Letter from the President
Friends of SIAC:
I am writing on the commencement of my term as incoming President of the Court of Arbitration of the Singapore International Arbitration Centre, both to thank you for your past support for SIAC and to outline some of the salient issues that will arise in the next two years.
First, I want to reiterate, on behalf of myself, the Court of Arbitration, the Secretariat and the Board of SIAC, our great appreciation for the support that our users have provided over the past years. In less than a decade, SIAC has increased its caseload by more than 200%, rising to an average of some 250 cases filed annually over the last several years. At the same time, SIAC has developed a truly international clientele, including Asian, European, North and South American, Middle Eastern and other users. None of this would have been possible without the support and confidence of our users, for which we are all grateful.
Second, we also thank the past members of SIAC's Court of Arbitration, and particularly Dr. Michael Pryles, the Court's Founder President, for their exceptional efforts during their terms. Again, we are grateful for those efforts and the results they have achieved.
Third, I would like to outline several key objectives that we at SIAC aim to pursue to maintain and enhance your confidence:
· Enhancing SIAC’s position as one of the world’s truly global international arbitration institutions: SIAC has a preeminent position in Asian international arbitration, including in arbitrations involving Chinese, Indian, Indonesian, Korean, Japanese and other regional parties, but it is not a regional arbitral institution. Rather, SIAC is a global institution, which is appropriate for contracts and disputes between parties in all parts of the globe (European/US; Latin American/Asian; African/European). We aim in the coming years to ensure that users from all parts of the world regard SIAC as their preferred choice for international dispute resolution.
· Maintaining and enhancing SIAC’s reputation for excellence, efficiency and expedition in case administration: SIAC’s Secretariat is second to none in quality, and materially better in terms of efficiency and speed, than virtually all alternatives. We aim to ensure that the Secretariat and Registrar have the resources and support that are essential to maintaining their superlative service. Likewise, we are privileged to have one of the most experienced and diverse Courts of Arbitration in the world; collectively, its 17 members offer nearly 500 years of experience in international dispute resolution in all major jurisdictions around the world. We aim to ensure that the Court’s experience is fully utilized.
· Building SIAC’s Users Council: We are launching a SIAC’s Users Council to serve as a forum for comments about SIAC’s Rules and case administration. The Users Council will play an important role in SIAC’s work. We aim to utilize the collective expertise and experience of the Users Council in future initiatives as we continue progressively to improve and expand SIAC’s services.
· Maintaining and enhancing SIAC’s close ties to the Singaporean legal and business communities: SIAC boasts close and historic relationships with one of the world’s most sophisticated legal and business communities, here in Singapore. We aim to maintain and enhance those relationships, both by working closely with the SIAC Board, chaired by Lucien Wong, and SIAC’s Chief Executive Officer, Seok Hui Lim.
I am confident that the coming years will see SIAC continue its trajectory of excellence and service, and look forward to working with you to ensure that this happens. I welcome suggestions and new ideas for how SIAC can continue and improve its traditions of excellence and efficiency.
With best regards
SIAC Court of Arbitration
For more information please contact:
Singapore International Arbitration Centre
T: +65 6221 8833
Evening Talk with new SIAC Court Member, Mr Toby Landau QC
On 31 March 2015, SIAC hosted an evening talk with Mr Toby Landau QC at Baker & McKenzie.Wong & Leow. Mr Landau spoke on the topic “Recent Developments in the Defeat of International Awards”. The oversubscribed event saw about 120 attendees being treated to an intriguing evening with Mr Landau.
Mr Landau explored recent developments in leading jurisdictions where the defeat of international arbitral awards could actually be seen as truly pro-arbitration, contrary to widespread criticism. For starters, he described the common perception of the term “pro-arbitration” as self-evident events of national courts recognising and enforcing arbitral awards, or refusing to set aside awards. He opined that “pro-arbitration” as a nomenclature should not be used to mask the fundamental premise that courts cannot always refuse to set aside arbitral awards and cannot always recognize and enforce arbitral awards.
The architecture of the New York Convention and the Model Law is premised on a limited range of fundamental safeguards. The range is so limited that Articles II and V of the Convention and Articles 35 and 36 of the Model Law must be understood to be the “irreducible minimum”. In particular, one fundamental safeguard in the system is the de novo standard of review of an arbitral award on the issue of jurisdiction.
