Highlights
4 June 2019
SIAC-Japan Association of Arbitrators Tokyo (JAA) Conference 2019
By Stephanie Cameron and Yudai Nagaishi, Ashurst LLP
The theme of the 2019 SIAC-JAA Tokyo Conference was "Perils and Precautions in Complex Disputes: Navigating Multiple Contracts, Multiple Parties and Multiple Proceedings".
The conference opened with a welcome address by Ms Lim Seok Hui (CEO, SIAC) who energetically outlined why the 21st century in arbitration will be "the century of Asia". She noted that Japan in particular is an economic powerhouse, and that with Japanese investments and projects across all corners of the globe, there is a need for a dispute resolution process that is not only fast paced, but which also provides quality and efficiency. She suggested that SIAC is well placed to provide this service, given that it is currently the preferred arbitral institution in Asia – and SIAC is committed to continuing to provide arbitral service with a personal touch.
Mr Chan Leng Sun SC (Deputy Chairman, SIAC Board of Directors; Senior Counsel and Arbitrator, Essex Court Chambers Duxton) delivered an opening address with a reference to a quote inspired by the popular TV show, Game of Thrones: "We can only help people from a position of strength, and a position of strength comes from cooperation". He noted that the Memorandum of Understanding between SIAC and JAA is a step in the direction of achieving such cooperation, and is also a strong commitment to continuing to have conferences and training programs in both Japan and Singapore, in an effort to ensure there is a trusted system available to parties in order to resolve complex disputes.
The second opening address was delivered by Mr Yoshimasa Furuta (Managing Director, JAA; Partner, Anderson Mori & Tomotsune), who summarised some of the key developments in recent years in relation to international arbitration in Japan. These developments include the launch of the Japan International Dispute Resolution Center (JIDRC) in Osaka in May 2018, the establishment of the Japan International Mediation Center (JIMC) in Kyoto, and the commitment to establish another hearing venue in Tokyo by March 2020. He also noted JAA's commitment to continuing to leverage international dispute resolution opportunities in Japan.
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| Members of the audience |
Left to Right: Chong Yee Leong, Ronnie King, Gai Matsushita, Zachary Sharpe and Masako Takahata |
Panel Session I: Drafting Precautions into the Contract
The first panel of the day addressed the topic "Drafting Precautions into the Contract" and was moderated by Mr Gai Matsushita (Partner, Innoventier LPC). The panellists were Mr Chong Yee Leong (Member, SIAC Board of Directors; Partner, Allen & Gledhill LLP), Mr Ronnie King (Managing Partner, Ashurst Horitsu Jimusho Gaikokuho Kyodo Jigyo), Mr Zachary Sharpe (Partner, Jones Day) and Ms Masako Takahata (General Counsel, Eurus Energy Holdings Corporation).
This session had a particular focus on transactions giving rise to a risk of parallel proceedings, and how for clients, a big risk is incurring large costs running parallel proceedings that may all be dealing with the same few issues related to one project. The panellists noted that a major benefit of SIAC arbitration is the joinder and consolidation provisions, however they noted that there was some scope for discussion around the meaning of "compatible" in the context of the SIAC rule permitting consolidation. Rule 8.1(c) of the SIAC Rules 2016 provides that one of the grounds under which proceedings may be consolidated is if the arbitration agreements are “compatible,” among other requirements.
During discussions, Mr Matsushita raised an interesting question: "What should be done if parties cannot agree on the seat of the arbitration?" This prompted some useful observations from the panellists. Mr Sharpe noted that often the client is actually more concerned about the venue of the hearing, and not the seat, and that therefore the parties could discuss holding the arbitration in a location that is different to the seat of the arbitration. Mr King noted that the parties could leave this issue silent, noting that the 2016 SIAC Rules provide that if the parties have not agreed on the seat then the Tribunal will make a determination. Mr Chong raised a logistical point, that some seats do not allow foreign arbitrators to work – and therefore this is an important factor to consider. Finally, Ms Takahata noted that from an in-house counsel point of view, having a favourable seat is the most important aspect of the arbitration agreement.
The first panel of the day addressed the topic "Drafting Precautions into the Contract" and was moderated by Mr Gai Matsushita (Partner, Innoventier LPC). The panellists were Mr Chong Yee Leong (Member, SIAC Board of Directors; Partner, Allen & Gledhill LLP), Mr Ronnie King (Managing Partner, Ashurst Horitsu Jimusho Gaikokuho Kyodo Jigyo), Mr Zachary Sharpe (Partner, Jones Day) and Ms Masako Takahata (General Counsel, Eurus Energy Holdings Corporation).
This session had a particular focus on transactions giving rise to a risk of parallel proceedings, and how for clients, a big risk is incurring large costs running parallel proceedings that may all be dealing with the same few issues related to one project. The panellists noted that a major benefit of SIAC arbitration is the joinder and consolidation provisions, however they noted that there was some scope for discussion around the meaning of "compatible" in the context of the SIAC rule permitting consolidation. Rule 8.1(c) of the SIAC Rules 2016 provides that one of the grounds under which proceedings may be consolidated is if the arbitration agreements are “compatible,” among other requirements.
During discussions, Mr Matsushita raised an interesting question: "What should be done if parties cannot agree on the seat of the arbitration?" This prompted some useful observations from the panellists. Mr Sharpe noted that often the client is actually more concerned about the venue of the hearing, and not the seat, and that therefore the parties could discuss holding the arbitration in a location that is different to the seat of the arbitration. Mr King noted that the parties could leave this issue silent, noting that the 2016 SIAC Rules provide that if the parties have not agreed on the seat then the Tribunal will make a determination. Mr Chong raised a logistical point, that some seats do not allow foreign arbitrators to work – and therefore this is an important factor to consider. Finally, Ms Takahata noted that from an in-house counsel point of view, having a favourable seat is the most important aspect of the arbitration agreement.
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| Left to Right: Chris Bailey, Christopher Chuah, Hiroyuki Tezuka, Kap-You (Kevin) Kim and Elaine Wong |
Left to Right: Lars Markert, Junya Naito, Chan Leng Sun, SC, Iain Potter, Farhad Sorabjee and Ing Loong Yang |
Panel Session II: Can I Resolve my Dispute in a Single Forum? Procedural Tools and Strategic Considerations
Panel Session II was moderated by Mr Hiroyuki Tezuka (Member, SIAC Court of Arbitration; Executive Director, JAA; Partner, Nishimura & Asahi).
The panellists were Mr Christopher Chuah (Partner, and Head – Infrastructure, Construction & Engineering Practice, WongPartnership LLP), Mr Kap-You (Kevin) Kim (Partner, Bae, Kim & Lee LLC) and Ms Elaine Wong (Partner, Herbert Smith Freehills GJBJ).
In this session, Mr Chuah first briefly presented on the basic concepts related to parallel proceedings under the SIAC Rules and the approach to "res judicata" from both the English law and civil law perspectives. Mr Kim and Ms Wong then elaborated on issues related to parallel proceedings. Mr Kim focused on joinder and consolidation proceedings and arbitrator appointments, and explained how joinder and consolidation can affect the existing arbitration proceedings depending on the timing of an application for joinder. Ms Wong explained how common procedural tools such as bifurcation, stays, and anti-suit injunctions can be used, with reference to the model law requirement.
In the discussion, one of the questions raised was "what happens if a third party requesting to join (a joinder party) proposes to the existing parties that the existing parties consent to the joinder in exchange for the joinder party waiving its right to seek revocation by the Court of arbitrators appointed prior to joinder?" Mr Kim noted that it is actually a common tactics that he uses when he represents a joinder party. Mr Kim added that the existing parties usually tend to accept such a proposal. He stated that before seeking to negotiate such a position, the joinder party should carefully consider the potential impact that such a waiver could have.
Panel Session III: Minimizing Perils in Parallel Proceedings
Panel Session III was moderated by Mr Chan Leng Sun, SC.
The panellists were Mr Lars Markert (Partner, Nishimura & Asahi), Mr Junya Naito (Partner, Momo-o, Matsuo & Namba), Mr Iain Potter (Director, MDD Forensic Accountants, Singapore), Mr Farhad Sorabjee (Partner, J. Sagar Associates) and Mr Ing Loong Yang (Partner, Latham & Watkins LLP).
In this session, the panellists focused on discussing parallel proceedings in the context of the same or similar claims being dealt with by different courts or arbitral tribunals, as opposed to the claims being heard in a single forum (which was the focus of Panel Session II).
Mr Naito explained how confidentiality under arbitration proceedings is well protected, especially when compared with Japanese court proceedings. He noted that all proceedings and court records in a Japanese court proceeding are in effect open to the public.
Mr Yang focused on the problems arising out of res judicata. He explained that res judicata between the same sort of proceedings (court vs court or arbitral tribunal vs arbitral tribunal) can be dealt with consistently, but that there is no consistent approach at the international level to resolve issues of res judicata between a court and a tribunal. This was an interesting observation and made us wonder whether a unified approach should be established at the international level.
Mr Markert introduced "guerrilla tactics" in international arbitrations and emphasized that the multi-jurisdictional nature of international arbitration makes it difficult to find a "one size fits all" approach and that possible options should be determined on a case-by-case basis.
Mr Sorabjee explained how the risk of parallel proceedings in India could be minimized. He noted that specifically excluding some of the provisions of Indian arbitration law in the arbitration clause would be sensible to avoid multiplicity and delay by the Indian courts.
Finally, Mr Potter presented on the key considerations for quantum. He noted that changes in the factual matrix should be carefully considered when dealing with parallel proceedings.
Panel Session II was moderated by Mr Hiroyuki Tezuka (Member, SIAC Court of Arbitration; Executive Director, JAA; Partner, Nishimura & Asahi).
The panellists were Mr Christopher Chuah (Partner, and Head – Infrastructure, Construction & Engineering Practice, WongPartnership LLP), Mr Kap-You (Kevin) Kim (Partner, Bae, Kim & Lee LLC) and Ms Elaine Wong (Partner, Herbert Smith Freehills GJBJ).
In this session, Mr Chuah first briefly presented on the basic concepts related to parallel proceedings under the SIAC Rules and the approach to "res judicata" from both the English law and civil law perspectives. Mr Kim and Ms Wong then elaborated on issues related to parallel proceedings. Mr Kim focused on joinder and consolidation proceedings and arbitrator appointments, and explained how joinder and consolidation can affect the existing arbitration proceedings depending on the timing of an application for joinder. Ms Wong explained how common procedural tools such as bifurcation, stays, and anti-suit injunctions can be used, with reference to the model law requirement.
In the discussion, one of the questions raised was "what happens if a third party requesting to join (a joinder party) proposes to the existing parties that the existing parties consent to the joinder in exchange for the joinder party waiving its right to seek revocation by the Court of arbitrators appointed prior to joinder?" Mr Kim noted that it is actually a common tactics that he uses when he represents a joinder party. Mr Kim added that the existing parties usually tend to accept such a proposal. He stated that before seeking to negotiate such a position, the joinder party should carefully consider the potential impact that such a waiver could have.
Panel Session III: Minimizing Perils in Parallel Proceedings
Panel Session III was moderated by Mr Chan Leng Sun, SC.
The panellists were Mr Lars Markert (Partner, Nishimura & Asahi), Mr Junya Naito (Partner, Momo-o, Matsuo & Namba), Mr Iain Potter (Director, MDD Forensic Accountants, Singapore), Mr Farhad Sorabjee (Partner, J. Sagar Associates) and Mr Ing Loong Yang (Partner, Latham & Watkins LLP).
In this session, the panellists focused on discussing parallel proceedings in the context of the same or similar claims being dealt with by different courts or arbitral tribunals, as opposed to the claims being heard in a single forum (which was the focus of Panel Session II).
Mr Naito explained how confidentiality under arbitration proceedings is well protected, especially when compared with Japanese court proceedings. He noted that all proceedings and court records in a Japanese court proceeding are in effect open to the public.
Mr Yang focused on the problems arising out of res judicata. He explained that res judicata between the same sort of proceedings (court vs court or arbitral tribunal vs arbitral tribunal) can be dealt with consistently, but that there is no consistent approach at the international level to resolve issues of res judicata between a court and a tribunal. This was an interesting observation and made us wonder whether a unified approach should be established at the international level.
Mr Markert introduced "guerrilla tactics" in international arbitrations and emphasized that the multi-jurisdictional nature of international arbitration makes it difficult to find a "one size fits all" approach and that possible options should be determined on a case-by-case basis.
Mr Sorabjee explained how the risk of parallel proceedings in India could be minimized. He noted that specifically excluding some of the provisions of Indian arbitration law in the arbitration clause would be sensible to avoid multiplicity and delay by the Indian courts.
Finally, Mr Potter presented on the key considerations for quantum. He noted that changes in the factual matrix should be carefully considered when dealing with parallel proceedings.
4 June 2019
SIAC Signs Memoranda of Understanding with the Japan Association of Arbitrators and the Japan International Dispute Resolution Center
The Singapore International Arbitration Centre (SIAC) is pleased to announce that it has entered into a Memorandum of Understanding (MOU) with each of the Japan Association of Arbitrators (JAA) and the Japan International Dispute Resolution Center (JIDRC) to promote international arbitration as a preferred method of dispute resolution for resolving international disputes.
Both MOUs were entered into during a signing ceremony on 4 June 2019 at the SIAC-JAA Tokyo Conference 2019.
