The Singapore High Court (the Court) considered whether an arbitration clause which stipulated that disputes were to be settled by arbitration under the ICC Rules in Singapore administered by a non-existent institution was inoperable. The Court ruled that the arbitration clause in question was workable provided that an arbitral institution in Singapore agreed to conduct the arbitration.
The judgment in this case appears to be in line with a previous judgment of the Singapore Court of Appeal which upheld an arbitration clause that provided for the Singapore International Arbitration Centre (SIAC) to administer an arbitration under the ICC Rules.
However, in between this judgment and the previous ruling, a new set of rules was adopted by the ICC (the 2012 ICC Rules). Rules 1(2) and 6(2) of the 2012 ICC Rules state:
“The [International] Court [of Arbitration] is made the only body authorised to administer arbitrations under the ICC Rules”
and
“By agreeing to arbitration under the [ICC] Rules, the parties have accepted that the arbitration shall be administered by the Court.”
The Court did not discuss the 2012 ICC Rules or how Rules 1(2) and 6(2) could raise implications for an arbitration conducted under the 2012 ICC Rules being administered by an arbitral institution that was not the ICC. The Court, therefore, did not address whether the parties had impliedly excluded the possibility of an institution besides the ICC administering the arbitration by adopting the 2012 ICC Rules.
While the SIAC previously agreed to administer an arbitration under the ICC Rules, it is yet to be seen whether the SIAC, or any other arbitral institution, will agree to do so given the introduction of Rules 1(2) and 6(2) in the 2012 ICC Rules. It is also uncertain whether the Court’s ruling will be appealed and whether the judgment will stand.
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