[A SERIES OF ARBITRATION NOTES] EPISODE 6 | SIAC NEW RULES FOR 2025 | The Preliminary Determination Procedure

Foreword

The amendment of the SIAC Rules officially commenced on 2 July 2020, with the objective of consistently ensuring the fairness of proceedings, enhancing the efficiency of arbitration proportionate to the amount and complexity of the dispute, and bolstering the enforceability of awards.

After over four years of research and revision, on 9 December 2024, the Singapore International Arbitration Centre (“SIAC”) announced the official release of the 7th edition of the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules 2025”). This milestone followed extensive public consultations with SIAC’s users and stakeholders, including the SIAC Users Council, arbitration practitioners, arbitrators, business entities, in-house counsel, government representatives, academics, and students. The SIAC Rules 2025 are set to take effect on 1 January 2025.

The SIAC Rules 2025 introduce significant changes compared to the 2016 SIAC Rules, highlighting seven key differences. Among these, one of the most notable innovations is the codification of the Preliminary Determination procedure under Rule 46, which enhances tribunals’ ability to make early determinations on key issues that could significantly impact the conduct of arbitration proceedings.

The Preliminary Determination Procedure

The SIAC Rules 2025 significantly expands early determination procedures in international arbitration through Rule 46, which replaces the limited Early Dismissal mechanism of Rule 29 (2016). The new Preliminary Determination procedure allows parties to seek early resolution of any arbitration issue, rather than just claims without legal merit or jurisdictional issues, promoting greater procedural efficiency and effective case management.

The practice of early determination, already customary in common law jurisdictions, has increasingly gained ground in international arbitration. Rule 46 of the SIAC Rules 2025 represents a significant evolution in SIAC’s approach to early disposition of issues, replacing and expanding upon the more limited Early Dismissal procedure that existed under Rule 29 of the SIAC Rules 2016.

Under the previous Rule 29, parties could only apply for early dismissal of claims or defenses that were manifestly without legal merit or manifestly outside the tribunal’s jurisdiction. This narrow approach, while useful in certain circumstances, limited the procedure’s utility in cases where early determination of other issues might benefit the arbitration process.

Rule 46 of the SIAC Rules 2025 marks a decisive shift away from this restricted framework. Instead of focusing solely on manifestly unmeritorious claims or jurisdictional issues, the new Preliminary Determination procedure provides a more flexible and comprehensive mechanism for the early resolution of key issues. Under Rule 46, a party may apply for a final and binding preliminary determination of any issue that arises for determination in the arbitration, provided certain conditions are met.

This evolution reflects SIAC’s recognition that effective case management often requires the early determination of issues beyond those that are manifestly without merit. The new procedure is designed to allow issues that could impact the overall conduct of the case to be assessed early in the process, thereby enhancing both the tribunal’s and the parties’ ability to increase the efficiency of the proceedings.

The SIAC Rules 2025 clarify and make explicit the tribunal’s power to make such determinations, providing a cue to parties and tribunals to confidently leverage these procedural mechanisms to achieve efficiency by considering the determination of issues that may prove to be dispositive at an early stage.

Instances for Applying Preliminary Determination

Rule 46 significantly expands the grounds for early determination beyond the previous Rule 29’s focus on manifestly unmeritorious claims and jurisdictional issues. A party may now apply for preliminary determination under Rule 46 in three specific circumstances:

• Where the parties agree that the Tribunal may determine such an issue on a preliminary basis
• Where the applicant can demonstrate that the determination of the issue on a preliminary basis is likely to contribute to savings of time and costs and a more efficient and expeditious resolution of the dispute
• Where the circumstances of the case otherwise warrant the determination of the issue on a preliminary basis

This flexible framework represents a deliberate departure from both the previous Rule 29 and the traditional “manifestly without merit” standard found in some other institutional rules, offering a broader scope for preliminary determinations that focuses on procedural efficiency and party autonomy.

Highlights for the Preliminary Determination Procedure

SIAC’s Rule 46 establishes a more flexible and comprehensive early determination procedure than similar rules of some other institutions, featuring a streamlined 90-day timeline, broader tribunal authority, and more accessible threshold requirements based on efficiency and party agreement rather than strict “manifestly without merit” standards.

The procedure under Rule 46 contains several key features that distinguish it from other early determination mechanisms:

• Timeline Requirements: The tribunal must render its decision, ruling, order, or award within 90 days from the date of filing the application. This represents a more streamlined approach, potentially offering great predictability for parties.
• Procedural Flexibility: While other institutions often require specific elements in the application (including proposed form of procedure), SIAC’s Rule 46 grants tribunals broader discretion in determining appropriate procedures. This flexibility allows tribunals to adapt to case-specific circumstances while maintaining efficiency.
• Scope of Authority: While other institutions may focus on specific grounds (manifestly without merit, outside jurisdiction, or inability to succeed), SIAC’s Rule 46 explicitly preserves tribunals’ inherent powers to make preliminary determinations on any issue. This broader approach aligns with the increasing trend toward tribunal empowerment in case management.
• Due Process Framework: leading institutions, including SIAC and HKIAC, always prioritize due process through mandatory consultation requirements. SIAC’s approach focuses on the opportunity to be heard rather than prescriptive procedural requirements. This may offer a more balanced approach between efficiency and fairness.
• Threshold Requirements: While some institutions may maintain the traditional “manifestly without merit” standard, SIAC introduces more flexible criteria including efficiency considerations and party agreement, potentially making the procedure more accessible in appropriate cases.

