27 June 2017
SIAC Seminar on "Crystal Ball Gazing into the Future of International Arbitration"

By Saemee Kim, Associate, Lee & Ko

On 27 June 2017, SIAC held a successful seminar at Kim & Chang in Seoul, titled “Crystal Ball Gazing into the Future of International Arbitration”, which provided an insightful and practical discussion on the future of international arbitration. The panel, moderated by Dr. Eun Young Park (Kim & Chang, member of the SIAC Court of Arbitration), was composed of Gary Born (Wilmer Cutler Pickering Hale and Dorr LLP; President of the SIAC Court of Arbitration), Matthew Christensen (Bae, Kim and Lee LLC), Robert Wachter (Lee & Ko), Sae Youn Kim (Yulchon LLC) and Jun Hee Kim (Hyundai Heavy Industries Co., Ltd). An audience of over 70 corporate counsel, practising lawyers and academics attended the seminar.

Dr. Eun Young Park kicked off the session with his welcome address and introduced the eight issues selected in advance by the attendees during the online registration: (1) Winter is coming: defending international arbitration: (2) Prospects of international arbitration in Korea and the APEC region, (3) Third-party funding (TPF); (4) Emergency Arbitration (EA), (5) Selecting an arbitral institution, (6) Arbitrator diversity; (7) Brexit’s impact on arbitration; and (8) Time limits for rendering of awards.

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Dr. Eun Young Park delivering Welcome Address

Members of the audience

Inspired by the Game of Thrones, Mr. Born began the discussion with the pithy phrase, “Winter is coming for international arbitration”. Continuing the Game of Thrones metaphor, he explained that after 30 years of a warm, peaceful, and constructive summer in which commercial arbitration and investment arbitration flourished, it was now time to defend arbitration from attacks by its critics.

Mr. Christensen shared a more optimistic view, citing the recent enactment of the Arbitration Promotion Act in Korea as an indication of positive prospects for international arbitration in Korea. Adding the perspective of an in-house counsel, Mr. Kim commented that although arbitration is not perfect, its flexibility and adaptability make it attractive to users.

As the discussion turned to the topical issues of TPF and EA, Mr. Born suggested that TPF may raise issues such as counsel ethics, disclosure obligations, and the authority of tribunals to order disclosure, which will need to be carefully managed. Ms. Kim explained that the traditional fee arrangement prevalent in Korea, which shares the litigation risk between counsel and clients, may explain TPF’s slow uptake in Korea. However, she stressed that TPF is not prohibited under Korean law and encouraged Korean lawyers to consider the change.

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Left to Right: Matthew Christensen, Jun Hee Kim and Gary Born

Left to Right: Dr. Eun Young Park, Kim Sae Youn and Robert Wachter

Dr. Park then raised the intriguing question of whether the EA mechanism is “good, bad or ugly.” For Mr. Born, the “ugly” part is the short turnaround time for respondents to respond. Nonetheless, the panellists agreed that EA is indispensable, and access to justice for parties outweighs the challenges for lawyers arising from the short time periods in an EA.

Regarding arbitral institutions, Mr. Wachter identified three issues to consider when selecting an institution: how the institution would select the presiding arbitrator of the tribunal, costs, and how fast the award would be rendered.

As the discussion moved to arbitrator diversity, the recent Arbitrator Intelligence (AI) project grabbed the audience’s interest. While Mr. Wachter suggested that AI could inadvertently create barriers to entry for minorities or young practitioners, as those candidates would likely have limited profiles, Mr. Born suggested that AI would actually increase arbitrator diversity by providing users with more information about lesser known candidates.

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Left to Right: Seah Lee, Matthew Christensen,
Robert Wachter, Gary Born, Kim Sae Youn,
Dr. Eun Young Park and Jun Hee Kim

Gary Born with members of the audience

Ms. Kim shared her view that Brexit will not necessarily affect international arbitration in England, although the attractiveness of the English courts as a forum for dispute resolution could be affected by the United Kingdom’s withdrawal from the Brussels Convention.

As for the last issue concerning time limits for rendering of awards, Mr. Kim shared his experience with respect to Indian arbitrations and emphasised that in addition to the efficiency of the arbitration proceedings, users should also be aware of potential issues at the enforcement stage, which might impact on the overall efficiency of the arbitration mechanism.

Mr. Born concluded the seminar with a reminder to the audience of the importance of arbitration, and a clarion call for arbitration lawyers to become a “hunter instead of being hunted.”

9 June 2017
YSIAC Conference 2017

The YSIAC Conference 2017, held in Singapore on 9 June 2017, attracted almost 200 delegates from 12 jurisdictions, with delegates attending from places as far away as Sint Maarten, the United Kingdom and the United States.

