1. law, govt and politics

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.
China & ASEAN 5 GDP (2012/13)
20%
128,4
130
World
15%
10%
Asia
5%
0%
2007
2008
2009
2010
2011
-5%
2012
GDP in Billions USD
Year-on-Year Growth
GDP Growth Rate in Asia (2007 - 2012)
121,1
125
120,0
117,6
120
115
110
105
100
2012
Year
-10%
Asean-5: Indonesia, Malaysia, Philippines, Singapore and Thailand
Source: IMF WEO Database (Oct 2013); International Business Times (Mar 2014)
2013
Year
ASEAN 5
China
3
Potential for International Arbitration
• High trade flows in Asia lead to an increase in number and complexity of crossborder commercial disputes.
FDI inflows, by region, 2009-2013
(Billions of dollars)
500
450
400
350
300
250
200
150
100
50
0
FDI outflows, by region, 2009-2013
(Billions of dollars)
350
300
250
Africa
Latin
America
and the
Caribbean
Asia
Transition
Economies
Source: 2014 UNCTAD World Investment Report
2009
200
2009
2010
150
2010
2011
100
2011
2012
50
2012
2013
0
2013
Africa
Latin
America
and the
Caribbean
Asia
Transition
Economies
4
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
MAXWELL CHAMBERS
6
MAXWELL CHAMBERS
7
MAXWELL CHAMBERS
8
MAXWELL CHAMBERS
9
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
I.
Introduction to Singapore’s International Arbitration Framework and SIAC
II.
Governance Structure at SIAC
III.
SIAC Model Clause
IV. Institutional Measures for Controlling Costs and Timelines under SIAC Rules
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
Lucien Wong
Chairman
Gautam Banerjee
Dr. Eun Young Park
Nishith Desai
Chelva R. Rajah, SC
Cavinder Bull, SC
Deputy Chairman
David Liu
Rajiv K. Luthra
Michael J. Moser
John R. Savage
Giles White
Jeanette Wong
13
Court of Arbitration
Cavinder Bull, SC
Vice-President
Claudia Annacker
Lijun Cao
Paul Friedland
Prof. Jan Paulsson
Dr. Michael Pryles
Founder President
Lucy Reed
Gary Born
President
John R. Savage
Vice-President
Prof. Emmanuel Gaillard Prof. Bernard Hanotiau
Harish Salve, SC
Hiroyuki Tezuka
Toby Landau QC
Dr. Eun Young Park
Ariel Ye
Alvin Yeo, SC
14
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
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 Express duty of confidentiality for both the proceedings
Tribunal may make orders to preserve
and award (SIAC Rules, Rule 35)
confidentiality or protect secrets (ICC Rules,
Art. 22.3)
17
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
Number of new cases handled by SIAC from 2004-2014
300
259
250
235
198
200
222
188
160
150
100
78
74
2004
2005
90
86
2006
2007
99
50
0
2008
2009
2010
2011
2012
2013
2014
20
New Cases Filed
Number of new cases by nationality of parties excluding Singapore (2014)
45
40
35
10
19
30
25
6
20
3
15
3
27
22
10
1
12
5
21
3
7
0
2
1
1
1
1
1
2
2
2
3
1
1
1
1
1
1
4
18
13
8
3
4
2
2
1
1
3
2
1
2
2
1
1
2
1
1 3
1
4
1
10 1 2
21
New Cases Filed
Number of new cases by top 10 nationalities excluding Singapore (2014)
45
41
40
38
37
35
30
27
25
21
21
20
17
15
15
13
10
10
5
0
China
USA
India
Hong Kong
UK
Malaysia
South Korea
Australia
Indonesia
Thailand
22
International Arbitration by Sectors (2014)
Total aggregate sum in dispute for 2014: SGD5.04 billion
23
A Truly Global Provider
81% of SIAC’s cases are international
24
Agenda
I.
Introduction to Singapore’s International Arbitration Framework and SIAC
II.
Recent Changes at SIAC
III.
