The New SIAC Rules 2025 – Tackling The Real Issues

The 7th edition of the SIAC Arbitration Rules, which came into force on 1 January 2025 (“SIAC Rules 2025”), are a manifestation of SIAC’s continuing endeavour to make cross-border dispute resolution more effective and efficient and further underscore its role in arbitration thought leadership

In his Keynote Address at the SIAC Congress 2018, the Honourable Chief Justice of Singapore, Mr. Sundaresh Menon, discussed the special role and responsibility of arbitral institutions in charting the future of international arbitration.¹ He referred to the 2018 Queen Mary Survey where a staggering 80% of respondents to the survey said arbitral institutions were “best placed to influence the future of international arbitration.”²

SIAC has been part of the vanguard over the years shaping the practice of international arbitration globally, with the introduction and wide acceptance of innovative mechanisms like the Emergency Arbitration and Expedited Procedure in 2010 and the Early Dismissal and Joinder and Consolidation Provisions in 2016.

The 7th edition of the SIAC Arbitration Rules, which came into force on 1 January 2025 (“SIAC Rules 2025”), are a manifestation of SIAC’s continuing endeavour to make cross-border dispute resolution more effective and efficient and further underscore its role in arbitration thought leadership. While much has been written and discussed about the new innovative Streamlined Procedure³ (faster dispute resolution for small value disputes) and interesting updates to the Emergency Arbitration⁴ mechanism (pre-arbitration commencement initiation and protective preliminary orders), the focus of this piece is to discuss two changes: one re-introduction and one new introduction that are likely to have a material procedural impact on the conduct of SIAC arbitrations.

The Re-introduction: Issues for Determination

In recent times, Singapore courts have received several requests for setting aside of arbitral awards on grounds of breach of natural justice⁵, including the Tribunal’s alleged inability to deal with a losing party’s arguments.⁶ Arbitration practitioners are aware that if the award addresses and determines the issues previously set out in a procedural order, the chances of a losing party successfully challenging an award on the grounds of natural justice are reduced.

Drawing from recent experiences and to mitigate such challenges, the SIAC Rules have introduced a new provision under Rule 34.1. This rule requires the Tribunals to, in consultation with the parties and at the appropriate stages of the arbitration, use reasonable efforts to identify the issues to be determined and record them in a procedural order.

Importantly, this rule places the obligation on the Tribunal to use “reasonable efforts” “at the appropriate stages” of the arbitration process and record the issues in a procedural order. In practice, it is likely that arbitral tribunals constituted under the SIAC Rules 2025 will seek to identify issues at an early stage, potentially along with the first procedural order, and thereafter suitably update and revise the issues as the case progresses.

Parties’ cases often evolve during proceedings, including following the discovery phase, when they gain a better understanding of each other’s evidence. In light of this, the new provision recognises that tribunals may have to reconsider the list of issues at appropriate stages of the arbitration. A party that fails to request the inclusion of an issue, will likely have the onerous task of persuading a setting aside court (or an enforcing court) that the award failed to address all the issues referred for the tribunal’s determination.

Conceptually, this is similar to the requirement in the ICC Rules for tribunals to include a list of issues in the terms of reference at the commencement of the arbitration. The SIAC Rules take a step further and place an obligation on tribunals to identify the issues at various “appropriate stages” throughout the course of the arbitration.

Interestingly, this is not the first time that this rule concerning key issues in a dispute has found its way into the SIAC Rules. Rule 17 of the SIAC Rules 2007 had a provision that required a tribunal to draw up a “Memorandum of Issues”. This was done away with in the 2010 version of SIAC Rules as the feedback from the arbitration community was that the process, requiring the parties’ signatures and a written document, was cumbersome and resulted in delays. The 2013 and the 2016 versions of the SIAC Rules also did not have any provision mandating the Tribunals to identify the issues. In this sense, the “Issues for Determination” is a re-introduction of a previously existed provision, albeit with a more user friendly and efficient expression.

International arbitration practitioners and tribunals are not unfamiliar with the use of List of Issues. However, with its codification in Rule 34.1, SIAC has provided clarity and guidance, especially for users who may be unaware of its utility or are new to institutional arbitration. This new requirement should reduce the time and cost involved in resolving the dispute by assisting both parties and tribunals to narrow the disputed issues, sideline irrelevant issues, guide pleadings and document production, and limit unreasonable attempts to introduce late evidence or submissions on new points. The requirement to identify key issues at an early stage also aligns well with the SIAC’s Early Dismissal and the new Preliminary Determination provisions.

The New Introduction: Preliminary Determination

In recent years, there has been increasing attention to preliminary determinations as an important time- and cost-saving device in the arbitrators’ case management armoury. SIAC tribunals have often received and dealt with applications for preliminary determination and bifurcation of proceedings as part of their broader case management powers under the previous versions of the SIAC Rules. Now, the new Rule 46 expressly permits parties to apply to the tribunal for a final and binding preliminary determination of any issues in the arbitration.

A preliminary determination is a decision made by an arbitral tribunal, typically in a partial award, determining some but not all the issues in dispute. The rationale of a preliminary determination is to decide, early in the arbitral process, an issue that can in turn, either help streamline the remaining issues in dispute, or, occasionally, dispose of the arbitration in its entirety. A binding determination on some issues in dispute can also, in some circumstances, provide impetus to settlement.

Rule 46 provides a roadmap for how an application for preliminary determination may be dealt with. As a matter of first step, the tribunal has to determine whether to “proceed” with the application. This step is a gatekeeping function and allows the tribunal to reject applications that are unmeritorious. If the tribunal allows an application to proceed, the next step requires the tribunal to decide the preliminary issue within 90 days of the application.

Understandably, SIAC tribunals are unlikely to allow applications where disclosures and extensive evidence are required, which involve a detailed legal or factual enquiry. That said, there are often jurisdictional or even legal issues that can be easily delineated, an early preliminary determination of which, within a short time span, can result in considerable time and costs efficiency.

A preliminary determination is different to SIAC’s Early Dismissal provision. Like Early Dismissal, a preliminary determination involves a final and binding determination. However, unlike Early Dismissal, preliminary determination is not limited to a determination of a claim or defence that is “manifestly without legal merit” or “manifestly outside the jurisdiction of the Tribunal”. As such, the scope of a preliminary determination is arguably broader than that of the Early Dismissal procedure.

Rule 46 nicely ties in with the mandate for tribunals to identify issues for determination now introduced via Rule 34.1 in the Rules. An effective case management will understandably involve SIAC tribunals identifying issues at an early stage and likely receiving applications of the preliminary determination of some of these issues.

Conclusion

Some may wonder the relevance of adding these two provisions given that they have either existed in previous iterations of arbitral rules or arbitral practice for a period now. However, in the author’s view, the introduction of these two provisions now expressly places the onus of active case management on the tribunal. Additionally, arbitration rules define the disputing parties’ agreement on the procedural aspects and codification of “Issues for determination” and “Preliminary Determination” brings about greater homogeneity of arbitral process in a practice that is seeing ever more stakeholders emerge from diverse legal backgrounds.

Disclaimer – The views expressed in this article are the personal views of the author and are purely informative in nature.