Ensuring Digital Signature Legality for Arbitration Agreement in Australia

How to eSign a document: digital signature legality for Arbitration Agreement in Australia

Hey good morning good afternoon Gary and our viewers from all around the world I'm delighted to welcome you to today's webinar I know many of you continue to work from home and we appreciate that you have taken the time to tune in I just took a quick look at the attendee list for today's webinar and we have thousands online right now from Albania to Zimbabwe literally eh-2-zed spanning six continents I see on the list many GCS in-house counsel practitioners and arbitrators from Singapore Asia Africa Australia Europe the Middle East US UK and South America it is my great privilege and pleasure today to be moderating this masterclass on drafting international arbitration agreements by Gary Bourne president of the SIAC Court of Arbitration as someone who needs no introduction and with Gary's permission I will use the time I would otherwise need to read through all of his numerous accolades and accomplishments to tell you about SIAC and what we've been doing during covert 19 it has been business as usual for us in fact it has been a very busy period for us cases are being filed we continue to receive and handle emergency arbitration applications several have come in during the last few weeks and proceeded via virtual hearings parties are going ahead with expedited procedure requests applications for consolidation and other procedures and there are rules we are fully operational our staff are still telecommuting although from this week onwards with a gradual lifting of the circuit breaker measures here in Singapore our physical office will be open twice a week during limited office hours to facilitate necessary the delivery of physical copies of documents although that said communications by email are still very much appreciated encouraged and the default we have been staying in close contact with you our users through our webinar series through dialogues with the SIAC secretariat our virtual hearing sessions with our users council young si si mock virtual hearings as well as webinars in various languages our life help desk on the SIAC website where you get your questions answered in real time during office hours by one of our counsel from the Secretariat has been very popular too as always we welcome your feedback tell us what we are doing right what more we can do and what we can do better and now after this short commercial break let me turn to today's topic I won't give you well any spoilers what I will do however is to wear my former GC hat and ask Gary questions as we go along I invite you to send us your questions during this interactive session and we will either take them during the presentation or answer them at the end so over to Gary Thank You Sally and thank you all from Albania to Zimbabwe or Zambia for taking the time to attend this I know given the geographical spread that it's very early in the morning for some of you perhaps in the Americas late in the day evening perhaps for those of you in Australia China elsewhere I think that's appropriate though because what we're talking about today is drafting the arbitration clause then as we all know usually that's the last thing that the GCS or pretty council that are putting together a transaction get to it's 11:50 9 or the way the world works very early in the morning when people turn to dispute resolution provisions hoping that in fact as usually is the case they never need to be used despite that despite the fact that arbitration clauses other dispute resolution provisions are usually the last thing on deal councils to-do list they are ordinarily important what's the dispute arises they can have an exceptional influence on how disputes are resolved what the parties agreement is really held to mean we're going to look today at how one drafts and arbitration clauses as well as what some of the alternatives are we're going to take this in a systematic fashion step by step using the slide deck that I think has now been shared with all of you let's start with that deck and begin with the fundamental question why is it that we plan for dispute resolution most parties hope and in the majority of situations that hope is realized that no disputes will ever arise their arbitration agreement like an umbrella at least in some places will never have to be taken out nonetheless disputes to occur and a forum selection clause or international arbitration agreement especially in cross-border transactions is essentially provides both commercial certainty or at least reduces the commercial uncertainty that can come from having multiple court proceedings in different jurisdictions it ensures that a single centralized tribunal will resolve all the disputes arising out of the parties commercial arrangement yet hopefully select the tribunal that has appropriate expertise and experience in the subject matter of the parties disputed avoids the possibility of litigation or some other dispute resolution in a forum that is inimical to one party hostile to one party or that simply lacks basic standards of either expertise or integrity then finally hopefully if when this plan properly produces an enforceable result a result that is enforceable both at the agreement stage and the award stage and us almost every cross-border transaction requires mandatorily requires a dispute resolution provision provisions that select the place the forum in which a dispute will be resolved and also selects the applicable law applicable substantive law that provides the standards by which that dispute will be resolved with that backdrop as to why one plans for dispute resolution let's look at the different kinds of choices one has in drafting a dispute resolution provision and let's start with the elements of an effective international arbitration agreement what are the questions that arise for either corporate counsel or in-house counsel when it comes eleventh hour to drafting and dispute resolution provisions the first in a sense most basic question is does one want an international arbitration agreement or alternatively does one want a choice of court or forum selection agreement an agreement that provides that all disputes will be resolved in the courts of a particular church they may not come as much of a surprise but given that this is an S I see whether or not but most experienced corporate counsel the most experienced GCS tilt fairly decidedly towards arbitration as opposed to Lee the reasons are summarized on the current slide they can be reduced though to what it s I see called the five E's arbitration tends to be more expeditious more efficient more expert more even-handed and more enforceable than the alternatives jurisdictional decisional courts difficulties in enforcing forum selection clauses and ultimately National Court judgments the possibility of lack of expertise a length of appellate proceedings and analyze those various durations till most cross-border transactions towards selecting and international arbitration clauses as opposed a toy some court or a forum selection clause the parties ability to tailor the procedures in the arbitration to choose the arbitral tribunal as opposed to randomly being assigned a national court judge to choose decision-makers with particular expertise in the subject matter of their contract as well as the New York Convention and national law that gives robust international arbitration agreements and arbitral awards having made that basic decision to choose an arbitration agreement as opposed to a forum selection provision what then are the elements of that agreement how is it that you draft an arbitration agreement you can see on the preceding slide the list