIArb Work book

^[9] Act No. 33 of 2019 (2019 Amendment to AC 1996)

^[10] Section 45 I, inserted by Act No. 33 of 2019 (2019 Amendment to AC 1996)

^[11] Section 11(3A),inserted by Act No. 33 of 2019 (2019 Amendment to AC 1996)

^[12] Part IA, Arbitration Council of India, inserted by Act No. 33 of 2019 (2019 Amendment to AC 1996)

^[13] Section 43D(2) inserted by Act No. 33 of 2019 (2019 Amendment to AC 1996)

^[14] Section 43I inserted by Act No. 33 of 2019 (2019 Amendment to AC 1996)

^[15] Section 43J inserted by Act No. 33 of 2019 (2019 Amendment to AC 1996)

^[16] Section 43K inserted by Act No. 33 of 2019 (2019 Amendment to AC 1996)

^[17] New Delhi International Arbitration Centre Act 2019

^[18] mcia.org.in

^[19] www.nparbitration.com/

^[20] www.siac.org.sg

^[21] https://www.siac.org.sg/model-clauses/the-singapore-arb-med-arb-clause

^[22] SIAC RULES (6^TH EDITION, 1 AUGUST 2016)

^[23] The UNCITRAL Arbitration Rules provide a comprehensive set of procedural rules upon which parties may agree for the conduct of arbitral proceedings arising out of their commercial relationship and are widely used in ad hoc arbitrations as well as administered arbitrations.

^[24] Rule 1.3 of the Arbitration Rules

^[25] Rule 41.2 SIAC Arbitration Rules

^[26] 41.2 SIAC Arbitration Rules