The MOU between SIAC and JAA was signed by Ms Lim Seok Hui, Chief Executive Officer of SIAC, and Mr Akira Kawamura, President of JAA. During the signing ceremony, Ms Lim signed the MOU on behalf of SIAC, and Mr Yoshimasa Furuta, an Executive Director of JAA, affixed the JAA seal to the MOU. The signing ceremony was witnessed by Mr Chan Leng Sun, SC, Deputy Chairman of the SIAC Board of Directors; Mr Chong Yee Leong, Member of the SIAC Board of Directors; Mr Nozomu Ohara, Vice President of JAA; and Mr Hiroyuki Tezuka, an Executive Director of JAA.
The MOU between SIAC and JIDRC was signed by Ms Lim Seok Hui and Mr Yoshimitsu Aoyama, the Representative Board Member of JIDRC. During the signing ceremony, Ms Lim signed the MOU on behalf of SIAC, and Mr Nozomu Ohara, Board Member of JIDRC, affixed the JIDRC seal to the MOU. The signing ceremony was witnessed by Mr Chan Leng Sun, SC, Deputy Chairman of the SIAC Board of Directors; Mr Chong Yee Leong, Member of the SIAC Board of Directors; Mr Yoshimasa Furuta, Deputy Secretary General of JIDRC, and Ms Chieko Tsuchiya, Deputy Secretary General of JIDRC.
Under the MOUs, SIAC will work with each of JAA and JIDRC to jointly promote international arbitration through co-organising conferences, seminars, workshops and training programmes on international arbitration in Japan and Singapore.
Mr Akira Kawamura, President of JAA, said, "We are pleased to deepen our ties with SIAC through this MOU, and firmly believe that this collaboration marks an important milestone in our continued efforts to jointly promote the benefits of international arbitration to the legal and business communities in Japan."
Mr Yoshimitsu Aoyama, Representative Board Member of JIDRC, said, “We look forward to working closely with SIAC to make international arbitration the preferred form of dispute resolution for Japanese companies and businesses to resolve their cross-border commercial and investment disputes with enhanced efficiency, expedition and enforceability.”
Ms Lim Seok Hui, CEO of SIAC, said, “SIAC is honoured and delighted to be able to contribute to the growth of the international arbitration community in Japan, which is a top foreign user of SIAC. Our partnerships with JAA and JIDRC will provide an excellent platform both to promote the law and practice of international arbitration to Japanese users as well as to nurture and develop the next generation of international arbitration experts in Japan.”
For more information, please contact:
Singapore International Arbitration Centre
T: +65 6713 9777
E: This email address is being protected from spambots. You need JavaScript enabled to view it.
W: www.siac.org.sg
27 May 2019
SIAC Signs Memorandum of Understanding with the Shanghai International Arbitration Center
The Singapore International Arbitration Centre (SIAC) is pleased to announce that it has entered into a Memorandum of Understanding (MOU) with the Shanghai International Arbitration Center (SHIAC) to promote international arbitration as a preferred method of dispute resolution for resolving international disputes.
The MOU was signed on 24 May 2019 at the inaugural Singapore-Shanghai Comprehensive Cooperation Council meeting, by Ms Lim Seok Hui, Chief Executive Officer of SIAC, and Mr Ma Yi, Vice Chairman and Secretary-General of SHIAC. The signing was witnessed by Mr Heng Swee Keat, Deputy Prime Minister and Minster for Finance, Singapore; Mr Ying Yong, Mayor of Shanghai; Mr Edwin Tong, Senior Minister of State for Law and Health, Singapore; and Mr Xu Kunlin, Vice Mayor of Shanghai.
Under the MOU, SIAC and SHIAC will work together to jointly promote international arbitration to serve the needs of businesses. SIAC and SHIAC will co-organise conferences, seminars and workshops on international arbitration in China and Singapore, and will invite key members of their local arbitration community to attend and participate in major events organised by SIAC in Shanghai or by SHIAC in Singapore.
Both institutions will, upon request and where appropriate, provide recommendations of arbitrators to each other, and will, upon request, conduct training programmes for each other’s staff.
Mr Ma Yi, Vice Chairman and Secretary-General of SHIAC, said, “Singapore and Shanghai are both leading international financial and legal services hubs. We are confident that this MOU will provide a springboard for both institutions to jointly develop “best-in-class” dispute resolution services in response to the evolving needs of users in China and other Belt & Road economies.”
Ms Lim Seok Hui, CEO of SIAC, commented, “We are delighted to be entering into this partnership with SHIAC, and look forward to further strengthening our ties with key stakeholders in the Chinese legal and business communities through this collaboration, to make international arbitration the preferred mode of dispute resolution for Chinese parties.”
For more information, please contact:
Singapore International Arbitration Centre
T: +65 6713 9777
E: This email address is being protected from spambots. You need JavaScript enabled to view it.
W: www.siac.org.sg
22 May 2019
YSIAC Club event: What are the challenges to the growth of arbitration in Singapore in the upcoming decade?
By Lee Chia Ming, Senior Associate, Dentons Rodyk & Davidson LLP
It was only fitting that the YSIAC marked its first YSIAC Club event of 2019 by tackling the question on the minds of many members of the arbitration community: What are the challenges to the growth of arbitration in Singapore in the upcoming decade?
The event kicked off with a warm welcome from Benson Lim (Member of the YSIAC Committee; Senior Associate, Hogan Lovells Lee & Lee). In line with the purpose of a YSIAC Club event, the moderator and panellists were all younger members of the arbitration community. True to form, panel moderator Adriana Uson (Member of the YSIAC Committee; Associate, Norton Rose Fulbright) kept things lively and youthful by asking each panellist to describe how they would introduce themselves on Twitter, leading to much laughter and amusement all round.
Adriana swiftly moved on to outline Singapore’s position as the 3rd most popular seat of arbitration and the country’s key strengths. She began the discussion proper by asking panellists how much further Singapore could improve and their thoughts on the future of arbitration in Singapore.
Taking up the invitation, panellist Matthew Brown (Senior Associate, Clifford Chance Asia) spoke on the increasingly diverse options in Singapore, although he cautioned that Singapore ought not to take its privileged status for granted. Matthew highlighted the International Commercial Court in Singapore as an example of Singapore’s status as an international dispute resolution hub and how this was part of a worldwide trend. Other instances across the world abound: the Paris International Commercial Court which permits experienced English commercial judges to apply English law, specialist courts such as the Frankfurt specialist financial chamber, and the XiAn International Commercial Court set up in view of BRI projects.
Matthew also assessed what the SICC meant as an alternative option to SIAC arbitration. While the SICC helped to grow the pie for Singapore, it would to some extent compete with SIAC since both deal with international judges and foreign laws. As court decisions are public, there might be a perception that the SICC would apply the law more rigorously than an arbitral tribunal. Nevertheless, arbitration also retains strong advantages, such as the ease of enforceability of awards in other countries under the New York Convention, the right to party-appointed arbitrators, and perceived neutrality of the tribunal.
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| Left to Right: Matthew Brown, Roger Milburn, Pauline Low, Kevin Elbert, Benson Lim and Adriana Uson |
Members of the audience |
Kevin Elbert (Associate, TSMP Law Corporation) expanded on how the suite of dispute resolution options in Singapore—namely SIAC, SICC, and SIMC—were particularly useful in the context of IPTMT practice, where relief in domestic courts could be limited. He also mentioned possible future changes to the International Arbitration Act that would permit a party to appeal to the Singapore Courts on a point of law, following the approach of jurisdictions such as Hong Kong. As a true blue IP-TMT lawyer, Kevin highlighted that at the end of the day how Singapore decides to take itself forward would depend on “what USP it is trying to sell” to its end users.
Chiming in on this note, Pauline Low (Associate Counsel, SIAC) pointed out that arbitration no longer stands alone nowadays. Rather, hybrid dispute resolution mechanisms are being seen with increasing frequency, particularly in the context of BRI disputes. Pauline also noted that the Arb-Med-Arb procedure in arbitration had an advantage over mediation, primarily because the former meant that a standing tribunal would be ready to decide the dispute if no settlement could be reached.
The next topic of extensive discussion related to a notorious feature of arbitration: high costs. All the speakers recognised that expanding costs are a real bugbear for arbitration users. Often, costs are exacerbated due to the tendency of arbitrators to err on the side of permissiveness so as to safeguard against an award being set aside.
In this context, Roger Milburn (Investment Manager, Litigation Capital Management) shed light on the third party funding scene in Singapore arbitrations. Roger explained that while third party funding is theoretically available to any Singapore-seated arbitration, in reality funders typically have a strict screening process—Litigation Capital Management themselves only take on about 4-5% of potential cases globally! The funder’s main concern is retaining its investment. However, it is also a concern whether, even if the client ultimately prevails in arbitration, the funders would recover very little after funders’ costs and lawyers’ costs are paid out. On this note, Pauline helpfully brought attention to the SIAC 2017 Practice Note which permits the Tribunal to take into account any third-party funding arrangements in apportioning the costs of the arbitration.
The panel then moved on to engage with audience questions, such as whether trade wars are good for arbitration (short answer: on balance the cynical lawyer would say yes to more disputes!) and how Singapore plans to become a seat beyond the region. In this regard, the panellists were unequivocal about Singapore’s competitive strengths as a seat. These include its neutrality, integrity, and the responsive and fast-paced amendment of legislation that brings Singapore in line with international best practices for arbitration. Examples of this adaptability include third party funding, early dismissal of claims, and expedited arbitration procedures. While other countries beyond the region might pose competition, Singapore’s robust court system and nimble legislation would be difficult to replicate.
Following the intellectual download, we all adjourned for much anticipated refreshments and a time of networking. It was a natural and wonderful end to a refreshing evening (no pun intended) during which we heard perspectives shared from younger members of the international arbitration community and had much-needed lateral discussions. It was particularly helpful that the points canvassed looked not only to challenges posed by other countries to Singapore in the future of arbitration, but also fleshed out the interplay of SIAC arbitration with other modes of dispute resolution in international courts (including our very own SICC), mediation, and hybrid dispute resolution mechanisms.
It will certainly be interesting to look back, in a decade’s time, on the evening’s discussions and predictions!
Chiming in on this note, Pauline Low (Associate Counsel, SIAC) pointed out that arbitration no longer stands alone nowadays. Rather, hybrid dispute resolution mechanisms are being seen with increasing frequency, particularly in the context of BRI disputes. Pauline also noted that the Arb-Med-Arb procedure in arbitration had an advantage over mediation, primarily because the former meant that a standing tribunal would be ready to decide the dispute if no settlement could be reached.
The next topic of extensive discussion related to a notorious feature of arbitration: high costs. All the speakers recognised that expanding costs are a real bugbear for arbitration users. Often, costs are exacerbated due to the tendency of arbitrators to err on the side of permissiveness so as to safeguard against an award being set aside.
In this context, Roger Milburn (Investment Manager, Litigation Capital Management) shed light on the third party funding scene in Singapore arbitrations. Roger explained that while third party funding is theoretically available to any Singapore-seated arbitration, in reality funders typically have a strict screening process—Litigation Capital Management themselves only take on about 4-5% of potential cases globally! The funder’s main concern is retaining its investment. However, it is also a concern whether, even if the client ultimately prevails in arbitration, the funders would recover very little after funders’ costs and lawyers’ costs are paid out. On this note, Pauline helpfully brought attention to the SIAC 2017 Practice Note which permits the Tribunal to take into account any third-party funding arrangements in apportioning the costs of the arbitration.
The panel then moved on to engage with audience questions, such as whether trade wars are good for arbitration (short answer: on balance the cynical lawyer would say yes to more disputes!) and how Singapore plans to become a seat beyond the region. In this regard, the panellists were unequivocal about Singapore’s competitive strengths as a seat. These include its neutrality, integrity, and the responsive and fast-paced amendment of legislation that brings Singapore in line with international best practices for arbitration. Examples of this adaptability include third party funding, early dismissal of claims, and expedited arbitration procedures. While other countries beyond the region might pose competition, Singapore’s robust court system and nimble legislation would be difficult to replicate.
Following the intellectual download, we all adjourned for much anticipated refreshments and a time of networking. It was a natural and wonderful end to a refreshing evening (no pun intended) during which we heard perspectives shared from younger members of the international arbitration community and had much-needed lateral discussions. It was particularly helpful that the points canvassed looked not only to challenges posed by other countries to Singapore in the future of arbitration, but also fleshed out the interplay of SIAC arbitration with other modes of dispute resolution in international courts (including our very own SICC), mediation, and hybrid dispute resolution mechanisms.
It will certainly be interesting to look back, in a decade’s time, on the evening’s discussions and predictions!
2 May 2019
SIAC Announces the Appointment of New Head (North East Asia)
The Singapore International Arbitration Centre (SIAC) is pleased to announce that Ms Michele Park Sonen has been appointed to the position of Head (North East Asia). Ms Sonen succeeds Ms Seah Lee who has left SIAC to pursue other career opportunities.
As Head (North East Asia), Michele will be based in Seoul, South Korea, and will oversee SIAC’s activities in South Korea and Japan.
Prior to joining SIAC, Michele worked in the international dispute resolution practice of a leading law firm in Seoul, where she focused on international commercial arbitration. Ms Sonen is qualified as an attorney in the United States, and she previously served as law clerk to a federal appeals court judge and a federal district court judge in the United States.
Ms Lim Seok Hui, CEO of SIAC, said, “We are delighted to welcome Michele to the SIAC team. Her experience in both common law and civil law jurisdictions will allow her to bring a very useful perspective as she discharges her duties. We look forward to working with Michele to deepen and broaden our engagement with key stakeholders in the international arbitration community in South Korea and Japan.”