of the basic elements that one has to consider one must consider in drafting and international arbitration provision the first of those and in some ways the most important as you can see is the seed of the arbitration there are a number of other very important points you can see these on the current slide but let's start with the seed of the arbitration or place of the arbitration in many ways this is a single most important choice in drafting an arbitration clause other aspects of the arbitration provision are important but the seed of the arbitration it finds a number of critical legal and practical aspects of the arbitration most importantly it is in the seat of the arbitration and only in the arbitral seat that proceedings to annul the arbitral award at the end of the arbitration can be brought there is of course an enormous difference between courts in different jurisdictions that's one of the reasons one wants a forum selection provision or an arbitration clause in the first place but an arbitration clause can prove to be a little value if it's provided for arbitration in the jurisdiction where once the proceedings are done a national court can essentially relitigate the parties dispute and thus selecting a seat which has appropriate annulment provisions national courts experienced in international arbitration is essential in addition to annulment of the arbitral award in the arbitral seat but nowhere else national courts in the arbitral seat can also in many cases consider challenges to remove arbitrators and in ad hoc patience appoint arbitrators the arbitral seat also defines whether or not the award will ultimately be subject to the New York Convention and it's Pro enforcement regime in 160 263 countries around the world the national courts in the arbitral seat also can provide ancillary support for the arbitral process as part of what's called their supervisory jurisdiction in some jurisdictions the national courts in the arbitral seat may intervene in the arbitral process selecting an arbitral seat we're not just proper annulment standards and standards for removal of arbitrators are applied but also where local courts will not intervene in the arbitral process is essential there are some tips that one has to have regard to in selecting the arbitral seat one should refer to the seat with the place of arbitration as opposed to using other words that one time when sometimes sees occasionally once these references to the arbitration taking place in a particular jurisdiction or the venue or situs of the arbitral hearings being in a particular state those sorts of formulations should be avoided they can suggest that all you have done is select the physical or geographical location for the arbitral hearings not the legal home juridical home of the arbitration not the seat of the arbitration and leaving open the question of where the arbitral seat may be is typically ill-advised it may result in the arbitral seat being selected either by a national court in a jurisdiction which asserts jurisdiction over the parties or alternatively by an arbitral tribunal who selects the SI ill-advisedly it is always almost essential to include a selection of the artificial seat in an arbitration agreement and do so by referring specifically to the seat of the arbitration or the place of the arbitration as opposed to using words like venue for apart cycles Singapore courts on this issue as on others often are of considerable assistance in resolving disputes about where the arbitral seat is they'll interpret references to venue and the arbitration being in Singapore as references to the arbitral seat which makes sense but not all national courts adopt that approach and therefore it is best to refer specifically to place or the seat of the arbitration in your arbitration agreement Gerry can I just interject here so wearing that former DC hat the seat of the arbitration if and you were talking about venue if I choose the seat as they Singapore do I have to have all the hearings in Singapore does the venue have to follow the seat in their regard that's that's an excellent question and it is one that comes up fairly frequently the answer is No particularly in Singapore and other ones to trauma law jurisdictions the seat of the arbitration is essentially a choice of law provision it selects the procedural law of Singapore or the arbitral seat but it does not limit where the hearings in the arbitration or the deliberations of the arbitral tribunal need to occur that's made explicit in the unsocial model law you can see it in article 20 subparagraph 2 in the model law also applicable in in Singapore it's also made explicit in the SI c rules rule 21 subparagraph 1 in all those in all those cases the arbitral tribunal has the discretion for the convenience of the parties to hold hearings outside the legal si the legal place or home of the arbitration that won't change the place where annulment applications may and must be filed it won't change the courts that have supervisory jurisdiction over the arbitration but as a physical matter it will change the location of the hearing venue often simply for the convenience of the parties could I also ask then what I've seen some clauses where it says the arbitration shall be in Singapore what does that mean is that a reference to the seat or the venue that's a that's a good question again and it is one of the sorts of things that one ought to avoid in drafting arbitration provisions one ought not to say the arbitration shall be e'en nor shall be held in or conducted in either Singapore or New Delhi or New York those provisions can be interpreted going back to your previous question that's simply a reference to where the hearings will be conducted hearings will be in Singapore in New Delhi and the proper approach the better drafting approach is to provide that the arbitral seat is Singapore or the place of arbitration is Singapore some national courts Singapore courts and you can see the reference on the current slide to the BNA versus B&B case will interpret provisions like that arbitration in Singapore to mean the arbitral seat is Singapore and that's a sensible and commercially sensible result parties don't typically before any dispute is arisen try and figure out where the most convenient place to resolve that dispute would be parties typically at the stage of drafting an arbitration agreement our thinking about the more fundamental question of where is the legal home of the arbitration where will annulment and removal of arbitrators occur and that's the Singapore Court the Court of Appeal was quite right thinking interpreting arbitration in Singapore to mean Singapore is the seed of the arbitration but just because the Court of Appeal got it right in that case doesn't mean that national courts and other jurisdictions will always get it right with any given language the the drafting advice in order to avoid problems and also litigation like that which had to occur before the court of appeal is to use the Dryden tested formula the place or the seat of arbitration is Singapore note that those two formula the place of arbitration or the seat of the arbitration the arbitral seat are are synonymous they're identical you can use them interchangeably all right that's very helpful can I just ask if I'm drafting a clause and I say arbitration in Singapore does that automatically mean SIAC instead well that's a good question it's one that we we NSIC yet fairly frequently it doesn't there are other arbitral institutions with with their branch offices in in Singapore and Singapore like most countries in the world recognizes fully the possibility of ad hoc arbitrations simply ceding your arbitration in Singapore doesn't direct you either to s IC or to any other arbitral