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Highlights

Arbitration Speed Conferencing with SIAC and DIS


24 April 2019
Arbitration Speed Conferencing with SIAC and DIS
By Derric Yeoh, Associate, Schellenberg Wittmer (Singapore)


On 24 April 2019, the Singapore International Arbitration Centre (SIAC) and the German Institute of Arbitration (DIS) held Arbitration Speed Conferencing at Maxwell Chambers. The event aimed to give participants an insight into the distinct elements of the 2018 Arbitral Rules – the “DIS Rules” – as well as bring together arbitration practitioners from Singapore and Germany. The “speed conferencing” aspect of the afternoon entailed the organisation of participants into four groups. Speakers and moderators rotated between these groups, discussing four concepts of international arbitration: the burden of proof in document production, the facilitation of settlement in arbitrations, expert management, and ex parte interim relief granted by the arbitral tribunal. Over 70 attendees from law firms, arbitral institutions, and private companies gathered as the event begun.

Dr Christopher Boog, partner and vice-chair of Schellenberg Wittmer, opened by expressing his hope that this event would foster dialogue between practitioners of different legal backgrounds, leading to improved arbitration practices in both Singapore and Germany. The format of a speed conference facilitated this goal of intimate collaboration as participants were able to actively interact with all the speakers and moderators – including Mr Peter Wolrich (Curtis, Mallet-Prevost, Colt & Mosle LLP, Paris), Dr Peter Heckel (an independent arbitrator), Ms Lijun Chui (Clifford Chance Asia, Singapore), and Ms Gerui Lim (Drew & Napier LLC, Singapore).

Both Ms Lim Seok Hui (CEO of SIAC) and Ms Francesca Mazza (Secretary General of the DIS) shared the innovations and statistics of their respective institutions in their opening remarks. Ms Lim Seok Hui described the arbitration community’s warm reception of SIAC’s expedited procedure, while Ms Francesca Mazza shared a DIS-developed remedy to a pattern she often observed during arbitration proceedings. Often, parties wanted to settle the matter but found it was not conducive to do so once the arbitration had commenced. She illustrated this sentiment of the parties with a quote from the film, “Rosencrantz and Guildenstern Are Dead”:

“There must have been a moment, at the beginning, where we could have said – no. But somehow we missed it.”

Ms Francesca Mazza explained that the DIS had addressed this problem through Article 26 of the DIS Rules, which states that “Unless any party objects thereto, the arbitral tribunal shall, at every stage of the arbitration, seek to encourage an amicable settlement of the dispute or of individual disputed issues.

Mr Peter Wolrich and Dr Peter Heckel continued to speak about the DIS Rules, outlining some of their unique civil law aspects. A particularly striking feature was in relation to Annex 3 of the Rules, which described the arbitral tribunal’s ability to provide a preliminary non-binding assessment of factual and legal issues in the arbitration. This promotes a settlement as parties can ascertain the strength of their cases. If the parties decide against settling, the preliminary assessment remains a useful tool for parties to prepare their submissions – they can tailor their submissions to address the concerns of the arbitral tribunal expressed in the assessment.

After discussing the DIS Rules, the four groups split away and dove into specific topics of discussion as the speed conferencing portion of the afternoon began.

Burden of proof and document production issues

Participants engaged with Peter Wolrich regarding the burden of proof in document production, speaking about how, in most legal jurisdictions, the party asserting the claim shoulders the burden of proof. However, in instances of medical malpractice where the doctor possesses almost all of the relevant documents, some civil law jurisdictions allow for the burden of proof to be shifted to the doctor. Other common law jurisdictions accommodate this issue by broadening the scope of document production requests.

The facilitation of settlement in arbitrations

In a discussion about the facilitation of settlement of arbitrations in Article 26 of the DIS Rules, Dr Peter Heckel said it was particularly difficult to show the counsel and parties that a settlement was possible even at a later stage of arbitration. He illustrated the feasibility of a high rate of settlement by giving an example of a Frankfurt judge, one who had not tried any cases for the past few years given his effectiveness in promoting settlements. Dr Peter Heckel also observed from his personal experience that parties often reached a point where they were more willing to settle than their lawyers were.

Participants expressed concerns that parties could possibly exploit the preliminary assessment by the arbitral tribunal intended to facilitate settlement – Annex 3 of the DIS Rules – as evidence of the tribunal’s partiality and bias. However, Dr Peter Heckel explained that this was unlikely in reality, especially if the arbitral tribunal was careful in their presentation of assessments.

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Left to Right: Peter Heckel, Lijun Chui, Peter Wolrich, Christopher Boog, Christopher Lau, SC, Francesca Mazza and Gerui Lim

Participants during the Speed Conferencing Sessions

Expert management

Ms Lijun Chui moderated the discussion on expert management – specifically in relation to Article 27.7 of the DIS Rules. This article states that “In the first case management conference or, if necessary, in additional case management conferences, the arbitral tribunal shall discuss with the parties whether to employ experts and, if so, how to conduct the expert procedure efficiently.” The participants came to the consensus that it was better to have the parties and the tribunal agree on the numbers of experts at the outset of negotiations. This would ensure that the timetable for the arbitration would not be disrupted by the need to appoint new experts throughout the process.

Throughout the discussions of tribunal-appointed experts, a discrepancy between the lawyers emerged. Civil law lawyers were accustomed to the idea while common law lawyers found the notion a foreign one.

Ex parte interim relief

The final discussion centred around Article 25 of the DIS Rules, a Rule that allows the arbitral tribunal to grant ex parte interim relief. Moderated by Ms Gerui Lim, this particular topic provoked a robust discussion. In an arbitration seated in Singapore, DIS’ Article 25 would cause a party to lose their recourse to the Singapore court for ex parte interim relief. This is a consequence of the Singaporean court’s stance that its power to grant interim relief is incidental to that of the tribunal. Therefore, it is possible that the Singapore court would not grant ex parte interim relief when such recourse is already available from the tribunal (see NCC International AB v Alliance Concrete Singapore Pte Ltd [2008] 2 SLR (R) 565).

Conclusion

The event closed as the moderators synthesised the discussion points raised by the four groups of participants. The SIAC-DIS speed conferencing session allowed both civil law and common law lawyers to be exposed to the different perspectives they respectively held on various features of international arbitration. This allowed for the cross-pollination of ideas, culminating in a deeper understanding of these two legal systems and a greater harmonisation in international arbitration.
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