Audio transcript
Micheal: Good morning afternoon evening. Depending on where you are. Welcome to our latest Ashurst webinar which is entitled "From the Horse's Mouth: Panel Discussion with the SIAC on the new SIAC Rules". Hopefully that title tells you everything you need to know about today's session. We're very privileged to be joined by Vivek and Andres from the SIAC to discuss the latest iteration of their arbitration rules. I will give them the proper introduction they deserve in a minute. Before I do that let me quickly introduce the Ashurst side of the panel. In putting this together we were keen to have a panel that reflected the kind of international nature of the work the SIAC does and that we do. And so we're joined today by a selection of arbitration partners from around our network.
My name is Michael Weatherly I am an international arbitration partner based in Singapore but very much with a regional Asia Focus. I have a broad commercial practice, but do a lot of work in the energy and infrastructure space as well as in things like M&A dispute, shareholders disputes, JV disputes that kind of thing. And you won't be surprised to hear that many of those disputes are resolved by way of SIAC arbitration. So certainly this is a topic dear to my heart.
From Australia we're very fortunate to be joined by the head of our Australian arbitration practice Georgia Quick. Georgia has a wealth of international experience and focuses on large and complex arbitrations in the energy and infrastructure sector including a number of ongoing mandates under the SIAC Rules. Georgia also brings the unique perspective of being the immediate past president and long-serving board member of the Australian Centre for International Commercial Arbitration (ACICA), so I do expect Georgia to be putting Vivek and Andres through their paces from the institutional perspective.
Next from the Middle East we have Shane Jury. Shane's a partner in our Dubai office and he's been practicing in the Middle East for close to 13 years now. His practice spans litigation in the financial free zone courts in Dubai and Abu Dhabi and commercial arbitration under all major institutional rules. Shane's also an experienced arbitrator and a fellow of the Chartered Institute of Arbitrators.
And last but certainly not least is Emma Johnson a partner in our London office. Emma's practice focuses primarily on energy sector disputes things like gas and LNG supply and pricing disputes but also construction of oil and gas and renewable energy infrastructure. She's arbitrated under all the major institutional rules and is also a member of the ICC's Arbitration and ADR committee.
But to the stars of the show Vivek and Andres. Very honoured to have them to speak to our clients today and I think many of you will probably already know who they are.
Vivek is of course the registrar of the SIAC and he leads the SIAC secretariat. He has over 18 years' experience in international dispute resolution and arbitration and much of that was as a partner at a leading law firm in Singapore where he regularly acted as counsel on arbitrations under various rules. Considerable experience on all facets available arbitral procedure and particularly in respect of Singapore seated SIAC arbitrations. He has also acted as an arbitrator including interestingly as an emergency arbitrator. The other interesting thing is that Vivek, this is actually his second stint at the SIAC. Vivek was previously part of the SIAC's secretariat involved in the establishment of SIAC's first overseas office in Mumbai and he also spent time in private practice in India. The SIAC is definitely very lucky to have him back and as I was preparing this introduction I saw all his very glowing reviews in the directories. I won't mention those but what I will say about is a mutual contact of ours reached out upon seeing the webinar invite, and he said I quote, "Vivek is a great guy" which I think is the highest praise anyone can receive so maybe one to add to your CV. Then on to Andres is a deputy council at the SIAC secretariat and assists in case management of arbitrations administered under the SIAC Rules and of course the UNICTRAL rules prior to joining the SIAC Andres worked as a senior associate at a Ecuadorian law firm where he represented parties in Commercial and Investment arbitrations across a range of sectors. Interestingly Andres has been appointed also as an arbitral secretary in over 60 arbitration cases. He may or may not remember this given the number of cases he does but he also served as SIAC counsel and one of our previous very big billion dollar arbitrations so I can personally attest to his quality.
One word about the structure of today's sessions before we get started. We're going to have a panel discussion first. Followed by audience questions at the end. Feel free to type those questions into the Q&A function as we go and then I'll try and sift through and pick some for the final 10 minutes or so that we have. Okay with introductions and admin out the way I want to dive straight in and we have a really interesting audience today. I was going through the list of attendees and certainly a large degree of geographic diversity but also an interesting mix of professional backgrounds. Some I suspect with greater familiarity with the SIAC than others and on acknowledging that diversity I thought the audience might find it useful for back on Vivek/Andres for you to start with a bit of a reintroduction to the SIAC as well as a sense of how the SIAC is tracking. How many cases have been filed, where those cases come from, in what Industries, that kind of thing? You know a bit of scene setting to get started. Andres/Vivek can one of you help us out.
Andres: Thanks very much Michael for that kind introduction So first and foremost, I just want to thank Michael, Georgia, Emma, Shane and everyone for being here today for the invitation. We are delighted to be here to speak more about the SIAC and the SIAC Rules. So some of you as Michael mentioned might be familiar with us already but some of you might just be more familiar after today's session so I really hope that that you find this discussion very engaging.
