ArbitRAAtion Kitchen with Kevin Nash (SIAC)

To see the video, please follow the link: https://www.youtube.com/watch?v=7NhD2e_M2tA&feature=youtu.be

AS: Good evening Kevin, thank you very much for accepting our invitation to participate in this series of webinars organized by the Russian Arbitration Association, "Arbitration Kitchen". This is episode three season one, and today we would like to have an interview with you as a representative of the Singapore International Arbitration Centre (SIAC), the Deputy Registrar and the Center Director. Kevin, what are you going to cook with us today?

KN: I am cooking barbecue short ribs tonight and there is really a tradition of barbecue during my entire life. I am the youngest in my family and it is always the most senior person who does the barbecuing, usually my older brother or my Dad. I have always been second chair or even third chair on the barbecue.

This dish was passed to me by my brother who is a lawyer in Canada, where I am originally from. One of the traditions of barbecue is that you put the meat on the grill and then you talk. This is kind of perfect for tonight. The idea standing behind the dish is that it is a fusion of East meets West. You will see that there are Asian flavors and there are also some Western cooking traditions.

AS: Kevin, would you like to give us a small instruction as to the best way to prepare the ribs according to the list of your ingredients?

KN: One of the adjustments during COVID-19 is that it may not be easy to source all of the ingredients but the idea behind the dish and the flavor profile still work even if a few components are missing. The idea is to get a combination of sweet and sour on the meat. The time for the marinade is usually four to six hours but a shorter amount of time will also add flavor. Once we put the marinated meat on the grill, we will see some caramelization.

The glaze will go on as the very last part, and the cooking time will depend on the thickness of the ribs. There is going to be some variation depending on whether you are cooking the ribs in a cast-iron frying pan on top of the stove, in the oven or on a barbeque. The cooking time will also depend on whether the ribs are bone-in or bone out. I have thin, boneless ribs which will cook quite quickly for about five to seven minutes on each side. After we cook both sides, and we see the caramelization, we are going to brush on the glaze and cook for an additional one or two minutes per side. To test whether the ribs are done, you can push a toothpick into the ribs and there should not be much resistance. If you have bone-in ribs, the meat should be close to falling off the ribs when it is fully done. It is a delicate balance with barbecue — you want the ribs to be fully cooked and tender but if you overcook them, the ribs are going to be tough.

AS: Okay, noted. We are moving next to the side dishes for the ribs. Any plans to cook them today or it is just a recommendation for the guests to prepare them for the lunchtime or dinner?

KN: You can serve the ribs alongside vegetables or the way that I like to do it, even though it is not incredibly dignified, is to wrap the ribs in lettuce leaves. The plating is a lettuce leaf, rice, chili sauce, and the ribs cut into one centimeter slices on the diagonal. You then fold the lettuce leaf over and effectively eat it like a wrap. This is how it was always prepared for me. Of course, you can prepare it in lots of different ways.

AS: And the last point in our agenda is the wine choice. I personally should admire it — Pinot Noir for the ribs! I think this is great. What are you drinking? Pinot Noir or something else?

KN: I am going to claim that I am drinking water.

AS: Because, probably, you need to work after dinner?

KN: I am claiming it for the benefit of all of our Russian friends. But, as it is after six pm in Singapore, I hope everyone watching in Singapore is having a drink. Pinot Noir would be good. It also works with white wine; maybe a Belgian fruity beer or any beer works for barbecue.

AS: Okay, that is great. Kevin, how is life in Singapore? How is your lockdown? Are you working from home now?

KN: Yes, we are working fully remote now due to the "circuit breaker" in Singapore. One of the advantages of the SIAC is that most of our work is online. We have an online case management system and our lawyers are pretty transferable. This allows us to work quite quickly and adeptly. We are encouraging all parties to file documents electronically, but we are able to take hard copies as well.

AS: Speaking about the filings. How is it usually done in the SIAC? Are the parties sending tons of papers and boxes bombarding you with the submissions, pleadings and exhibits? Or are the parties participating in the SIAC-administered arbitrations mainly using electronic sources for filing?

