COUNSEL, HEAD (NORTH EAST ASIA) · focus issues in dispute (SIAC Rules, Rule 16.3, 16.4) No duty of confidentiality specified in rules, but Tribunal may make orders to preserve confidentiality

JULIA YU COUNSEL, HEAD (NORTH EAST ASIA)

Agenda

I. Introduction to Singapore’s International Arbitration Framework and SIAC

II. Governance Structure at SIAC

III. SIAC Model Clauses

IV. Institutional Measures for Controlling Costs and Timelines under SIAC Rules

V. Recent Trends at SIAC

2

Economic Developments in Asia

• Emergence of global economic players, such as Asian economies of China,

India, Indonesia, Japan and Korea, as well as ASEAN.

• Asia leading the world in terms of economic growth.

3

-10%

-5%

0%

5%

10%

15%

20%

2007 2008 2009 2010 2011 2012

Ye

ar-

on

-Ye

ar

Gro

wth

Year

GDP Growth Rate in Asia (2007 - 2012)

World

Asia

Asean-5: Indonesia, Malaysia, Philippines, Singapore and Thailand

Source: IMF WEO Database (Oct 2013); International Business Times (Mar 2014)

100

105

110

115

120

125

130

2012

2013

120,0

128,4

121,1

117,6

GD

P in

Billi

on

s U

SD

Year

China & ASEAN 5 GDP (2012/13)

ASEAN 5

China

Potential for International Arbitration

• High trade flows in Asia lead to an increase in number and complexity of cross-

border commercial disputes.

4 Source: 2014 UNCTAD World Investment Report

0

50

100

150

200

250

300

350

Africa Latin America and the

Caribbean

Asia Transition Economies

FDI outflows, by region, 2009-2013 (Billions of dollars)

2009

2010

2011

2012

2013 0

50

100

150

200

250

300

350

400

450

500

Africa Latin America and the

Caribbean

Asia Transition Economies

FDI inflows, by region, 2009-2013 (Billions of dollars)

2009

2010

2011

2012

2013

Singapore’s Framework

• ‘The Hub of all trades’ - excellent infrastructure and connectivity

• UNCITRAL Model Law adopted in International Arbitration Act (international arbitrations) and

Arbitration Act (domestic arbitrations) – Parties are free to opt-in / opt-out

• World’s 3rd most popular seat; most preferred seat in Asia

2010 International Arbitration Survey: Choices in International Arbitration By Queen Mary, University of London

• Judiciary that provides maximum support and minimal intervention in arbitral proceedings

• Total freedom of choice of counsel and law firms

• Enforceability of Awards rendered in Singapore in over 150 countries under the New York

Convention 1958

• World renowned facilities and services at Maxwell Chambers for arbitration hearings

• SIAC: developed institutional rules and experienced Court and Secretariat

5

6 MAXWELL CHAMBERS

7 MAXWELL CHAMBERS

8 MAXWELL CHAMBERS

9 MAXWELL CHAMBERS

SIAC – An Overview

• Commenced operations in July 1991

• Independent and not-for-profit

• 222 new cases filed in 2014 and an active caseload of over 600 cases

• Proven track record of enforcement:

• SIAC Awards have been enforced, among others, in China, Hong Kong, India,

Indonesia, Jordan, Thailand, Vietnam, Australia, UK and USA

• Rules ensure efficiency, cost effectiveness and flexibility

• Rules are easily acceptable to both Civil and Common Law practitioners/ arbitrators

10

Agenda


II. Governance Structure at SIAC

III. SIAC Model Clause


V. Japan at SIAC

VI. Recent Trends at SIAC

11

Governance Structure at SIAC

Court of Arbitration

• 17 eminent arbitration practitioners from around the world to supervise case

administration

• President, SIAC Court of Arbitration to appoint arbitrators, determine Expedited

Procedure and Emergency Arbitrator applications

• Court of Arbitration to decide challenges to arbitrators and jurisdictional objections

• Assisted by Registrar, Deputy Registrar and Secretariat

Board of Directors

• Oversees corporate governance, business development and operations of SIAC

12

Board of Directors

13

Gautam Banerjee

Chelva R. Rajah, SC

Lucien Wong

Chairman

Nishith Desai

Cavinder Bull, SC

Deputy Chairman

Dr. Eun Young Park

Rajiv K. Luthra David Liu

John R. Savage Jeanette Wong Giles White

Michael J. Moser

Court of Arbitration

14

Dr. Eun Young Park

Alvin Yeo, SC Ariel Ye Hiroyuki Tezuka Harish Salve, SC Prof. Jan Paulsson

Toby Landau QC Prof. Bernard Hanotiau Prof. Emmanuel Gaillard Paul Friedland

Gary Born

President

Claudia Annacker

Cavinder Bull, SC

Vice-President

Dr. Michael Pryles

Founder President

John R. Savage

Vice-President

Lijun Cao

Lucy Reed

Professional Case Management

• Team of international lawyers qualified in Belgium, Canada, China, India, Korea, the

Philippines, Singapore, England and USA.