For more information, please contact:
Singapore International Arbitration Centre
T: +65 6713 9777
E: This email address is being protected from spambots. You need JavaScript enabled to view it.
W: www.siac.org.sg
27 April 2019
YSIAC Advocacy Workshop, Bengaluru
By Dhanush. M, Associate, AZB & Partners
On the morning of April 27, 2019, eminent members of the arbitration bar and enthusiasts alike converged to master oral advocacy skills at the YSIAC arbitration workshop organised under the aegis of SIAC in Bengaluru, India. The Workshop was designed to provide a deeper understanding of the nuances involved in arbitration cross-examination proceedings by bringing several experienced arbitration practitioners together. The Workshop material given to the participants consisted of a mock factual scenario and two witness statements on behalf of the Claimant and the Respondent.
The Workshop kicked off with a welcome address by Ms Lim Seok Hui (CEO, SIAC), where she welcomed the audience to the workshop and expressed her special gratitude to the YSIAC Committee members. Many of these members had flown in from different corners of the country and the world to participate in the workshop. Ms Lim highlighted that the fact that 1000 members of the 3288 members of YSIAC were from India was a testament to the important role of India in the growth of SIAC.
Thereafter, Mr. Lomesh Kiran (Partner, Indus Law and a YSIAC Committee member) briefly introduced the factual scenario: the Government of Indonesia had released a tender for developing a nuclear power plant in Indonesia. This was secured by the Royal Istana Constructors Corporation of Indonesia as developers (the Claimant) in April 2015. The tender required the Claimant to complete the plant by March 2017. The Claimant, through a contract, secured the services of Nucleus Energy group of the United Kingdom as contractors (the Respondent) for the construction of the plant. The Plant was completed and commissioned only in August 2017. The Claimant then commenced arbitration proceedings in Singapore with SIAC, claiming damages of 6 million dollars for the delay and rescission of the contract for misrepresentation. The Respondent counterclaimed 5 million dollars.
The underlying contract did not envisage a timetable for the completion of the project. The Claimant alleged that, during the negotiations, the Respondent had assured the Claimant that the plant would be completed in 12 months from January 8, 2016, as the Respondent could divert many of the parts from the power plant projects it had discontinued in Algeria. The parts were currently stored in Texas and as such were already fabricated, and were only required to be shipped and assembled at the site in Indonesia.
The Claimant alleged that the Respondent never had any plant components that were already fabricated and ready to be shipped as of January 8, 2016. The Respondent denied that it had made any representations as to the timeline for completion, and that it had always made clear that any discussion about the timeline was only indicative, because the nuclear plant parts had to be significantly modified or re-fabricated in order to suit the site in Indonesia.
With the abovementioned factual background as the reference point, the workshop provided for a mock cross-examination of factual witnesses by many leading counsel, which was presided over by a three-member Tribunal. The Tribunal was comprised of Mr. Dhyan Chinappa (Senior Advocate, Karnataka High Court), Mr. C.K Nandakumar (Advocate, Law Chambers of C.K Nandakumar) and Mr. Prakash Pillai (Partner, Clyde & Co Clasis Singapore).
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| Members of the audience |
Speakers during the YSIAC Oral Advocacy Workshop |
The first session involved cross-examination by the Respondent's Counsel, played by Mr. Nikhilesh Rao, (Partner, Khaitan & Co) and Ms Sonali Mathur (Partner, AZB &Partners and a YSIAC Committer Member). They questioned the Claimant`s witnesses, played by Ms. Sneha Nagraj (Partner, Frontier Legal) and Mr. Karthikey Mahajan (Associate, Kirkland & Ellis LLP and a YSIAC Committee Member).
The line of questions framed by counsel for the Respondents was intended to elicit response in respect of the following:- (i) whether the claimant was cognisant of the difficult geographical conditions prevailing in Indonesia, making it impossible for the Respondent to complete the plant within the period of one year; (ii) the factual basis of the Claimant’s statement that the Respondent had assured the Claimants of completing the nuclear power plant within twelve months; (iii) whether the Claimant could terminate the contract after the terms of the contract were fulfilled i.e.,the nuclear plant was completed; and (iv) whether the Claimant was cognizant of the labour strike which impeded the Respondent from completing his contract.
The second session involved cross-examination by Claimant`s counsel, played by Mr. Bharat Chugh (Partner Designate, L& L Partners Law Offices and a YSIAC Committee Member) and Mr. Ian de Vaz (Partner, Wong Partnership LLP). They directed their queries to the Respondent`s witnesses, played by Mr Ian Lewis (Advocate, Karnataka High Court) and Mr. Vikas Mahendra (Partner, Keystone Partners).
The line of questioning put forth by the Claimant’s counsel in cross-examination was intended to elicit response in respect of the following:- (i) whether the Respondent had undertaken an assessment of the technical feasibility of the parts of the nuclear reactor which were intended to be moved to Indonesia; (ii) whether there was any correspondence on record by the Respondent that highlighted the need to modify parts of the power plant stored in Texas to suit the local conditions in Indonesia; (iii) whether the power plant was commissioned on the scheduled date; (iii) whether the Respondent had taken steps to verify the technical feasibility of the parts of the power plant stored in Texas; (iv) whether the reasons for delay in completion of the power plant were attributable to the Respondent; and (v) whether there was any correspondence by the Respondent enquiring about the counterclaims, prior to the issuance of the arbitration notice.
Thereafter, the members of the Tribunal held a panel discussion, where they elaborated on the steps involved in conducting a successful cross-examination. Mr. C.K Nanadakumar emphasised the importance of having mastery over the facts of the case as the hallmark of a good cross-examiner.
Mr. Dhyan Chinappa stressed the need to “think through the case” – which would invariably provide new insights on the case at one`s disposal. He also emphasised that it was imperative that cross-examiners create an environment of trust with the witness in order to elicit relevant facts.
Mr. Prakash Pillai emphasised that cross-examination was more about the “don’ts” than the “do’s”. Mr. Pillai that one should refrain from open-ended questions, where the witness can deftly deviate from the questions he is required to answer. Instead, one should endeavour to frame close-ended questions, where the witness is bound to reply with a “Yes” or a “No”. Mr. Pillai concluded the panel discussion by highlighting that one should not over-estimate the importance of cross-examination with regards to the final outcome of the arbitral proceedings as it is only a tool to disprove the case of one's opponent. Arbitrations are won or lost on the strength of one's own case.
The workshop was well received by the Indian legal and business community and attracted more than 50 delegates, comprising practicing lawyers, in-house counsel, students and academics.
The line of questions framed by counsel for the Respondents was intended to elicit response in respect of the following:- (i) whether the claimant was cognisant of the difficult geographical conditions prevailing in Indonesia, making it impossible for the Respondent to complete the plant within the period of one year; (ii) the factual basis of the Claimant’s statement that the Respondent had assured the Claimants of completing the nuclear power plant within twelve months; (iii) whether the Claimant could terminate the contract after the terms of the contract were fulfilled i.e.,the nuclear plant was completed; and (iv) whether the Claimant was cognizant of the labour strike which impeded the Respondent from completing his contract.
The second session involved cross-examination by Claimant`s counsel, played by Mr. Bharat Chugh (Partner Designate, L& L Partners Law Offices and a YSIAC Committee Member) and Mr. Ian de Vaz (Partner, Wong Partnership LLP). They directed their queries to the Respondent`s witnesses, played by Mr Ian Lewis (Advocate, Karnataka High Court) and Mr. Vikas Mahendra (Partner, Keystone Partners).
The line of questioning put forth by the Claimant’s counsel in cross-examination was intended to elicit response in respect of the following:- (i) whether the Respondent had undertaken an assessment of the technical feasibility of the parts of the nuclear reactor which were intended to be moved to Indonesia; (ii) whether there was any correspondence on record by the Respondent that highlighted the need to modify parts of the power plant stored in Texas to suit the local conditions in Indonesia; (iii) whether the power plant was commissioned on the scheduled date; (iii) whether the Respondent had taken steps to verify the technical feasibility of the parts of the power plant stored in Texas; (iv) whether the reasons for delay in completion of the power plant were attributable to the Respondent; and (v) whether there was any correspondence by the Respondent enquiring about the counterclaims, prior to the issuance of the arbitration notice.
Thereafter, the members of the Tribunal held a panel discussion, where they elaborated on the steps involved in conducting a successful cross-examination. Mr. C.K Nanadakumar emphasised the importance of having mastery over the facts of the case as the hallmark of a good cross-examiner.
Mr. Dhyan Chinappa stressed the need to “think through the case” – which would invariably provide new insights on the case at one`s disposal. He also emphasised that it was imperative that cross-examiners create an environment of trust with the witness in order to elicit relevant facts.
Mr. Prakash Pillai emphasised that cross-examination was more about the “don’ts” than the “do’s”. Mr. Pillai that one should refrain from open-ended questions, where the witness can deftly deviate from the questions he is required to answer. Instead, one should endeavour to frame close-ended questions, where the witness is bound to reply with a “Yes” or a “No”. Mr. Pillai concluded the panel discussion by highlighting that one should not over-estimate the importance of cross-examination with regards to the final outcome of the arbitral proceedings as it is only a tool to disprove the case of one's opponent. Arbitrations are won or lost on the strength of one's own case.
The workshop was well received by the Indian legal and business community and attracted more than 50 delegates, comprising practicing lawyers, in-house counsel, students and academics.
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.
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.
13 April 2019
YSIAC Chennai Advocacy Workshop 2019
By Deepak Narayanan, Partner, BDN Chambers
April 13 2019 marked the dawn of the first YSIAC Advocacy workshop at the Taj Connemara in Chennai, India. The arbitration training workshop aimed to sharpen the skills of young practitioners by constructing a hypothetical dispute. Eminent arbitrators presided over a three-member Tribunal as participants embodied the roles of arbitrator, counsel, and witness in mock cross-examinations. In both the mock cross-examination sessions and the closing panel discussion, the event provided invaluable insights on how to conduct a successful cross-examination in international arbitration.
The workshop commenced with a warm welcome address from Ms. Lim Seok Hui, CEO, SIAC. Ms. Lim Seok Hui shared the objectives of YSIAC – to nurture and provide opportunities for young arbitrators – and spoke about SIAC’s expansion in India.
Mr. Ramesh Selvaraj (Co-Chair, YSIAC Committee and Partner, Allen & Gledhill LLP) then introduced the fictional case scenario - a conflict over a delay in commissioning a nuclear power plant. The underlying contract for the said project provided for a SIAC arbitration clause.
The first cross-examination session was presided over by Ms. Sheila Ahuja (Partner, Allen & Overy LLP), Mr Ganesh Chandru (Executive Partner, Lakshmikumaran & Sridharan and Mr Jonathan Choo, Partner, Bird & Bird ATMD LLP) as members of the Tribunal. Mr. Anirudh Krishnan (Partner, AK Law Chambers) acted as the Respondent’s Counsel and Deepak Narayanan (Partner, BDN Chambers) was the Claimant’s first factual witness. In his role as counsel conducting the first cross-examination session, Mr. Krishnan started things off on a serious note with a mixture of open-ended and leading questions. Adding a dash of humour to the proceedings, Mr. Krishnan taunted witness Mr. Narayanan about his former role as a yoga instructor, leading Ms. Sheila Ahuja to comment “Yea, and you should definitely see some of his moves! ”
Subsequently, the second witness of the Claimant, Mr. Vishnu Mohan (Advocate, Madras High Court), was cross-examined by Respondent’s Counsel, Mr. Tejas Karia (Partner, Shardul Amarchand Mangaldas & Co). The session saw relentless questioning by Mr. Karia, who added another dimension of excitement to the proceedings by asking many questions which were not part of the Case Scenario to push the witness to a corner. This certainly made the session very stimulating (and fun for the audience!). The Tribunal also played a more active role and placed their own questions to both the witnesses as well as the Counsel. Nevertheless, Mr. Vishnu (the witness) adroitly tackled the questions and came out unscathed.
In the second session, Ms. Sheila Ahuja swapped her role with Mr. Tejas Karia as the Claimant’s counsel and Mr. Karia took charge as an arbitrator. Mr. Thriyambak J Kannan, (Partner, Assentio Legal), played the part of Respondent’s first witness. Ms. Ahuja – who initially stuck to the traditional method of asking leading questions – varied her tactics to keep the witness guessing and extract favourable answers from him. In return, Mr. Kannan played an excellent witness and tackled all the questions with confidence. The tug of war between the relentless stream of questions from Ms. Ahuja and the intrepid manner in which Mr. Kannan answered them made this session all the more scintillating. Mr Kannan certainly lived up to his Case Scenario stage name – Harvey Spector! Furthermore, the Tribunal continued to be inquisitorial and at a certain time were asking more questions to the witness than Ms. Ahuja.
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| Members of the audience |
Group photo of speakers at the YSIAC Chennai Advocacy Workshop |
The final session included Ms Khushboo Shahdadpuri (Associate, Al Tamimi & Company) playing the part of the Claimant’s Counsel, and Witness Mr P. Giridharan (Advocate, Madras High Court) playing the Respondent’s second witness. Ms. Shahdapuri’s solemn tone of questioning, coupled with Mr. Girish’s rather reassuring disposition, led to a highly realistic rendition of a cross-examination session in arbitration.
