Developments in Arbitration in APAC: The SIAC Rules 2025 and HKIAC's Latest Practice Note

As the pace of technological advancement accelerates, disputes are becoming more complex, and cross-border in nature. With stakeholders in the technology, media, and telecommunications sectors often prioritising efficiency and confidentiality in dispute resolution, arbitration has emerged as the preferred choice over traditional litigation. This has resulted in arbitration centres such as the Singapore International Arbitration Centre ("SIAC") and the Hong Kong International Arbitration Centre ("HKIAC") playing an increasing central role in IP and TMT disputes.

According to latest statistics released by HKIAC, the arbitral institution encountered its highest ever caseload in 2024, administering a total of 503 matters involving HKD 106 billion (~USD 13.6 billion) in value. A similar trend was observed by SIAC in 2023, with the arbitral institution taking 2024 to further develop its arbitration rules and technological capabilities as well as expand its presence across the globe (SIAC Year in Review 2024, accessible here).

In this Legal Update, we review the 7^th Edition of the SIAC Rules ("SIAC Rules 2025") as well as HKIAC's Practice Note on Compatibility of Arbitration Clauses under the HKIAC Administered Arbitration Rules ("HKIAC Practice Note") – two significant developments in the Asia Pacific arbitration landscape. These developments are part of an overall trend at ensuring speed, flexibility, and enforceability in arbitral proceedings, factors which enhance the legal industry's ability to keep pace with technological innovation.

The SIAC Rules 2025

On 9 December 2024, SIAC announced the release of the SIAC Rules 2025, effective from 1 January 2025. With new procedures and improvements to existing processes, the SIAC Rules 2025 seeks to enhance procedural fairness, efficiency in the conduct of the arbitration, and the enforceability of any arbitral award rendered.

Key developments in the SIAC Rules 2025, as compared to the previous edition ("SIAC Rules 2016") may be summarized as follows:

HKIAC's Practice Note on Compatibility of Arbitration Clauses

In a parallel development, on 20 January 2025, HKIAC issued the Practice Note, which sets out guidance on how HKIAC manages multiple arbitrations and multi-contract arbitrations under the 2024 Administered Arbitration Rules ("HKIAC Rules 2024"). This timely development follows from HKIAC experiencing an increase of over 30% in multi-party and multi-contract disputes from 2023 to 2024.

Article 28.1(c) of the HKIAC Rules 2024 provides that parties may apply for consolidation of two or more arbitrations, inter alia, where "the claims are made under more than one arbitration agreement, a common question of law or fact arises in all of the arbitrations, the rights to relief claimed are in respect of, or arise out of, the same transaction or a series of related transactions and the arbitration agreements are compatible."

Similarly, Article 29.1(c) of the HKIAC Rules 2024 provides that claims arising from multiple contracts may be made in a single arbitration provided: "(a) a common question of law or fact arises under each arbitration agreement giving rise to the arbitration; and (b) the rights to relief claimed are in respect of, or arise out of, the same transaction or a series of related transactions; and (c) the arbitration agreements under which those claims are made are compatible."

The Practice Note focuses on the criterion of the compatibility of arbitration agreements, clarifying that arbitration agreements need not be identical to be compatible (The Practice Note, paragraph 2.6). However, any differences between the arbitration agreements must be surmountable, with HKIAC considering factors such as whether consolidation: (a) is practically feasible and procedurally efficient; (b) undermines the consent of the parties; (c) changes the parties' agreement with respect to the arbitral procedure such that the award is open to challenge.

In this regard, examples of arbitration agreements found incompatible include:

• Those which provide for different numbers of arbitrators (e.g., a sole arbitrator versus a three-person tribunal).
• Those which provide for different languages of the arbitration.
• Those which provide for different mechanisms for appointment of a presiding arbitrator (e.g., where one agreement expressly provides that HKIAC shall select the presiding arbitrator and the other is silent – the effect of such silence being that a different mechanism for appointment of the president arbitrator under Article 8.1(d) applied).

On the other hand, examples of arbitration agreements found compatible include:

• An arbitration agreement expressly governed by English law and two other arbitration agreements expressly governed by Hong Kong law, due to the two systems of law being "sufficiently aligned".
• A multi-contract arbitration in which multiple arbitration agreements were largely identical but provided different respondents with the power to designate the second co-arbitrator. The difference was surmountable as the respondents subsequently jointly appointed the second co-arbitrator.

• A multi-contract arbitration in which there were two contracts – one between the claimant and respondent A; another between the claimant and respondent B. The arbitration agreements provided each respondent with the power to designate the second co-arbitrator. The difference was surmountable as both respondents did not participate and failed to designate the second co-arbitrator in time, and it was determined that there was a high likelihood they would both designate the same co-arbitrator because their interests were aligned.

Further, the Practice Note sets out HKIAC's general approach to the appointment of arbitrators in multiple contract scenarios in view of Articles 28.8 and 29.2 of the HKIAC Rules 2024, which provide that in the case of consolidation or a single multi-contract arbitration, the arbitral tribunal shall be appointed by the HKIAC "with or without regard to any party's designation

HKIAC has clarified that, given the primacy of party autonomy, HKIAC will appoint the arbitrator(s) designated by parties unless there are justifiable exceptions (e.g., where there are concerns that the designated arbitrator is not impartial, independent, or available). Accordingly, in consolidated or a single multi-contract arbitration:

• Where the parties to the multiple arbitrations or multiple contracts are identical, HKIAC's default approach is to appoint the arbitrator(s) designated by parties.
• Where the parties to the multiple arbitrations or multiple contracts are not identical, HKIAC's default approach is to appoint the arbitrator jointly designated by parties on the same side. Otherwise, if parties on the same side fail to agree on an arbitrator, HKIAC will appoint another arbitrator, taking into account the parties' views and proposed criteria for appointment. In appropriate cases (e.g., where there is a reasonable apprehension of unequal treatment of parties in the appointment process), HKIAC may appoint the entire arbitral tribunal without regard to any party's designation.
• Where, a party does not participate in the joint designation of an arbitrator despite HKIAC's invitation to do so, HKIAC's default approach is to make the appointment, taking into account the participating parties' views, proposed criteria, or candidates. HKIAC observed that, in most cases, this resulted in the appointment of the arbitrator designated by participating parties.

Conclusion

These developments from SIAC and HKIAC reflect a concerted effort to adapt arbitration frameworks to the complexities of modern IP and TMT disputes. Notably, a common thread is the implementation of case management tools which allow SIAC and HKIAC to promptly and efficiently manage disputes involving multiple contracts and multiple parties – characteristic features of today's IP and TMT transactions.

SIAC's strengthening of its provisions regarding emergency interim relief is also a welcome development in the context of IP and TMT cases, which often involve parties seeking interlocutory injunctions on an urgent basis at the onset of a dispute. Further, SIAC's introduction of the Streamlined Procedure and its provisions regarding third-party funding also re-affirm the institution's commitment as an all-round forum for dispute resolution, with businesses able to focus on the swift resolution of cases of low-value/low-complexity, or adopt a more extensive legal strategy with external financial support, as they see fit on the occurrence of a dispute.

HKIAC's Practice Note offers greater clarity on how the HKIAC Rules 2024 are implemented in practice, allowing stakeholders to make informed choices regarding dispute resolution mechanisms. Our update on the HKIAC Rules 2024 can be found here.

With arbitral institutions increasingly being able to provide cost-effective, flexible, and confidential settings for dispute resolution, it is important that businesses stay abreast of developments in this area so as to be able to select dispute resolution mechanisms that suit their commercial needs.