• Functions include assisting in:

• Appointment of arbitrators where parties are unable to agree under SIAC Rules

and ad hoc arbitrations

• Financial management of the arbitral process

• Fixing the Tribunal’s fees and other terms of appointment

• Rendering accounts and collecting deposits towards the costs of the arbitration

• Processing the Tribunal’s fees and expenses

• Supervising and monitoring the progress of the case

• Scrutiny of draft awards

15

Scrutiny of Draft Awards by Registrar

• Rule 28.2, SIAC Rules 2013:

“Before making any award, the Tribunal shall submit it in draft form to the Registrar…

The Registrar may, as soon as practicable, suggest modifications as to the form of

the award and, without affecting the Tribunal's liberty of decision, may also draw its

attention to points of substance. No award shall be made by the Tribunal until it has

been approved by the Registrar as to its form.”

• Para. 31, SIAC Practice Note for Administered Cases (PN-01/14, 2 Jan 2014):

“The Registrar may, where appropriate, consult the Court [of Arbitration] before

approving the draft award as to its form.”

• Enables avoidance of errors and improvements to be made to enhance the

enforceability of Awards

16

Comparison of SIAC to ICC

17

ICC SIAC

Both are supported by a Court and Secretariat comprising qualified experts and experienced

arbitration practitioners from both common law and civil law backgrounds

Both have procedures to review awards to ensure the quality and enforceability of the awards. (ICC

Rules, Art. 33, SIAC Rules, Rule 28.2)

No expedited or fast-track procedure Has an expedited procedure to enable fast rendering of

the award within a short timeframe – 6 months from

Tribunal constitution is default (SIAC Rules, Rule 5)

Mandatory Terms of Reference (ICC Rules,

Art. 33)

Tribunal may hold preliminary meeting to define and

focus issues in dispute (SIAC Rules, Rule 16.3, 16.4)

No duty of confidentiality specified in rules, but

Tribunal may make orders to preserve

confidentiality or protect secrets (ICC Rules,

Art. 22.3)

Express duty of confidentiality for both the proceedings

and award (SIAC Rules, Rule 35)

SIAC Panel of Arbitrators

• Parties may appoint arbitrators outside of SIAC Panel

• Experienced, international panel of legal and industry experts as arbitrators

• Over 400 expert arbitrators from 40 jurisdictions

• Strict standards of admission, e.g. 10 years PQE, fellowship accreditation, acted as

arbitrator in at least 5 cases, written at least 2 Awards

18

SIAC Panel of Arbitrators

• SIAC Code of Ethics requires every arbitrator, before each appointment, to give a

continuing written undertaking that:

• he/she is able to discharge his/her duties as arbitrator without bias;

• he/she will disclose all facts or circumstances that may give rise to justifiable

doubts as to his/her impartiality or independence; and

• he/she will devote sufficient time to the case throughout the process

• Rigorous and efficient appointment process at SIAC (nationality, expertise &

seniority)

• Established first specialist IP Panel in February 2014

19

New Cases Filed

20

78 74

90 86 99

160

198 188

235

259

222

0

50

100

150

200

250

300

2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

Number of new cases handled by SIAC from 2004-2014

New Cases Filed

21

2

12

1 1 1

7

1 2 2 2 1

22

1 1 1 1 1 4

21

27

13

8

2 2 1 1 3

1 2 2

18

1 1 2 1 1 3

0 1 2 4

3

1

1

19

3

3

6

10

4 3

3

1

2

1 1

0

5

10

15

20

25

30

35

40

45

Number of new cases by nationality of parties excluding Singapore (2014)

New Cases Filed

22

41

38 37

27

21 21

17

15

13

10

0

5

10

15

20

25

30

35

40

45

China USA India Hong Kong UK Malaysia South Korea Australia Indonesia Thailand

Number of new cases by top 10 nationalities excluding Singapore (2014)

International Arbitration by Sectors (2014)

23

Total aggregate sum in dispute for 2014: SGD5.04 billion

A Truly Global Provider

24

81% of SIAC’s cases are international

Agenda


II. Recent Changes at SIAC



V. Japan at SIAC


25

SIAC Model Clause

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 in Singapore 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 Tribunal shall consist of _________________(1 or 3) arbitrator(s).