institution if you want an institutional arbitration as we're going to see in the next set of slides you need to choose a set of institutional arbitration rules if you simply seat your arbitration in Singapore with no reference to institutional rules you will get an institutional arbitration conducted under the Singapore international arbitration act like other ad hoc arbitrations in Singapore you will not get an SI C institutional arbitration in the perhaps that's a good segue into the next set of slides and the next basic issue that one needs to consider in drafting an arbitration agreement do you want a so called institutional arbitration on the one hand or do you want an ad hoc arbitration on the other hand there are advantages to each although I think experienced practitioners both corporate draftsmen and arbitration counsel killed pretty decidedly in favor of institutional arbitration institutional arbitration is conducted pursuant to a set of institutional arbitration rules a set of rules published like the SAIC rules which you can find on our website or like the ICC arbitration rules a set of institutional arbitration rules which the number of procedural elements in the arbitration and which importantly provide for the arbitral institution whether it's the SI AC or the ICC to act as appointing authority in particular arbitrations institutional rules address a wide range of procedural issues in the arbitration how you constitute the arbitral tribunal how the hearings will be conducted at a very high level the right to a hearing the treatment of witnesses and and the like as well as addressing the costs of the arbitration the arbitral institution will conduct a variety of functions to assist the arbitral process including constituting the arbitral tribunal hearing challenges to the arbitrator's fixing the costs the fees of the arbitration including particularly the fees of the arbitrator's scrutinizing the arbitral award at the end of the process deciding issues with respect to consolidation joinder intervention and the like in many cases especially in recent years including provisions for things like expedited arbitration or emergency arbitration all of those issues will be addressed in institutional arbitration rules while in contrast ad hoc arbitrations are still in arbitration there an arbitration in many respects much like an institutional arbitration but it's done without any of those institutional rules and without the support of the arbitral institution in either constituting the arbitral tribunal or addressing the procedural issues that I mentioned previously expedited procedures consolidation joiner challenges to arbitral tribunals instead of having the expertise of an arbitral institution one needs to go to local courts importantly going back to our last set of slides local courts in the arbitral seat to address the issues concerning Constitution in the tribunal if the parties can't agree at city of the arbitrator's challenges to arbitrators if that arises in the court of view in the course of the arbitration the life for the most part most commercial parties tilt as I said previously quite substantially in favor of Institutional as opposed to ad-hoc arbitration they considered that there are cost savings in fact in institutional arbitration because of the role of the institution in supervising the arbitrator's fees the expertise of the arbitral institution in scrutinizing the award and all the various procedural issues that get addressed by the institutional rules regarding things like expedited procedure and consolidation importantly in some countries very few in fact perhaps only one China ad hoc arbitrations is at least in a domestic setting not permitted which provides at least in in Asia another potential reason to opt for institutional arbitration one final set of tips with regard to drafting institutional arbitration clauses most arbitral institutions published model arbitration provisions provisions which if you use them incorporate the institution's arbitration rules it's almost always good advice to use those model provisions they're based on accumulated expertise that has been fine-tuned over generations over years and they effectively incorporate in a proper way the institutional rules that you have in mind whether it's si si or some other arbitral institution that's important because as we're going to see towards the end of this presentation parties with surprising frequency refer incorrectly to institutional rules they'll use the wrong formula though not preferred to the Singapore international arbitration center to the Singapore International arbitration court or the Singapore arbitration Commission and although those sorts of faulty references sometimes can get fixed by an arbitral tribunal or a national court those types of references lead to unnecessary uncertainty litigation it's important to refer specifically improperly to the arbitral institution and when one does that the institutional rules that that institution is published yet incorporated into the party's arbitration agreement and they become contractually binding on the parties in the same way that other provisions in their contract in their arbitration agreement are binding on them perhaps we move on to the next set of slides Gary Gary Gary sorry sorry to interrupt I just had to unmute myself sounds like the general counsel shouting the pesky general counsel sorry before I ask my question we've been getting a lot of questions from the audience just a couple of the frequently asked ones yes this is being recorded and it will be up on our website it will be on si a C's YouTube channel as well for those of you have asked that question the second frequently asked question is everybody is saying your slides Gary are tremendously helpful and will they be made available the short answer is yes on request could you just email that si si events email that you've been whipping corresponding with you that's events at si AC dot o-r-g dot SG okay and with that if I could just interject and ask two questions the first one is you mentioned in the context of institutional arbitration one of the advantages over ad hoc arbitration is the scrutiny of awards I don't know what that means and why is that so important and the second question is you've been talking a lot about seat institution and I'm confused I think if I write SIAC into my claws does it automatically mean I have to choose Singapore s deceit so two great questions scrutiny of the award is a review conducted at the end of the arbitration by the relevant institution not all institutions will scrutinize the arbitral tribunals award but for example as I see and the ICC will do so some other institutions will will not do so scrutiny doesn't alter or or modify the arbitral tribunals conclusions about resolution of the party's dispute it doesn't alter the relief that the tribunal decides to grant or the reasoning for its disposition of the case it does however ensure that the arbitral tribunal has addressed all of the issues that the parties have put to the tribunal and that the the formalities that may be necessary for example in Indonesia for effective recognition and enforcement of an arbitral award have been complied with it also ensures that there is a basic level of quality that that is exercised by the arbitral tribunal in its reasoning in the case it doesn't change the substantive result but it enhances the wrecking the ability of the parties to have the award recognized and enforced with respect to the to the second question by choosing an arbitral institution for example si si one doesn't therefore necessarily choose the institution's home jurisdiction if I can put it that way one can and many parties to select si C's institutional arbitration