Ideal Procedural Steps

SIAC Rule 46’s preliminary determination process provides a structured approach to early issue resolution, moving from application submission through tribunal consultation to final determination, all within a 90-day timeline. The process emphasizes both procedural efficiency and fairness while requiring comprehensive documentation and reasoned decisions.

The preliminary determination process under Rule 46 involves several distinct stages, each requiring careful attention to procedural requirements and strategic considerations.

The process begins with the submission of an application for preliminary determination. This application must comprehensively present the case for early determination, including a clear identification of the specific issues to be determined and a detailed presentation of the supporting facts and legal basis under Rule 46.1.

The application should explicitly address how it satisfies one or more of the three grounds for preliminary determination: party agreement, demonstration of time and cost savings, or circumstances warranting early determination. Supporting documentation and evidence should accompany the application, along with a proposed timeline that accounts for the 90-day framework for determination.

Following the submission of an application, the Tribunal will ensure all parties have an opportunity to be heard. This consultation phase can take various forms, with Tribunals typically choosing between written submissions or a preliminary hearing. When preliminary hearings are conducted, they are often held virtually for efficiency and typically focus on the threshold question of whether to proceed with the determination, the precise scope of issues to be determined, and the establishment of an appropriate procedural framework.

The Tribunal’s decision on whether to proceed with the preliminary determination involves careful consideration of several factors. These include compliance with Rule 46.1 requirements, the potential impact on the efficiency of proceedings, due process considerations, and the overall case management strategy. This decision-making process reflects the balance between procedural efficiency and fairness that underlies the preliminary determination mechanism.

If the Tribunal allows the application to proceed, it will establish a specific procedural framework for the determination. This framework encompasses the timeline for submissions and evidence, any requirements for hearings, and specific guidelines for submissions. Importantly, the preliminary determination procedure can be integrated with other case management tools. It may be addressed during or after the initial Case Management Conference, coordinated with document production schedules, or aligned with other preliminary issues or bifurcation requests, offering significant flexibility in case management.

The management of the 90-day timeline requires careful planning. This period must accommodate initial written submissions from all parties, any necessary reply submissions, potential hearings, the Tribunal’s deliberation time, and the drafting and issuance of the determination. Tribunals often structure this timeline to ensure efficient progression while maintaining fairness to all parties.

The Tribunal’s determination may take various forms, including an order, a partial award, a full award, or any other appropriate form of decision. Unless the parties have agreed otherwise, the determination must include reasons for the decision, providing clarity and transparency in the process. This requirement ensures that parties understand the basis for the determination while potentially facilitating enforcement or subsequent proceedings if necessary.

Conclusion

The introduction of Rule 46 in the SIAC Rules 2025 represents a significant development in international arbitration practice. By codifying the preliminary determination procedure, SIAC provides parties and tribunals with a clear framework for early resolution of key issues while maintaining necessary procedural safeguards.

With its flexible grounds for application and clear timeline requirements, the preliminary determination procedure under Rule 46 offers a valuable tool for enhancing arbitration efficiency. Its success will ultimately depend on how tribunals and parties utilize this mechanism to achieve early resolution of appropriate issues while maintaining the fundamental fairness of arbitration proceedings.

ANHISA LLC AND OUR EXPERTISE

ANHISA LLC is a boutique law firm specializing in Dispute Resolution, Shipping and Aviation. Being the leading lawyers in various fields of law, our qualified, experienced, and supportive team of lawyers know how to best proceed with a case against or in relation to Vietnamese parties and are well equipped to provide clients with cost-effective and innovative solutions to their problems.

Regarding dispute resolution, we have represented Vietnamese and foreign clients in the resolution of disputes involving maritime, construction, commercial and civil matters. Our lawyers are well-equipped to offer services on a wide range of disputes and conflicts, whether cross-border or purely domestic, to appear before any Judges or Arbitral Tribunals. The firm is prepared to assist clients in designing the appropriate dispute resolution procedure to help resolve conflicts as efficiently and cost effectively as possible, which may involve combining elements of mediation and other methods such as arbitration.

AUTHORS

DANG VIET ANH

Managing Partner

Mobile: (+84) 983 467070

Email: anh@anhisa.com

NGUYEN THI TUYET MAI

Senior Associate

Mobile: (+84) 939 117398

Email: mai@anhisa.com

TO VU NHAT MINH

Associate

Mobile:  (+84) 364 260088

Email: minh@anhisa.com

This article aims to furnish our clients and contacts with general information on the relevant topic for reference purposes only, without creating any duty of care on the part of ANHISA. The information presented herein is not intended to serve, nor should it be considered, as a substitute for legal or other professional advice.