KN: It is mainly electronic sources. Every once in a while you will get those wheelbarrows of physical documents in eight separate sets of A4s. But, as I see it, it is now mostly electronic filing. It depends a little bit on the preferences of the tribunal as well. Tribunals in SIAC-administered arbitrations are quite progressive and the SIAC is encouraging the move towards more electronic document management.

The COVID-19 pandemic might prompt certain advancements in arbitration that we can carry forward once the world goes back to normal. Looking at, for instance, e-hearings, if there are three members of the tribunal located in Sydney, Moscow and Vancouver, it may not be necessary for the members of the tribunal, both sets of counsel, maybe multiple sets of counsel, to all attend a hearing in Singapore if an e-hearing could be used. Out of the necessity brought by COVID-19, all the institutions are looking at ways to make things more efficient and hopefully the lessons learned during coronavirus will carry forward once the world is back to normal.

AS: Kevin, just to confirm, you have been in the SIAC since 2012, right?

KN: Right.

AS: So it is now approximately eight years with the arbitration institution. I would suggest that the number of arbitrations the administration of which was supervised by you may be already uncountable or you have any figures in your mind?

KN: Many thousands for sure and that is part of the evolution of the SIAC. I can remember when I joined in 2012, as the SIAC was emerging as an institution, all of our internal documents only contemplated a maximum of 200 cases. In 2019, we had nearly 500 cases and the SIAC is now one of the biggest institutions in the world in terms of international-administered caseload. I arrived at a very fortunate time when the SIAC was starting to gain more and more traction. For me, it is interesting to look back from 2020 to 2012 and the thousands of cases in between.

AS: Before joining the SIAC and starting your new life with the arbitration institution, you graduated and your first place of work was in Canada. You are also admitted to the Canadian Bar.

KN: I studied and worked in Canada and then went on to take an LL.M. in Stockholm, which is one of the greatest arbitration programs in the world under the guidance of the head of the international arbitration program in Stockholm University, Patricia Shaughnessy.

AS: She is great, I think she is the heart of this program. Many, many people are just kids of Patricia and are saying, "Patricia, we love you!"

KN: The alumni there is very strong. Most times when I am travelling for arbitration work, whether it is China, South America or Russia, I will end up connecting with a Stockholm LL.M. alumni. It is a very close-knit group. Coming from Canada, where I was working at a firm which specialized in transactional work and commercial litigation, I wasn’t able to get as much arbitration and mediation work as I would have liked. I knew that I had to go international to really learn about arbitration practice. This journey has taken me from Canada to Stockholm and then on to Singapore and the SIAC. It feels like the time has gone very fast. Of course, working at a busy institution, I am not usually thinking about the passage of time. I rarely have time to think about the next month or the next year; it is just dealing with the next task at hand.

AS: Based on this, very touching introduction from my point of view, we are moving to the photographs that you kindly shared with me.

KN: This picture is in Machu Picchu as part of a side trip after a series of SIAC events in Bogota, Buenos Aires, Sao Paulo and Rio de Janeiro. Even though I often travel alone, I do get to visit some very interesting places while promoting arbitration around the world. I remember this day well because I was really feeling the elevation after coming from Singapore at sea level.

AS: So moving next — this is your hobby — golfing?

KN: Golfing is one of my hobbies. As things move very quickly in Singapore, particularly in the legal profession, lawyers do not have too much time to get out on the golf course. This was one of those days where we managed to carve out some time in January. As a Canadian who grew up with ice in my veins, always being cold, I find it amazing that you can golf in January at any number of the beautiful courses in Singapore.

AS: I agree. So photograph number three. Hobby number two I think.

KN: It’s easy to talk about a picture of cold weather when I am sitting outside in sunny Singapore. As I mentioned to Vladimir Khvalei prior to the session, there is an identity between Canadians and Russians because of our very similar surroundings and weather. In Canada, most kids know how to ice skate as soon as they can walk. For me, I started skating so early, I cannot even remember learning to skate. This picture was taken over the winter holidays on a lake by our family cabin in the mountains. All across this lake, people had shoveled the snow off the ice to construct around 50 ad hoc ice hockey rinks on the lake. It was an impressive sight.  