rules at si si as the appointing Authority the arbitral institution that administers the arbitration but C T arbitration somewhere else suited in New York or London student in Beijing student in another jurisdiction there's no Caesarion linkage between the arbitral institution on the one hand and the arbitral seat on the other hand um Gary we're getting a lot of questions from the viewers on how to determine the seat when the contract is silent on the seat and the other one that's been asked a lot by our audience is what happens if I have an ad-hoc arbitration and I want as I see to administer it I changed my mind I don't want it to be ad hoc anymore so let's take the first question question first suppose that that people haven't listened to this webinar and they therefore haven't taken any advice to specifically include designation of the arbitral seat in their arbitration agreement the arbitration agreement is silent as to the arbitral seat what happens then what happens under the the SAIC rules which is a benefit of institutional rules generally but specifically of the esic rules is the arbitral tribunal itself is given the authority to choose the arbitral seat in in that respect there's there's no presumption that the seat will be Singapore some other arbitral institutions LCI a other institutions have a presumption in favor of their own local jurisdiction but under the SSE rules the arbitral tribunal has full discretion to choose that original seat which is most appropriate at Ferris for for the parties the the the arbitral tribunal can exercise that discretion after hearing from from the parties the this avoids what's sometimes called the risks of a blank clause a blank clause is an arbitration agreement that doesn't specify either the arbitral seat or the means of selecting the arbitral tribunal and in those cases there really is no effective way there's some some ineffective substitute ways but there is no effective way to select the arbitral seat because there's no way to constitute a tribunal there's no national court in an arbitral sea to appoint an arbitral tribunal and one's left with a sort of chicken and egg problem if you don't have an arbitral tribunal because the parties can't agree and you haven't chosen an arbitral seat where do you go to find a national court to provide assistance in selecting an arbitral tribunal the answer is nowhere and that's one of the reasons another one of the reasons parties prefer institutional arbitration even absent an arbitral seat the institution can appoint the tribunal and also why it makes good drafting sense to specify where the arbitral seat is and I'd like to come back to to your second question and Shockley but you're gonna have to remind me what that was and that was it it's an ad hoc arbitration in the arbitration clause but I've changed my mind because I've been convinced by your your your presentation and actually want to change it to si si administered arbitration can I do that how do I do that you can do that it it takes the cooperation of your your contractual counterparty but parties are free of course to amend their arbitration clause just like they can amend other provisions in in their contract to include an incorporation to the si si rules parties can also change during the course of an arbitration can change from an ad hoc arbitration to an institutional arbitration the that's complex and and requires discussions if there is an arbitral tribunal with an arbitral tribunal their issues with respect to appointment and confirmation of an existing tribunal but there are but it is possible to do it underscores though the importance of foresight in terms of drafting arbitration clauses when at that eleventh hour when the contract is is being finalized if you're going to select institutional arbitration the right time to do it is then even though if you fail to do so there are ways to do but subsequently and one more question sorry one more question from a viewer um does and I quote to be resolved through arbitration under the rules of SIAC automatically mean as I see will administer the arbitration I think that isn't the si C's model clause which you can find on our website and it's always advisable we'll come back to this Jersey into the presentation it's always advisable to use both our si C's Mahalo clause and also other institutions model clause that said that clause very likely would be considered by the Registrar as sufficient to permit registration of a request for arbitration a constitution of an arbitral tribunal I don't want to obviously speak to any specific contractual language that's the registrar's function in administering a case not not my function and it's ultimately an arbitral tribunals function to interpret whatever the party's arbitration provision meant but a reference to either si si or to the si si rules is ordinarily even if in elegantly drafted sufficient both to start an arbitration and to constitute a tribunal and in the vast majority of cases to permit the arbitration to go forward before the tribunal perhaps we slipped back to the slide deck and the next next set of slides which is the scope of the arbitration clause we've so far what we've done is we've chosen a set of institutional rules and we we've chosen the arbitral seat well what what disputes are we going to submit to arbitration like other aspects of the arbitration agreement this is entirely a matter almost entirely a matter for the parties to decide and for the parties to decide in drafting what's called the scope of the arbitration clause or the arbitration agreement the scope of the arbitration clause defines what sorts of disputes what range of disputes the arbitral tribunal may and conversely may not decide and essentially the question is do you have an arbitration clause with a broad scope for a narrow scope let's look at some of the potential examples that one sees in different types of of arbitration agreements sometimes you see clauses like the first bullet point in this slide which are drafted relatively narrowly either all disputes arising out of this contract or alternatively all disputes arising from this contract some courts have decided some arbitral tribunals have decided that these types of formulations limit the Tribunal's jurisdiction only to contractual disputes only to disputes that arise out of the application of the specifically expressed terms of the contract they don't extend to non contractual claims breach of fiduciary duty claims various kinds of tort or taling claims that may be related to the parties contract but they don't specifically arise out of claims that it's terms have been breached broader formulations of arbitration agreements are contained in the second two bullet points that you can see in the slide all disputes relating to this contractor sometimes all disputes connected to this contract arising in connection with this contract or if you want to have a belt-and-suspenders approach the final bullet point all disputes claims and controversies arising out of or relating to this contract including all disputes relating to the formation validity interpretation performance for termination of this contract an effort in a sense ensure one-stop shopping to make sure that all the parties commercial disputes having anything to do with their relationship will be submitted to arbitration will be submitted to a single arbitral tribunal rather than taking the risk of multiple proceedings with possibly inconsistent results in different are different forums national courts on the one hand and and arbitration on the other hand therefore the general drafting advice and what one sees in both si si model clause and other institutional arbitration agreements is the the broader version the particular language that