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Left to right: Davinder Singh, SC, Koh Swee Yen,
Lim Seok Hui, Gary Born and Duncan Matthews QC

Members of the audience

The theme of this year’s Conference was “Evolution and Innovation: Keeping Pace with the Future of Arbitration”, which explored the various innovations in international arbitration and how one should evaluate, approach and keep pace with these innovations.

The Conference kicked off with a Welcome Address by Mr Davinder Singh, SC (CEO, Drew & Napier LLC; Chairman, SIAC Board of Directors). In his speech, Mr Singh highlighted SIAC’s commitment towards bright, young arbitration practitioners from all around the world, who were “hungry to get their first appointments as arbitrators” and make a name for themselves in the international arbitration field. Mr Singh said he was impressed and touched by the determination, drive, energy and enthusiasm of these young arbitration practitioners, who lacked only the right opportunities, and who would be committed to devote a great deal of time and attention to the cases if they were appointed as arbitrators. Mr Singh called on the young arbitration practitioners to partner with SIAC, and stated his willingness to meet these young practitioners to understand better the challenges that they faced in succeeding in the field of international arbitration and what SIAC could do to help them achieve their goals.

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Welcome Address by Davinder Singh, SC

Keynote Address by Gary Born

The Keynote Address for the Conference was delivered by Mr Gary Born (Chair, International Arbitration Practice Group, Wilmer Cutler Pickering Hale and Dorr LLP; President, SIAC Court of Arbitration). Mr Born provided two useful guiding principles for evaluating the various proposals to reform international arbitration, which he termed as the “do” and the “don’t”. In respect of the “do”, as arbitration is at the end of the day founded on parties’ consent, Mr Born said that a good innovation for arbitration should reflect parties’ consent and what parties want from arbitration. In respect of the “don’t”, Mr Born highlighted that in evaluating proposed innovations for arbitration, one should not simply attempt to emulate the national courts and the processes there. Whilst courts aim to provide a “one-size-fits-all” type of justice, arbitration is founded on parties’ consent, and provides justice tailored to the parties and to their particular dispute.

The Keynote Address was followed by lively and thought-provoking ‘’speed conferencing’’ sessions on hot topics in international arbitration. The 10 topics selected for the speed conferencing sessions showcased topical issues faced by arbitration practitioners in the course of their practice today, such as the impact of artificial intelligence on the practice of international arbitration, conflict of interest issues and confidentiality concerns in an era of greater transparency.

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Delegates during Speed Conferencing Sessions

Delegates during Speed Conferencing Sessions

The insights and conclusions drawn from the speed conferencing sessions were then summarised and presented by the moderators in two plenary sessions chaired by Mr Duncan Matthews QC (Barrister and Arbitrator, 20 Essex Street Chambers).

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Duncan Matthews QC

Left to Right: Rishab Gupta, Duncan Matthews QC and Suegene Ang

Turning the spotlight to the in-house counsel user, the final panel was a GC Panel titled “The General Counsel’s Perspective on the Future of International Arbitration”. The Panel comprised a stellar line-up of GCs, namely Mr Bhaskar Chandran (Group President, Legal, GMR Group), Mr Cameron Ford (Corporate Counsel, Rio Tinto), Ms Geraldine Lim (Regional Legal Director, Heineken Asia Pacific), and Ms Valerie Tan (Country Head Legal, ABN AMRO Bank N.V., Singapore Branch), and was moderated with great aplomb by Mr Chelva Rajah, SC (Managing Partner, Tan Rajah & Cheah; Member, SIAC Board of Directors). This interactive session provided delegates with an opportunity to engage in an interesting dialogue with the end users of arbitration on how they perceived and utilised the arbitration mechanism to meet their corporate goals, and how arbitration could be reformed to better serve the needs of corporate organisations.

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Left to Right: Bhaskar Chandran, Geraldine Lim,
Chelva Rajah, SC, Valerie Tan and Cameron Ford

Left to Right: Bhaskar Chandran, Cameron Ford,
Chelva Rajah, SC, Geraldine Lim and Valerie Tan

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Member of the audience during Q&A

Members of the audience

The highlight of the Conference was the feisty debate that followed, on the motion “This House Believes that Arbitrators become Better with Age”. Moderated by Mr Darius J. Khambata, SC (Member, SIAC Court of Arbitration), the speakers for the motion were Ms Foo Yuet Min (Director, Drew & Napier LLC; Member, YSIAC Committee) and Mr Toby Landau QC (Barrister and Arbitrator, Essex Court Chambers; Member, SIAC Court of Arbitration) and the speakers against the motion were Mr Emmanuel Gaillard (Head, International Arbitration Practice, Shearman & Sterling LLP; Member, SIAC Court of Arbitration) and Mr Jern-Fei Ng (Barrister, Essex Court Chambers; Member, YSIAC Committee).

