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    06:46 PM Jonathan Lim (Wilmer Cutler Pickering Hale and Dorr LLP) and Ng Jern-Fei (Essex Court Chambers)

    London Roundtable on “The Future of Dispute Resolution in Asia”

        

    On 12 June 2015, a roundtable discussion entitled “The Future of Dispute Resolution in Asia” was held at the offices of Wilmer Cutler Pickering Hale and Dorr (“WilmerHale”) in Park Lane, London. Jointly supported by the Young SIAC (“YSIAC), the newly-established Singapore International Mediation Centre (“SIMC”), the Singapore Academy of Law (“SAL”) and the Asia-Pacific Forum on International Arbitration (“AFIA”), the event was intended to showcase Singapore’s latest offerings, including the Singapore International Commercial Court (“SICC”) and the SIMC, to a London audience – although more general topics about international dispute resolution in Asia were also explored.    

    Opening remarks were delivered by Gary Born of WilmerHale, President of the SIAC Court, and Edwin Glasgow QC of 39 Essex Chambers, Chairman of the SIMC. A panel of young London-based arbitration practitioners then took the floor and led an interactive discussion around a curated list of questions.  The panel was moderated by Jern-Fei Ng of Essex Court Chambers, and comprised Jonathan Lim of WilmerHale, Saqib Alam of Debevoise & Plimpton and Robert Kovacs of Linklaters.  Following a lively dialogue between the panellists and audience members, Toby Landau QC of Essex Court Chambers concluded proceedings with a characteristically tongue-in-cheek yet perceptive set of remarks. A rooftop reception ensued, with the conversation continuing over champagne and canapés. 

    As the Chatham House Rule applied, this report recounts only certain key themes and ideas that featured in the evening’s discussion, without attribution to particular individuals. The panel took up four main topics, namely: (1) current and future leading seats for disputes in Asia; (2) demography and renewal in the practice of international arbitration; (3) challenges and opportunities posed by the new SICC; and (4) the new Arb-Med-Arb protocol jointly developed by the SIMC and SIAC.

    Leading Asian Seats – Present and Future

    The panel discussion kicked off with the usual comparisons between Singapore and Hong Kong – by now widely accepted as the leading seats for arbitration in Asia, and indeed, globally. The panellists expressed that, in reality, both were top-notch seats with strong institutions and expert courts. The keen sense of competition, like any healthy sporting rivalry, served only to raise the game of both centres and heighten the conversation – with end-users the ultimate beneficiaries of better-quality legal services and court judgments.  

    Discussion centred briefly on the latest instalment of the Astro v Lippo saga, where the Hong Kong court recently allowed enforcement of an arbitral award, despite refusal of the same by the Singapore Court of Appeal in 2013 on the grounds that the tribunal lacked jurisdiction. The panellists and audience generally agreed that a pro-arbitration approach does not necessarily equate to a 100% enforcement record. Ultimately, curial courts at the seat best support the arbitral process by ensuring due process and fidelity to the parties’ agreement – the proof of the pudding lies in the quality of the courts’ reasoning and jurisprudence.

    The question was then posed as to whether the existing “two-horse race” between Singapore and Hong Kong was likely to continue in the decades to come. A diversity of views was expressed.  Kuala Lumpur and Seoul were suggested as up-and-coming seats – the former for its recent KLRCA i-Arbitration Rules for Islamic transactions, and the latter for its brand new, state-of-the-art Seoul International Dispute Resolution Centre (“SIDRC”).  Australia was also mooted as a seat to watch, with attention drawn in particular to the recent decision handed down in Giedo van der Garde BV v Sauber Motorsport AG, whereby the Victorian Supreme Court acted swiftly to enforce an award for injunctive relief in time for the Formula One Grand Prix in Melbourne in mid- March, 2015.  

    Gazing further into the crystal ball, the panel contemplated the prospect of a leading Chinese or Indian seat in the future – for example in Shanghai or Delhi.  This was debated with interest in light of the growing clout and bargaining power of the Chinese and Indian economies, although most agreed that this was not a likely development in the near term. 

    Demography and Renewal 

    Next, the panel touched on issues of demography and renewal within the current international arbitration set-up – in particular, there was much discussion about what more could be done to increase the involvement of younger practitioners, both as counsel or as arbitrators.

    On appointments, the panellists raised a “chicken-and-egg” problem that confronts younger arbitrator-hopefuls: institutions and/or parties frequently expect or require that an arbitrator have prior arbitrator experience; but one cannot acquire such prior experience without first getting appointed. Some on the panel mooted a referral system for institutions as a solution, whereby more established arbitrators would vouch for or recommend younger practitioners they had worked with, based for instance on previous work done as secretary to the tribunal.    Others on the panel also shared their experience with first appointments – how they came about and whether they were followed by subsequent appointments.

    The consensus that emerged was that arbitral institutions were best-placed to address the demographic issue by appointing younger but suitably qualified arbitrators. Attendees representing arbitral institutions shared a willingness to make such calls in the appropriate case, for instance by expanding and making use of the SIAC’s Reserve Panel of arbitrators. 