So first I would like to reintroduce ourselves for those of you who know about us and for those of you who are not very familiar with us so you can learn a little bit more about us. So in order to understand SIAC present I think it's very important and helpful to briefly look into our past. So who are we: the SIAC is an independent non-for-profit Arbitration institution which we commenced operations in 1991 and we have spent over three decades administering arbitration cases conducted under the SIAC Rules and also under the UNCITRAL rules. I will dive deeper into the numbers later on in this presentation but in terms of the caseload as you can see from this slide we typically receive between 400 and 600 cases annually these are new cases and this is on top of our active caseload that goes between 800 to 1000 cases as you can see. It's a very active arbitration centre. One thing that I will like to highlight is that 90% of our cases are international in nature. This means that 90% of the cases that SIAC handles they are international or have an international component so some of these cases have not even a connection with Singapore or no relation with Singapore whatsoever, so it's a very interesting thing that a big number of our cases are international in nature. You will also see from this presentation later on how we receive cases from parties from all over the world. We have more than 100 jurisdictions that we are seeing cases with and I think that one of the reasons of why SIAC attracts such a global audience is because we have a proven record of enforcement. Our awards have been enforced in different jurisdictions and we are mindful that when you decide to choose arbitration to resolve the dispute at the end of the day what you want is to have an award that can be enforced across the world. And another thing that I think attracts so many users to the SIAC, it is a set of Rules that we have decided. Why because these are a set of Rules that are built for efficiency. We understand that for clients and parties time and cost are key and that's why in our Rules we have different tools that save the parties time and save the parties cost. But not only that, these are flexible rules that can be used by parties from different jurisdictions different legal traditions and here I speak from experience. I come from Latin America and I see different parties using the SIAC service even in disputes between a civil law party and a common law party and this is how our Rules are so clear and flexible and helpful for the parties. That real helps them navigate the arbitration proceedings very smoothly.
Now as I mentioned we are an international arbitration institution that operates across the world. In this screen, you will see the different offices that we have across Asia and beyond. Our most recent office was opened in New York and this allows us to serve our clients in the Americas and also stay engaged in the development of that region. You will see from this slide that we also we also have different offices in India, China, Korea and of course the headquarters where Vivek and I sit. That's in Singapore and these different offices allow us to support parties and tribunals across different time zones. So, I think the message is wherever you are in the world we are here to support you and we are here to support your need for an effective dispute resolution process.
Now let's go to the numbers as Michael mentioned in the beginning. So these are the cases filed in 2024. This comes from an annual report that you can find available on line and you can see that we have seen steady growth. In 1994 we handled just 34 new cases. So fast forward to 2024 and that number has grown to 625 cases, so 625 cases and this is a testament of the user's trust in our institution and in our services. You will see also from this slide that it's not only about quantity, it's also about scale. In 2024 alone the total sum in dispute for new case filings reached 11.86 billion USD and the highest amount in a single case was 2.58 billion USD and the average amount across all filings was 31.55 million USD. I must say that while these numbers certainly reflect the high stake of the cases that we see at the institution I think that it's also important to emphasise that at the SIAC every single case matters and what I mean by this is that whether it's a claim that involves 10 billion dollars or a case or a claim that involves 10,000 dollars our approach at the institution remains the same because we believe that every case is important and demands the same level of attention because we know that behind every case there are real parties, real consequences and most importantly the real need for an effective dispute resolution service.
So now that you have seen the cases that we received last year and the amounts in dispute I want to show you that top 10 users so these in this slide you will see our top 10 foreign users. Typically China, India, and the US are in the top three but you can see from this slide we saw a peak on South Korean cases last year we also see cases coming from Australia from UAE from UK, Japan and Europe so these are our top 10 foreign users are we seeing at the SIAC. Now again, these are our foreign users but you can also see that we see users from over 100 jurisdictions. Over the last five years these users come from all over the world, different legal traditions, different languages so as you can the SIAC can administer cases in different languages, in civil law, in common law, different applicable laws, we have the experience and this is part of our practice as well. So this slide just shows how international we are and how international the composition of the SIAC Court, SIAC secretariat and all of our staff.
Now on this slide I just want to show you briefly the types of disputes that we saw in 2024. Here you can see that trade is a big part of the disputes, commercial disputes. We also have construction, maritime, corporate, disputes all of these encapsulate the type of disputes that we see here and you see that 18% over there that says 'others' which I really think that the name doesn't do it much justice because it's one of my favourite categories. Why, because under 'others' you can see many different interesting cases such as cryptocurrency, blockchain, sports related arbitration, a lot of different new types of disputes that we are seeing in contemporary arbitration cases are all under those categories, so as you can see the types of dispute is also very diverse which responds logically to the international nature of our users. Now these are the applications under the SIAC Rules, the number of applications that we have received. I won't stop here explaining each one of these applications because I know that we will discuss these in detail later on but I just want you to see the different applications that we have received and how popular are the mechanisms in our Rules. This is a testament that parties are comfortable with the mechanisms that our Rules provide.
