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