Party autonomy is one of the important guiding principles in arbitration. It is common for parties to specify in the dispute resolution clause of a contract how the arbitral tribunal is to be constituted and the manner in which the arbitration proper should be conducted etc. What happens, however, when an arbitration agreement provides for the arbitration to be administered by one arbitral institution, yet provides for the arbitration to be governed by the rules of another?
In the recent case of Insigma Technology Co Ltd v. Alstom Technology [2009] 1 SLR 23, the Singapore High Court dealt with this issue. A dispute arose under a license agreement which provided for disputes to be resolved by arbitration before the Singapore International Arbitration Centre (“SIAC”) in accordance with the Rules of Arbitration of the International Chamber of Commerce (“ICC”) then in effect. The Tribunal was constituted according to the SIAC Rules, and ruled (on a preliminary issue) that there was a valid arbitration agreement and that the reference could be administered by the SIAC, applying the ICC Rules.
On appeal, the High Court held that parties had not bargained for an ICC institutional arbitration, but rather, an SIAC-administered ad hoc arbitration which applied the rules of the ICC. The Court observed that there was in principle, no problem with one institution administering arbitration proceedings in accordance with another set of rules chosen by the parties. The supervising or administering authority and the procedural rules do not have to be from the same institution, so long as the choices made do not result in significant inconsistency. On the facts of the case, there was no inconsistency as the SIAC confirmed that it would be able to follow the ICC Rules by substituting the appropriate corresponding actors to perform the functions of or match the apparatus of the ICC Secretariat, Secretary-General and the Court.
The decision yet again shows that the Court’s approach is to give effect, as far as possible, to the intention of the parties as expressed in the language of the arbitration agreement.