[Akash and Simone are students at Maharashtra National Law University, Mumbai.]
Arbitration as a form of dispute resolution is in itself a representation of innovation in legal proceedings. Renowned arbitration institutions across the globe are the leaders pioneering this practice in the procedural domain. The Singapore International Arbitration Centre (SIAC) has introduced its Proposed Draft 7th Edition Rules (Draft Rules), with several notable advancements in the direction of ensuring cost-efficient and timely arbitration. One among these changes is the introduction of the streamlined procedure (Streamlined Procedure/ Procedure). This has been provided for under Rule 13 of the Draft Rules. The SIAC has conducted several public consultations to address these rules, and the Streamlined Procedure in particular has been discussed in great detail at the recent conference in Bengaluru. The foresight behind the introduction of such a measure has the potential to set in motion a new wave of transformations in global arbitration proceedings.
The SIAC’s objective is to carve out a special efficient procedure for simpler and lower value disputes. The rising tendency of parties to refer cases to arbitration governed by well-established institutions like the SIAC highlights the need for a thorough understanding of changes in administering justice. This is especially important from the standpoint of understanding the procedural implications and potential risks of implementation of this new mode of arbitration.
Streamlined Arbitration: The Contours of Novelty
Parties can make an application for their arbitration to be conducted in accordance with the Streamlined Procedure, which entails certain changes in procedural aspects, including the composition of the Tribunal, the timeline of the proceedings, as well as the nature of submissions.
There would only be an appointment of a sole arbitrator by the parties within three days under the said procedure. A challenge to the appointment of the sole arbitrator can be made in accordance with an accelerated timeline of three days from the date of receipt of the notice of appointment, or from the date of the party obtaining knowledge or becoming reasonably aware of certain circumstances relating to the arbitrator as provided under Rule 26 of the Draft Rules.
It is also specified that the tribunal shall conduct a case-management conference, in order to accord the parties with a larger stake in their arbitration proceedings. This is with reference to the projected timeline of the proceedings, as well as the determination of any interlocutory applications (IAs). Unless otherwise decided by the tribunal, the proceedings shall take place through written documentation. Parties are to submit written submissions with documentary evidence, and the Streamlined Procedure has ruled out the scope for documentary production as well as filing for expert evidence. The award is to be made within three months from the constitution of the tribunal, unless the deadline for this is extended by the Registrar.
This Streamlined Procedure differs from the expedited procedure as laid down under Rule 14 of the Draft Rules. The expedited procedure has provisions for expanding the composition of the tribunal from that of a sole arbitrator, document production, case hearings and witness evidence. Additionally, the timelines for the expedited procedure are not prescribed in the SIAC’s rules and are left to the discretion of the tribunal. The deadline for the final award in the expedited procedure is six months from the date of constitution of the tribunal. It is also noteworthy that one of the grounds for application for the expedited procedure is the dispute amount being less than SGD 10,000,000.
An overview of the contours of the Streamlined Procedure is sufficient to infer that the purpose of such a procedure is to quickly arbitrate matters which raise simpler legal questions, and are of lower pecuniary value. The goal is to ensure efficiency and cost-effectiveness, and not necessarily urgency, which is addressed by the SIAC’s emergency arbitration provisions. This marked feature of the Streamlined Procedure also enables accessibility and greater participation in arbitration. This is the case for the involved parties as well, as this Procedure marks a further shift towards party-centric dispute resolution.
Flaws and Procedural Solutions
The Streamlined Procedure has been incorporated with the goal to increase efficiency and eliminate delays in resolving lower-value disputes. However, the Second Schedule of the Draft Rules deviate from this objective. The Procedure has been laid down with strict timelines at myriad stages of arbitration. Although this succeeds in ensuring expediency in dispute resolution, the quality of arbitration is substantially hampered. The Procedure primarily revolves around written submissions and documentary evidence and categorically excludes document production and expert witness. Moreover, the strict adherence of the deadlines may lead parties to compromise on the quality of evidence, written submissions etc. This leads to a sub-standard quality of arbitration proceedings in terms of award, evidence etc., which widens the scope of challenge resulting in the dispute resolution process getting prolonged. In order to effectively neutralize this problem, the Draft Rules must be tweaked to give greater freedom to the parties in terms of deadlines.
The rigid attitude of the tribunal in this regard also has to be done away with, and sufficient opportunities must be given wherever necessary for the parties to present credible, quality submissions. The perspectives of the parties have to be prioritized over the leave of the tribunal. The intention should not be restricted to fast-track dispute resolution, but the endeavour should be the maintenance of quality and efficiency required in arbitral processes.
A general overview of the Procedure shows that the tribunal has wide procedural discretion with the tribunal and Registrar having the final say in the filing of IAs, deadline extensions, discontinuing of procedures, etc. The Second Schedule also specifies that the tribunal, at many stages should merely have ‘consultation’ or ‘consideration’ of the views of the parties. This again is a departure from the very soul of arbitration, since the parties’ mutual opinions are often binding on the tribunal in normal arbitrations. The Streamlined Procedure by giving powers to the tribunal has shifted the focus from the core principle of arbitration i.e., party autonomy.
A viable solution would be to shift the focus to party autonomy by giving more importance to the parties’ opinion in terms of extending timelines, filing of IAs, etc. Not only does this increase the efficiency of the proceedings, but it also ensures party accountability. This reduces the scope of challenge as the parties themselves would have agreed to every stage of the Procedure.
The main focus of this Streamlined Procedure is to resolve ‘simple and low value disputes’ in a truncated timeline. The assumption made here is that low value disputes does not include complex question of law and fact. Therefore, the Streamlined Procedure will not be ideal to disputes where there are complex questions of law and fact involved. Rigid timelines will not be conducive to solving the questions of law and fact which require deeper scrutiny. Therefore, SIAC should take into consideration this aspect as well.
The alternate dispute resolution mechanism of arbitration rests on certain core principles. The SIAC’s Draft Rules, through ambiguities and oversights, compromise on these values. The new provisions in the Draft Rules may have the necessary intention to promote arbitration friendly environment, but the provisions themselves do not do justice to this goal. The necessary changes should be incorporated to the procedural rules in order to ensure efficient, expedient and quality proceedings. If these complications are effectively tackled, the Streamlined Procedure could have great potential in revolutionising the way people and companies resolve their disputes.
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