Now the SIAC Rules 2025. As you know 2025 is a very important year for SIAC because the seventh edition of the SIAC Rules came into force on the 1st January so we are very happy to show the new SIAC Rules. Because in these new Rules what we have implemented are new mechanisms. We have kept the mechanisms that the parties are happy with that we know that they work that have been tested already but we have also included new mechanisms. Why, because we really want to maximise your experience with us. We want SIAC to be where the world arbitrates and when you choose to arbitrate with us you know that you'll have an efficient and an expedited way of resolving your dispute and you can save time and cost as well. So these are the different tools that we have under the new Rules and I think that really the purpose of these Rules. And we launched these Rules in the institution with a view on preserving these principles. So fairness, of course every party is to be treated with equal efficiency, streamlining the proceedings without sacrificing quality meaning less delay, saving time and saving costs and enforceability we know that at the end of the day a well-reasoned award only matters if it can be enforced across jurisdictions and this is why our rules are designed with enforceability in mind.
And last but not least as I mentioned we are very international institution. We see cases seated all over the world but still we see that a lot of parties are choosing Singapore as a seat even if those parties have no relation to Singapore and this is why Singapore has become today one of the most preferable arbitration seats in the world and I'll just briefly comment that if you decide to choose Singapore as a seat what you can get is a place a seat that has a progressive pro-arbitration legislation. Which implements quick reforms to support the practice of arbitration. You have an experienced and supportive judiciary, the courts really respect the autonomy of the arbitral proceedings and uphold arbitral awards. You have a neutral politically stable and an independent place that all of those are very important factors when you are choosing a seat. And last but not least you have a very robust dispute resolution ecosystem: different arbitral institutions, practitioners, law firms and so on. All these factors make Singapore and SIAC not just a convenient place but really a strategic choice when you are choosing international arbitration. And with this I'll just give back to you Michael. Thank you.
Georgia: Actually I think I might jump in with the first question before we get started on the substantive panel discussion. Some really impressive statistics on the number of users and the various countries that they come from. You touched on the issue of seat and certainly we see when we are reviewing arbitration clauses from our front end colleagues all sorts of combinations of institutional rules and seats, although some clients may not be as aware that they can select seats and institutions that are. out of the name of the institution for example but you touched on seats outside of Singapore are you able to tell us the extent to which how many arbitrations are being conducted with other seats and if there's any trends or patterns that you're noticing on that front?
Vivek: Perhaps I can take that, thanks Michael for the kind introduction earlier.
In terms of the seats of course, I must say that you know a predominant number of cases at the SIAC are seated in Singapore and that is understandable because Singapore enjoys a greater reputation as an arbitral seat for the reasons that Andres mentioned. But having said that, since 2016 when the previous version of the rules were introduced at the SIAC the concept of a default seat in the SIAC Rules was done away with so before that, if there was no seat specified in the arbitration agreement Singapore functioned as the default seat under the SIAC Rules. But from 2016 onwards and as is the case with the 2025 Rules. So if parties don't specify the tribunal determines the seat and the tribunal is free to determine the seat and in the arbitration agreement of course parties can choose any seat that they are comfortable with. So we have seen arbitrations seated in several different places including the UK, France, Dubai, India, Malaysia, Indonesia, Philippines, Australia for that matter, New York. So there is there is I think a number of cases that are seated all over the world but I would still say that as I said earlier the predominant choice of seat in SIAC arbitration continues to be Singapore and I think for good reason perhaps.
Georgia: Thank you.
Michael: That's interesting. It's an interesting set of stats and I didn't appreciate that the number of wide varieties other seats that have featured with SIAC Rules and I think one thing that Andres spoke to earlier was that quite the diversity of people you have on your secretariat which I guess also chimes with that because you've got people from different jurisdictions who presumably have experience in those various other seats.
Vivek: Absolutely and I mean just to that point for instance in the SIAC secretariat and while we are a group of 17 lawyers that manage and administer the cases only two of us are from Singapore and you know the remaining 15 lawyers are from around the world and that is in fact I would say responding very much to the diversity of the user base that you saw just now on the slides. Parties from over a hundred different jurisdictions, last year in 2024 we had the greatest diversity for a single year where we had users from about 75 different countries in arbitrations at SIAC so I think the composition of the secretariat and the team and similarly the Court of Arbitration, which is the body that ultimately oversees a number of functions under the Rules in respect of case management, reflects that diversity of nationality.
