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Highlights

SIAC-THAC Bangkok Conference 2019


18 October 2019
SIAC-THAC Bangkok Conference 2019
by Dr Stephanie Garner, Senior Associate, Watson Farley & Williams


The inaugural SIAC-THAC Bangkok Conference titled “Effective Management of International Arbitration Proceedings in Thailand and Singapore: Techniques, Tips and Strategies to Save Time and Costs” was attended by over 80 delegates and panellists, many of whom had flown from Singapore.

Ms Lim Seok Hui (CEO, SIAC) and Ms Machimdhorn Khampiranont (Arbitration and Mediation Director, THAC) delivered the opening addresses. In her opening address, Ms Lim noted that arbitration is the preferred dispute resolution mechanism for cross-border disputes in the region and attributed this to the five Es: even-handedness, efficiency, expedition, expertise and enforceability of awards. In her opening address, Ms Khampiranont stressed the importance of effective management of proceedings and emphasised the role played by arbitration centres in managing costs and ensuring expeditious resolution of disputes by tribunals.

Panel Session 1: Tactical Considerations for Commencing an Arbitration

The first panel discussion was moderated by Mr K Minh Dang (Member, SIAC Court of Arbitration; Senior Partner, YKVN). Mr Prakash Pillai (Partner, Clyde & Co Clasis Singapore) began the session with his thoughts on drafting the notice of arbitration. He stressed the significance of this stage for the claimant: it fixes the date of the commencement of arbitration and provides notice to the Respondent. Mr Pillai and the other panellists also discussed their views on how long the notice of arbitration document should be, with the majority erring on the side of brevity.

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Left to Right: Sebastian Seelmann-Eggebert, K. Minh Dang, Prakash Pillai, Nathee Silacharoen, Steven Burkill and John Rainbird

Members of the audience

Mr Nathee Silacharoen (Counsel, Chandler MHM Limited) addressed preparation for the arbitration. The key points were to review the arbitration agreement and consider reaching further agreement on arbitral procedure (such as the use of the expedited procedure) that would be appropriate to the dispute. He also highlighted the good practice of producing written summaries and a chronology of key events and witness interviews in advance of the drafting of the pleadings.

In considering the selection and appointment of arbitrators, Mr Sebastian Seelmann-Eggebert (Partner, Latham & Watkins) painted a caricature of seven types of arbitrator: the vanishing arbitrator (who is too busy after appointment), the unprepared arbitrator, the inexperienced arbitrator, the procrastinating arbitrator, the advocate, the unethical arbitrator and finally Fredo Corleone (the black sheep). Mr Seelmann-Eggebert highlighted how some of these characteristics can be both positive and negative.

Consolidation and joinder is typically a tricky issue because of the consensual nature of the arbitration agreement. Mr John Rainbird (Counsel, Allen & Overy) broke the topic down into three questions: can you, should you and, if so, when? Amongst other strategic considerations, Mr Rainbird highlighted the importance of the consistency of legal rulings, cost and time efficiency, evidential quarantine between cases and the SIAC rules governing the timing of such applications.

Mr Steven Burkill (Partner, Watson Farley & Williams (Thailand) Ltd) spoke on prima facie jurisdictional objections. He set out the legal principle of competence – competence, whereby the arbitral tribunal is empowered to determine its own jurisdiction. Any jurisdictional challenges should be raised as soon as possible, but the question of when the Tribunal decides a jurisdictional challenge is more subtle and the question of bifurcation should be considered.

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Left to Right: Chou Sean Yu, Pisut Attakamol,
Kirindeep Singh, Siraj Omar, SC and Chua Kee Loon

Warathorn Wongsawangsiri, Pariyapol Kamolsilp, Robert Tang, Paul Sandosham, Avinash Pradhan and Chaitanya Arora


Panel Session 2: Saving Time and Costs under the SIAC Rules (Expedited Procedure, Emergency Arbitrator, Early Dismissal)

Mr Pisut Attakamol (Partner, Baker & McKenzie) moderated the second panel discussion of the afternoon, which focused on particular provisions of the SIAC Rules designed to ensure effective time and cost management of the case.

Mr Kirindeep Singh (Senior Partner, Dentons Rodyk, Singapore) spoke of his experience with the expedited procedure under Rule 5 of the SIAC Rules 2016. He set out the three criteria for an application and drew the delegates’ attention to the case of AQZ v ARA [2015] SGHC 49, confirming that the expedited procedure applies even where the arbitration agreement contains contrary terms.

Mr Siraj Omar, SC (Director, Drew & Napier LLC) presented his experience of the emergency arbitrator procedure under Rule 30 and Schedule 1 of the SIAC Rules 2016. He compared the use of an emergency arbitrator with seeking emergency or interim relief from Singapore courts. He further identified the guidelines emergency arbitrators typically use: prima facie evaluation of merits of claim, urgency and evaluation of convenience/prejudice.

Mr Chou Sean Yu (Partner, WongPartnershipLLP) considered the early dismissal procedure under Rule 29 of the SIAC Rules 2016. SIAC was the first major international arbitration centre to introduce this procedure in 2016. This novelty has led some to question whether the procedure is open to abuse through the potential of being used as a delaying tactic and whether tribunals may be overly cautious in judging claims. Mr Chou’s verdict was positive and he noted that tribunals have not been hesitant to dismiss claims if they meet the criteria.

Mr Chua Kee Loon (Partner, Allen & Gledhill) closed the discussions by posing questions to the other panellists to assess the effectiveness of the expedited procedure, emergency arbitrator, and early dismissal mechanisms in saving time and costs for parties. In relation to the ground of “exceptional urgency” in Rule 5.1(c) of the SIAC Rules 2016 for the expedited procedure, the panel concluded that such a ground would only usually apply in insolvency cases, or cases involving loss of license and regulatory consequences in the event of delay.

Panel Session 3: Comparative Perspectives on International Arbitration in Thailand and Singapore

The final session of the day was devoted to a discussion between the various panellists, moderated by Mr Robert Tang (Senior Consultant, DLA Piper (Thailand) Limited). The session considered the various mechanisms introduced to save time and costs raised in the second session (expedited procedure, emergency arbitrator, early dismissal) and sought to evaluate their effectiveness as well as making broader comparisons between arbitration in Singapore and in Thailand.

Mr Paul Sandosham (Partner, Clifford Chance) expressed the view that the expedited procedure was one of the best innovations for the international arbitration process as it ran counter to the natural tendency of counsel and tribunals to seek to slow down the proceedings.

Mr Warathorn Wongsawangsiri (Member, YSIAC Committee; Partner, Herbert Smith Freehills (Thailand) Limited) noted that expedited procedure is also possible in Thailand (under THAC Rules Section 8). Mr Pariyapol Kamolsilp (Partner, Kudun & Partners) added that the procedure is new to Thailand and practitioners had limited experience of its use. Furthermore, THAC Rules require parties’ consent for the expedited procedure to apply.

Mr Avinash Pradhan (Partner, Rajah & Tann Singapore LLP) emphasised the advantage for a Claimant using the expedited procedure, given their control over the selection of the commencement date, which had been discussed by the very first panellist of the day.

The discussion benefitted from input from Mr Chaitanya Arora (Senior Managing Director, FTI Consulting), the conference’s only non-lawyer panellist. As a quantum expert, Mr Arora was able to comment on the importance of obtaining expert input ahead of applying to use the expedited procedure, because of the limitations on the claim value.

Conclusion

The event closed with brief closing remarks by Mr K Minh Dang.
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