The Asia Pacific Arbitration Review 2008

Section 2: Country Overviews

Singapore

Justyn Jagger, Jeremy Choo, Jonathan Choo, Nicholas Narayanan, Chong Sim, Jeffrey Ong

DLA Piper and Nicholas & Co.

2007 was an exciting year for arbitration in Singapore. The city state achieved several milestones in further establishing itself as an international arbitration centre. These included, in chronological order:

  • the release of the Singapore International Arbitration Centre's Arbitration Rules, third edition;
  • the introduction of the Law Society Arbitration Scheme;
  • the announcement of the Singapore government's agreement with the Permanent Court of Arbitration to set up a regional facility in Singapore;
  • the hosting of the Meeting of the ICC's Commission on Arbitration and the International Bar Association Conference;
  • the opening of the International Centre for Dispute Resolution in Singapore; and
  • the announcement of liberalisation for foreign law firms practising in Singapore to conduct international arbitration work.

These recent developments, complemented by legislation that encourages international arbitration and an established policy of minimum judicial intervention, were introduced against the backdrop of several interesting decisions in the Singapore High Court and Court of Appeal. This article explores these developments and two of the more noteworthy judicial decisions.


Third edition of Arbitration Rules of the Singapore International Arbitration Centre (SIAC)

SIAC is an independent, non-profit organisation established in 1991 that administers arbitrations under its own rules and, where agreed between the parties, under the UNCITRAL Arbitration Rules.

On 1 July 2007, the third edition of SIAC's Arbitration Rules (2007 Rules) came into effect. The 2007 Rules govern both domestic and international arbitrations, which previously were governed by separate procedural rules, and this simplification is welcomed.

Some of the more pertinent 2007 Rules are outlined below. A copy of the 2007 Rules is available at www.siac.org.sg/rules-siac.htm. Rule 5 governs the appointment of an arbitrator. The starting point is that the number of arbitrators shall be one unless the parties have agreed otherwise or, in the absence of any agreement, the complexity, quantum or other relevant circumstances of the dispute warrant three arbitrators. Perhaps more significantly, and with a view to ensuring the quality and independence of the tribunal, an arbitrator must first be nominated by one of the parties or an arbitrator already appointed to determine the arbitration. That nomination must then be confirmed by the SIAC chairman before the nominated arbitrator can be appointed to the tribunal. The terms of appointment are then fixed by the SIAC registrar in accordance with the 2007 Rules and Practice Notes.

Rule 9 provides that the SIAC chairman, in confirming the nomination or appointment of an arbitrator, shall have regard to the qualifications required of the arbitrator by the agreement of the parties as well as to such considerations as are likely to secure the appointment of an independent and impartial arbitrator. Any circumstances likely to give rise to any justifiable doubts as to that impartiality or independence are to be disclosed to the party which nominates him or her and then to all parties after his or her appointment.

Rules 10 to 12 provide that an arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence. Any challenge must be made to the SIAC registrar (copied to the counterparty, the challenged arbitrator and the other tribunal members) within 14 days of the appointment or the circumstances that comprise the basis of the challenge becoming known. If the challenge is not accepted by the counter party or the arbitrator does not step down within seven days of the receipt of the notice of challenge then the SIAC chairman determines the challenge. There is no right of appeal against the chairman's decision. This avoids the potentially embarrassing position in which the tribunal is called upon to determine a challenge to the impartiality of one of its members and ensures that such challenges are dealt with expeditiously with minimum disruption to the proceedings.

Rule 17 introduces perhaps the most significant change: the introduction of the memorandum of issues. Within 45 days of the submission of the written statements, the tribunal, in consultation with the parties, shall define the issues which fall for determination by the tribunal in its award. The memorandum must be signed by the parties or approved by the SIAC registrar if one party refuses to sign. The introduction of the memorandum of issues at an early stage will no doubt assist in determining a sensible approach to the discovery process, particularly if addressed in conjunction with the IBA Rules on the Taking of Evidence in International Commercial Arbitration.

The importance of the identification of, and focus upon, the relevant issues that divide the parties is reflected in Rules 22 and 23 which govern factual and expert witness evidence. Following the introduction of the memorandum of issues, the tribunal may require any party to give notice of the identity of witnesses, the subject matter of their testimony and the relevance of that testimony to the issues in dispute (Rule 22.1). The tribunal may also, following consultation with the parties, appoint experts to report on specific issues (Rule 23.1.a). The direction of factual and expert evidence towards those issues identified in the memorandum will streamline the arbitration by, again, focusing the discovery and avoiding extensive factual and expert evidence on points which are, at best, described as peripheral.

Finally, all practitioners will no doubt welcome Rule 35.3, which neatly summarises the ultimate goal of every arbitration: In all matters not expressly provided for in these Rules, the Chairman, the Registrar and the Tribunal shall act in the spirit of these Rules and shall make every reasonable effort to ensure the fair, expeditious and economical conclusion of the arbitration and the enforceability of the award.


Law Society Arbitration Scheme (LSAS)

On 1 August 2007, the LSAS was launched. It is a dispute resolution scheme that was first conceived by the Law Society of Singapore in 2005. The LSAS has its own set of rules known as the LawSoc Arbitration Rules (the Rules) which may be obtained from the LSAS's website: www.lawsociety.org.sg/lsas/index.asp. It also has its own panel of arbitrators comprising experienced lawyers practicing in various areas of law. The list of the panel of arbitrators is also available on the Law Society's website.

The LSAS provides a quick and user-friendly system of arbitration to resolve disputes. The Rules are designed to be simple and flexible in order to dispose of a wide range of disputes expeditiously and in accordance with arbitration costs that are scaled and fixed by the Law Society of Singapore. The Rules encourage completion of the arbitration by publication of the award within 120 days (subject to adjustments by the arbitrator) from the commencement of arbitration. The Rules also offer conduct of the dispute on a 'documents-only' basis.


The Permanent Court of Arbitration Regional Facility

The Permanent Court of Arbitration (PCA) was established in 1899 at The Hague. The PCA provides modern rules of procedure which are based on the arbitration rules of the United Nations Commission on International Trade Law (UNCIT