Michael: Interesting. Look we're here for the new SIAC Rules, so let's dive into that in a bit more detail and Andres has kindly set the scene for those and one of the things he outlined earlier, one of the key objectives was efficiency. And I think users of arbitration rightly protest against the sometimes exceptional time and costs involved in arbitration and even for small value claims. Certainly I've seen parties abandon small value claims because the effort/reward ratio just isn't worth it. You know unless they have a portfolio of claims that they can take to a funder which we have helped clients with from time to time. Often they're just walking away and leaving the money on the table. But I think enter the streamlined procedure in the 2025 SIAC Rules. Which in essence, it's a three-month, documents only arbitration, capped tribunal and SIAC costs, and is intended to apply where the parties agree or where the amount in dispute is less than a million Singapore Dollars. You know something as quite certainly new to the SIAC Rules in terms of how quick that is and the value threshold is interesting and of course value isn't everything and you know we are quite often advising clients on disputes that may on their face be low value, but which are exceptionally complex or have very important precedential value. For example we might just be seeking declaratory relief about the proper interpretation of a provision say in the long term supply agreement. To use a something that's quite on point now does this change in law clause or does this force majeure clause respond to tariffs. What I am quite interested to know what happens with those kind of cases. Where they might be below the applicable threshold, but they're complex or there are otherwise significant. Do they, will they run under this procedure or do you think these kind of cases will be filtered out of the process at the discretion of the SIAC.
Andres: Thank you Michael. Well the streamlined procedure is actually one of our new tools as you mention so technically every case that falls below the monetary threshold of one million Singapore Dollars automatically goes to streamlined procedure. That's one option, the other one is that if the parties agree as you mentioned so it's very interesting what you pointed out because that's true. I mean the amount in dispute sometimes can be misleading you can have a case that say it's 50,000 dollars right, which seems a modest amount in dispute, but then the case is very complex and the parties might require the full hearing and document production etc. So what happens in this case is say Party A commences this arbitration against Party B and then this will automatically go to streamlined procedure, but then Party B can make an application before the President to object the application of the streamlined procedure. Basically Party B is alleging that there are different circumstances in this case despite the modest amount in dispute that really require the parties to have the entire tools: the document production, the full hearing etc. And then what happens is the President then takes into consideration the views of these parties and then she decides on whether this case is suitable or not for streamlined procedures. So in summary: it does apply automatically but this does not mean that the parties cannot provide submissions for the President to consider. Same thing if the parties are seeking non-monetary relief. So typically what happens in those cases: the institution still asks the parties to provide for a provisional quantification of the claims or counterclaims. The reason for this is so we can estimate the cost of arbitration and call for deposits and then if the parties are not able to do so then the Registrar makes a provisional determination on the cost of arbitration. But it's important to take into consideration that of course if one of the parties is opposing or simply saying in this case in particular streamlined procedure, it's not suitable for these reasons, the reasons of both parties will be taken into consideration by the President to decide on whether streamlined procedure is suitable or not. At the end of the day we want to provide a tool to make the arbitration more expeditious but never at the sacrifice of having fair proceedings for the parties. So I will say that's the purpose of the streamlined procedure and how we will operate in those cases.
Michael: Thank you.
Georgia: There's another aspect when there's a monetary amount. We see often when there are monetary thresholds there is an opportunity for parties possibly to 'game' that threshold and quite often and you've already touched on this there'll be differing views on whether a streamlined process is appropriate and although the cliche might be that it's the respondent that might not want the streamlined process equally it might be the claimant who feels it needs the fulsome one so you can't really tell which it will be. I guess the fact that fees are pegged against the monetary amount often makes sure people don't just put sort of large sums in to avoid them, but I just wonder if you will in any way scrutinise those sort of monetary estimates that have been given, if that's something that you would actually look into.