The language of the arbitration shall be ________________.

26

SIAC Model Clause

SIAC Model Clause for Contracts with PRC parties



arbitration in Singapore 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 the arbitration shall be Singapore.

The Tribunal shall consist of _________________(1 or 3) arbitrator(s).


27

SIAC Model Clause

SIAC Expedited Procedure Model Clause



arbitration in Singapore 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 parties agree that any arbitration commenced pursuant to this clause shall be

conducted in accordance with the Expedited Procedure set out in Rule 5.2 of the

SIAC Rules.

The Tribunal shall consist of one arbitrator.


28

Agenda





V. Japan at SIAC


29

Calculation of Costs at SIAC

Ad valorem Schedule of Fees

• Fee caps

• Certainty

• Transparency

Flexibility

• Parties may elect for alternative methods of determining tribunal’s fees e.g. hourly

rates

Deposits calculated on estimated costs of arbitration

Cost Determination Process – Objective Assessment of Arbitrator Fees

• Relevant factors include time spent by Tribunal, complexity, hearings, questions of

law and efficiency

30

Costs Comparison between SIAC and ICC

ADMINISTRATION FEES (All amounts in SGD)

Sum in Dispute SIAC Admin Fees (Max) ICC Admin Fees

100,000 4,900.00 5,597.96

1,000,000 14,700.00 24,141.48

5,000,000 30,800.00 53,090.20

10,000,000 38,800.00 69,443.34

25,000,000 53,050.00 89,946.20

50,000,000 76,800.00 114,046.70

100,000,000 95,000.00 133,721.20

1,000,000,000 95,000.00 154,749.00

ARBITRATORS' FEES (All amounts in SGD)

Sum in Dispute SIAC Arbitrator's Fees (Max) ICC Arbitrator's Fees (Max)

100,000 13,150.00 16,610.08

1,000,000 63,400.00 72,879.59

5,000,000 126,900.00 168,442.20

10,000,000 161,900.00 222,765.30

25,000,000 206,900.00 283,458.00

50,000,000 281,900.00 342,539.10

100,000,000 344,900.00 434,062.70

1,000,000,000 805,000.00 923,917.90

** 1 SGD = 0.731604 USD 31

Special Procedures

SIAC Expedited Procedure (under the SIAC Rules 2010 and 2013)

• May be applied for where:

• When the sum in dispute does not exceed SGD 5,000,000; or

• When parties agree; or

• In cases of exceptional urgency

• Useful for lower value, less complex disputes

• If application is allowed by President, SIAC Court of Arbitration:

• To be referred to sole arbitrator

• Award to be made within 6 months

• As at 25 March 2015, a total of 174 applications for Expedited Procedure received, with 120

applications granted

32

Special Procedures

SIAC Emergency Arbitrator Provisions – Why the Need?

• Challenges with seeking interim relief from courts

• Desire for confidentiality

• Lack of confidence in national courts (delays, complex/unfamiliar judicial

process, unfavourable decisions)

33

Special Procedures – Emergency Arbitrator

• First Asian arbitral institution to introduce these provisions - July 2010

• Provisions for appointment of an Emergency Arbitrator under the SIAC Rules 2013, Rule 26 -

procedure set out in Schedule 1:

• Application in writing to the Registrar

• Concurrent with or following the filing of a Notice of Arbitration

• Prior to constitution of the Tribunal

• Emergency Arbitrator has:

• Same powers as Tribunal

• Power to order any interim relief

• To give reasons in writing for his decision

• No power to act after Tribunal constituted

• Tribunal may reconsider, modify or vacate interim award by Emergency Arbitrator

34

35

Action Time

Appointment of Emergency Arbitrator Within 1 business day of receipt by

Registrar of application and payment of fee

Challenge to appointment of Emergency

Arbitrator

Within 1 business day of communication by

the Registrar of the appointment and the

circumstances disclosed

Schedule for consideration of application by

Emergency Arbitrator

Within 2 business days of appointment

The order or award of an Emergency

Arbitrator ceases to have effect

If within 90 days a Tribunal is not

constituted

Emergency Arbitrator Procedural Timeline

Emergency Arbitrator – Examples of Relief Sought

• To restrain a BVI company from breaching a confidentiality agreement by filing

litigation in multiple jurisdictions;

• To permit an Indonesian claimant to sell a shipment of coal that had not been accepted

by a Chinese respondent buyer and was deteriorating at a Chinese port over the

Chinese new year;

• To preserve the status quo of a Dutch claimant as exclusive distributor of a

respondent’s products;

36

• To permit a BVI company unimpeded access to inspect a property development in

Vietnam where the respondent was effecting alterations to properties to remedy

defects;

• A Mareva injunction against a Bruneian national from disposing shares and dissipating

assets;

• A freezing order against Indian respondents from transferring assets and to disclose

financial records and statements to an international financial institution;

• Orders against a shipyard which had been contracted for steelworks and maintenance

works, from interfering with the safe departure of a vessel.