AS: Photograph number four… Hobby number three, right?

KN: Moving from cold weather back to warm weather. I was going to select a picture of me scuba diving with sharks but I noticed that Alexis Mourre in his session, who is probably a much better scuba diver than me, had a scuba diving picture with more impressive sharks. I therefore had to choose a picture from Hawaii with a stand-up paddleboard.

KN: This is a picture with my niece and nephew who both live in Canada. One of the great things about this webinar is that it allows us to make virtual connections that we are missing in-person with friends and family. 

AS: How often do you visit Canada right now? Or are you permanently in Singapore and on some business trips?

KN: Yes. I usually visit about once a year and sometimes twice a year. Actually, over the past five years, I have probably travelled to Russia more than I have to Canada.

AS: Maybe that is your destiny; I cannot see any other thing.

KN: It could be.

AS: So next one, here are your colleagues I suggest. Is this the Secretariat?

KN: Yeah, this is the SIAC Secretariat. This was an interesting event because we all took part in a competition that is put on by a few restaurants in Singapore whereby if a person eats a very, very spicy and hot bowl of ramen, the meal is given for free. This picture shows us all right before the competition started. I am trying not to be noticed.

AS: Ok, that is the official photograph.

KN: Yes, this is the official photograph of the SIAC operation. We are about 45 strong in Singapore but we also have overseas offices in Mumbai, Gujarat, Seoul and Shanghai.

AS: And I think it is going to be the last one.

AS: This is a part of a series of photographs with your colleagues, but I think we have been waiting for this one.

AS: A couple of words about this photograph, we need explanations.

KN: This is another one of those amazing moments in arbitration. Sometimes when I am working very long hours and leaving work very late, I think about all the opportunities and the interesting people that I get to meet through the SIAC. This is me with Sarah Grimmer, the Secretary General of HKIAC, getting the opportunity to meet and have words with your former P.M. He is a very nice guy and it was an amazing opportunity.

AS: Agree. So, Kevin, people are hungry and they are asking us to start cooking.

KN: Okay, the barbecue is still going. As per the instructions, the ribs are resting very nicely in the marinade. I said in the instructions to pat dry because you do not want to have them dripping on the grill. You can see that these are short ribs, quite thin, now bursting with flavor from the marinade. We are going to put them on the grill. What I have done, Alexandra, like every good arbitrator who finishes the procedural history before a hearing, I have made sure that the rest of the food is already prepared. I am going to place the ribs on a bed of lettuce alongside  cauliflower rice and some optional chicken rice which is a very famous dish in Singapore. I also have chili peppers, pomegranate seeds, pine nuts, and cucumber. I am quite proud of the pomegranate seeds because I actually grew them on my rooftop.

AS: That is fabulous — you have pomegranates on your rooftop; this is just amazing!

KN: I do not know if pomegranate seeds necessarily match with the dish but I had to include them. As I said, the ribs are meant to cook around five to seven minutes per side. We want to get the caramelization, the grill marks, and then we are going to drop them into the lettuce bed, sliced diagonally.

AS: Just a quick question that came to us from the participants. Do we need to separate the ribs? Would it be better to separate them before marinating or is it better to marinate them whole, without cutting the ribs from each other?

KN: It is really just personal preference. Some people prefer bone-in ribs because you get the flavors coming from the bone. With boneless ribs, they are going cook a little bit quicker. With bone-in ribs, they should be cooked until the ribs are almost falling off the bone.

AS: So just to fix the steps as a procedural history — we took the ribs out from the marinade and put them in the grill, now we need to grill them, right?

KN: Yes.

AS: So it is approximately five to seven minutes per side?

KN: Yeah, depending on thickness, depending on bone-in/bone-out, there are also vegetarian substitutes, but that is the time we are looking at for my ribs.