Vivek: So, I think the short answer is no we don't assess or scrutinise the monetary claim or counterclaim that is put forward by a party. And simply for the reason that you say and as I'm sure all of you would have seen from your experiences with SIAC cases, we provide an estimate of the cost of arbitration at the outset of the arbitration based on the claim and counterclaim amounts which is based on a sliding scale which is based on the SIAC schedule of fees and then parties are asked to pay the deposit towards that estimated cost of arbitration. So in very simple terms you kind of have to put your money where your mouth is, so if a party is putting forward the claim it is called to pay deposits on that claim. So to answer your question, yes, it is potentially possible for a respondent perhaps to 'game it' where they can look to avoid the streamlined procedure by putting in a counterclaim which takes the threshold above a million but I think we are as an institution happy to live with that possibility and the reason I say that is because in our conception this streamlined procedure is a markedly different procedure from even the expedited procedure that we've had on the rule books now for over 15 years (which is also a fast track six months procedure) and the reason is that as Andres said many of the steps and the process of international arbitration as we've come to understand it, we feel may not be necessary in those low value, low complexity disputes and the procedure sets out those default positions whereby the Rules say you will not have document production and you will not have fact witness evidence and you don't need expert reports and you don't need a hearing where the value is low and the complexity is low. And that is the default position that the streamlined procedure provides for. The expedited procedure doesn't contain those kinds of prescriptions on what the procedure should entail so for us the fact that the streamlined procedure is so different means that we don't mind that only the cases that are truly low value and low complexity go on to the streamlined procedure and more importantly like Michael said, cases where parties would hesitate to bring their claim, to then be brought to arbitration by what you have in the streamlined procedure and that in itself is an advantage of having such a process so it's a long way of answering your question that if respondent chooses to take it out of that ambit, then so be it. But they will have to pay I think costs on that basis, then there are those consequences to be mindful of.
Georgia: Yeah, that was an excellent answer. It is a tension we have seen at ACICA sometimes with quite small sums of money and you would hope the parties would be pragmatic and you could keep those matters in expedited processes. But even you know our sense of what's small and big is different I guess to some of the parties and you know sometimes they fight quite hard for what are smaller matters and so the claimant you know will be frustrated that it didn't get to have its expedited process. Hopefully in your instance it will stay at least in your expedited if not your streamlined process.
Vivek: Yes, yes.
Michael: And speaking of the expedited procedure as you mentioned Vivek, that has been around since 2010 and it's kind of the next stage up: slightly high value, six month process from tribunal constitution to award and you know it used to have that, 'if parties agree', there was a value threshold, but there was also an option for using the expedited procedure in cases of "exceptional urgency" and those first two options are still there (although the value thresholds have changed a bit) but I know that the exceptional urgency limb has been replaced with I think the phrase is "circumstances that warrant it's application". I want to get a sense of the thinking behind that change - is that a lower threshold? What's the practical difference between those standards?
Vivek: Sure. The expedited procedure again Michael as you would be well aware operates slightly differently from the streamlined procedure where a party can apply to the SIAC for the case to be run expedited and it can do so as you said when any of those three criteria are met. That is: if the parties agree, if the sum in dispute is now between 1 million and 10 million (that's because if it's less than 1 million then it's streamlined procedure that applies). And the third is the kind of broader category that: circumstances warrant it's application. Now the reason for the change of course from the 2016 rules is because the previous criteria, which was "exceptional urgency", was rarely used in cases and it is understandable because if there was truly urgency in the form of relief that a party wanted then perhaps the appropriate procedure for him to use is the emergency arbitrator mechanism where you can get interim relief in a matter of 14 days. So it was a very small minority of cases that parties applied under the third ground, and in our own assessment of expedited procedure applications the assessment really was the suitability of the case to the procedure and the timeline of six months. An assessment on whether the issues in dispute in a particular case are of the nature, of complexity, that would allow a tribunal to reasonably complete a case in that six month timeframe which was perhaps the genesis of the criteria as you see it now which is that the "circumstances warrant its application" which is a slightly broader manner of, I think, putting down our own assessment of when a case is suitable for the expedited procedure which is what part of the change from the 2016 rules, which in fact reflected the previous wording from 2010 onwards, so this is I think, as with many of the tweaks in the 2025 Rules, a tweak that really reflects our own experience I think across a thousand expedited procedure applications that we've dealt with in the last 15 years.
Michael: I certainly can't think of a time we have used the exceptional urgency limb and we thought about it in those terms: did the circumstances of this particular case warrant an application or not, so I think it's a good clarification. I'm conscious I'm speaking a lot but I do have one more question about efficiency. Which is Rule 46 allowing preliminary determinations of issues: something that we routinely employ in our cases and, I think, kind of well acknowledged to be within a tribunal's inherent power anyway but I think it'd be helpful if one of you can explain to the audience what type of circumstances might warrant the use of the preliminary determination procedure and how does it differ from the early dismissal process which was introduced in your last set of Rules?