one uses is often not decisive but something that is drafted more broadly than simply disputes arising from this contract and instead encompasses all disputes relating to this contract sometimes with the further elaboration you see on this slide in some cases parties have particular reasons not to want a broad formulation or alternatively to limit the scope of the Tribunal's jurisdiction for example one sometimes sees in intellectual property transactions a carve out or an exclusion for particular types of IP claims you can see an example in the current slide in most cases those types of exclusions are ill-advised arbitral tribunals for the most part have very broad jurisdiction assuming that the parties arbitration clause gives them that authority there's very few disputes which are so called non arbitral Buller not capable of settlement by arbitration but and therefore it typically makes sense top for one-stop shopping that avoids multiplicities litigation and potentially inconsistent results but if you do want to exclude certain matters that type of exclusion that you see in the current slide is is one approach towards it having addressed the scope of the arbitration clause we can turn to another matter which is quite important although it's not strictly speaking part of the arbitration and that is choice of law or governing law the law applicable to the parties dispute noted you know international arbitration there are actually several choice of law questions and in particular there's three main questions three main applicable laws number one and the woman that I think most viewers typically think about the law applicable to the parties underlying commercial contract so you have an arbitration agreement that is in a sale and purchase contract the applicable law that defines the parties rights under that sale and purchase contract second issue that is related but different the law that governs the arbitration agreement the arbitration clause itself note that that can be and often is different than the law governing the underlying contract when they think intuitively that oh the law of the arbitration clause Clause 21 in a 25 Clause contract must be the same as the law governing the other 24 clauses in that contract but that's not true the arbitration agreement is under virtually all national laws separable it's independent and autonomous from the underlying contract and parties are free to select a different law applicable to their arbitration agreement and there's in many faces expressed choice of law provisions that do so if the parties don't choose a different law to govern their arbitration agreement then an arbitral tribunal or a national court must make a choice of law decision must decide what law is applicable to the arbitration agreement and finally a cluster of other choice of law issues related to the procedural law of the arbitration and the law applicable to the recognition and enforcement of the arbitral award what I'd like to focus on now just very briefly and the time that we have is the law applicable to the underlying contract and then also very briefly the law applicable to the arbitration agreement let's look first at some of the provisions that one sees in so-called general choice of law clauses this is on the next slide that we have and one sees a variety of formulations which like arbitration agreements themselves can differ in their scope one common formulation is this contract shall be construed in ance with the laws of state acts it's a relatively narrow formulation at least if you read it literally it only addresses questions of interpretation in construction of the contract it doesn't for example necessarily address questions of performance or breach although I think most parties would expect that a choice of law Clause would do so a somewhat broader formulation is this contract shall be governed by the laws of state acts thus going beyond issues of construction and reaching issues of performance validity and the life in general that better reflects the parties expectations when they include a choice of law clause in their contract and insofar as parties desire commercial certainty and predictability that broader provision typically is better advised even better advised in most cases however is the final choice the broadest of the various options we have where the choice of law Clause mirrors the terms of the arbitration agreement thus including non contractual disputes as well as contractual disputes within the scope of the choice of law clause note that all of these various choice of law clauses select the law applicable to the underlying commercial contract they did not necessarily select the law applicable to the arbitration agreement itself parties can include a separate choice of law provision in their arbitration agreement they typically don't do so but because it is a separable agreement they they both are entitled to and in some cases may be well advised to do so to select often the law of the arbitral sea to govern the specific terms of the arbitration agreement even if a different national law may have lied to the underlying commercial contract national courts in particular Singapore and English courts have addressed the question of what is the relationship between a general choice of law clause like that on the current slide and the arbitration agreement what is the law applicable to the separable arbitration agreement in a number of cases and although there are some bumps along the road most Court decisions seem to be heading in the direction of applying the law of the arbitral seat as an implied choice of law governing the arbitration agreement the important point though I think for draft taking is including governing law clause in your in your underlying commercial contract selecting the law applicable to that contract typically err on the side of a broader as opposed to a narrower governing law clause you can see an example on the current slide and unless our shadow general counsel Jia Hui has questions about this we can move on to the next drafting topic yes I think we should move on because of with an eye on the time we have just under 30 minutes Gary so over to you I think we're in good shape the the number of the arbitrators is the next drafting question if if one is is drafting an arbitration agreement that parties have full autonomy to choose the number of arbitrators to resolve their disputes to choose the number of arbitrators in their arbitration agreement although they have the freedom to choose any number of arbitrators in practice once talking really only about two numbers one and three it makes no sense to choose an even number of arbitrators two or four because of the risk then those two or four arbitrators will deadlock they'll be at iphone so to speak and the parties dispute won't be resolved either finally or expeditiously which is the basic purpose of an arbitration agreement conceivably one can choose five or seven arbitrators some staying two state arbitrations do so very occasionally commercial arbitration agreement will provide for five arbitrators but in almost all cases that is overriding the icing or the quitting five arbitrators cost a good deal more than one or three arbitrators and they bring little additional value to the table the real choice is between one or three arbitrators and in making that choice parties typically try to foresee predict what the disputes of will arise under their contract or likely to be if disputes are small small in value small and relative importance to the parties relatively uncomplicated parties almost always prefer a sole marquetry the sole arbitrator typically costs 1/3 as much as a three-person tribunal 1/3 or abouts as much as a three-person traffic you know one arbitrator can