AS: Just you should check your meat or some vegetarian stuff how it is being prepared, and then we take them off and put the glaze, and then again back to the grill or…

KN: The process is similar for anyone using a frying pan. Just a very quick sear to lock in the glaze. Then we are going to take the ribs off, let them rest for a few minutes and then a diagonal cut and heap onto rice or place in the lettuce wrap.

AS: How do you make the glaze?

KN: The glaze is already prepared, but it is very easy to make. I have included chili flakes, rice wine, water and brown sugar. I think the marinade is the primary claim and the glaze is an alternative claim.

AS: Ekaterina Kobrin from Baker McKenzie is asking: is it rice wine or vinegar in the glaze?

KN: Vinegar in glaze would work as well.

AS: The ribs look amazing! We are done with cooking. Ekaterina Kobrin said that "have never seen this type of grill in our part of the world" - she is from Baker McKenzie in Moscow, our colleague, "in our part of the world, I guess Weber is a monopolist. Is it a common thing to have a grill on your balcony there? In Russia it is like almost never happening."

KN: Barbecues are not too common in Singapore but they are a common feature in Canada. In this part of the world, there is also a big barbecue tradition in Australia. Actually, SIAC’s Founder President, Michael Pryles, his daughter, Jesse Pryles, is one of the foremost barbecue experts in the world. I gained some confidence after speaking with Professor Pryles who said that his daughter thought that my recipe looked okay. On that basis, I think the fundamentals of the recipe are sound.

AS: Okay. So, I think we have almost gone through all the questions from the guests related to the cooking process. One more — is this your original recipe or would it be fair to call them grilled-Kevin ribs?

KN: I have to confess, it is my brother's recipe, which I have then modified to suit my palate. I have spent most of my life eating other people's barbecue but the "circuit breaker" in Singapore is giving me the opportunity to learn and teach myself.

AS: Okay, so now we have time for talking about the SIAC activities. I would like to start with the statistics about the top 10 foreign users participating in the SIAC arbitrations.

AS: I have noticed that the top position is with India. India is a kind of undoubtable winner of the statistics; they have the highest result, so even for 2019, the participation of Indian parties was 485 so it is a kind of top 1 user. The second place goes to China — if we have a look at the years, China always had the second or the third place. In 2016 - 76 parties (the second place); in 2017 - 77 parties (the second place); in 2018 - 73 parties (the third place); in 2019 - 76 parties (again the third place). Are there any local specifics?

KN: If you look at the 2019 figures, the amount of Indian parties is truly stunning. This an enormous amount of Indian parties who are choosing the SIAC. We sometimes even have cases where there are Indian parties on both sides of the dispute (to the extent that Indian parties can choose a foreign seat). In 2019, the second most frequent foreign user was the Philippines, which is the result of many productive outreach efforts by previous SIAC Counsel and existing SIAC Counsel. China also has a long tradition of bringing their disputes to the SIAC.  One interesting trend over the past five years, is how many American parties are choosing the SIAC. Thinking about the contracting stage, if there is a transaction between an American party and a Chinese party, the acceptable choice for both sides tends to be Singapore and the SIAC.

There is also a good distribution of users from both the common law tradition and the civil law tradition. The SIAC has also been making many visits to Russia to show the potential advantages for Russian parties choosing Singapore and the SIAC. 

AS: On the participation of Russian parties, while reviewing the same reports — I actually noticed that maximum five parties from Russia participate per year in the SIAC-administered arbitrations. Why?

KN: If you look at the average time from the transaction to a dispute, this will typically be three to four years. As the SIAC has increased its focus and dialogue with Russian users over the past five years, we are now starting to see more interest. We also understand that a lot of Russian parties are starting to use default SIAC arbitration clauses in their contracts. We hope that Russian parties recognize the advantages of Singapore overall and that the SIAC is a safe pair of hands for a dispute resolution clause.

AS: I agree totally with you. So, also during the process of reviewing the website of the institution, I noticed that the SIAC now has a series of webinars and you are participating in them.