Andres: Thanks, Michael. Maybe I'll just explain this briefly: so these two mechanisms are different. In the preliminary determination the parties either they are agreeing to have the issue resolved on a preliminary basis or the other option is the applicant is essentially asking the tribunal to solve or to make a preliminary determination on the issue. And it's basically saying that if this issue is preliminary decided this will help parties to save time and cost and result in a more expeditious arbitration. So you were mentioning what type of issues could fall under this category and in my mind there are plenty of different examples: so say for instance you have a contractual interpretation issue, that if this contractual interpretation is decided in one way maybe this could narrow down the scope of the dispute, another example could be, say a clause in a contract that precludes liability, or any different questions or contractual interpretations that could actually make the parties or help the parties either narrow the dispute or actually even encourage settlement of some parts of the disputes as well. So this is when preliminary determination comes into place. You were also right in mentioning that this is essentially an inherited power of the tribunals, the tribunal did have this power before but the reason for qualifying this into our Rules is because once the tribunal sees that this is a part of the SIAC provisions they are also in a way more comfortable with using this and actually deciding many of these issues on a preliminary basis which helps the parties to save time and cost. In the examples that I was giving if there's a contractual interpretation that could be decided early on this actually saves the parties the time of going through the entire arbitration until the end and then potentially incurring more time and cost. The difference with early dismissal is that it applies for an early dismissal of a claim or a defence in two circumstances. So the first one is if it's "manifestly without legal merit". That's one and the other circumstance is if it's "manifestly outside the tribunal's jurisdiction", so say you have a claim that does not fall within the scope of the arbitration agreement. An important aspect for the case of early dismissal is the standard. So the standard that is used is the 'manifest' standard, and we have seen across different cases how tribunals have interpreted it. This is a standard and typically 'manifest' means something is evident, it doesn't need substantive proof or evidence or submissions from the parties. It has a clear cut case, something very evident, something very clear for the tribunal.
So the standard is different in both cases, the purpose is different in both cases. And both are used for different situations and I think the similarities that they both share is a little bit of the process: first you make the application and then if the tribunal decides that these applications shall proceed then they invite the parties, they hear the parties and in the first case of preliminary determination they issue a decision in 90 days, early dismissal 45 days. So those processes are quite similar but then the purpose, what they are trying to approach, is different in both cases.
Michael: Both useful tools I think and very much I suspect for preliminary determinations there will be many more of those applications than early dismissal given that very high 'manifest' threshold that you mentioned. Okay well, thank you, on efficiency I've got no more questions so I'll pass the floor.
Emma: One question from me which is around coordinated proceedings and the new rules there which allow for two or more arbitrations where you've got the same tribunal constituted to be coordinated. There has to also, as I understand it, be a common question of law or fact. Now I can see that that provision is also driving at efficiency and perhaps also ensuring consistency in terms of outcomes in similar cases. The rules talk about there being scope to co-ordinate so that proceedings are conducted either concurrently or sequentially, or so that the arbitrations are herd together and or in some other way, procedurally aligned or for one or more arbitration to be suspended pending determination in the related proceedings. From my perspective whilst there is scope for consolidation and joinder under the LCIA Rules and the ICC Rules there's no real equivalent provision around coordination so I wondered if you could just talk us through exactly what this process would involve.
Vivek: Sure Emma. Thank you as you rightly observed, for situations where there are multiple contracts and multiple parties, which is very much I think the commercial reality of how transactions are structured today in different industries, we of course had the provisions for consolidation and for joinder the since 2016 Rules and I dare say the consolidation provisions in the SIAC Rules are fairly broad in terms of the situation in which you can apply to bring together multiple arbitrations into a single arbitration. But they operate on the basis of certain criteria, including the fact that the arbitration agreements must be compatible and you must be able to establish that they come from the same series of transactions or a single transaction, or the parties have the same legal relationship across the contracts. But there are a number of cases where consolidation is not appropriate because those criteria are not met and our own statistics which Andres shared a few moments ago will show that on average about 30 to 40% of consolidation applications get rejected for a variety of reasons, whether it's by the SIAC Court or whether it's by tribunals considering those applications. It is to fill that procedural gap really that the revision for coordinated proceedings was introduced in the 2025 Rules: where you do have multiple arbitrations, many of them with the same tribunal that is appointed but you can't legally under the Rules consolidate them into a single arbitration and there may be issues as you said of common questions of law and fact. And for parties to have the ability to then apply to a tribunal, to say you must procedurally align these arbitrations in a way that will achieve efficiency for the parties. So as you said the Rules set out all of the various options that the tribunal can consider: suspending one in favour of the other, or making other orders that parties may seek. The Rules make it quite clear that you have to obtain the views of all of the parties in the multiple arbitrations before you make an order.
Now one key consideration of course in all of this is how does that actually play out across multiple arbitrations when you have multiple parties. From our perspective, as with I think many of the provisions that we've spoken about and you would have seen, these are various tools in the shed ultimately for parties and tribunals to deploy as appropriate to achieve cost and time efficiency so it may not be that in all cases where consolidation is not granted you would automatically default to the coordinated proceedings provision. It's not necessary. But there is a small category of cases perhaps where something like this can be helpful for parties to then be able to say this is a mechanism or this is a route you should be considering because that is to the benefit of everyone that is involved in this dispute albeit across multiple proceedings.