coordinate his or her schedule with the party schedules much more expeditiously than a three-person tribunal and I've seen small vacuum cases parties prefer a soulful arbitrator not coincidentally expedited procedure rules under both the si si rules ICC rules under institutional rules almost always provide for a solo arbitrator and expedited arbitrations precisely because the solo arbitrator is much more able to conduct an arbitration quickly than a three-person tribunal let's sail in more significant disputes and a good rule of thumb here is the level by at which si si will expedite an arbitration in its expedited procedure rules around five six million Singaporean dollars a good rule of thumb is for larger disputes disputes of a greater monetary value than that threshold commercial parties often prefer a three-person tribunal they prefer a three-person tribunal because on the one hand the three heads are better than one in most cases one of the loneliest jobs in the world aside from doing webinars at home is being a sole arbitrator and realizing how you may have missed particular points in the party submissions having to Co are betrayed errs to call your attention to matters provides the very useful check a very useful means of quality control in a sense additionally a three-person tribunal almost always allows both the claimant and the respondent or the claimants and the respondents plural to each select a Co harbour trader that enables them to ensure that at least one member of the tribunal will have the type of background the type of experience that they believe is essential to fairly resolve the parties dispute especially in international transactions where parties come from different legal cultures differ different national law backgrounds different languages having a diversity of views on the arbitral tribunal is important to both parties in assuring that the arbitral tribunal has the expertise and the background fairly and in an informed way resolve their dispute it also enables the parties to establish a tribunal that has a range of different expertise that is appropriate for their case and thus in almost all larger cases parties prefer a three-person tribunal of course the difficulty is when it comes to drafting your arbitration agreement you can't be sure whether or not the dispute that arises in the future will be a big dispute or a small dispute small contracts sometimes produce big disputes and conversely large contracts sometimes produce small disputes and thus there's an element of chance in trying to predict in advance how many arbitrators are the right number of arbitrators many parties default in those circumstances to a three-person tribunal on the theory that its designs better to have too many arbitrators in a small case then not enough in a large case that that really really matters one of the other benefits of institutional arbitration is that if parties don't include the number of arbitrators in their arbitration agreement there are default rules in the si si rules unser trial rules other rules for the number of arbitrators you can see the default provisions in the si se rules and this many of the default provisions give the arbitral institution the discretion to choose the number of arbitrators after a dispute is arisen party sometimes seek to do that in their arbitration agreement itself providing that if the dispute is more than a certain value then there will be three arbitrators but others otherwise there will be a sole arbitrator often that that that is a viable way of proceeding although I can give to disputes about what exactly is meant by the value of a dispute if you are going to choose the number of arbitrators it's relatively simple as a drafting matter to do so you simply say the number of arbitrators shall be one or shall be three if you don't do so as I mentioned previously though if you don't include such a provision that default rules and institutional arbitration rules will provide a default solution and default number of arbitrators in perhaps we move on now to the a related topic the arbitrator's qualifications this is not strictly speaking something that is necessary in an arbitration agreement but it is something that parties sometimes include and that in particular transactions may may make sense you can include for example requirements that the arbitrator's have a particular legal expertise that they be qualified at the law of a particular jurisdiction that they have experience in a particular industry say insurance or telecommunications or construction you can include provisions that the arbitrator's either shall have a particular nationality they must be Singaporean or that they won't have a particular nationality none of the arbitrator's will have the same nationality as any of the parties you can include requirements that the arbitrator's either speak or be fluent in a particular language it's often the language of the arbitration but sometimes an additional language the language of the arbitration can be English we'll come and look at a provision like that in a moment but the arbitrator's must also be fluent in Mandarin or Arabic or Chinese one has to be a little careful in drafting these types of provisions one doesn't want to include a provision that makes it effectively impossible to find an arbitrator a requirement that any arbitrary to be a national of tonga with experience in telecommunications joint ventures in the Middle East also speak Spanish finding an arbitrator that kicks all those various since maybe next to impossible and in addition like other provisions regarding arbitrators qualifications can be fertile ground for challenges to arbitrators after an award has been made perhaps we move on to our next set of slides now the language of the arbitration which I mentioned previously this often gets omitted from arbitration clauses which is a mistake the language of the arbitration can be exceptionally important both in how the arbitration is conducted and a party's ability to participate fully in that arbitration but also in the selection of the arbitral tribunal it's a very different set of arbitrators that may be selected if the language of the arbitration is English on the one hand or Arabic or Spanish or Portuguese on the other hand language qualifications can be ways of substantially altering the potential pool of arbitrators and in some circumstances in some circumstances a requirement that the presiding arbitrators speak a particular language can then tilt the possible choice of a presiding arbitrator in a significant way towards one of the parties it's possible to have bilingual arbitrations languages conducted the arbitration will be conducted simultaneously in two languages I think most arbitral tribunals and arbitral institutions shy away from those sorts of provisions I think most experienced counsel do so as well although there's a certain rough justice notion to bilingual arbitrations both parties get to speak they're the the language of their home jurisdiction those types of proceedings can be very cumbersome they can lead to difficulties in interpretation and translation which in turn can create potential grounds for challenging an award often parties are best advised to choose a single language for their arbitration that is equally suitable for both parties chip type of claws doing so they're easy to draft is the language of the arbitration shall be either English Mandarin Spanish or something else course if parties failed to do so the arbitral tribunal will have the discretion to choose the language of the arbitration let's move on now to other potential provisions that can be included in an arbitration clause a lot of these are nice to have but not necessary there are a number of different types of