KN: We want to be active and stay connected to our users. Coronavirus does raise a lot of practical questions: How do parties file a notice? Does the SIAC still allow physical submissions? How is the SIAC transmitting awards? There are also some substantive questions such as the use of early dismissal. For instance, if a contract has not been performed because of the coronavirus, and the non-performing party is not denying the non-performance, this could be an appropriate case for early dismissal, where the issue will be the contours of the force majeure clause.

We are also hosting dedicated webinars with the SIAC Secretariat to allow direct interaction with users and to provide an open forum for a discussion of SIAC’s processes and procedures during the time of coronavirus.

AS: By the way, are there any employees still in the office of the SIAC or all of them are working remotely? For example, one or two responsible people who are handling some office needs and some tasks of emergency, for example?

KN: We are all working remotely due to the "circuit breaker" in effect in Singapore. Before that, we were operating on split teams, where each team of lawyers would be in the office on alternate weeks. Even though we are all working from home, our timelines remain very good. Really, the SIAC and most institutions have been building and refining their online processes to be able to manage a situation like this well.

AS: Going next, I also would like to congratulate you with the amazing results for 2019. That is the highest result of the SIAC ever. This is the chart with the information about the number, the total number of cases handled by the SIAC, starting from 2000. So, compared to the year, when you joined the SIAC in 2012, it was 235, and there's almost twice increase in cases just in eight years, I think this is the amazing result for the arbitration institution.

KN: Effectively, the takeaway from these statistics is that more users are showing confidence in the institution. It is important to look at overall trends rather than focusing on changes during the course of any one year. Broadly, what we are seeing at the SIAC is more cases and users from many different jurisdictions.

AS: Besides, the number of the SIAC-administered cases is also very high. So, compared to 479 total cases in 2019, the total number of administered cases is 452, so it is only 25 ad hoc arbitrations, when as I understand the SIAC was designated as the administrative and appointing authority.

KN: Yes, this breakdown is important because the most robust, meaningful number is the amount of international cases administered by each institution. In addition to SIAC’s administration services, the President of the Court of Arbitration of the SIAC is the default statutory appointing authority under Singapore law for ad hoc appointments if the parties are not able to agree on the appointment of an arbitrator. But, really, to assess the experience and skill of an institution, the figure that matters is administered cases, particularly, international-administered cases.

AS: Very popular topic, Kevin, is a diversity in international arbitration. Could you please clarify why there is a difference between the statistics, published by the SIAC for 2016? You see, for 2016 the information was published about the female arbitrator appointments by the SIAC, by the parties and by co-arbitrators. And for next years the statistics has changed and the three new types of statistics emerged. Now it is only the statistics about the female arbitrators appointed by the SIAC and females, who are members of the SIAC Court of Arbitration and SIAC Management and Secretariat.

AS: So why the parts related to the female arbitrators, nominated by the parties and nominated by co-arbitrators, have left this statistics for 2017-2019?

KN: It is really just a different way of presenting figures. We want to highlight the figures that are in control of the institution, in this case the institutional appointments rather than co-arbitrator nominations or party nominations. The SIAC has done very well in appointing arbitrators with diverse characteristics, focusing on qualities such as gender diversity, geographic diversity, generational diversity, and arbitrators with an intersectionality of diverse characteristics. When institutions take the lead to appoint excellent arbitrators with diverse characteristics, this may have a positive effect on future nominations by parties and co-arbitrators.

AS: Also speaking about the diversity, do you remember when the SIAC has joined the Pledge?

KN: We signed the Pledge almost as soon as it was issued.

AS: Yes, of course. Great news that the number of the female appointments by the SIAC is getting close to 50%. One question in this regard. What criteria is taken into account in the process of the appointment of arbitrator? Whether the arbitrator should be male or female? Maybe there is a regulation or something like this?

