The SIAC Investment Arbitration Rules (SIAC IA Rules) came into force on January 1, 2017. Unlike the approach taken by the SCC, described below, the SIAC has promulgated a comprehensive set of rules specifically for investment arbitration.
The preamble of the SIAC IA Rules states that the rules may apply to disputes involving “a State, State-controlled entity or intergovernmental organization, whether arising out of a contract, treaty, statute or other instrument.” This provides a relatively broad scope for disputes which can be referred to the SIAC under these rules.
The SIAC IA Rules, however, do require the parties to have expressly referred their disputes to the SIAC under its investment rules. There appears to be no mechanism (aside from subsequent agreement) by which parties in appropriate cases can be transferred from the Arbitration Rules of the SIAC (SIAC Rules) to the SIAC IA Rules.
The SIAC IA Rules are largely based on the SIAC Rules, with specific amendments to cater for investment disputes. The tribunal is granted broadly the same powers and discretion under both sets of rules. Key provisions of the SIAC IA Rules are set out below.
Rule 1.3 of the SIAC IA Rules provides for waiver from immunity with respect to the arbitration proceedings before the SIAC, while expressly stating that such waiver does not apply to any immunity from enforcement which a party may have.
Also of interest is SIAC IA Rule 24(l), which grants the tribunal the power to order disclosure in relation to third party funders, which is particularly relevant in light of Singapore’s recent legislative amendments to allow for third party funding for international arbitrations. Pursuant to this provision, the tribunal may order the disclosure of the existence of a third party funder (including the identity of the funder) and, where appropriate, details of the funder’s interests in the outcome of the proceedings and/or whether the funder has committed to cover adverse costs liability.
The SIAC IA Rules also permit submissions by a non-disputing third party (on their own initiative or by invitation of the tribunal) who is a party to the treaty under which the arbitration was commenced (Rule 29.1). However, such submissions are limited to “a question of treaty interpretation that is directly relevant to the dispute.” Rule 29.2 also permits any non-party to the arbitration to make submissions, upon application to the tribunal, provided that such third party is found to have “sufficient interest in the arbitral proceedings and/or any other related proceedings” (Rule 29.3).
Pursuant to SIAC IA Rule 38, the parties are deemed to consent to the publication of the nationality of parties, identity and nationality of arbitrators, the treaty/statute/other instrument under which the dispute was commenced, and the date of commencement of proceedings and whether they have terminated. The SIAC may also publish redacted excerpts of the reasoning of the tribunal and redacted decisions of the SIAC Court on challenges.
Other points to note include: the increased time limit for the Response to the Notice of Arbitration and for constitution of the tribunal (Rules 4.1, 6.2 and 7.2); the default number of arbitrators is three instead of one (Rule 6.2); the SIAC Court, and not the President, shall appoint arbitrators under the Rules (Rules 6.2, 7.2, 7.3 and 9); appointments by the SIAC Court for sole arbitrator or presiding arbitrator shall be done in accordance with a list procedure (Rule 8); the submissions, unless otherwise agreed, are to be in memorial style (Rule 17); and the emergency arbitrator provisions are opt-in (Schedule 1).