Emma: Thanks, so that's really helpful and I can see what you're saying that it's not a given that you get to a coordinated proceeding and I suppose that this requirement for the same tribunal to have been constituted in the different arbitrations imposes an additional hurdle. But I guess in theory what this means is that there's scope to have arbitrations between different parties coordinated and my question would be in those circumstances, would the power be limited to the proceedings being held separately albeit close together in time and is there anything else that would be done to maintain confidentiality and privacy in those circumstances where you've got different parties involved in the different disputes.
Vivek: Yes, that's a key consideration and something that the rules specifically allude to is the obligation for confidentiality. And more specifically for the tribunal to ensure that it is mindful of the fact that the arbitrations remain separate and there are continuing obligations of confidentiality for the parties and for the tribunal in respect of each of the separate proceedings. So how we envisage it perhaps playing out is for a tribunal to then issue a procedural order of sorts which allows coordination across the proceedings but that would then provide for obligations of confidentiality or exceptions to those as the parties may require for any kind of cross-pollination of information across the arbitrations. The tribunal would have to ensure that it is taking all of the views of the parties into account in allowing any such cross-pollination of information, so which is why the Rules expressly say that you need to be mindful of the obligation of confidentiality and the SIAC Rules do have fairly robust provisions on confidentiality so in considering any such coordination that's an important. We will of course have to consider how tribunals deal with this, and what parties throw at them in terms of the options available for coordination. And that should be I think interesting to observe as we see the Rules being implemented in the cases in 2025.
Emma: Thanks Vivek.
Shane: On the topic of different procedural tools in the shed maybe we could switch gears and talk a little bit about interim relief. I think it's really one of the most innovative and exciting features of the SIAC 2025 Rules that an emergency arbitrator is empowered in certain circumstances to grant interim relief without notice to a respondent in the form of a Protective Preliminary Order. Now that's obviously quite a unique feature as far as institutional rules go, we don't see that in the ICC or LCIA rules. A bit closer to home there is an equivalent in the Dubai International Arbitration Centre Rules which was introduced recently (I would add not without some controversy around the enforcement mechanics around those orders). I'd be curious about two things: firstly, is the intention of this rule to try and encourage parties to remain within the confines of arbitration? And secondly, assuming all goes well and a party gets their Protective Preliminary Order, how would they go about enforcing that in Singapore to make sure that it remains effective?
Andres: Thank you Shane. l will just respond to this one quite briefly but it's certainly one of the most interesting provisions in the new Rules. We introduced the emergency arbitration in 2010 but in our previous editions of the Rules we did not have this Preliminary Protective Order - or PPO - so this is the first time that we have included this provision. First yes, it is still SIAC's intention to maintain everything within the confines of arbitration and here I would like to clarify it's not that the entire emergency arbitration proceedings are going to be conducted ex parte, no actually what happens is a party may file an application for emergency arbitration alongside an application for a PPO. This filing could be made ex parte. Then if the President of the SIAC decides that the application shall proceed she will appoint an emergency arbitrator in 24 hours and then this emergency arbitrator will consider the application for the PPO and then issue its decision. This decision is without notifying the other party at first as this emergency arbitrator considers the application. But once the decision is that the PPO is issued, the SIAC Secretariat notifies the decision to all the parties involved. And then all the parties involved have the chance to participate in the emergency arbitration proceedings and then these proceedings, as you know from the SIAC Rules have a timeline of 14 days. So it's only the Preliminary Protective Order that is done on an ex parte basis. Why, because the intention of this is that in certain cases the notification to the other party in this early stage might actually frustrate the relief that the claimant is seeking but it's only for a determined period of time and it's only for that objective, within the confines of the emergency arbitration proceedings. So the respondent and the other parties will have all the opportunities to present their case during the emergency arbitration proceedings and so on.
That's one part, the second part is when it comes when it comes to enforcement. Preliminary Protective Orders: we do not see that they will have or they should have a different treatment to other emergency arbitration awards or emergency arbitration orders that are issued by emergency arbitrators in the context of EA proceedings. So yes, there could always be the risk of a respondent not complying with the PPO but that's the same risk that could happen with a respondent who does not comply with any other EA order or award and decides to dissipate assets anyway. But it is the party against whom the PPO or EA award is issued that typically tends to comply with it because of the potential consequence that this non-compliance may have once you have the main tribunal constituted. So, I think that speaks a little bit about the enforcement of the PPO and actually how this provision was designed in the Rules. It's just for this initial part of the EA proceedings but after that the entire EA proceedings are conducted with all the parties involved of course and the respondent of course will have all the opportunities to present fully their case and you will see, and I know that we don't have that much time, but you will see from the provisions in the Rules that there is the entire procedure: the Secretariat follows after the PPO is issued with the notification to the other party, then the claimant has to serve all the documents to the other party as well, so there's an entire procedure that is followed just to ensure that all the parties involved are properly notified.