KN: There is not really any regulation. The philosophy at the SIAC, through the leadership of Gary Born, the President of the Court of Arbitration, is to appoint diverse arbitrators who are the best in the world. From a Secretariat standpoint, we spend significant time evaluating the performance of arbitrators and identifying new talent from the performance of counsel in the SIAC arbitrations. In this way, we are able to find a young, precocious counsel who might be appropriate for a first-time appointment on a small-value case. Put differently, we are not deciding to appoint arbitrators solely based on diverse characteristics. We are appointing the best arbitrators in the world and progressing past the old way of doing things to make sure that everyone has an equal opportunity for arbitrator appointments. The analysis for appointments stays the same: among other factors, we look at the sector, governing law, lex arbitri, nationalities of parties, legal acumen and judgment, and experience.

AS: I think we should hope for the best and just rely on the fact that the statistics is rising. We are going to have the number of appointments even closer to 50% than it is in 2019 and greater promotion of diversity in the arbitrators' appointments.

KN: I was just going to say, what is needed is institutions that have the vision and the will to commit to diversity in a sustained way because this kind of change will not happen in the course of a few years. One of the most exciting things about working for an institution is to watch the development of arbitrator careers. During my time at the SIAC, I can recall appointing an arbitrator with diverse characteristics nearly ten years ago. This same arbitrator, who started off on a small value case, is now regularly appointed by the SIAC and many other institutions on high-value, complex cases where the quantum is in the many millions. The philosophy at the SIAC is to identify talented individuals and give them an opportunity. An institution has to develop talent. It is going to take some time but the institutions are moving in the right direction.

AS: Sure, I think, that is the most important part because you have just to ensure people and encourage them to start this path and go on to the end. Because if no one starts appointing them, they are not going to be appointed ever. Do you agree?

KN: Absolutely, yes.

AS: Kevin, one question that we are asking all individuals coming from arbitration institutions: could you please give us three key features of the SIAC that make it different from other arbitration institutions?

KN: Sure. First, structured administration and close management of the arbitral process is a key feature of the SIAC. Within this administration, the SIAC also performs the review or "scrutiny" of awards, which is one of the biggest value-adds for our users and enhances the enforceability of awards. Second, the SIAC has a history of innovation to meet the developing needs of its users and improve the efficiency of the process. In 2010, the SIAC introduced provisions for expedited procedure and the appointment of an emergency arbitrator. In 2016, the SIAC was the first major commercial institution to introduce an early dismissal procedure. Third, the SIAC has maintained a service-oriented, "user first" philosophy. Even though we are now one of the biggest institutions in the world, we are still nimble and can turn things around quickly. For instance, if there was a deadline on the issuance of an award where the clause provided that the award had to be rendered in 90 days, and the tribunal submitted the draft award on day 89, we are still able to review the award and send it back to the tribunal to meet the required timelines. Another aspect of the SIAC that is becoming quite well-known, is that the SIAC is really running all the time. The SIAC Counsel respond to users at any time of day. We are all accessible and available. I think part of this is because the staff at the SIAC, and the members of the Secretariat, everybody really loves arbitration.

AS: If I may, several follow-up questions. Scrutiny is one of the most interesting things in the SIAC activities, of course, when was it introduced in the work of the institution?

KN: The scrutiny of awards goes back to 2007.

AS: Ok, very old mechanism. And I noticed that number of awards issued by the SIAC tribunals in 2019 is far bigger than the number of awards issued in 2018 and earlier because maybe the SIAC Secretariat started sitting in the office for some more time — the SIAC tribunals issued approximately, I think 170 awards last year and approximately 140 awards in 2018.

KN: Yes, the SIAC Counsel spent a lot of time in the office last year. However, the progression of arbitrations to a final award can be a bit variable due to amicable settlements or economic conditions. There could be many awards issued in any one year but many of these could be consent awards or "summary form" awards (to the extent that arbitration can decide on what constitutes "summary form"). By opposite token, now that the SIAC gets an increasing amount of high-value, complex cases, there are some hotly contested construction or project disputes where the award may run to 500 or 600 pages. In any year, the awards will be the result of cases that were commenced during the previous year given that the average case at the SIAC will take around 12 months to proceed to the issuance of the final award. Accordingly, in 2020, with all our cases from 2019, and subject to COVID-19, we should expect many awards to be issued during the course of this year.