provisions that can be included in an arbitration agreement you can include provisions that attempt more precisely in a more detailed way to regulate the arbitral procedures for example incorporating the ideas rules on taking of evidence or concluding provisions on disclosure of documents you can include provisions on the costs of the arbitration you can include provisions for fast-track arbitrations or accelerating procedures you can see that on the current slide the SI suit rules already have in them rule 5 provisions for expedited procedures if the case has a relatively small value less than 6 million Singaporean dollars including all claims and counterclaims then the institution the SAIC has the authority to expedite the arbitration on request from one of the parties in doing so over the objection if necessary of the other party the si si also has the ability to do so in cases of so-called exceptional urgency often emergency arbitration or or interim relief from an arbitral tribunal will be able to address issues of exceptional urgency but nonetheless there may be cases where a final award is needed within a short period of time and in those cases as in small value cases si se has the authority to expedite the arbitration if that is done in a sole arbitrator who will be appointed unless the the institution determines otherwise and the Oh Tribunal has the authority to conduct the arbitration on a so called documents only basis no no oral hearing either virtual or in person and importantly the final award with summary reasons must be made within 6 months of Constitution we've had a very substantial number of expedited procedure arbitrations at SAIC virtually all conducted within or well within the six month time limit producing awards that have been recognized and enforced like other awards during our consultation in the last set of rules revisions in 2016 we inquired of general counsel and we'd be interested in feedback from those of you who are in-house on this webinar with respect to expedited procedures but the feedback that we have had thus far has been that expedited procedures are very desirable that for small value disputes it's a it's a very effective way of saving time and money I think the use of virtual hearings which will come out to very briefly at the end of this webinar reinforces those conclusions but one of the things parties can also do in addition to the sec expedited procedures is include a specific provision in their arbitration agreement you can see an example on the current slide for a fast-tracked arbitration sometimes with three arbitrators sometimes with with just a sole arbitrator si ste like other arbitral institutions will give effect to those types of provisions just as si si will give effect arbitral tribunals will give an effect to the opposite types of provisions ie opting out of expedited procedures if for whatever reasons parties don't don't want a fast-track of arbitration Gerry can I can I intersect with some couple of questions here what if I understand as I see as a model expedited procedure clause if if parties have agreed upfront in contract for expert procedure does one party still need to apply to you as the president under rule 5 of the SIAC rules if it wants to go with expedited procedure and my second question is if my close is three arbitrators but then subsequently either part either side applies for expedited procedure does it have to be a sole arbitrator so clauses 3 but because we're going for the expedited procedure and applying for it doesn't mean it's three to one arbitrator yeah let's start with the second question first because it's a it's a little more complicated so as you will all recall in in many arbitration agreements there will be a provision that selects the number of arbitrators the arbitration clause itself will say the number of arbitrators shall be three the same time parties will incorporate the SI se rules or some other set of institutional rules that provides for expedited procedures and as part of the expedited procedures we'll provide that in small value disputes that are expedited the arbitral institution either shall or may appoint a sole arbitrator what do we at si si do in those sorts of cases is there a conflict so to speak between the choice of three arbitrators and the provision in our rules for his sole arbitrator and expedited arbitration cases our answer is no there's no conflict the parties simply have provided four different numbers of arbitrators in different circumstances the general rule for large-value disputes or for disputes that are not expedited is that there will be three arbitrators however if the dispute is expedited because of its small value then our rules provide explicitly for the possibility of a sole arbitrator and that those rules prevailed over inconsistent provisions in the parties arbitration agreement parties are free to opt out of that provision Freed's opt out as I mentioned previously from expedited procedures but if they don't then they will be taken both bye-bye s ICN Singaporean courts to have agreed to the possibility in the limited category of expedited procedure arbitrations to a sole arbitrator and we will exercise our discretion as appropriate to appoint a sole arbitrator that doesn't mean in every expedited procedure case we will appoint a sole arbitrary will take into account the fact that the parties in general desired a three-person tribunal and in some cases we may have we may appoint a three-person tribunal in an expedited procedure case however as we all know conducting an arbitration on a fast-track basis with a soul with a three-person tribunal can be challenged and thus depending on the amount in dispute depending on the complexity of the arbitration we may appoint a sole arbitrator notwithstanding an agreement in other cases on a three-person tribunal we may also though appoint a three-person tribunal as a matter for the si si court's discretion on a case-by-case basis guided of course by the specificities of the party's case and guided by the parties intentions reflected in their underlying arbitration agreement and then just very quickly if the parties include a specific provision with respect to expedited procedures in their in their arbitration clause it's really a question of what that provision specifically provides ordinarily I think one one would need in some fashion to apply to si si to expedite the arbitration that's said you can imagine provisions that if I can put it this way apply automatically at the end of the day it would be for the arbitral tribunal to interpret the true meaning of the party's arbitration agreement but ordinarily it would and as an informal matter parties are always free to discuss with the Registrar the Secretariat how they should approach implementing a particular provision ordinarily party would make some sort of application to the institution perhaps we very quickly moved back to the slides and then hopefully we've got a couple minutes for additional questions although I think we've taken a fair number already from from the audience multi-tiered dispute resolution provisions you often see dispute resolution mechanisms that combine arbitration with with something else the something else can be good-faith negotiations can be conciliation can be mediation can be some sort of expert determination often these types of multi tier dispute resolution mechanisms are included with the best of intentions the thought is if we can force parties to confer with each other to negotiate we can avoid the time and expense of formal dispute resolution whether it's arbitration litigation or expert determination it's a good thing to encourage settlement singapour of course has been at the forefront with the Singapore mediation convention in