A rewarding panel discussion ensued thereafter, consisting of Ms Sheila Ahuja, Mr Ganesh Chandru, Mr Jonathan Choo and Mr Tejas Karia as panellists and Mr. Ramesh Selvaraj as the moderator. Mr. Selvaraj invited the panel to discuss the essentials of cross examination. The panel, in general, emphasised, inter alia, the importance of ‘asking leading questions’, ‘knowing the answer to the question you ask’ and on ‘prepping a witness’. Some notable takeaways from the discussions were Mr. Jonathan Choo’s advice on refraining from arguing with a witness – to avoid putting forth ‘suggestions’ as questions to witnesses. Mr. Chandru re-emphasised the importance of asking leading questions, but further added that there are some circumstances in which open-ended questions can serve to a counsel’s advantage. Ms. Ahuja and Mr. Karia, among others, discussed circumstances in which a Tribunal may overstep by asking many questions as the counsel may lose their flow due to interruptions.
The panel warmly invited questions from the audience in accordance with the interactive nature of the workshop. To a participant’s question on the ways to prep a witness, the Panel explained the importance of going through all the sets of facts in a case with the witness. The Panel also highlighted the danger of over-prepping a witness and noted that over-prepping may make the witness more defensive. This would lead the witness to think of all the legal implications before providing every answer, which would only serve to make the witness lose composure during such cross examination.
As the workshop drew to a close, the organisers thanked the Panel and participants for making themselves available from their busy schedules and making the event a great success. The members of the panel were, however, kind enough to stay back at the venue to provide advice to participants and answer further queries.
Overall, the workshop was a highly enriching experience. The diverse backgrounds of the participants underscored the diversity of international commercial arbitration. Overall, YSIAC’s efforts to organise such an event were highly commended and it is anticipated that the rising popularity of arbitration in India will see many more such events organised in the future.
A rewarding panel discussion ensued thereafter, consisting of Ms Sheila Ahuja, Mr Ganesh Chandru, Mr Jonathan Choo and Mr Tejas Karia as panellists and Mr. Ramesh Selvaraj as the moderator. Mr. Selvaraj invited the panel to discuss the essentials of cross examination. The panel, in general, emphasised, inter alia, the importance of ‘asking leading questions’, ‘knowing the answer to the question you ask’ and on ‘prepping a witness’. Some notable takeaways from the discussions were Mr. Jonathan Choo’s advice on refraining from arguing with a witness – to avoid putting forth ‘suggestions’ as questions to witnesses. Mr. Chandru re-emphasised the importance of asking leading questions, but further added that there are some circumstances in which open-ended questions can serve to a counsel’s advantage. Ms. Ahuja and Mr. Karia, among others, discussed circumstances in which a Tribunal may overstep by asking many questions as the counsel may lose their flow due to interruptions.
The panel warmly invited questions from the audience in accordance with the interactive nature of the workshop. To a participant’s question on the ways to prep a witness, the Panel explained the importance of going through all the sets of facts in a case with the witness. The Panel also highlighted the danger of over-prepping a witness and noted that over-prepping may make the witness more defensive. This would lead the witness to think of all the legal implications before providing every answer, which would only serve to make the witness lose composure during such cross examination.
As the workshop drew to a close, the organisers thanked the Panel and participants for making themselves available from their busy schedules and making the event a great success. The members of the panel were, however, kind enough to stay back at the venue to provide advice to participants and answer further queries.
Overall, the workshop was a highly enriching experience. The diverse backgrounds of the participants underscored the diversity of international commercial arbitration. Overall, YSIAC’s efforts to organise such an event were highly commended and it is anticipated that the rising popularity of arbitration in India will see many more such events organised in the future.
29 March 2019
YSIAC Advocacy Workshop 2019, Kuala Lumpur
by Joyce Lim Hwee Yin, Associate, Skrine
The Young Singapore International Arbitration Centre (YSIAC) Advocacy Workshop (Workshop) was held on 29 March 2019 in Kuala Lumpur at the KL Bar Auditorium. The Workshop was essentially an arbitration training workshop focused on honing the advocacy skills of young arbitration practitioners.
The Workshop started off with a warm welcome address from Kevin Nash, the Deputy Registrar and Centre Director of SIAC.
Ramesh Selvaraj (Co-Chair of the YSIAC committee and Partner in Allen & Gledhill LLP) then introduced a hypothetical case scenario concerning a dispute involving a contract for the construction of a nuclear power plant. This was followed by Sessions 1 and 2 of the Workshop which featured a mock cross-examination of factual witnesses over the hypothetical case scenario.
PANEL DISCUSSION ON HOW TO CONDUCT A SUCCESSFUL CROSS-EXAMINATION
The panellists were Mr Francis Xavier, SC, PBM (Partner, Rajah & Tann Singapore LLP), Mr Nahendran Navaratnam, Partner, Navaratnam Chambers) and Ms Sharon Chong Tze Ying (Partner, Skrine).
Mr Xavier shared that in the course of cross-examination, counsel should put forth short and leading questions to the witnesses. Showing contradiction in the witness statements would only be useful if the contradiction is helpful to the counsel’s case. On the other hand, counsel should refrain from highlighting any contradiction if to do so would be detrimental to the counsel’s case.
Mr Navaratnam emphasised that counsel should not entirely rely on the witness statements because there may be gaps. Instead, cross-examination should be based on the facts that the counsel would like to emphasis and establish. Counsels are advised to utilise the time given for cross-examination wisely to elicit facts which would support the counsel’s own case and at the same time, gather evidence that would defeat the witness’ own version of the facts. Another tip would be that stopping a witness from completing his/her answers too quickly may result in the opponent having a chance to re-examine the witness.
Ms Chong shared that counsel should study the facts and documentary evidence in preparation of cross-examination carefully and focus on which questions to ask.
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| Members of the audience |
Group photo with speakers of the YSIAC Advocacy Workshop |
Q&A SESSION
An interesting question was put to the panellists: should there be a difference in how counsel approaches cross-examination in arbitration when compared to litigation?
In response, the panellists highlighted that there is much less time for cross-examination in the course of arbitration than during a trial in court. Therefore, in arbitration, counsel should be focused on the points to be established in his/her case and be direct when questioning a witness.
The YSIAC Kuala Lumpur Advocacy Workshop provided an unrivalled opportunity for young arbitration practitioners to hone their advocacy skills, improve legal reasoning and gain pointers on how to conduct a successful cross-examination from experienced practitioners.
Ms Wendy Lin (Co-Chair of the YSIAC Committee and Partner of WongPartnership LLP) in her closing remarks explained that the key objective of the YSIAC Committee is to provide opportunities like these to train young practitioners.
An interesting question was put to the panellists: should there be a difference in how counsel approaches cross-examination in arbitration when compared to litigation?
In response, the panellists highlighted that there is much less time for cross-examination in the course of arbitration than during a trial in court. Therefore, in arbitration, counsel should be focused on the points to be established in his/her case and be direct when questioning a witness.
The YSIAC Kuala Lumpur Advocacy Workshop provided an unrivalled opportunity for young arbitration practitioners to hone their advocacy skills, improve legal reasoning and gain pointers on how to conduct a successful cross-examination from experienced practitioners.
Ms Wendy Lin (Co-Chair of the YSIAC Committee and Partner of WongPartnership LLP) in her closing remarks explained that the key objective of the YSIAC Committee is to provide opportunities like these to train young practitioners.
7 March 2019
YSIAC Lunchtime Talk with Gary Born: Choice of Law Issues in International Arbitration
By Jill Ann Koh, Senior Associate, WongPartnership LLP
The YSIAC hosted a lunchtime talk with Mr Gary Born on 7 March 2019 at WongPartnership LLP. The talk was met with an overwhelming response of 350 registrants within just one week, which led Mr Born to express his surprise at the number of “international arbitration geeks” willing to spend lunch discussing the topic at hand – Choice of Law Issues in International Arbitration.
Over the course of an hour, Mr Born discussed the following three categories of choice of law issues.
Law governing international arbitration agreements
The first category arises primarily from the oft-cited presumption of separability, which recognises the arbitration agreement as an autonomous, independent agreement. A consequence of this presumption is the possibility that a different law, and thus a different choice of law analysis, can be applied to the arbitration agreement from that of the underlying contract.
In searching for the applicable choice of law rule, the rules governing the refusal of recognition or enforcement of an arbitral award in the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (New York Convention) and the UNCITRAL Model Law on International Commercial Arbitration (1985, with amendments as adopted in 2006) (Model Law) provide some guidance. These state that an award may be denied recognition or enforcement if the agreement on which the award is based is not valid according to the parties’ chosen law, or failing any indication of this, the law of the country where the award was made. At first glance, this prescribes a seemingly sensible two-stage approach that, in the first stage, gives effect to party autonomy, and in the second stage, applies by default the law of the seat.
Problems can however arise from this.
First, a question arises as to whether a choice of law rule which is to apply at the end of the arbitral process (at the recognition and enforcement stage) can be interpreted to also apply at the start of the arbitral process.
The authorities are divided on this – half take the view that the strict wording of the New York Convention and Model Law does not permit this, and parties should be free to apply any choice of law rule at the beginning of the process. The other half adopt the opposite view that the same choice of law rule should apply at both ends of the arbitral process, as it would otherwise be incongruous that an arbitration agreement can be valid in some circumstances but not others.
The second problem arises from the reality that parties very often do not select a law specifically applicable to the arbitration agreement. Should the general choice of law clause in the underlying contract be interpreted to also extend to parties’ arbitration agreement? Again, the authorities diverge, with half taking the position, quite pragmatically, that the general choice of law clause should also apply to the arbitration agreement, since the separability doctrine would be unheard of to most businessmen.
Mr Born proffered his view of the best approach to take: that of the Swiss courts and legislature in applying a validation principle. This provides that an international arbitration agreement will be valid provided it is valid under either the law applicable to the underlying contract or the law of the seat. Such an approach selects and applies the law which will give effect to the arbitration agreement, which, as Mr Born opined, best comports with parties’ true intention that the arbitration agreement will be a valid and effective means of resolving their dispute.
Law governing the merits of the parties’ dispute
In choosing the law applicable to the substance of the parties’ dispute, Mr Born referred to Article 28 of the Model Law, which provides for a tribunal to apply either the rule of law chosen by the parties (Article 28(1)) or, absent an explicit or implicit choice by the parties, the law chosen by the tribunal (Article 28(2)).
Several observations were made. First, in referring to parties’ choice of a “rule of law” in Article 28(1) as distinguished from the “law” selected by the tribunal in Article 28(2), it is clear that the first limb of Article 28 permits parties to select other non-national rules of law, such as the UNIDROIT principles.
Second, Article 28(2) specifies that the tribunal must conduct a choice of law analysis, and it cannot simply directly apply a national law. Mr Born voiced his support for this approach, as choice of law rules do provide predictability and structure to parties’ relationship.
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| Members of the audience |
Left to Right: Wendy Lin, Lim Seok Hui, Gary Born and Andre Maniam, SC |
Law governing the arbitral process
In contrast, issues relating to the procedural law are much simpler.
While the majority of cases apply the law of the seat as the procedural law of the arbitration, a rare few apply some other law where parties (who are in principle free to do so) have made such a choice.
Mr Born emphasised that as the procedural law governs not just the conduct of the arbitral proceedings but also the relationship between the arbitration and national courts, the selection of a foreign procedural law raises questions about practical application and enforceability, making this, in his view, a terrible choice. Courts have therefore repeatedly strived to reach an interpretation that parties did not intend to select a foreign procedural law.
Conclusion
It appears that a dominant theme in choice of law issues is the tussle between respecting party autonomy and requiring predictability in a structured set of rules. From the Singapore perspective, the Singapore courts’ approach in stipulating a presumption that the substantive law of the contract shall be taken as parties’ implied choice of the law governing the arbitration agreement, which presumption can be rebutted if the substantive law would invalidate the arbitration agreement, is arguably a structured approach to the choice of law governing the arbitration agreement which bears resemblance to the validation principle, and which also gives primacy to party autonomy.
Given the very diverse approaches across the board, it will be interesting to see how tribunals and national courts will continue to develop these issues, and whether the validation principle – with Mr Born as a proponent – will be shown increasing favour.
In contrast, issues relating to the procedural law are much simpler.
While the majority of cases apply the law of the seat as the procedural law of the arbitration, a rare few apply some other law where parties (who are in principle free to do so) have made such a choice.
Mr Born emphasised that as the procedural law governs not just the conduct of the arbitral proceedings but also the relationship between the arbitration and national courts, the selection of a foreign procedural law raises questions about practical application and enforceability, making this, in his view, a terrible choice. Courts have therefore repeatedly strived to reach an interpretation that parties did not intend to select a foreign procedural law.
Conclusion
It appears that a dominant theme in choice of law issues is the tussle between respecting party autonomy and requiring predictability in a structured set of rules. From the Singapore perspective, the Singapore courts’ approach in stipulating a presumption that the substantive law of the contract shall be taken as parties’ implied choice of the law governing the arbitration agreement, which presumption can be rebutted if the substantive law would invalidate the arbitration agreement, is arguably a structured approach to the choice of law governing the arbitration agreement which bears resemblance to the validation principle, and which also gives primacy to party autonomy.
Given the very diverse approaches across the board, it will be interesting to see how tribunals and national courts will continue to develop these issues, and whether the validation principle – with Mr Born as a proponent – will be shown increasing favour.
6 March 2019
SIAC’s 2018 Cases Exceed 400 for Second Year Running, reaffirming its Global Appeal
The Singapore International Arbitration Centre (SIAC) is pleased to announce the official release of its 2018 Annual Report.
SIAC's latest case statistics reaffirm its position as a premier global arbitral institution with one of the world’s largest administered caseloads. For the second year running, SIAC received over 400 cases, with total sums in dispute increasing.