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Left to Right: Foo Yuet Min, Toby Landau QC, Darius J. Khambata, SC, Emmanuel Gaillard and Jern-Fei Ng

Members of the audience voting during the debate

Ms Lim Seok Hui, CEO of SIAC, closed the Conference by thanking the speakers and sponsors, for contributing to the success of this flagship biennial YSIAC event. The day ended with Friday evening networking drinks for the delegates.

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Closing Remarks by Lim Seok Hui

Left to Right: Emmanuel Gaillard, Toby Landau QC, Foo Yuet Min,
Lim Seok Hui, Darius J. Khambata, SC, and Jern-Fei Ng

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Delegates during the Cocktail Evening

Delegates during the Cocktail Evening

Please look out in the upcoming July 2017 issue of the YSIAC Newsletter for more write-ups of the YSIAC Conference sessions.

8 June 2017
SIAC-CIArb Debate

Report by Emmanuel Chua
Senior Associate, Herbert Smith Freehills LLP

This year's edition of the SIAC-CIArb Debate, held on 8 June 2017, at The Westin in Singapore, proved to be a feisty affair. Marked from the get-go by an application from the proposition to remove two members of the judging panel on grounds of apparent bias (subsequently withdrawn), audience heckling and a hung tribunal, four titans of international arbitration (including 3 members of the SIAC Court of Arbitration) argued whether "The Practice of Party-Appointed Arbitrators is a Moral Hazard in International Arbitration and Should be Abolished". With over 250 attendees, comprising private practitioners, in-house counsel, academics and arbitrators, this year’s turnout was the largest to date.

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Gary Born delivering Opening Remarks Chou Sean Yu delivering Opening Remarks

Darius J Khambata, SC, opened the debate for the proposition. Dealing head-on with (and dismissing) the five commonly cited reasons in favour of having party-appointed arbitrators (confidence in the process, inertia, shared outlook between party and arbitrator, subject matter expertise and party autonomy), Mr Khambata argued that it was ultimately crucial that parties can be confident in the neutrality of all the arbitrators rather than just the Presiding Arbitrator.

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Left to Right: Darius J. Khambata, SC, Toby Landau QC, Francis Xavier, SC, Emmanuel Gaillard and
Judith Gill QC

Left to Right: Professor Lucy Reed, Gary Born and
Ariel Ye

Expanding on Mr Khambata's views, Toby Landau QC warned of the risk of arbitration degenerating into a contest that rewards the party who identifies and pick the best "gladiator" in the form of a party-appointed arbitrator. Whilst Mr Landau acknowledged the importance of party autonomy, he highlighted that this could equally be achieved without resorting to party-appointed arbitrators, for example by having parties agree to an appointing authority and by specifying in their contracts that only arbitrators possessing specific skillsets or other characteristics may be appointed.

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Left to Right: Toby Landau QC, Francis Xavier, SC and Emmanuel Gaillard

Members of the audience

Opposing the motion, Judith Gill QC questioned if it was fair to term party-appointed arbitrators as a "moral hazard" on the basis of anecdotal evidence, often emanating from the unsuccessful party. Even if the risk of bias existed, Ms Gill argued that this was adequately balanced by the presence of the Presiding Arbitrator and the other party's appointed arbitrator. Specific tools, such as the declaration of independence required of arbitrators under the rules of most major arbitral institutions and the IBA Guidelines on Conflicts of Interests, exist to effectively manage the risk of bias. Abolishing the party-appointed arbitrator would therefore be a step too far. Supporting Ms Gill's arguments, the second opposition speaker, Emmanuel Gaillard, highlighted that independent appointments did not necessarily guarantee neutral decision-making, pointing out instances in which national courts had produced unfair or biased results.

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Members of the audience during the vote

Member of the audience during Q&A

The excellent arguments on each side meant that the debate almost proved too close to call. Indeed, the three-member judging panel somehow managed not to arrive at a decision, with Mr Gary Born declaring that he was "in favour of the opposition for the first half and the proposition for the second", after Ms Lucy Reed and Ms Ariel Ye voted for the proposition and opposition respectively. Following a lively audience Q&A session, the matter was ultimately decided by way of a vote from the audience. The moderator, Mr Francis Xavier, SC, declared a slim victory for the opposition with a score of 118 to the proposition's 103.