37

Emergency Arbitrator – Examples of Relief Sought

Emergency Arbitrator – Timing of Awards and

Enforceability

• Average time for an interim order from the receipt of an application is a mere

2.5 days

• Average time for an award after having heard parties on the request has

been 8.5 days and has been as short as 1 day

• Emergency Arbitrator orders and awards enforceable in Singapore-seated

arbitrations under International Arbitration Act

• In practice, high rate of voluntary compliance

• In majority of cases subsequently constituted Tribunals affirmed orders and

awards issued by Emergency Arbitrator

38

Emergency Arbitrator Outcomes

39

Outcomes of applications for emergency relief

Granted 16

Granted (by consent) 4

Granted (in part) 4

No orders made (application withdrawn) 4

Rejected 14

Pending 0

TOTAL 42 (as at 25 March 2015)

SIAC EMERGENCY ARBITRATOR FEES

SIAC Administration Fees: SGD5,000

Emergency Arbitrator’s Fees: Capped at 20% of sole arbitrator max., with min. of SGD20,000

(subject to Registrar’s discretion)

Agenda





V. Recent Trends at SIAC

40

Recent Trends at SIAC

41

Nationalities of Arbitrators Appointed by SIAC

Australia 13%

[범주 이름] [백분율]







Malaysia 8%

Netherlands 2%

New Zealand 5%


Singapore 32%

South Africa 1%

South Korea 2%

UK 22%

USA 2%


42

Nationalities of Arbitrators Nominated by Parties


Austria 6%

[범주 이름]

[백분율] [범주 이름] [백분율]



Singapore 62%

Sri Lanka 1%

Switzerland 3%

UK 11%

[범주 이름]

[백분율] [범주 이름] [백분율]


43

Governing Law of Contract

In 90% of new cases filed in 2014, parties included a choice of law clause in their contract

Others

12% Indian Law

4%

Not Specified

10%

English Law

25%

Singapore Law

49%

Practice Note for Administered Cases

on the Appointment of Administrative Secretaries

• From 2 February 2015

• To assist the arbitral tribunal in administrative matters

• With the consent of all parties to the arbitration

• The administrative secretary shall declare independence, impartiality and

confidentiality

• No fees for the use of an administrative secretary where the amount in dispute is

under SGD 15,000,000.00

• The fees of the administrative secretary shall not exceed SGD 250.00 per hour

44

Singapore International

Mediation Centre (“SIMC”)

45

Why mediate?

• Unlike litigation and arbitration, mediation is a non-adversarial process that in

appropriate cases can result in better outcomes for parties

• Win-win situations can be achieved through flexible mix of legal and non-legal

solutions

• Can be more efficient and cost-effective (cf: arbitration and litigation).

46

Main Features of Mediation at SIMC

• Panel of high quality international mediators

• Professional case management under SIMC Rules

• Competitive and transparent fee structure

• SIMC is appointing authority and will designate a

suitable mediator from SIMC’s Panel of Mediators if

parties fail to jointly nominate a mediator

• Unique options for enforcement of settlement

agreements:

• Consent award pursuant to SIAC-SIMC Arb-Med-

Arb Protocol 47

Singapore - 15

India – 4

Australia - 6

Brazil - 3

Canada - 1 France - 1

New Zealand – 5

Hong Kong - 5

Netherlands - 1

UK - 12

South Africa - 2

Nigeria - 1

Switzerland - 1

USA - 10

SIMC’s Panel of Mediators are from …

48

SIAC-SIMC Arb-Med-Arb Service

• Arb-med-arb is a process where parties attempt mediation in the course of

arbitration proceedings

• If mediation is successful, parties may request their mediated settlement be

made a consent arbitral award

• If mediation is unsuccessful, parties may proceed with arbitration

Arbitration Mediation Arbitration

49

Thank You

Contact us

t: +65 6221 8833

f: +65 6224 1882

e: [email protected]

w: www.siac.org.sg

a: 32 Maxwell Road #02-01

Maxwell Chambers

Singapore 069115

50

mailto:[email protected]

http://www.siac.org.sg/

Documents

COUNSEL, HEAD (NORTH EAST ASIA) · focus issues in dispute (SIAC Rules, Rule 16.3, 16.4) No duty of confidentiality specified in rules, but Tribunal may make orders to preserve confidentiality