The BAIAC COVID-19 International Arbitration Protocol
Article 1. Purpose
- The outbreak of COVID-19 has caused an unprecedented scale of global business interruptions and will likely to lead to commercial disputes for many individuals and businesses. Considering the varying circumstances of parties, the pressing resolution of their disputes may be essential.
- The BAIAC COVID-19 International Arbitration Protocol (“the Protocol”) provides a viable option enabling parties to access private arbitration as a flexible and expedient alternative to court litigation, especially where access to the latter is not readily available.
Article 2. General Principles
- It is recognised that the use of international arbitration to obtain expedited outcomes during this pandemic period can be important to businesses, in light of the anticipated logjam and delays in access to commercial justice that may arise in courts all over the world.
- It is recognised that despite logjams and delays in access to commercial justice in courts around the world, there are businesses, including those defending a dispute, that prefer an earlier resolution of their disputes, to have better business and financial planning and to mitigate prospective risks.
Article 3. Scope of Application
- This Protocol applies to all commercial disputes, regardless of origin (whether from Singapore or any foreign jurisdiction), whether the dispute was to a material extent caused directly or indirectly by the COVID-19 outbreak, and whether the dispute arose out of a scheduled contract under the Singapore COVID-19 (Temporary Measures) Act 2020, Schedule 1.
- Nothing in this Protocol allows a party to contravene any COVID-19 related rules or legislation passed by the Government of the Republic of Singapore, including the COVID-19 (Temporary Measures) Act 2020. The Protocol is instead intended to provide support to such rules and legislation, inter alia, in minimising any backlog that the Singapore courts, and for that matter, that any national courts may face when any moratorium on commencing civil actions is lifted, or when parties cannot gain ready access to the courts.
- The Protocol does not apply to any arbitrations under the Singapore Arbitration Act (Cap. 10). Where there are pending arbitral proceedings under the Arbitration Act (Cap. 10), parties are not entitled to pursue arbitral proceedings under this Protocol.
- Where none of the parties to the dispute has filed a notification under section 9 of the COVID-19 (Temporary Measures) Act 2020, the dispute may be referred to the BAIAC anytime. Where a party to the dispute has filed a notification under section 9 of the COVID-19 (Temporary Measures) Act 2020, no referral shall be made to the BAIAC unless the notification has been voluntarily withdrawn.
- The Protocol only applies where all parties to a dispute consensually agree in writing to refer their dispute to international arbitration under the Singapore International Arbitration Act (Cap. 143A). In all circumstances, disputes may only be referred where all parties to the dispute have agreed in writing that Part II of the Singapore International Arbitration Act (Cap. 143A) shall apply to their arbitration.
- Where there are pending proceedings before the Singapore courts or any national courts, parties are not entitled to pursue arbitral proceedings under this Protocol unless leave (permission) of the court is granted.
- The Protocol shall operate from 1 May 2020 to 31 October 2020, and may be extended, shortened, terminated and/or amended by BAIAC.
Article 4. Submission to Arbitration
- In all circumstances, disputes may only be referred to arbitration with the consent of all parties to the dispute. Parties shall record their consent in a written submission to arbitration agreement, a model of which is provided as follows:
The parties hereby agree to submit their dispute, controversy, claim or difference arising out of or in relation to: [insert brief description of dispute] to an international arbitral tribunal seated in Singapore in accordance with the Singapore International Arbitration Act (Cap. 143A), including Part II of the Act. The arbitral tribunal shall apply the BAIAC COVID-19 International Arbitration Protocol (“the Protocol”), including at the discretion of the arbitral tribunal, the summary procedure in Annex 1 of the Protocol. The tribunal shall be comprised of a sole arbitrator who shall be jointly appointed by the parties. If the parties are unable to agree on the arbitrator, he/she shall be appointed, upon request of a party, by Beihai Asia International Arbitration Centre. The law of the arbitration agreement shall be Singapore law.
Article 5. BAIAC’s Appointment Fees and Arbitrator’s Fees
- Due to the exceptional nature of the COVID-19 outbreak, the only fee that BAIAC shall receive under this Protocol is a fixed arbitrator appointment fee of S$450, if called upon by the parties to appoint an arbitrator. The fee will be waived for a period of three (3) months from the date of commencement, and may be extended by BAIAC.
- The parties will be responsible for the arbitrator’s fees directly. Typically, parties may be required to make deposits or pay advance fees, depending on the requirement of the arbitrator.
- Arbitrators appointed under the Protocol will impose fees in accordance with BAIAC’s standard Arbitrator Fee scale, however BAIAC has strongly recommended that arbitrators provide a discount whenever possible in consideration of the current exceptional situation.
The Summary Arbitration Process
- The parties hereby agree to that the process set out in this Annex 1 shall take precedence over any other prior agreement between the parties as to the arbitral procedure.
- A party may apply to the arbitral tribunal for an early dismissal of a claim or defence on grounds that such claims or defences are manifestly devoid of merit.
- An application for the early dismissal of a claim or defence shall state in detail the facts and legal basis supporting the application, and shall be served on the other party at the same time that it is submitted to the arbitral tribunal. The arbitral tribunal shall, after giving the parties the opportunity to be heard, decide whether to grant, in whole or in part, the application for early dismissal.
- The arbitral tribunal may decide the dispute on a “documents only” basis without holding an oral hearing. When the arbitrator determines that a hearing is appropriate, such hearing may be conducted by videoconference, telephone or similar means of communication.
- The arbitral tribunal shall make an Award on the application of a party, with concise reasons unless the parties have agreed that no reasons are to be given. The Award shall be made within seven (7) calendar weeks or forty-nine (49) calendar days of the date of filing of the application.