Mr Landau observed that national courts have elevated the “pro-arbitration” policy to a question of law and in some instances the court’s refusal to set aside arbitral awards or to recognise and enforce arbitral awards is immediately branded as “anti-arbitration”. Clear anti-arbitration cases where courts have presumably gone on the wrong side are typically the product of tactics used by lawyers to evade arbitration. Examples include: (a) party ignores arbitration agreement and litigates but court refuses to stay court proceedings; (b) court finds an incorrect application of the governing law to be in breach of public policy, e.g. ONGC v Saw Pipes; (c) court grants anti-arbitration injunction despite clear arbitration agreement e.g. Hubco v WAPDA; and (d) courts hearing a public interest writ petition filed by a third party on the subject of an arbitration.
Against this backdrop, Mr Landau examined three cases, namely, the English Supreme Court decision in Dallah v Pakistan (cf French court decision), the Singapore Court of Appeal decision in PT First Media v Astro (cf Hong Kong first instance court decision), and the Singapore High Court decision in Laos v Sanum, where he opined that the defeat of arbitral awards were in fact pro-arbitration. In these cases, the courts implemented the essential safeguard in the system of arbitration by conducting a de novo review of the arbitral award on jurisdiction. The result of the review per se is not as important as getting the process of review right. Deference to the arbitral tribunal is also irrelevant and misses the point. Regardless of how esteemed the tribunal may be, it has no mandate without consent. Mr Landau emphasised that it is unprincipled to say that it is wrong to undertake an unwinding of the arbitral process to find consent, and it is mere confusion to say that such cases which defeat arbitral awards are necessarily anti-arbitration.
To conclude, Mr Landau cautioned that the system of arbitration demands checks and balances. If the essential fundamental safeguards are not operating properly, to quote Irving Berlin “there may be trouble ahead”.
Associate, Drew & Napier LLC
SIAC ANNUAL APPRECIATION EVENT 2015
On 2 March 2015, SIAC hosted its Annual Appreciation Event for 2015 at the Parkroyal on Pickering Hotel. Over 170 members of Singapore’s legal elite gathered at the event to commemorate SIAC’s accomplishments in 2014, to pay tribute to a champion of SIAC and its development, and to ring in an exciting new era for arbitration in Singapore.
Born to lead SIAC Court
The first highlight of the event was the announcement that Mr Gary Born, Chair of the International Arbitration Practice Group at Wilmer Cutler Pickering Hale and Dorr LLP, will succeed Dr Michael Pryles as President of the SIAC Court of Arbitration. Mr Born will commence his new role on 1 April 2015.
Dr Pryles will step down after having served two years as the Founder President of the SIAC Court. He took on the role following the overhaul of SIAC’s governance structure in April 2013. Prior to the restructure, he also served four years as the Chairman of the SIAC Board of Directors from 2009 to 2013. Dr Pryles can boast many impressive accomplishments, including that under his stewardship SIAC’s new caseload more than doubled and the Centre was transformed from a modest regional arbitration centre into one of the leading international arbitral institutions. Dr Pryles will remain a member of the SIAC Court.
It comes as no surprise that someone of Mr Born’s calibre was chosen to succeed Dr Pryles. He is renowned as one of the world’s leading arbitration advocates and is the author of numerous (and voluminous) treatises on arbitration. Most recently, Mr Born released his long awaited draft proposal of a “bilateral arbitration treaty” under which disputes between companies from contracting States would be resolved by default through international arbitration in an effort to reduce costs and simplify the dispute resolution process. In this light, it goes without saying that “Born” is a household name in the arbitration community akin to the likes of “Redfern and Hunter”. Mr Born is also no stranger to the duties and mechanics of the SIAC Court, having served as a member since 2012.
The Singapore arbitration community looks forward to learning of the initiatives Mr Born will spearhead during his presidency of the SIAC Court.
New members for SIAC Court
As Mr Born’s first order of business, he announced the appointment of five new members to the SIAC Court of Arbitration. The new members are Ms Claudia Annacker of Cleary Gottlieb Steen & Hamilton LLP, Mr Lijun Cao of Zhong Lun Law Firm, Mr Toby Landau QC of Essex Court Chambers, Dr Eun Young Park of Kim & Chang (who will serve concurrently as a member of SIAC’s Board of Directors) and Ms Lucy Reed of Freshfields Bruckhaus Deringer. These appointments will also take effect from 1 April 2015.