Shane: Thanks Andres, it's a really interesting procedure and one that I'm sure will garner a lot of interest from the legal community. The discussion about emergency arbitrators brings to mind a case I handled recently which was a London seated arbitration and the procedural rules in that case allowed for the appointment of an emergency arbitrator. We needed to apply pretty urgently to prevent the issuance of warrant shares by a Cayman Islands company over a BVI fund. The question in that case arose: do we need to use the emergency arbitrator provision given that it's there or can we go directly to the BVI or Cayman Islands courts given that that would have immediate effect on the counterparties. And so my question for you with that example in mind is do these amendments leave any room for the national courts to assist or are they intended to be the exclusive remedy for a party seeking emergency relief?
Vivek: Thanks Shane. I think this question has been relevant at least in SIAC arbitration for the last 15 years and I'm sure all of you have probably been asked this question by your clients in many different situations, of whether it is better to go to a national court or whether to go through the emergency arbitrator process. I think the answer is 'horses for courses' and it depends very much on the nature of the relief that you're seeking, the urgency, who the respondent is, where the respondent is based and multiple other factors. I think one key consideration that does crop up from our users as we understand it is the need for confidentiality because you don't necessarily want to have your fight for interim relief flashed across tomorrow's newspapers if you go to a national court. And it can also then depend on the law that applies in that particular jurisdiction where interim relief may be sought from a national court. Some jurisdictions don't have a mechanism for seeking such relief from a national court while others may be more permissive. Some may say for instance that if you have a remedy in arbitration then the courts can't really exercise that jurisdiction to grant interim relief whereas others may not. So, I think it does depend on an analysis of all of these factors but I would just say two things. In respect of the benefit perhaps of going to the emergency arbitration process is one, any emergency arbitrator in SIAC case is going to consider submissions from the parties and more likely than not conduct a hearing even if that's a video conference hearing resulting in an order or award which is fairly detailed and reasoned and which has significant benefit for parties and understanding even if on a prima face basis their position in respect of the claims of the breaches that they allege and that has quite a bit of benefit on its own. And secondly, that decision then remains in the arbitration for the main tribunal to be constituted to consider and very often tribunals are asked to reconsider any interim relief that has been granted by an emergency arbitrator which can then inform although not necessarily prejudge the merits of the case but inform the main tribunal of you know where the parties stood. And that has some benefit as opposed to a national court, where you may be in some situations able to get quickly but not necessarily a reasoned decision on the request for interim relief itself, so I think it can in short depend on the analysis of each factor but by no means I think changes that paradigm in terms of which forum to approach for a general relief?
Shane: Thanks, that's really interesting and you know 'context is always King' I think is the fair point there.
Emma: Just one other question from me and on a slightly different topic. Awards - the new Rules impose a 90 day limits for Awards to be submitted by the tribunal to the SIAC. And I think while my experience has been that there are similar time limits under other rules those limits are regularly extended by other institutions and tribunals often seek those extensions. As recently as last week I had tried to agree a deadline with a tribunal and had pushback on that so I guess my question is, how do you envisage this new 90-day limit being enforced? And will extension to that be possible or are you going to try to quite strictly curtail the scope for that 90 day period to be extended?
Vivek: This is again a new provision in the 2025 Rules. It was structured previously where the relevant timeline ran from the closing of the proceedings and it's not uncommon as I'm sure many of you have experienced for tribunals to time the closure of proceedings to when they're ready to submit a draft award to the institution for scrutiny. So this new provision is linked to the last submission made by the parties which is in one sense one may say not entirely within the control of the tribunal although it is to some measure in terms of the timetable and so on. For us as an institution, I think the Secretariat has always chased tribunals and is keeping a tab on the progress of proceedings because I think we recognise that we are the conduit between parties and tribunals and it is very much within our remit to ensure that there is progress in the proceedings. One manner in which this is reflected amongst others is how we determine costs and how we determine the fees that are payable to a tribunal at the end of the process and the efficiency in the conduct of the proceedings are very much a factor that go to determine how much a tribunal should be paid. When tribunals are efficient I think we want to reward them and where tribunals are inefficient there is some level of penalisation. So, there are, I think, checks and balances to ensure that we can keep to the intention behind this provision which is the 90 days limit from the last submission, apart from of course following up with tribunal to ensure that they are keeping to those time limits.
Emma: Thanks, that's great to hear.
Michael: We are very much out of time and actually there were there were no questions from the audience. Clearly all the right questions are asked and all the right answers were given so I guess that just leaves me to say thank you very much to Vivek and Andres for giving up their valuable time today, giving excellent answers to our burning questions on the new SIAC Rules and to thank all of you our audience for spending your time with us - we hope you found it valuable. And of course if there are any questions after this, please feel free to reach out to any of us. But thank you again and bye for now.