In 2018, SIAC received 402 new cases from parties in 65 jurisdictions. SIAC administered 375 (93%) of these new cases, with the remaining 27 (7%) being ad hoc appointments. SIAC has received over 400 cases in each of the last two years, and over the last decade, new case filings at SIAC have increased by more than 4 times.
2018 saw an increase, as compared with 2017, in SIAC’s total sum in dispute for all new case filings to USD 7.06 billion (SGD 9.65 billion).
In 2018, SIAC was ranked the 3rd most preferred arbitral institution in the world by the prestigious Queen Mary University of London and White & Case International Arbitration Survey. The survey findings show that SIAC is the most preferred arbitral institution based in Asia.
The United States topped the foreign user rankings in 2018 for the first time, while India and China both remained strong contributors of cases to SIAC. SIAC’s other top 10 foreign users were from a mix of common and civil law jurisdictions, namely, Cayman Islands, Hong Kong SAR, Indonesia, Japan, Malaysia, South Korea and the United Arab Emirates, attesting to SIAC's popularity among users all over the world.
SIAC was the first major commercial arbitration centre to introduce the Early Dismissal (ED) procedure for the early dismissal of claims and defences in the SIAC Rules 2016. ED has since become an increasingly popular and effective tool for parties to save time and costs. In 2018, SIAC received 17 ED applications, bringing the total number of ED applications received to 22 as at the end of 2018, since this procedure was first introduced in 2016.
Mr Gary Born, President of the Court of Arbitration of SIAC, commented: “Our 2018 caseload confirms the trend of SIAC’s robust growth. Parties from all around the world select SIAC for its efficiency, expedition and expert case management services, in both ordinary and bet-the-company cases. 2018 saw a substantial increase in the amount in dispute in new SIAC cases as well as US parties becoming SIAC’s top foreign user in 2018. These developments foreshadow even stronger growth in the future.”
Mr Davinder Singh, SC, Chairman of SIAC, said: “SIAC has the potential to grow much more. It will innovate and improve on its offerings and Rules to make Singapore an even more attractive dispute resolution hub.”
Ms Lim Seok Hui, CEO of SIAC, said: “2018 was a year where a broader spectrum of users with higher value disputes entrusted SIAC with their cases. We are deeply grateful to the local and international arbitration communities for their strong support, and will further intensify our stakeholder engagement efforts to expand our market outreach.”
For more information, please contact:
Singapore International Arbitration Centre
T: +65 6713 9777
E: This email address is being protected from spambots. You need JavaScript enabled to view it.
W: www.siac.org.sg
21 February 2019
Seminar on “How international should international arbitration be? International standards v. domestic law in international commercial arbitration”
By Mathias Goh, Associate, Norton Rose Fulbright
On Thursday 21 February 2019, the seminar on “How international should international arbitration be? International standards v. domestic law in international commercial arbitration”, hosted by Norton Rose Fulbright in its new offices at Marina One, and jointly organised by SIAC and NYU’s Centre for Transnational Litigation, Arbitration and Commercial Law, attracted more than 100 attendees comprising a number of arbitration and litigation practitioners.
Mr KC Lye (Partner, Norton Rose Fulbright) opened the evening by embarking on a short historical discourse and explaining how the concept of the nation state which first came about some five hundred years ago is a relatively young one when considered against the lineage of ancient civilisations. He explained how globalisation brought about pressures to conform to international standards and trends, resulting in an increasing tendency for nation states to insist on retreating into their respective microcosms. How would the pressures of greater internationalisation play out on the legal plane, specifically in the context of international arbitration? The stage for the ensuing discussions was set.
The panellists included: Prof Lawrence Boo (Member, SIAC Court of Arbitration; Independent Arbitrator, The Arbitration Chambers), Ms Elodie Dulac (Partner, King & Spalding), Prof Franco Ferrari (Professor of Law, NYU; Director, Center for Transnational Litigation, Arbitration and Commercial Law, NYU), Dr Michael Hwang, SC (Chartered Arbitrator, Michael Hwang Chambers LLC) and Dr Friedrich Rosenfeld (Partner, Hanefeld Rechtsanwälte). The seminar took the form of a panel discussion moderated by Mr Kevin Nash (Deputy Registrar & Centre Director, SIAC).
After a short introduction of the profile of speakers by Mr Nash, Professor Ferrari started by putting forward his proposition that while international arbitration processes should aspire to be as international as possible, they are fundamentally subject to the confines and limits of domestic rules (which in turn may themselves be subject to international instruments). He brought the house on a brief tour of how certain international arbitration instruments could be interpreted from this perspective, and cited a number of examples to buttress his point.
The next speaker Ms Dulac sought to address the debate through a special lens: the practice of nation states using national laws (in domestic litigation proceedings) to either support anti-arbitration injunctions or grant orders which would have the effect of frustrating arbitration proceedings. Drawing from her own experience, Ms Dulac queried the effect of such attempts on the practice of international arbitration, and whether they eroded the "international" in "international arbitration".
Taking over from Ms Dulac, Dr Rosenfeld shifted the discussion to the law and practice of legal privilege in international arbitrations and considered the debate from the point of view of what substantive law applies to privilege issues.
He explained that there were at present two dominant approaches to legal privilege: the law of the seat of the arbitration, or the law of one the parties’ ‘home’ jurisdictions (e.g. nationality of that party). Dr Rosenfeld set out briefly his arguments in favour of an approach where amongst these possible contenders, it would be the law which is most in favour of protecting communications between a party and its lawyers from being disclosed. He also demonstrated how the divergence between common law and civilian law approaches on the law of legal privilege made this issue a complex and multi-faceted one. As the subsequent question and answer session would demonstrate, this was an issue which piqued the interest of a number of attendees.
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| Left to Right: Prof Franco Ferrari, Dr Michael Hwang, SC, Elodie Dulac, Dr Friedrich Rosenfeld, Prof Lawrence Boo and Kevin Nash |
Members of the audience |
This was followed by Dr Hwang, who sought to approach the debate from a unique vantage point: that of an emergency arbitrator. More specifically, he focussed on the granting of interim relief by arbitrators in emergency arbitrations and drew upon his experience in an emergency arbitrator application filed about two months ago. This writer suspects it was probably not an experience many of the attendees could directly relate to. To the amusement of the audience, Dr Hwang recounted the somewhat exasperating experience of having to look up decisions cited in the footnotes in a leading arbitration text (a certain "Chapter 17") and questioning the progeny of some of the decisions cited. Dr Hwang advocated a view where these issues should be determined largely by reference to the law of the seat of the arbitration, and gave reasons in support of this view.
Coming up as last speaker, Professor Boo advanced the view that arbitral tribunals could afford to take more guidance from international instruments and norms on issues where the relevant national rules were either silent on or stopped short of providing an adequate answer. For example, he queried whether emergency awards could comfortably fit within the regime of the UNCITRAL Model Law bearing in mind that the concept of emergency awards may not conceivably have been in the mind of the drafters of that instrument at the material time. In the process of his presentation, Professor Boo also responded to some of the views Professor Ferrari and Dr Hwang propounded earlier in their presentations. From this writer's viewpoint, an eight minute discussion frankly could not have done justice to the complexity of those issues. Perhaps a follow-up seminar would be in order, SIAC?
As with every well-executed seminar, the "Question & Answer" segment came up last. Questions were posed to all of the speakers, including questions on how issues of limitations and legal privilege might be considered against this international / national divergence. The topic of legal privilege, in particular, proved to be a lightning rod for questions and Dr Rosenfeld was asked for his views on how he thought tribunals should respond when faced with two different standards of legal privilege. Which standard should trump? Needless to say, there were forceful submissions which could be advocated for either side.
This writer suspects many attendees walked away from the seminar that night with more questions than answers (some with much redder faces than when they showed up). If anything, that evening suggested that the issues canvassed were far from straightforward and are likely to remain ripe for future debate and discussions.
Coming up as last speaker, Professor Boo advanced the view that arbitral tribunals could afford to take more guidance from international instruments and norms on issues where the relevant national rules were either silent on or stopped short of providing an adequate answer. For example, he queried whether emergency awards could comfortably fit within the regime of the UNCITRAL Model Law bearing in mind that the concept of emergency awards may not conceivably have been in the mind of the drafters of that instrument at the material time. In the process of his presentation, Professor Boo also responded to some of the views Professor Ferrari and Dr Hwang propounded earlier in their presentations. From this writer's viewpoint, an eight minute discussion frankly could not have done justice to the complexity of those issues. Perhaps a follow-up seminar would be in order, SIAC?
As with every well-executed seminar, the "Question & Answer" segment came up last. Questions were posed to all of the speakers, including questions on how issues of limitations and legal privilege might be considered against this international / national divergence. The topic of legal privilege, in particular, proved to be a lightning rod for questions and Dr Rosenfeld was asked for his views on how he thought tribunals should respond when faced with two different standards of legal privilege. Which standard should trump? Needless to say, there were forceful submissions which could be advocated for either side.
This writer suspects many attendees walked away from the seminar that night with more questions than answers (some with much redder faces than when they showed up). If anything, that evening suggested that the issues canvassed were far from straightforward and are likely to remain ripe for future debate and discussions.
15 February 2019
SIAC Welcomes New YSIAC Committee
The Singapore International Arbitration Centre (SIAC) is pleased to welcome the following members of the new Young SIAC (YSIAC) Committee:
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| 1. | Ms Wendy Lin (Co-Chair) | WongPartnership LLP | Singapore |
| 2. | Mr Ramesh Selvaraj (Co-Chair) | Allen & Gledhill LLP | Singapore |
| 3. | Ms Kate Apostolova | Freshfields Bruckhaus Deringer | Singapore |
| 4. | Mr Daryl Chew | Shearman & Sterling LLP | Singapore |
| 5. | Ms Lijun Chui | Clifford Chance | Singapore |
| 6. | Ms Gerui Lim | Drew & Napier LLC | Singapore |
| 7. | Mr Benson Lim | Hogan Lovells Lee & Lee | Singapore |
| 8. | Ms Loh Jen Wei | Dentons Rodyk & Davidson LLP | Singapore |
| 9. | Ms Julie Raneda | Schellenberg Wittmer | Singapore |
| 10. | Mr Paul Tan | Rajah & Tann Singapore LLP | Singapore |
| 11. | Ms Kirsten Teo | Eversheds Harry Elias | Singapore |
| 12. | Ms Adriana Uson | Norton Rose Fulbright | Singapore |
| 13. | Mr Sergio Nascimento | Sergio Bermudes Advogados | Brazil |
| 14. | Mr David Gu | Tiantong & Partners | China |
| 15. | Ms Vicky Zhao | AnJie Law Firm | China |
| 16. | Mr Zhao Yuxian | Haiwen & Partners | China |
| 17. | Ms Sherlin Tung | CMS Hasche Sigle, Hong Kong LLP | Hong Kong SAR |
| 18. | Mr Bharat Chugh | L&L Partners Law Offices | India |
| 19. | Mr Moazzam Khan | Nishith Desai Associates | India |
| 20. | Ms Sonali Mathur | AZB & Partners | India |
| 21. | Mr Lomesh Kiran Nidumuri | IndusLaw | India |
| 22. | Mr Alvin Ambardy | Assegaf Hamzah & Partners | Indonesia |
| 23. | Mr Yutaro Kawabata | Nishimura & Asahi | Japan |
| 24. | Ms Sharon Chong | Skrine | Malaysia |
| 25. | Ms Marina Zenkova | White & Case LLC | Russia |
| 26. | Ms Khushboo Shahdadpuri | Al Tamimi & Company | Qatar |
| 27. | Ms Wonyoung (Karyn) Yoo | Kim & Chang | South Korea |
| 28. | Mr Warathorn Wongsawangsiri | Weerawong, Chinnavat & Partners Ltd. | Thailand |
| 29. | Mr Kartikey Mahajan | Kirkland & Ellis International LLP | UK |
| 30. | Ms Dharshini Prasad | Wilmer Cutler Pickering Hale & Dorr LLP | UK |
| 31. | Ms Tan Liang-Ying | Herbert Smith Freehills LLP | USA |
Ms Lim Seok Hui, CEO of SIAC, said, “We are delighted to welcome a set of dynamic, energetic and motivated young lawyers from diverse legal systems and cultures to the YSIAC Committee. YSIAC seeks to nurture and provide opportunities to young arbitration practitioners all over the world as counsel, arbitrators, tribunal secretaries and speakers at SIAC events, and is an excellent networking platform. Under the stewardship of the previous Committee, the YSIAC community has seen its numbers grow steadily to over 3,000 members from 99 jurisdictions. We would like to express our sincere thanks and appreciation to the outgoing co-chairs, Mr Ankit Goyal and Ms Koh Swee Yen, and the former Committee, for their hard work and dedication, and look forward to working closely with the new Committee to take YSIAC to the next level.”
For more information, please contact:
Singapore International Arbitration Centre
T: +65 6713 9777
E: This email address is being protected from spambots. You need JavaScript enabled to view it.
W: www.siac.org.sg
13 February 2019
SIAC Announces the Appointment of New Head (South Asia)
The Singapore International Arbitration Centre (SIAC) is pleased to announce that Ms Shwetha Bidhuri has been appointed to the position of Head (South Asia). Shwetha succeeds Mr Pranav Mago who has left SIAC to pursue other career opportunities.
As Head (South Asia), Shwetha will be based in Mumbai, India, and will oversee SIAC’s liaison offices in Mumbai and GIFT City, Gujarat.
Prior to joining SIAC, Shwetha worked in the dispute resolution practice of a leading law firm in New Delhi for 9 years, with a focus on investment treaty arbitration as well as commercial litigation cases.