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Left to Right: Paul Friedland, Dr Eun Young Park and Gary Born

Guests during Networking Drinks

All in, an excellent evening of excellent advocacy, wine and fellowship in the Singapore arbitration community!

15 May 2017
SIAC-SHIAC Seminar: New Developments in Arbitration in Shanghai and Singapore

Against the backdrop of the “One Belt, One Road” initiative and recent arbitration-related developments in the China (Shanghai) Pilot Free Trade Zone (the “Shanghai FTZ”), on 15 May 2017, SIAC and SHIAC jointly held a seminar titled “New Developments of Arbitration in Shanghai and Singapore”. The seminar attracted many Chinese practitioners, in-house counsel and academics.

Ms. Sophia Feng, Head and Chief Representative of SIAC (China), and Mr. Yao Hongmin, Director of SHIAC Commercial Arbitration Research Center, delivered the welcome addresses.

In the first session, Professor Lawrence Boo, an arbitrator at The Arbitration Chambers, and member of the SIAC Court of Arbitration, spoke on “The Role of the National Court in Investor-State Arbitration”. In his speech, Professor Boo analysed the recent judgment of Singapore’s apex court in Sanum Investments Ltd. v. Government of the Lao People’s Democratic Republic, [2016] SGCA 57 (“Sanum”), which affirmed a Permanent Court of Arbitration award ruling that a bilateral investment treaty between the People’s Republic of China and Laos also applied to Macau. In addition to discussing the role and jurisdiction of Singapore’s national courts in reviewing investor-state arbitration awards, Professor Boo also shared his thoughts on the differences between investor-state arbitration cases and general commercial arbitration cases.

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Members of the audience Left to Right: Chen Luming, Sophia Feng,
Professor Lawrence Boo and Yao Hongmin

In the second session titled “The Evolution of Arbitration Law and Practice in the Shanghai FTZ”, Mr. Yao Hongmin discussed the current approach towards commercial arbitrations in mainland China (in particular the Shanghai FTZ), the Opinions on Providing Judicial Protection for the Construction of Pilot Free Trade Zones (FTZ) (the “Opinions”) issued by the Supreme People’s Court (the “SPC”), and the impact of the Opinions on the approach towards judicial review of FTZ-related arbitration cases.

In the final session, “Major Differences between International Commercial Arbitration and Investment Arbitration: With an Introduction to the New SIAC Investment Arbitration Rules”, Mr Chen Luming (Partner at JunHe LLP), drew from his own experience and his analysis of recent cases to discuss the differences between both regimes, focusing on the areas of governing law, case management, tribunal selection, jurisdiction and transparency. Mr. Chen pointed out that with the rapid development of outbound investment under the “One Belt, One Road” initiative, the number of investment arbitration cases will continue to grow. It is thus imperative that parties familiarise themselves with the features of investment arbitration procedure. In his speech, Mr Chen also touched on the SIAC Investment Arbitration Rules, which came into force on 1 January 2017.

In the interactive Q&A session which followed, the audience posed a range of topical questions to the speakers, from the approach towards judicial review for FTZ-related arbitration cases following the release of the SPC Opinions, the determination of foreign-related elements under the new rules, to the approach towards judicial review of arbitration awards by the Singapore national courts.

18 May 2017
SIAC Seminar on “The Bear and the Lion: A Comparison of the Regimes for Interim Measures in International Arbitration in Russia and Singapore - Types, Timing and Tactics”

SIAC held its inaugural event at the St. Petersburg International Legal Forum in St. Petersburg, Russia on 18 May 2017.

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Welcome Address by Lim Seok Hui Left to Right: Francis Xavier, SC, Randolph Khoo,
Chou Sean Yu, Julia Zagonek and Timur Aitkulov

The seminar started off with a welcome address by Ms Lim Seok Hui, the CEO of SIAC. The panel, comprising leading international arbitration practitioners from Singapore and Russia, discussed, amongst other things, the differences in the regimes for interim measures that are available in international arbitration proceedings in Russia and Singapore, including the advantages of seeking interim measures from an Emergency Arbitrator under the SIAC Rules, what strategy and tactics to deploy at which stage (pre- and post-Tribunal constitution) of the arbitration, as well as when to involve the courts of the seat.

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Left to Right: Francis Xavier, SC, Randolph Khoo,
Chou Sean Yu, Julia Zagonek and Timur Aitkulov

Members of the audience

The event attracted many Russian practitioners and in-house counsel, who asked the panel for practical tips and advice on SIAC’s rules on Emergency Arbitrators and enforcement of SIAC awards.

Press Releases

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