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Amendments to the Singapore International Arbitration Act come into force

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07 December 2020

On 1 December 2020, the International Arbitration (Amendment) Act 2020 (the Amendment Act)1 came into force, introducing two of the proposed amendments to the Singapore International Arbitration Act (SIAA) that had been subject to public consultation in 2019.  The new provisions introduced by the Amendment Act add to Singapore’s appeal as a leading arbitral seat.  

First amendment – default procedure for appointment of arbitrators in multi-party arbitrations

First, the new Section 9B of the amended SIAA provides a default procedure for appointment of arbitrators in multi-party arbitrations, i.e., arbitrations where there are more than one claimants and/or respondents.  Pursuant to this default procedure, in multi-party arbitrations with three arbitrators: 

  • all claimants are to jointly appoint an arbitrator, all respondents are to jointly appoint an arbitrator, and  the two party-appointed arbitrators are to jointly appoint the third, presiding arbitrator; and
  • if any of the relevant appointments cannot be agreed within the specified timeframe, the appointing authority (i.e., the President of the Court of Arbitration of the Singapore International Arbitration Centre (SIAC) by default) is to appoint the relevant arbitrator(s). 

The amendment is aimed to reduce uncertainty and potential delay in the tribunal appointment process in multi-party arbitrations, which have become increasingly common in the recent years.  Such arbitrations may involve, for example, multiple joint venture parties/shareholders or a consortium of companies whose interests may not be fully aligned. The amendment also fills a gap in the previous version of the SIAA, which only contained a default appointment procedure for bilateral arbitrations with one claimant and one respondent, and makes Singapore the first major arbitral seat to prescribe a default appointment procedure specifically designed for multi-party arbitrations. 

However, the practical effect of this amendment is likely to be limited, since the default procedure only applies where parties have not agreed on another appointment procedure for multi-party arbitrations.  Many major arbitral rules (including those of the SIAC2,  Hong Kong International Arbitration Centre (HKIAC)3,  and International Chamber of Commerce (ICC)4) already contain an express appointment procedure for multi-party arbitrations, and the amendment would not affect the arbitrations conducted under these rules. 

Second amendment – express recognition of a tribunal and Singapore High Court’s power to enforce confidentiality obligations 

Secondly, the amended SIAA expressly recognises that a Singapore-seated tribunal (pursuant to new section 12(1)(j) of the SIAA) and the Singapore High Court (pursuant to the amended section 12A(2) of the SIAA) have the power to enforce any applicable obligations of confidentiality.  This power applies regardless of whether the obligations of confidentiality arise by parties’ written agreement, under any written law or rule of law (such as Singapore common law), or under any rules of arbitration adopted by the parties (such as the rules of the SIAC5  and HKIAC6).7  The amendment, which is not mirrored in the laws of competing arbitral seats like Hong Kong, does not create a new obligation of confidentiality but instead seeks to strengthen the parties’ ability to enforce existing obligations.  

Potentially far-reaching proposals remain under consideration 

The Amendment Act does not address other proposals that were subject to public consultation in 2019.  These proposals have potentially far-reaching consequences, and have thus attracted more attention and debate than the two amendments ultimately adopted.  

According to the parliamentary speech on the Amendment Act,8 the following proposals remain under consideration by the Ministry of Law: (i) the proposal to allow parties to appeal to the court on a question of law arising out of an arbitral award, provided that parties have agreed to opt into such mechanism; and (ii) the proposal to allow parties to agree to waive or limit the grounds for annulling an arbitral award.  It is currently unclear if, and when, these proposals would be introduced.  

Conclusion 

The two amendments to the SIAA introduced by the Amendment Act represent a welcome development that further cements Singapore’s place as one of the leading arbitral seats in Asia, as well as the world.  It is also notable that the SIAA was amended multiple times in the past decade (including in 2012, 2016, 2019 and 2020), evidencing the Singapore government’s commitment to keeping up with, as well as leading, the developments in arbitration law. 

 

Footnotes

  1. https://sso.agc.gov.sg/Acts-Supp/32-2020/Published/20201111?DocDate=20201111
  2. 2016 SIAC Arbitration Rules, Rule 12. 
  3. 2018 HKIAC Arbitration Rules, Article 8.2. 
  4. 2021 ICC Arbitration Rules, Articles 12 (6)-(8). 
  5. 2016 SIAC Arbitration Rules, Rule 39.
  6. 2018 HKIAC Arbitration Rules, Article 45.
  7. Cf Article 22.3 of the 2021 ICC Arbitration Rules, which authorises the tribunal to make orders concerning the confidentiality of the arbitration proceedings or of any other matters in connection with the arbitration and take measures for protecting trade secrets and confidential information, upon the request of any party.
  8. https://www.mlaw.gov.sg/news/parliamentary-speeches/2020-10-05-second-reading-speech-by-2m-edwin-tong-on-international-arbitration-amendment-bill