Emergency arbitration is a crucial mechanism that enables parties in arbitration proceedings to obtain urgent interim relief before the constitution of the full tribunal. In Singapore, the process for seeking emergency interim relief is governed by the SIAC Rules, specifically Schedule 1, which allows parties to request the appointment of an emergency arbitrator. This article outlines the key aspects of the emergency arbitrator process under the SIAC Rules, including application procedures, appointment details, the powers of the emergency arbitrator and the costs involved.
Application
Under SIAC Rules, paragraph 1, Schedule 1, an application for interim emergency relief may be sought concurrently with, or following, the filing of a Notice of Arbitration.
The applicant should notify the Registrar and all other parties in writing of the nature of the relief sought, the reasons why such relief is required on an emergency basis and a statement certifying that all other parties have been provided with a copy of the application or, if not, an explanation of the steps taken to provide a copy or notification to all other parties.
Fees
The application must be accompanied by the non-refundable administration fee and the requisite deposit towards the emergency arbitrator's fees and expenses. Details of the prescribed fee and deposits are set out in the SIAC Schedule of Fees. With effect from 1 August 2016, the (non-refundable) fee for emergency arbitrator applications is S$5,450 (approximately US$4,250) for Singapore parties and S$5,000 (approximately US$3,900) for overseas parties.
The deposits towards the emergency arbitrator's fees and expenses are fixed at S$30,000 (approximately US$23,400) and the emergency arbitrator's fees are capped at S$25,000 (approximately US$19,500), unless the Registrar otherwise determines under Schedule 1. In appropriate cases, the Registrar may increase the amount of the deposits requested from the party making the application. If the additional deposits are not paid within the time limit fixed by the Registrar, the application shall be considered as withdrawn.
Appointment of emergency arbitrator
According to the SIAC Rules, paragraph 3, Schedule 1, if the application is accepted, the President must seek to appoint an emergency arbitrator within one day of the Registrar’s receipt of the application and payment of the administration fee and deposits. Statistics taken from the SIAC Annual Report 2023 show that a total of 152 applications for the appointment of an emergency arbitrator have been made since the provisions were introduced in 2010, all of which were accepted.
The parties' agreed seat of arbitration shall be the seat of the proceedings for emergency interim relief. Otherwise, the seat of the proceedings for emergency interim relief shall be Singapore, without prejudice to the tribunal's determination of the seat under Rule 21.1. A prospective emergency arbitrator shall disclose to the Registrar any circumstance that may give rise to justifiable doubts about their impartiality or independence.
Any challenge to the appointment of the emergency arbitrator must be made within two days of the communication by the Registrar to the parties of the appointment of the emergency arbitrator and the circumstances disclosed. The emergency arbitrator may not act as arbitrator in any future arbitration relating to the dispute, unless otherwise agreed by the parties.
Procedure
The emergency arbitrator should establish a schedule to consider the application of emergency relief within two days of their appointment (paragraph 7, Schedule 1).
The schedule shall provide a reasonable opportunity for the parties to be heard but may provide for proceedings by telephone or video conference or on written submissions as alternatives to a hearing in person (paragraph 7, Schedule 1).
The Registrar has the power to abbreviate any time limits in applications for emergency interim relief under Rule 30.2 and Schedule 1 (paragraph 14).
Interim award or order
The emergency arbitrator is given the express power to order or award any interim relief that he deems necessary, including preliminary orders that may be made pending any hearing, telephone or video conference or written submissions by the parties (paragraph 8, Schedule 1).
The emergency arbitrator's interim order or award must be made 14 days from the date of his appointment unless the Registrar extends the time in exceptional circumstances. The form of the order or award must be approved by the Registrar (paragraph 9, Schedule 1).
The emergency arbitrator has no further power to act after the tribunal is constituted and the tribunal may reconsider, modify or vacate the interim award or order issued by the emergency arbitrator, including a ruling on his own jurisdiction (paragraph 10). Any interim order or award issued by the emergency arbitrator ceases to be binding:
if the tribunal is not constituted within 90 days of such order or award.
when the tribunal makes a final award.
if the claim is withdrawn.
A party seeking urgent interim relief may be required to provide “appropriate security” (paragraph 11). An order or award made by the emergency arbitrator is binding on the parties from the date it is made and the parties undertake to carry out the order or award immediately. The parties also irrevocably waive any right to an appeal (paragraph 12).
Costs
The emergency arbitrator may initially apportion the costs associated with any application. However, the tribunal has the power to finally determine the apportionment of these costs (paragraph 13).
International Arbitration (Amendment) Act 2012 (“IA(A) Act”)
The IA(A) Act was passed in Singapore on 9 April 2012. It amends Singapore's International Arbitration Act (“IAA”) and has a particular impact on emergency arbitrator relief, as it amends the definition of arbitral tribunal to include emergency arbitrators expressly. Therefore, in courts in Singapore, the orders and awards of an emergency arbitrator are as enforceable as those of an arbitral tribunal.
Conclusion
The introduction of emergency arbitrator provisions in the SIAC Rules represents a significant development in the ability of parties to access timely and effective interim relief in international arbitration. The process, which includes clear guidelines on application, appointment and procedural aspects, ensures that urgent matters can be addressed swiftly and efficiently.
The emphasis on fairness, impartiality and the ability to enforce emergency arbitrator decisions in Singapore highlights the country's commitment to providing a robust legal framework for arbitration. As international arbitration continues to grow in importance, the SIAC's emergency arbitrator mechanism remains an invaluable tool for parties seeking urgent relief in complex disputes.