SIAC Model Clause
IV. Institutional Measures for Controlling Costs and Timelines under SIAC Rules
V.
Japan at SIAC
VI. Recent Trends 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
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 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).
The language of the arbitration shall be ________________.
27
SIAC Model Clause
SIAC Expedited Procedure 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 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.
The language of the arbitration shall be ________________.
28
Agenda
I.
Introduction to Singapore’s International Arbitration Framework and SIAC
II.
Recent Changes at SIAC
III.
SIAC Model Clause
IV. Institutional Measures for Controlling Costs and Timelines under SIAC Rules
V.
Japan at SIAC
VI. Recent Trends 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
100,000
1,000,000
5,000,000
10,000,000
25,000,000
50,000,000
100,000,000
1,000,000,000
SIAC Admin Fees (Max)
4,900.00
14,700.00
30,800.00
38,800.00
53,050.00
76,800.00
95,000.00
95,000.00
ICC Admin Fees
5,597.96
24,141.48
53,090.20
69,443.34
89,946.20
114,046.70
133,721.20
154,749.00
ARBITRATORS' FEES (All amounts in SGD)
Sum in Dispute
100,000
1,000,000
5,000,000
10,000,000
25,000,000
50,000,000
100,000,000
1,000,000,000
SIAC Arbitrator's Fees (Max)
13,150.00
63,400.00
126,900.00
161,900.00
206,900.00
281,900.00
344,900.00
805,000.00
ICC Arbitrator's Fees (Max)
16,610.08
72,879.59
168,442.20
222,765.30
283,458.00
342,539.10
434,062.70
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
Emergency Arbitrator Procedural Timeline
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 Within 2 business days of appointment
Emergency Arbitrator
The order or award of an Emergency
Arbitrator ceases to have effect
If within 90 days a Tribunal is not
constituted
35
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
Emergency Arbitrator – Examples of Relief Sought
• 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 – 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
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:
Emergency Arbitrator’s Fees:
SGD5,000
Capped at 20% of sole arbitrator max., with min. of SGD20,000
(subject to Registrar’s discretion)
39
Agenda
I.
Introduction to Singapore’s International Arbitration Framework and SIAC
II.
Recent Changes at SIAC
III.
SIAC Model Clause
IV. Institutional Measures for Controlling Costs and Timelines under SIAC Rules
V.
Recent Trends at SIAC
40
Recent Trends at SIAC
Nationalities of Arbitrators Appointed by SIAC
USA
2%
[범주 이름] [백분율]
Australia
13%
UK
22%
[범주 이름] [백분율]
[범주 이름] [백분율]
[범주 이름] [백분율]
[범주 이름] [백분율]
South Korea
2%
[범주 이름] [백분율]
South Africa
1%
[범주 이름] [백분율]
Malaysia
8%
Singapore
32%
Netherlands
2%
New Zealand
5%
[범주 이름] [백분율]
41
Recent Trends at SIAC
Nationalities of Arbitrators Nominated by Parties
[범주 이름]
[백분율]
Switzerland
3%
Sri Lanka
1%
[범주 이름] [백분율]
UK
11%
[범주 이름] [백분율]
Austria
6%
[범주 이름]
[백분율]
[범주 이름] [백분율]
[범주 이름] [백분율]
[범주 이름] [백분율]
Singapore
62%
42
Recent Trends at SIAC
Governing Law of Contract
In 90% of new cases filed in 2014, parties included a choice of law clause in their contract
Others
12%
Singapore Law
49%
Indian Law
4%
Not Specified
10%
English Law
25%
43
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-MedArb Protocol
47
SIMC’s Panel of Mediators are from …
UK - 12
Netherlands - 1
Canada - 1
France - 1
USA - 10
Hong Kong - 5
Switzerland - 1
Singapore - 15
Nigeria - 1
India – 4
Brazil - 3
Australia - 6
South Africa - 2
New Zealand – 5
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: corpcomms@siac.org.sg
w: www.siac.org.sg
a: 32 Maxwell Road #02-01
Maxwell Chambers
Singapore 069115
50