    The panellists drew an analogy to young lawyers sitting as Assistant Registrars in the Singapore High Court and hearing interlocutory matters – and wondered out loud if a similar set-up could be adopted in international arbitrations.  It was suggested that emergency arbitrators might be a suitable avenue for younger appointments, especially since the issues at stake tend to be fairly confined (e.g. jurisdiction and criteria for interim measures), and young practitioners are likely to be more available and willing to sit and hear an emergency application on very short notice.   

    On a more reflective note, it was also pointed out that the international arbitration set-up has come quite some way over the last decade or so, with appointments already reflecting a greater diversity than before.  Moreover, there are more avenues now than before for young practitioners to learn from one another and share their experiences, through the various under-40 or under-45 groupings that almost all major arbitral institutions have set up – a trend apparently started by Johnny Veeder QC with the LCIA’s Young International Arbitration Group (“YIAG”).

    The SICC: Challenges and Opportunities

    The discussion then moved on to the SICC – and here the panel explored the various opportunities and challenges posed by the new commercial court in Singapore, which is a hybrid institution that combines features of both court litigation and arbitration.  

    Naturally, comparisons were drawn with the SIAC, and the panel took the view that the SICC offered some interesting advantages “at the limits of arbitration” – including a broader scope for third-party joinder without consent, the absence of “arbitrability” restrictions, and the availability of rights of appeal.  One panellist suggested that the SICC would be particularly apposite in disputes involving subsidiaries of multi-national companies (MNCs) – as is quite often the case in the Asian region – when a claimant or counterclaimant might want to join the parent company to the proceedings. Others suggested that the better comparison for the SICC was with other commercial courts such as in London and in the Dubai International Financial Centre (“DIFC”), and it was in this space that the SICC, with its arbitration-like features (including the option for IBA Rules-style discovery and evidence), would really offer a uniquely compelling alternative and stand out from the competition.  

    The enforceability of SICC judgments was also discussed.  The consensus generally was that, while SICC judgments would be enforceable throughout most of the Commonwealth and, in time to come, the EU through a variety of reciprocal enforcement arrangements and the 2005 Hague Convention on Choice of Court Agreements, arbitration still enjoys a distinct advantage in this respect with the New York Convention allowing enforcement of arbitral awards in over 150 countries. The panel raised the possibility of “converting” SICC judgments into arbitral awards on the satisfaction of certain defined “referral criteria,” which would trigger arbitration where there is a dispute about a failure to pay on a SICC judgment, or a dispute about the ability or willingness of the award debtor to pay – a novel option that the DIFC Courts are currently experimenting with.  This would be attractive for potential end-users – though it remains to be seen whether such an arrangement would be effective, particularly when subject to judicial scrutiny by courts at the place of enforcement. 

    Another avenue of discussion was whether the SICC could be used – similar to the London Commercial Court – as a specialist curial court for arbitration-related court matters, including for set-aside and enforcement proceedings.  Most agreed that this would be an interesting development that would benefit Singapore as a seat of arbitration, particularly given the international bench of the SICC and the room for flexibility in its procedural structure.  

    Arb-Med-Arb

    The final topic for the evening was the Arb-Med-Arb protocol. The panel discussed the ingenuity of the new protocol, and in particular how it gets around two main problems with the use of an Arb-Med type procedure in jurisdictions such as China.  First, it overcomes the double-hatting problem whereby the same individual acts both as mediator and arbitrator, which raises award enforceability issues due to concerns about confidentiality, or improper ex parte private caucuses with parties. Under the protocol, the SIMC works together with the SIAC to appoint separate individuals as mediator and arbitrator respectively.

    Second, the new protocol circumvents the well-known difficulties with the enforcement of settlement agreements, which lacks a universal enforcement convention like the New York Convention for arbitral awards, and may be difficult to convert into an award because there is no “dispute” to refer to arbitration after a settlement has been reached.  Arb-Med-Arb allows any settlement to be enforced as an arbitral award – it satisfies the requirement of a “dispute” because the arbitration is started (and then stayed) before mediation commences.

    In closing, the panel examined the details of how the Arb-Med-Arb protocol would actually work in practice, including questions as to which stage of proceedings mediation should ideally be held, and whether it was feasible to require counsel to submit a Notice of Arbitration and Response prior to, and in contemplation of, a mandatory mediation process.  The panel wondered if having the parties’ submissions would further ossify the parties’ positions and the distance between them, or whether the exchange of written arguments would provide an informed basis for settlement discussions.  These issues remain to be worked out in the practice of the SIMC and SIAC.   

    * This blog entry may be cited as Jonathan Lim & Ng Jern-Fei, “London Roundtable on “The Future of Dispute Resolution in Asia”, Singapore Law Blog (13 July 2015) (http://www.singaporelawblog.sg/blog/article/123)

    ** A PDF version of this entry may be downloaded here

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