The new members mentioned above replace four outgoing members of the SIAC Court, being Mr Hiroo Advani of Advani & Co., Mr Doak Bishop of King & Spalding LLP, Professor Julian Lew QC of 20 Essex Street and Mr Sean (Sungwoo) Lim of Lee & Ko.
SIAC Caseload Statistics for 2014
Another highlight of the event was the release of SIAC’s Annual Report 2014 which canvasses SIAC’s annual caseload statistics for last year. A few of the key findings from the report are set out below.
|•||SIAC received 222 new cases in 2014. While this is the first time in three years that SIAC has experienced a slight drop in the number of new cases, it was nevertheless a strong performance for the Centre which has consistently maintained caseload levels of over 220 new cases each year since 2012.
|•||SIAC received cases involving parties from 58 jurisdictions in 2014, of which 81% were international in nature (i.e. where at least one or both parties were not Singaporean).
|•||The top five nationalities (excluding Singapore) of parties involved in new cases filed with SIAC were: (1) China with 41 cases; (2) USA with 38 cases; (3) India with 37 cases; (4) Hong Kong with 27 cases; and (5) Malaysia and the United Kingdom, both with 21 cases each. A noteworthy change is the significant increase in popularity for SIAC arbitration among US parties, who rose from being the 5th most common nationality in 2013 to a close 2nd in 2014.
|•||The three governing laws that were most commonly chosen in new cases filed in 2014 were: (1) Singapore law with 49%; (2) English law with 25%; and (3) Indian law with 4%. This represents a 4.5% increase in the number of cases where Singapore law was chosen as the governing law as compared to 2013. In this regard, Dr Pryles commented at the event that Singapore law is increasingly chosen as the governing law in contracts, even where none of the parties involved are Singaporean. This reflects what many practitioners are seeing in practice, in that non-Singaporean parties based elsewhere in Asia are growing more and more comfortable with selecting Singapore law to govern their contracts.
|•||SIAC received and accepted 12 applications to appoint an emergency arbitrator in 2014. This takes the total number of such applications accepted since the inception of the emergency procedure in July 2010 to 42, and puts SIAC at the forefront amongst other institutions in this area.
|•||SIAC was involved with four investor-state cases in 2014. This is a significant milestone as it marks the first time investor-state cases have been referred to SIAC.
The SIAC Annual Report 2014 also provides an overview of several significant initiatives undertaken by SIAC last year. For instance, SIAC collaborated with the newly launched Singapore International Mediation Centre (“SIMC”) to offer Arb-Med-Arb services. Under this process, a dispute referred to arbitration may be held in abeyance while the parties attempt mediation. If the dispute is resolved by mediation, the parties’ mediated settlement may be recorded as a consent award which will be more readily enforceable under the New York Convention. Otherwise, if the dispute is not resolved by mediation then the parties can resume the arbitration proceedings.
Finally, several upcoming events were highlighted during the event.
The YSIAC Conference on “The Dynamics and Challenges of International Arbitration – The Road Ahead” will be held on Thursday, 4 June 2015, at Maxwell Chambers in Singapore. Unlike your average run-of-the-mill seminar, this conference promises to set itself apart with interactive “speed-conferencing” sessions (being the conference equivalent of “speed-dating” but with far fewer phone numbers exchanged). The conference will also feature plenary sessions with members of the SIAC Court and other eminent arbitration experts, to discuss advocacy skills and tips and traps for junior counsel in an arbitration team. Those interested can register for the event online, but be quick – the early bird rate for registration ends on 4 May 2015.
GAR Live is also set to return to Singapore and will be held the day after the YSIAC Conference on 5 June 2015. Stay tuned for more details on this event.
Jones Day, Singapore
|[From left to right] Lim Seok Hui, Lucien Wong||[From left to right] Gary Born, Lucien Wong||[From left to right] Lim Seok Hui, Michael Hwang SC, Lucy Reed, Gary Born|
|Gary Born with members of the legal community||[From left to right] Lucien Wong, Dr Michael Pryles||[From left to right] Lim Seok Hui, Simon Dunbar, Foo Yuet Min, Suzanne Meiklejohn, Darius Chan|