alternative dispute resolution of this sort and those intentions are entirely understandable that said as a drafting matter one must exercise care in drafting multi to dispute resolution provisions one must draft these precisely in order to make sure that one knows when steps prior to arbitration have been completed so if the parties are required to negotiate in good faith one needs to specify how long they do so if parties are obligated as a mediator conciliate before arbitrating one needs to specify how they do that for example through the Singapore international mediation centers rules or and how long they do it 30 days or some other period of time unfortunately despite they're well they're well intentioned objectives these types of dispute resolution mechanisms multi tiered dispute resolution clauses often lead to disputes lead to disputes as to well you didn't really negotiate in good faith for 30 days and therefore when you started this arbitration a year and a half ago you weren't really permitted to do so therefore the arbitral tribunals award could be adult those types of jurisdictional objections unfortunately can arise and therefore great care must be used in drafting multi-tier dispute resolutions either not including them or making it clear what must be done to comply with them let's move on just very quickly to the question of virtual hearings it's appropriate that in a webinar like this which we're doing virtually we talked briefly about them but in the pandemic era many arbitral hearings has have moved out of the hearing room and into virtual space yet as I say we've had a number of virtual hearings both in emergency arbitrations and otherwise and I I know from my experiences Council and as arbitrator in in other other contexts that virtual hearings are being conducted for literally every day there's nothing in the SAIC rules that inhibits the use of virtual hearings in an SI se arbitration Si Si rules give the arbitral tribunal broad authority to conduct virtual hearings notwithstanding the objections of one party some institutional rules the ICC rules refer to a need for in-person hearings and although there's ICC guidance that suggests that doesn't necessarily mean a virtual hearing I think many readers would assume that in-person means physically in person the si si rules provided quite explicitly for the possibility of expedited and efficient proceedings and there's little question but what an arbitral tribunal under the si si rules can conduct a virtual hearing yes the number of those tribunals have been doing I think what we might try and do in the remaining five minutes or so is just look very briefly at some pathological clauses things so far we've talked about what one should do perhaps we talked a little bit about what one shouldn't do and maybe if we just move straight to some examples of what one shouldn't do one here is an example of multi-tiered dispute resolution clause which it's better to avoid these are real-life examples taken from things that we've seen either in fic or or otherwise almost beads arising in connection with the present agreement should be resolved by negotiation and friendly settlement if this method or resolution should be impracticable the disputed questions shall be decided in ance with the rules of the ICC in Paris difficulty with a provision is you don't know what it means for negotiation and friendly settlement to be impracticable how long was one how must one engage in negotiation and friendly settlement this friendly settlement mandate mediation on all of those questions as to what what arguably must occur before you're permitted to start an arbitration or left undefined if one is going to use a multi-tier dispute resolution mechanism one ought to include clear timelines as to when an arbitration actually can't be commenced without the risk of jurisdictional objections let's move on to another example just very quickly I and I alluded to this briefly at the at the outset of our webinar all disputes in connection with this contract shall be settled amicably by friendly negotiation between the two contractual parties if no consent can be reached note that we have there the same difficulty with an uncertain pre arbitration requirement that we saw in the previous example what does it mean if no consent can be reached reached after how long after what sorts of things happen the case of dispute shall then be submitted to the Singapore arbitration body at Singapore the decision made by this commission shall be final and by the both parties multiple problems what is the Singapore arbitration body one doesn't steer reference to the Singapore international arbitration center there aren't many Singapore arbitration bodies so maybe it is a reference to the si si but it's certainly an example of how not to draft an arbitration agreement if you're going to submit your disputes to si si arbitration use the SI SE model clause relatedly what does it mean for the dispute to be submitted to the Singapore arbitration body at Singapore is that a reference to where si si is located or is it an effort to specify the arbitral seat not really clear at all alternatively is it simply the venue of the arbitral hearings again not clear a good example of bad drafting in an arbitration agreement let's do one more example and then see if there are any concluding questions or remarks from CR Queen another example of how not to draft a provision with respect to the seat of the arbitration any dispute arising out of or in connection with this agreement shall be referred to and finally resolved by arbitration in Singapore and then just in case you weren't confused enough the seat of the arbitration shall be Qinglin is the first reference a reference to arbitration seated in Singapore if you didn't have the second reference you probably say that's not the best way to pick Singapore as the arbitral seat but it just barely passes muster we the second reference though which specifically says to see the in arbitration shall be England the first reference probably isn't one to the arbitral seated suggests although it's odd thing for parties to do that the hearings would be conducted in Singapore that said one might also interpret this as the selection of two arbitral seats would you sometimes see in yet more confused clauses provisions that say effectively the arbitral seat Shelby Singapore and England most courts and arbitral tribunals have interpreted those types of clauses clauses which have not too little but instead too much too much of a good thing too many choices of arbitral seat is giving the claimant in the arbitration the option to choose which of those two places Singapore on the one hand and England on the other is the arbitral see the option to commence the arbitration in either place it's a little one-sided but on the other hand both parties have the option to be the claimant so each has an equal opportunity what one ought to do since we're the webinar about drafting arbitration clauses is not do that not include to our mutual seats or whatever this provision on the current slide says with that I think I should turn things over to see our queen once again either for any concluding questions or concluding remarks on behalf of ssize Lee thank you Gary um unfortunately we have run out of time and but it's been a really informative very very interesting session and thank you for sharing with us your pointers and tips and flagging the pitfalls to avoid when drafting an effective arbitration agreement I guess the key takeaway is to keep it simple as always and to use our if you're if you're deciding to choose as I see to use our I will model clause so thank you Gary and thank you everyone for tuning in and importantly staying throughout thank you and good evening