Ms Lim Seok Hui, CEO of SIAC, said, “We are delighted to welcome Shwetha to the SIAC team. Her investment arbitration experience brings a unique perspective to her role, and will further enhance our relationships with our valued Indian users as we continue to expand our outreach within the Indian market.”
For more information, please contact:
Singapore International Arbitration Centre
T: +65 6713 9777
E: This email address is being protected from spambots. You need JavaScript enabled to view it.
W: www.siac.org.sg
SIAC Year in Review 2018
Happy New Year from all of us at SIAC and best wishes for a happy, healthy and successful 2019.
As we welcome the new year, we look back fondly at some of the key highlights of 2018.
| 1 | SIAC Ranked as 3rd Most Preferred Arbitral Institution in the World, and Singapore Ranked as 3rd Most Preferred Seat Worldwide |
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In May 2018, the prestigious Queen Mary University of London and White & Case International Arbitration Survey (QMUL Survey) ranked SIAC as the 3rd most preferred arbitral institution in the world, making SIAC the most preferred arbitral institution based in Asia.
Singapore has also been ranked as the 3rd most preferred seat worldwide, after London and Paris, making Singapore the most preferred seat in Asia. In its eighth edition, this year’s QMUL Survey is reported to be the most “comprehensive empirical study” ever conducted by the university. The findings in the QMUL Survey confirm SIAC’s standing as a leading, world-class arbitral institution, and Singapore’s position as a popular arbitral seat. |
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| 2 | New Vice President of the SIAC Court of Arbitration |
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In June 2018, Prof Lucy Reed was appointed as Vice President of the SIAC Court of Arbitration.
Prof Reed is the Director of the Centre for International Law and Professor on the Law Faculty of the National University of Singapore. She previously led the global international arbitration group in Freshfields Bruckhaus Deringer, and has represented private and public clients in investment treaty and commercial arbitrations for more than 35 years. Prof Lucy Reed |
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| 3 | SIAC Congress Week 2018 |
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SIAC’s flagship biennial event, the SIAC Congress, was held in May 2018 as part of the SIAC Congress Week (14 – 18 May 2018), and brought together distinguished members of the judiciary, the SIAC Board of Directors, the SIAC Court of Arbitration, and other leading international arbitration experts.
The SIAC Congress 2018 attracted 297 delegates from 16 jurisdictions. Special highlights of the Congress programme included a Keynote Speech by the Honourable Chief Justice of Singapore, Mr Sundaresh Menon, on the special role and responsibility of arbitral institutions in charting the future of international arbitration, and an Opening Address by Mr Heng Swee Keat, Minister of Finance, Singapore. |
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| The Honourable the Chief Justice Sundaresh Menon, Supreme Court of Singapore, at the SIAC Congress 2018 |
Mr Heng Swee Keat, Minister for Finance, Singapore, at the SIAC Congress 2018 |
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| Ms Indranee Rajah, SC, Minister in the Prime Minister’s Office and Second Minister for Finance and Education, Singapore, at the SIAC Congress 2018 Gala Dinner | Left to Right: Mr Davinder Singh, SC, Mr Chan Leng Sun, SC, Ms Indranee Rajah, SC, Minister in the Prime Minister’s Office and Second Minister for Finance and Education, Singapore, Ms Lim Seok Hui, Mr Chelva Rajah, SC and Mr Chong Yee Leong at the SIAC Congress 2018 Gala Dinner |
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Ms Indranee Rajah, SC, Minister in the Prime Minister’s Office and Second Minister for Finance and Education, Singapore, delivered the Opening Address for the Gala Dinner. The Gala Dinner was graced by Justice Vinodh Coomaraswamy, Justice Kannan Ramesh, Justice Tan Siong Thye, and Justice Valerie Thean of the Supreme Court of Singapore, as well as Mr Shakil ur Rehman Khan, Advocate General for the Province of Punjab, and Mr Naseer Ahmed Bhutta, Special Assistant to the Prime Minister of Pakistan.
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| Members of the audience at the “Multiplicity - Managing Parallel Proceedings under Multiple Instruments” seminar |
Dr Jean Ho at the SIAC-CIL Academic-Practitioner Colloquium |
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The other events held during the SIAC Congress Week included the “Multiplicity-Managing Parallel Proceedings under Multiple Instruments” seminar, the SIAC-CIL Academic-Practitioner Colloquium, the SIAC-CIArb Debate, the SIAC-YSIAC Workshop: IBA Arb40 Toolkit for Award Writing, and the “Twilight Issues in International Arbitration” seminar.
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| Left to Right: Dr Eun Young Park, Mr V K Rajah, SC, Mr Paul Friedland, Mr Chou Sean Yu, Ms Loretta Malintoppi, Mr Thio Shen Yi, SC, Dr Claudia Annacker and Mr Stephen Moriarty QC at the SIAC-CIArb Debate |
Members of the audience at the SIAC Congress 2018 |
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| Left to Right: Mr Daryl Chew, Mr Hiroyuki Tezuka, Mr Richard Tan and Ms Koh Swee Yen at the SIAC-YSIAC Workshop: IBA Arb40 Toolkit for Award Writing |
Left to Right: Mr KC Lye, Prof Lawrence Boo, Dr Michael Pryles AO PBM and Prof George Bermann at the “Twilight Issues in International Arbitration” seminar |
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| 4 | SIAC Academy Goes Global |
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The inaugural SIAC Academy titled “Time and Cost Savers at SIAC: Emergency Arbitration, Expedited Procedure and Early Dismissal”, was held in Singapore in November 2017. Following the success of the Singapore edition, overseas editions of the SIAC Academy were conducted in the course of 2018 in Beijing, Mumbai, Seoul and Tokyo.
Chaired by Mr Gary Born, SIAC Court President, the teaching faculty of the overseas SIAC Academy included Mr Chan Leng Sun, SC, Deputy Chairman of SIAC, Prof Lucy Reed, SIAC Court Vice President, and members of the SIAC Court of Arbitration, including Mr Cao Lijun, Prof Lawrence Boo, Dr Eun Young Park, Mr Darius J. Khambata, SA, Mr Hiroyuki Tezuka, Mr Alan J. Thambiayah and Mr Alvin Yeo, SC. |
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| Left to Right: Ms Yoshimi Ohara, Mr Yoshimasa Furuta and Mr Alan J. Thambiayah at the SIAC Academy Tokyo 2018 |
Left to Right: Mr Chen Luming, Mr Gary Born, Mr Zhang Libin and Mr Craig Celniker at the SIAC Academy Beijing 2018 |
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| Left to Right: Mr Gopal Subramanium, SA and Mr Naresh Thacker at the SIAC Academy Mumbai 2018 | Left to Right: Mr Young Seok Lee, Mr Paul Teo and Mr Jun Hee Kim at the SIAC Academy Seoul 2018 |
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| 5 | Launch of SIAC and Institutional Arbitration Module at NUS Law |
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In collaboration with the National University of Singapore (NUS) Law Faculty, SIAC conducted the inaugural SIAC module titled “SIAC and Institutional Arbitration” in September 2018. The SIAC module introduced to participants the role and function of arbitral institutions in the practice of international arbitration, and the complex issues that arbitral institutions face in the administration of arbitrations, including, amongst others, appointment of arbitrators, issuance of arbitral rules and practice notes, and guiding and shaping the development of international arbitration.
The course convenor for the SIAC module was Mr Gary Born, SIAC Court President, and the lecturers included Mr Davinder Singh, SC, Chairman of SIAC, Mr Chan Leng Sun, SC, Deputy Chairman of SIAC, members of the SIAC Court of Arbitration, Dr Claudia Annacker, Prof Lawrence Boo and Mr Alvin Yeo, SC, and the SIAC Secretariat. The SIAC module was fully subscribed by NUS Law students and practitioners from Singapore and abroad. Feedback from participants was extremely positive. |
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| Left to Right: Mr Chahat Chawla, Mr Piyush Prasad, Mr Christopher Bloch and Ms Aliona Bitkivskaja at the networking lunch of the “SIAC and Institutional Arbitration” module |
Networking lunch of the “SIAC and Institutional Arbitration” module |
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| 6 | SIAC Conferences and Partnerships |
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In 2018, SIAC held its annual overseas conferences in Beijing, Mumbai, Seoul and Tokyo. SIAC partnered with the China International Economic and Trade Arbitration Commission (CIETAC) and the Japan Association of Arbitrators (JAA) to jointly organise the annual overseas conferences in Beijing and Tokyo respectively. SIAC also held joint seminars with the Korean Arbitrators Association (KAA) in Seoul, and with the Singapore International Mediation Centre (SIMC) and the Vienna International Arbitral Centre (VIAC) in Singapore.
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| Panellists at the SIAC-CIETAC Beijing Conference | Members of the audience at the SIAC Mumbai Conference |
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| Members of the audience at the SIAC-JAA Tokyo Conference | Left to Right: Ms Jeonghye Sophie Ahn, Dr Christopher Boog, Ms Myung-Ahn Kim and Mr Steven Lim at the SIAC Seoul Conference |
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In collaboration with the Chartered Institute of Arbitrators, Singapore branch, SIAC held a Three-Part Workshop titled “Arbitration at the SIAC: The Inside Track” in Singapore. Speakers for the workshop series included Mr Gary Born, SIAC Court President, and members of the SIAC Secretariat who provided an insider’s perspective to SIAC arbitration.
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| Members of the audience at the “Arbitration at the SIAC: The Inside Track” workshop |
Left to Right: Mr Timothy Cooke, Ms Khyati Raniwala, Mr Kevin Nash and Ms Qian Wu at the “Arbitration at the SIAC: The Inside Track” workshop |
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In 2018, SIAC signed various Memoranda of Understanding (MOU) with CIETAC, Shenzhen Court of International Arbitration (SCIA) and the Xi’an Arbitration Commission (XAAC).
The MOUs underscore SIAC’s commitment to promote international arbitration as the preferred mode of dispute resolution for cross-border commercial and investment disputes, particularly in the context of the Belt and Road initiative. |
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| 7 | YSIAC Workshops and Events |
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A host of exciting YSIAC workshops and events took place in 2018. Apart from the SIAC-YSIAC Workshop: IBA Arb40 Toolkit for Award Writing held during the SIAC Congress Week, YSIAC workshops on “Disclosure and Document Production in International Arbitration” were organised in Beijing, Mumbai, Seoul and Tokyo. These workshops featured a panel discussion and a mock hearing for a discovery application, providing younger practitioners with the opportunity to test their advocacy skills in a real world arbitration scenario before leading arbitration experts.
Other YSIAC events organised in 2018 included the YSIAC debate on the motion “Tribunals with Women Arbitrators make Better Decisions”, lunchtime talks with Mr Gary Born and Mr Toby Landau QC, as well as the YSIAC Club event titled “The Role of Public Policy in Enforcement of Arbitral Awards”. The fourth YSIAC Essay Competition held in March 2018 received a record 116 entries from 29 jurisdictions. The winner was Mr Tan Jun Hong of the Supreme Court of Singapore. The 1st Runner Up was Mr Koh Will Sheng Wilson of Drew & Napier LLC and the 2nd Runner up was Mr Parth Jain of George Washington University Law School. |
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| Left to Right: Mr Pranav Mago, Dr Rishab Gupta, Mr Toby Landau QC, Mr Gaurav Pachnanda, SA, Ms Ila Kapoor and Mr Moazzam Khan at the YSIAC Lunchtime Event titled “The Advocate and The Arbitrator” |
Mock Hearing on Document Requests at the YSIAC Seoul Workshop |
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| 8 | Relaunch of Asian International Arbitration Journal |
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The Asian International Arbitration Journal (AIAJ), which commenced publication in 2005, has been relaunched with Wolters Kluwer as publisher for the online and print editions of the AIAJ. Mr Gary Born, SIAC Court President, joins Professor Lawrence Boo, SIAC Court member, as General Editors of the journal.
The AIAJ seeks to be the thought leader on issues in international arbitration in the Asia-Pacific region by providing a forum for original thinking and incisive analysis. The journal carries articles, notes on awards, legislation updates and book reviews. The new Editorial Advisory Board of the AIAJ is comprised of the following arbitration experts in the fields of commercial and investment arbitration: • Dr Jean Ho • Mr Benjamin Hughes • Dr Michael Hwang, SC • Prof Lu Song • Dato’ Seri Dr Visu Sinnadurai • Prof Muthucumaraswamy Sornarajah • Mr John Christopher Thomas QC • Mr Mario Valderrama • Dr Frans H. Winarta |
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We would like to express our sincere thanks and appreciation to members of the SIAC Board, Court and the YSIAC Committee as well as all of our partners and friends in the local and international legal and business communities for their valuable contributions and consistent support.
With best regards,
The SIAC Team
7 November 2018
SIAC-KAA Seoul ADR Festival Seminar
By Philip Kim, Senior Associate, Herbert Smith Freehills
The Seoul ADR Festival Seminar, hosted by SIAC and the Korean Arbitrators Association (KAA) on 7 November 2018, was an opportunity for practitioners to join "A Conversation with International Arbitral Institutions". Insights were shared on a range of topics including the appointment of arbitrators and the inner workings of international arbitral institutions. A consistent theme was the importance of cooperation between institutions, to create a larger "mooncake" that all those in the international arbitration field can share. The seminar was well-attended by practitioners, in-house counsel and academics.
The opening address was delivered by Mr Ki-Su Lee (Chairman and CEO, KAA), where he welcomed practitioners, academics, a former judge and former presidents of the KAA to the conference.
