24 January 2018
A Three-Part Workshop: “Arbitration at the SIAC: The Inside Track”

Workshop 1: The SIAC Court and the SIAC Secretariat

Kicking off a new three-part series of workshops co-organised by the Singapore International Arbitration Centre (SIAC) and the Chartered Institute of Arbitrators, Singapore (CIArb, Singapore), the first session of “Arbitration at the SIAC: The Inside Track”, was held on 24 January 2018.

Eager to gain a glimpse behind the proverbial curtain at SIAC, a packed crowd comprising both young and experienced practitioners, in-house counsel and arbitrators came to hear Mr Gary Born (President, SIAC Court of Arbitration; Chair, International Arbitration Practice Group, Wilmer Cutler Pickering Hale and Dorr LLP), Mr Kevin Nash (Deputy Registrar & Centre Director, SIAC), Ms Aliona Bitkivskaja (Associate Counsel, SIAC), Mr Christopher Bloch (Associate Counsel, SIAC), and moderator Mr Timothy Cooke (Partner, Stephenson Harwood LLP), expound on the roles and interplay between the SIAC Court and the SIAC Secretariat.

With Mr Born present to weigh in on how the President and the SIAC Court dealt with some of the applications filed by parties under the SIAC Rules 2016, including applications for emergency arbitration, Expedited Procedure, consolidation and joinder, and prima facie decisions on jurisdiction, participants were able to gain valuable insights on how to develop an effective case strategy in cases administered under the SIAC Rules.

In terms of procedure, Mr Born noted that the President and the SIAC Court would look to the Secretariat to brief them on the facts, procedural complexities and competing arguments for each case. This briefing allowed the President and the Court Members to perform a detailed analysis of the merits of each application in complex cases where time was often of the essence. For efficiency, many of these applications to the SIAC Court were handled by a three-member ‘Committee’ of the SIAC Court.

Unsurprisingly, one of the hottest topics raised by the audience related to various provisions in the SIAC Rules concerned with speed and costs, showing that this remained an important factor for parties.

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Members of the audience

Left to Right: Gary Born, Christopher Bloch, Timothy Cooke, Aliona Bitkivskaja and Kevin Nash

The first of these topics to be addressed was the revision to the emergency arbitration provisions in the SIAC Rules 2016 – namely the switch to a flat fee for emergency arbitrators (revised from the prior ad valorem scale where emergency arbitrators’ fees were capped at 20% of a sole arbitrator’s fee cap under the SIAC Rules 2013). Mr Nash noted that SIAC had seen this as an important change, noting that “there has been an uptick in the number of EA applications coming in since the amendment, presumably because of the greater predictability and cost savings with the new fixed fee”.

Mr Bloch noted anecdotally that “parties often file their emergency arbitrations just before close of business on either a Friday night or eve of a public holiday – clearly a strategic decision on their part – but with our tight timelines, SIAC [would] get the emergency arbitrator appointed and underway, whether that [meant] being in the office on Saturday or over Chinese New Year”. The pro tip received: Give SIAC an indication that you would be preparing to file an emergency arbitration so that the internal processes can be begun to ensure the quickest turnaround possible.

Another “special procedure” which received much attention for its time and cost saving potential was SIAC’s Expedited Procedure, which allowed for a dispute to be heard, from constitution of the tribunal to final award, within 6 months. In response to questions on timelines, the Secretariat confirmed that the overwhelming majority of tribunals were able to meet the deadline. Mr Born explained that this may be due to the robust approach adopted by SIAC in consideration of these applications. For instance, even if an application for Expedited Procedure met any of the threshold criterion under Rule 5.1 of the SIAC Rules, the President maintained the discretion to reject the application where the surrounding circumstances suggested that the regular procedure should be maintained. In 2017, SIAC received 107 applications for Expedited Procedure, and of those, 55 have been accepted, a 51% acceptance rate.

As the discussion moved to the finer points of the Expedited Procedure, the panel received a comment on the possibility of SIAC affirmatively taking into account the efficiency with which an arbitrator dealt with a dispute when determining the costs of the arbitration, noting that sometimes it was substantially more difficult for an arbitrator to hear a case on a short timeframe and issue a quick award. The question then followed as to “whether an arbitrator should be paid more for efficient handling of an Expedited Procedure case?” Upon a straw poll being conducted by Mr Born on the spot, the crowd seemed split, but the majority were receptive to this proposal.

In addition to questions on these special procedures, there was significant interest from the audience on the general financial management of arbitrations and remuneration of tribunals in SIAC-administered cases. When discussing the fee structure, Ms Bitkivskaja noted that the SIAC Rules 2016 provided for a default ad valorem fee scale which linked the fees to the amount in dispute, but also noted that parties were free to agree to alternative remuneration for arbitrators. She described one method of alternative remuneration that SIAC had encountered which she coined a “hybrid” system – where arbitrators were paid on an hourly basis, but their fees were capped based on the amount in dispute. In this regard, Ms Bitkivskaja explained that SIAC’s Schedule of Fees (and even such a hybrid system) gave parties visibility on the potential costs of arbitration, “allowing parties to control their financial exposure and budgets”.

As this was the opening salvo to the three-part series, the panel set the tone for the full and frank discussion of the SIAC Secretariat’s processes and procedures. Mr Cooke summarised that the participants had confirmed what he had previously suspected – namely, that there was an incredible amount of interest from the community in getting a look behind the curtain and gaining insight on how SIAC, and institutions generally, operate.
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