AS: Well, when you were speaking at GAR Live in Singapore last year you pointed out that the SIAC has an agreement with Arbitrator Intelligence. How does it actually work and how does it help to monitor this conflict of interest at the beginning of the process and during the process?

KN: Ultimately, what users and institutions are looking for is a forum where user feedback can be safely submitted and actually taken into account. The difficulty with inviting user feedback is to determine the appropriate timing. If comments are submitted after the issuance of the award, the losing party may not be satisfied with the arbitrator on account of the result of the case. If comments are submitted before the award, parties may be unwilling to submit comments of consequence due to a concern that the tribunal may end up being privy to the feedback. We think that we have found an outstanding mechanism through our Cooperation Agreement with Arbitrator Intelligence. The Arbitrator Intelligence Questionnaire allows users to submit feedback at the conclusion of an arbitration that is confidential and anonymized.

The SIAC, as an institution, also collates feedback and assesses the performance of all arbitrators in SIAC arbitrations. We are helped in the process by our scrutiny of awards whereby we are able to perform a detailed analysis on the quality of the award and the overall conduct of the proceedings.

AS: About the early dismissal, so am I right that article 29 of the SIAC Arbitration Rules of 2016 originates from the ICSID Arbitration Rules? And am I right that the SIAC is the first International Arbitration Center that have this provision in the Arbitration Rules for resolution of commercial disputes? As I remember, the SIAC has the separate rules for the investment arbitration proceedings.

KN: The SIAC is indeed the first major commercial arbitration centre to introduce express provisions on early dismissal in its Rules. This provision is modelled after Rule 41(5) of the ISCID which we then adapted for the commercial space. The first modification is that early dismissal applies to both claims and defences. We then followed the ICSID jurisprudence to provide for early dismissal on the basis that the claim or defence is "manifestly without legal merit" or "manifestly outside the jurisdiction of the Tribunal". Even though it doesn’t really follow the name of "early dismissal", we did not want to have it time-bound and an application can be made at any stage of the proceedings. In order to prevent unmeritorious applications, the SIAC’s early dismissal has a two-stage test whereby the tribunal first has to decide whether the application for early dismissal will be allowed to proceed. Overall, the SIAC’s introduction of "early dismissal" into commercial arbitration has been one of the most fun things in arbitrations in the past few years because it is transporting a feature from investor-state dispute settlement into commercial arbitration. Even though most commentators would agree that tribunals already had the inherent power to deal with appropriate claims at an early stage, most institutions have now addressed this feature either directly or indirectly in their rules and guidance notes. The SIAC is also seeing arbitration counsel getting more comfortable with this provision and using it to help save time and costs.

AS: I have one last question about sanctions. Is there any information about the SIAC position in relation to Russian sanctions? Maybe, there are any cases related to Russia-related sanctions? Because right now, Europe has more tolerance than they had earlier in relation to Russia-related sanctions; the US is still more conservative about this, even more than at the beginning of this story. Maybe there is a kind of rough position that exists in the SIAC in relation to sanctions?

KN: A big part of the attraction for Russian parties at the SIAC is that Singapore, to a certain degree, is somewhat unburdened by sanctions against Russian parties. There was a very helpful note put out by SCC, ICC and LCIA on the impact of sanctions in the EU and the general impact on the arbitration process per se. At the SIAC, for every case, we will run through a sanctions compliance checklist to determine, for example, the ultimate beneficiary and whether there is the presence of an SDN. At the risk of making a general statement, the most direct impact of sanctions tends to be the movement of money. In Singapore, as deposits made by parties are not routed through a US correspondent bank and payment is generally made in Singapore dollars, we have not encountered any difficulties in the administration of cases involving Russian parties. This is part of the reason why Russian parties are increasingly looking to the East to Singapore and Hong Kong.

AS: Kevin, thank you very much for your patience and for your time. I think that it was a very interesting discussion about the SIAC activities.

The interview was conducted by Alexandra Shmarko, Baker McKenzie (associate), Russian Arbitration Association (Co-Chair of RAA25)