In the first session, Mr Michael Lee (Vice President, International Centre for Dispute Resolution (ICDR), American Arbitration Association (AAA)) shared his insights on how to build a career as an international arbitrator. Mr Lee noted the lack of a requisite exam or qualification to "become" an arbitrator, and that an arbitrator’s career often begins by being a party-appointed arbitrator before joining the panel of an arbitral institution. Mr Lee emphasised the central importance of building one’s reputation and credibility as an arbitrator.
Mr Xu Wei (Deputy Secretary General, China International Economic and Trade Arbitration Commission (CIETAC)) then gave his observations on the growth of arbitration in China. In 2017, for example, CIETAC accepted 2,298 arbitration cases and also launched the Public-Private Partnership Arbitration Centre. Mr Xu also expressed a desire for more collaboration between CIETAC and Korean arbitral institutions.
In the next session, Mr Chan Leng Sun, SC (Deputy Chairman, Singapore International Arbitration Centre (SIAC); Senior Counsel and Arbitrator, Essex Court Chambers Duxton) considered the special features of maritime arbitration in Singapore and London, highlighting the different practices, rules and culture of the arbitral institutions that specialise in maritime disputes. For example, the use of "umpires" is a unique feature of maritime arbitration, and the London Maritime Arbitration Association does not administer the arbitration and instead adopts a very "light touch" approach. In addition to providing a practitioner's insight into maritime arbitration, Mr Chan's presentation pointed to the potential of maritime arbitration as a source of inspiration for improvement of procedures in commercial arbitrations. It will be interesting to see if cross fertilisation of ideas for improvement would lead to the adoption of "umpires" and other unique features of maritime arbitration in general commercial arbitration.
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Group photo with speakers and delegates |
The final session was a lively discussion moderated by Dr Hongseok Aaron Kim (Vice Chairman, KAA) with the panel comprising Mr Chan, Mr Chen Zhao Hui (Deputy Secretary General, CIETAC Fujian Sub-Commission), Mr Kevin Nash (Deputy Registrar and Centre Director, SIAC), Mr Lee and Mr Xu.
The panel first delved into the question of how to be appointed as an arbitrator and the essential qualities, experience or skills that an arbitrator requires. Mr Lee and Mr Chen emphasised the distinction between being listed on an institutional panel and actually being appointed in a particular case. A particular focus was on the need to gain experience as an arbitrator, which Mr Nash described as a 'chicken and egg' situation that faces younger arbitrators seeking out their first appointment.
The panellists then shared their perspectives on the issue of arbitrator fees, which are often calculated either on the basis of an hourly rate or a percentage of the sum in dispute. Mr Lee acknowledged the difficulties here with his answer that "it depends". Mr Chan emphasised the connection with the complexity of the case as well as the skills and experience of the arbitrator – but noted that typically younger arbitrators would be willing to take on smaller value cases to gain the necessary experience. Mr Nash discussed the ICC Commission report indicating the usual spread of fees in a typical arbitration being 83% in counsel fees, 15% in arbitrator fees and 2% in the institution's administrative fees – and that generally counsel and the arbitrator are happy where the ratio is approximately 5:1.
In discussing the scenario where a party refuses to pay its share of the arbitrator fees (particularly in the context where there is increasing use of contingency fees and third party funding), the panel agreed with Mr Chen's comments about the importance of obtaining appropriate and timely deposits from the parties.
The discussion then turned to what each arbitral institution was doing to support the Korean community in the field of international arbitration. Mr Nash noted the growth of SIAC in Korea, and that Korean parties have constantly been within the top ten foreign users of SIAC, with Korean arbitrators being the seventh most frequently appointed at SIAC. Mr Nash also mentioned the efforts of Ms Seah Lee (Head (North East Asia), SIAC) and the importance of her role in the Korean market. Mr Chen added that there are many similarities between China and Korea, and asked whether Koreans are familiar with Chinese mooncakes. He used the analogy that all those working in arbitration are dividing up a mooncake to share – and that we should be trying to make a bigger mooncake through cooperation among arbitral institutions. In doing so, everyone can get a bigger share. What was implied in these discussions was that this cooperation would lead to better procedures that are more just and efficient, thereby making international arbitration more attractive for its users, compared to other forms of dispute resolution.
The closing remarks of Mr Chan returned to this theme of cooperation and collaboration between arbitral institutions in order to improve the arbitral process and serve the business community. This echoed his earlier remarks about the fact there is a real dialogue occurring between arbitral institutions which has led to some harmonisation of practices and the creation of consistent experiences for end users. The final message was that arbitral institutions should work together to make a "better, bigger and more delicious mooncake".
The panel first delved into the question of how to be appointed as an arbitrator and the essential qualities, experience or skills that an arbitrator requires. Mr Lee and Mr Chen emphasised the distinction between being listed on an institutional panel and actually being appointed in a particular case. A particular focus was on the need to gain experience as an arbitrator, which Mr Nash described as a 'chicken and egg' situation that faces younger arbitrators seeking out their first appointment.
The panellists then shared their perspectives on the issue of arbitrator fees, which are often calculated either on the basis of an hourly rate or a percentage of the sum in dispute. Mr Lee acknowledged the difficulties here with his answer that "it depends". Mr Chan emphasised the connection with the complexity of the case as well as the skills and experience of the arbitrator – but noted that typically younger arbitrators would be willing to take on smaller value cases to gain the necessary experience. Mr Nash discussed the ICC Commission report indicating the usual spread of fees in a typical arbitration being 83% in counsel fees, 15% in arbitrator fees and 2% in the institution's administrative fees – and that generally counsel and the arbitrator are happy where the ratio is approximately 5:1.
In discussing the scenario where a party refuses to pay its share of the arbitrator fees (particularly in the context where there is increasing use of contingency fees and third party funding), the panel agreed with Mr Chen's comments about the importance of obtaining appropriate and timely deposits from the parties.
The discussion then turned to what each arbitral institution was doing to support the Korean community in the field of international arbitration. Mr Nash noted the growth of SIAC in Korea, and that Korean parties have constantly been within the top ten foreign users of SIAC, with Korean arbitrators being the seventh most frequently appointed at SIAC. Mr Nash also mentioned the efforts of Ms Seah Lee (Head (North East Asia), SIAC) and the importance of her role in the Korean market. Mr Chen added that there are many similarities between China and Korea, and asked whether Koreans are familiar with Chinese mooncakes. He used the analogy that all those working in arbitration are dividing up a mooncake to share – and that we should be trying to make a bigger mooncake through cooperation among arbitral institutions. In doing so, everyone can get a bigger share. What was implied in these discussions was that this cooperation would lead to better procedures that are more just and efficient, thereby making international arbitration more attractive for its users, compared to other forms of dispute resolution.
The closing remarks of Mr Chan returned to this theme of cooperation and collaboration between arbitral institutions in order to improve the arbitral process and serve the business community. This echoed his earlier remarks about the fact there is a real dialogue occurring between arbitral institutions which has led to some harmonisation of practices and the creation of consistent experiences for end users. The final message was that arbitral institutions should work together to make a "better, bigger and more delicious mooncake".
15 October 2018
SIAC Signs Memorandum of Understanding with the Peking University Law School
The Singapore International Arbitration Centre (SIAC) is pleased to announce that it has entered into a Memorandum of Understanding (MOU) with the Peking University Law School (PKU LAW).
Under the MOU, SIAC and PKU LAW will work together to place law students from PKU in internships at SIAC. In addition, SIAC and PKU LAW will collaborate to incorporate a module on "SIAC and Institutional Arbitration" into the PKU law programme. Upon request by SIAC or PKU LAW, both parties will also conduct joint training programmes, seminars, workshops or other events in China to promote the development and practice of international arbitration.
The MOU was signed on 13 October 2018, at the SIAC Academy training course held in Beijing at PKU, by Ms Lim Seok Hui, Chief Executive Officer of SIAC, and Mr Guo Li, Vice Dean of PKU LAW. The signing was witnessed by Mr Han Kok Juan, Deputy Secretary, Singapore Ministry of Law, Mr Pan Jianfeng, Dean of PKU LAW, Mr Gary Born, President of the SIAC Court of Arbitration, Ms Fu Yulin, Professor of PKU LAW, Mr Kevin Nash, Deputy Registrar & Centre Director of SIAC and Ms Gao Wei, Associate Professor of PKU LAW.
Mr Gary Born, a pre-eminent authority in international arbitration, was the Chair of the teaching faculty for the SIAC Academy training course in Beijing, which included SIAC Court and Board members, other leading international arbitration practitioners and arbitrators, PKU LAW professors as well as the SIAC Secretariat.
Mr Guo Li, Vice Dean of PKU LAW, said, "We hope the SIAC Academy, which was jointly conducted by SIAC and PKU LAW over the course of the last two days, will be the first of a series of collaborations under the MOU, which will bring together academics and practitioners to share their unique insights and perspectives on international arbitration."
Ms Lim Seok Hui, CEO of SIAC, said, "It is a great honour and privilege to be given the opportunity to work closely with PKU LAW, one of the world's leading academic institutions. We firmly believe that this partnership will enable us to jointly promote the benefits of institutional arbitration to future generations of China's international arbitration experts."
For more information, please contact:
Singapore International Arbitration Centre
T: +65 6713 9777
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W: www.siac.org.sg
12 October 2018
SIAC Signs Memorandum of Understanding with the China International Economic and Trade Arbitration Commission
The Singapore International Arbitration Centre (SIAC) is pleased to announce that it has entered into a Memorandum of Understanding (MOU) with the China International Economic and Trade Arbitration Commission (CIETAC) to promote international arbitration as a preferred method of dispute resolution for resolving international disputes.
The MOU was signed on 12 October 2018 at the inaugural SIAC-CIETAC Beijing Conference on "Effective Resolution of Belt & Road Disputes", by Ms Lim Seok Hui, Chief Executive Officer of SIAC, and Mr Wang Chengjie, Vice Chairman and Secretary-General of CIETAC. The signing was witnessed by Mr Han Kok Juan, Deputy Secretary, Singapore Ministry of Law; Mr Lu Pengqi, Vice Chairman, China Council for the Promotion of International Trade; Mr Gary Born, President, SIAC Court of Arbitration; Mr Liu Jingdong, Director of International Economic Law Department, Institute for International Law Studies, Chinese Academy of Social Sciences; Mr Chan Leng Sun, SC, Deputy Chairman, SIAC Board of Directors; and Mr Zhao Jian, Vice President, Arbitration Court of CIETAC.
Under the MOU, SIAC and CIETAC will set up a joint working group to discuss SIAC's proposed Cross-Institution Consolidation Protocol. SIAC and CIETAC will also work together to jointly promote international arbitration to serve the needs of businesses. SIAC and CIETAC will hold an annual joint signature event on international arbitration in either China or Singapore. In addition, the institutions will co-organise conferences, seminars and workshops on international arbitration in China and Singapore.
Both institutions will, upon request and where appropriate, provide recommendations of arbitrators to each other, and will, upon request, conduct training programmes for each other's staff. Pursuant to the MOU, CIETAC will also extend the use of its hearing facilities at preferential rates for SIAC arbitrations that are held in China.
Mr Wang Chengjie, Vice Chairman and Secretary-General of CIETAC, said, "We look forward to working closely together with SIAC to extend our outreach efforts to existing and potential users of international arbitration in China and Belt and Road economies."
Ms Lim Seok Hui, CEO of SIAC, said, "We are delighted to be entering into this collaboration with CIETAC, and to be holding our inaugural annual joint arbitration event in Beijing to commemorate this special milestone."
For more information, please contact:
Singapore International Arbitration Centre
T: +65 6713 9777
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W: www.siac.org.sg
27 September 2018
YSIAC Lunchtime Chat with Gary Born
By Tan Jun Hong, Supreme Court of Singapore
On 27 September 2018, YSIAC held a lunchtime fireside chat with Mr Gary Born (President, SIAC Court of Arbitration; Chair, International Arbitration Practice Group, Wilmer Cutler Pickering Hale and Dorr LLP) on a wide range of topics including guerrilla tactics, arbitrator challenges, and the management of non-responsive respondents.
Mr Harpreet Singh, SC (Partner, Clifford Chance) delivered the opening remarks and Ms Lijun Chui (Counsel, Clifford Chance) moderated the session.
Guerrilla tactics
Ms Chui began by inviting Mr Born to comment on a speech by Justice Steven Chong, wherein he observed that the flexibility and informality of arbitration have led to an increase in the use of guerrilla tactics to derail arbitration proceedings. Mr Born downplayed this, noting that guerrilla tactics are employed only in the minority of cases. Furthermore, an experienced tribunal would be able to turn the guerrilla tactics against the counsel that employed them.
Mr Born also addressed the concern that arbitrators give parties too much leeway (for example, by allowing them to file submissions out of time, or to make amendments at a late stage) out of fear that the award would be set aside subsequently for the denial of the parties’ right to be heard. While there is some truth to this concern, Mr Born noted that arbitral tribunals not infrequently deny such requests or allow such requests only in part. Arbitrators are also mindful of the parties’ desire to have their dispute resolved efficiently and expeditiously. They do not want the reputation of being afraid of due process and natural justice challenges. Increasingly, arbitrators are being assessed on how quickly they can resolve disputes. On a separate note, one’s freedom fighter is another person’s guerrilla. There may be a legitimate need to employ what the other side may regard as guerrilla tactics (for instance, when there is newly-emerged evidence). Hence, a decision to accede to an application does not necessarily mean that the arbitrator is caving in.
Mr Born gave the following advice to counsel and arbitrators dealing with a party that has employed guerrilla tactics. First, it would be best for counsel to simply ignore or even dismiss such tactics (if possible) to avoid being drawn into satellite disputes over procedural matters that distract from the main substantive dispute. Second, arbitrators should try to defuse any conflict and create a collegial atmosphere as this might help dissuade parties and counsel from employing guerrilla tactics.
The non-responsive respondent
Mr Born expressed the view that non-participation in general is a bad idea as it exposes a party to a default award and the full measure of damages. If the motivation for non-participation is related to jurisdiction reasons, a better option would be to participate and to maintain jurisdictional objections.
From the perspective of the claimant and tribunal, it would be good practice to make every effort to obtain the participation of the respondent. For claimants, making sure that they can subsequently demonstrate that notice of the various stages of the proceedings was given to the respondent is important in order for the arbitral award to be recognised and enforced. Tribunals on the other hand have an obligation to afford the parties an opportunity to present their case. Unless a tribunal is convinced that the defendant has had notice, the obligation would not have been fulfilled. The tribunal should also put the claimant to proof. The tribunal should not make default awards simply based on what the claimant has asked for; instead it must examine the case presented by the claimant and issue a default award based on that.
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| Members of the audience |
Left to Right: Gary Born and Lijun Chui |
Arbitrator challenges
Mr Born advised challenged arbitrators to remain objective and to keep a cool head even though he acknowledged that such challenges can be quite personal as the allegation is that the arbitrator lacks the essential moral qualities of independence and impartiality, and has therefore violated his or her mandate. In an appropriate case, if the arbitrator realises he or she is personally engaged, he or she should resign.
Mr Born’s advice for parties who have unsuccessfully challenged an arbitrator is to treat such challenges as water under the bridge and to focus on the substance of the dispute. The usual reaction of the arbitrator to a failed challenge is also to forget about the challenge, especially if it was mounted at an early stage of the proceedings. In any case, even if the arbitrator continues to hold a grudge, there is little that can be done.
Regulation of ethics
Mr Born likened the current world of ethics in international arbitration to a teenager’s bedroom. In an arbitration, there may be competing sets of rules: counsel may be qualified in different jurisdictions, the arbitration may be seated in yet another jurisdiction, and the arbitration may be administered in accordance with an arbitral institution’s rules. By default, everybody’s home ethical rules would apply. Different counsel in the same proceedings may therefore be bound by different ethical rules. This can potentially lead to an unequal playing field as different approaches may be adopted as regards areas such as witness preparation and disclosure.
How then should this problem be addressed? Ms Chui raised Chief Justice Sundaresh Menon’s proposal for a code of conduct to guide international arbitrators and counsel. But Mr Born noted that the difficulty with such a regulatory framework is that any guidelines issued would sit on top of national ethical standards that are applicable to the parties. It is therefore unclear whether another set of guidelines would clean up the teenager’s bedroom or whether it would simply add noise to it. Instead, Mr Born opined that the better way is for bar associations and bar regulatory authorities to reach some form of common agreement on ethics in international arbitration. Bar associations have regulatory impact and they can amend their rules to include specialised rules on arbitration.
While this may seem difficult to implement at first blush, it may not be so if one bears in mind that the focus is solely on ethics in international arbitration and only leading jurisdictions would be involved at least as a first step. And while uniformity may not be achieved, it would be possible to at least achieve some measure of agreement. Mr Born posited that this would be a suggestion well worth the political effort it would take, and expressed hope that Singapore would take the lead.
Concluding remarks
The session closed on that note. The practical tips and insights shared during the session were invaluable, and they related to fertile areas of arbitration law that guerrillas and freedom fighters ought to keep abreast of. In fact, guerrilla tactics were considered for the first time by the Singapore courts in April 2018, when the Singapore High Court in China Machine New Energy Corp v Jaguar Energy Guatemala LLC and another [2018] SGHC 101 considered whether an award should be set aside on the basis that the respondent had employed guerrilla tactics and had thereby breached an implied duty to arbitrate in good faith. Further developments await.
Mr Born advised challenged arbitrators to remain objective and to keep a cool head even though he acknowledged that such challenges can be quite personal as the allegation is that the arbitrator lacks the essential moral qualities of independence and impartiality, and has therefore violated his or her mandate. In an appropriate case, if the arbitrator realises he or she is personally engaged, he or she should resign.
Mr Born’s advice for parties who have unsuccessfully challenged an arbitrator is to treat such challenges as water under the bridge and to focus on the substance of the dispute. The usual reaction of the arbitrator to a failed challenge is also to forget about the challenge, especially if it was mounted at an early stage of the proceedings. In any case, even if the arbitrator continues to hold a grudge, there is little that can be done.
Regulation of ethics
Mr Born likened the current world of ethics in international arbitration to a teenager’s bedroom. In an arbitration, there may be competing sets of rules: counsel may be qualified in different jurisdictions, the arbitration may be seated in yet another jurisdiction, and the arbitration may be administered in accordance with an arbitral institution’s rules. By default, everybody’s home ethical rules would apply. Different counsel in the same proceedings may therefore be bound by different ethical rules. This can potentially lead to an unequal playing field as different approaches may be adopted as regards areas such as witness preparation and disclosure.
How then should this problem be addressed? Ms Chui raised Chief Justice Sundaresh Menon’s proposal for a code of conduct to guide international arbitrators and counsel. But Mr Born noted that the difficulty with such a regulatory framework is that any guidelines issued would sit on top of national ethical standards that are applicable to the parties. It is therefore unclear whether another set of guidelines would clean up the teenager’s bedroom or whether it would simply add noise to it. Instead, Mr Born opined that the better way is for bar associations and bar regulatory authorities to reach some form of common agreement on ethics in international arbitration. Bar associations have regulatory impact and they can amend their rules to include specialised rules on arbitration.
While this may seem difficult to implement at first blush, it may not be so if one bears in mind that the focus is solely on ethics in international arbitration and only leading jurisdictions would be involved at least as a first step. And while uniformity may not be achieved, it would be possible to at least achieve some measure of agreement. Mr Born posited that this would be a suggestion well worth the political effort it would take, and expressed hope that Singapore would take the lead.
Concluding remarks
The session closed on that note. The practical tips and insights shared during the session were invaluable, and they related to fertile areas of arbitration law that guerrillas and freedom fighters ought to keep abreast of. In fact, guerrilla tactics were considered for the first time by the Singapore courts in April 2018, when the Singapore High Court in China Machine New Energy Corp v Jaguar Energy Guatemala LLC and another [2018] SGHC 101 considered whether an award should be set aside on the basis that the respondent had employed guerrilla tactics and had thereby breached an implied duty to arbitrate in good faith. Further developments await.
7 September 2018
SIAC Signs Memorandum of Understanding with the Xi’an Arbitration Commission
The Singapore International Arbitration Centre (SIAC) is pleased to announce that it has entered into a Memorandum of Understanding (MOU) with the Xi’an Arbitration Commission (XAAC) to promote international arbitration as a preferred method of dispute resolution for resolving international disputes.
The MOU was signed on 7 September 2018, by Mr Kevin Nash, Deputy Registrar & Centre Director of SIAC, and Mr Pan Junxing, Vice Director & Secretary General of the Xi’an Arbitration Commission. The signing was witnessed by Mr Han Kok Juan, Deputy Secretary, Singapore Ministry of Law, and Mr Hu Minglang, Vice Governor, People’s Government of Shaanxi Province.
Under the MOU, SIAC and XAAC will work together to jointly promote international arbitration to serve the needs of businesses. SIAC and XAAC will hold an annual joint signature event on international arbitration in either China or Singapore. In addition, the institutions will also co-organise conferences, seminars and workshops on international arbitration in China and Singapore. Both institutions will, upon request and where appropriate, provide recommendations of arbitrators to each other. Pursuant to the MOU, XAAC will also extend the use of its hearing facilities at preferential rates for SIAC arbitrations that are held in China.
Mr Pan Junxing, Vice Director & Secretary General of the Xi’an Arbitration Commission, said, “By working together, SIAC and XAAC can share their expertise and enhanced platform to better support the needs of users along the New Silk Road Economic Belt, which runs from western China to Europe and the Middle East through Central Asia.”
Ms Lim Seok Hui, CEO of SIAC, said, “Chinese parties are the second top foreign user of SIAC. This collaboration with XAAC will enable us to foster closer ties with investors, companies and businesses in western China, to jointly promote international arbitration as the preferred dispute resolution mechanism for cross-border commercial and investment disputes.”
For more information, please contact:
Singapore International Arbitration Centre
T: +65 6713 9777
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W: www.siac.org.sg
6 September 2018
YSIAC-YJAA Tokyo Workshop 2018
By Kei Kato, Associate, Orrick (Tokyo office)
On 6 September 2018 in Tokyo, YSIAC held its inaugural joint workshop with YJAA, the young members’ group of the Japan Association of Arbitrators (JAA). The title of the workshop was “Disclosure and Document Production in International Arbitration”, a subject in which young practitioners would have a particularly keen interest because of the countless hours spent on document production. Over forty YSIAC and YJAA members and other practitioners as well as in-house counsel attended the workshop at the Tokyo Office of Nishimura & Asahi, which hosted the event.
The workshop began with a warm welcome address from Ms. Lim Seok Hui, CEO of SIAC, who provided a brief overview of the recent developments at SIAC, including, among others, the rapid increase in Japanese users. After that, Ms. Joy Tan, Partner at Wong Partnership LLP, gave an introduction to the case scenario of the mock procedural hearing to be held in the latter half of the workshop.
Session I: Panel Discussion - Document Production and Management in International Arbitration; Discovering to Win
The initial session was a panel discussion moderated by Mr. Aoi Inoue, Member of both the YSIAC Committee and the YJAA Committee, and Partner at Anderson Mori & Tomotsune. The panellists included: Mr. Michael Crowther, Vice President at Deloitte Tohmatsu Financial Advisory LLC; Mr. Peter Harris, Counsel at Clifford Chance; Ms. Azusa Saito, Senior Associate at Nishimura & Asahi; Mr. Tsuyoshi Suzuki, President of YJAA and Partner at Momo-o Matsuo & Namba; and Mr. Joaquin Terceño, Counsel at Freshfields Bruckhaus Deringer LLP.
At the outset, Mr. Suzuki gave an introductory presentation: “What is Disclosure and Why Is It Important in International Arbitration,” where he explained the practical importance of disclosure and discovery, such as (i) there are no default rules, (ii) they can materially affect the outcome of the case, and (iii) they might incur substantive costs. Ms. Saito spoke about “Common Law v. Civil Law Approaches,” including the difference in these approaches, how they are harmonised in the field of international arbitration, and practical tips to limit potential uncertainty. Mr. Terceño explained about “The IBA Rules, SIAC Rules, and Redfern Schedules,” all of which are important sources related to disclosure and document production issues in the face of a lack of guidance from the lex arbitri. Mr. Crowther offered a different perspective on “Document Management - Tools to Make the Process Easy and Cost Efficient,” for instance, how to utilise the advanced technologies like cognitive coding to manage the voluminous amount of data. Mr. Harris closed the session with a personal case study “The DPR from Hell,” which detailed his experiences with document production and the lessons he learned.
The audience appreciated the diverse topics presented by the panellists from different perspectives and countries, and was able to gain insights and best practices, as well as practical tips from the up-and-coming leaders of international arbitration.
Session II: Hearing on Document Requests - Oral Submissions
The second session was a mock procedural hearing on document requests based on a realistic case scenario about a dispute stemming from a joint venture project. The mock Tribunal consisted of Mr. Hiroyuki Tezuka, Member of the SIAC Court of Arbitration and Partner at Nishimura & Asahi; Ms. Tan; and Mr. Ng Kim Beng, Partner at Rajah & Tann Singapore LLP. Arguing for the Claimant was Mr. Takashi Ohno, Associate at Nagashima Ohno & Tsunematsu, whilst Ms. Eriko Kadota, Associate at Herbert Smith Freehills and Mr. Yoshinori Tatsuno, Associate at Mori Hamada & Matsumoto, argued for the Respondent.
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| Members of the audience |
Left to Right: Michael Crowther, Peter Harris, Aoi Inoue, Azusa Saito and Tsuyoshi Suzuki |
In this case, the Claimant sought production of four categories of documents, and the Respondent raised objections to each of these requests. For each category of documents, counsel to the Claimant argued relevance and materiality of the documents to substantiate their request, and counsel to the Respondent argued grounds to bar the Claimant’s request. Both then were interrogated by the Tribunal. The members discussed legal issues that would frequently appear in actual document production, such as how to balance confidentiality with transparency and how to narrow down the scope of the documents requested. Towards the end of the session, the mock Tribunal gave valuable feedback, where they shared their experiences as seasoned practitioners.
The mock session was a rare opportunity for young participants to enhance their knowledge of the procedural and substantive aspects of document production, and also to develop their oral advocacy skills through passionate oral arguments by counsel.
After the two sessions, Mr. Tsuyoshi Suzuki delivered Closing Remarks on behalf of YJAA, where he expressed gratitude to YSIAC for organising the event and noted the importance of collaboration between YJAA and YSIAC.
The workshop was followed by an opportunity for the audience to enjoy drinks and to mingle with the leading young practitioners and prominent leaders in the field.
The mock session was a rare opportunity for young participants to enhance their knowledge of the procedural and substantive aspects of document production, and also to develop their oral advocacy skills through passionate oral arguments by counsel.
After the two sessions, Mr. Tsuyoshi Suzuki delivered Closing Remarks on behalf of YJAA, where he expressed gratitude to YSIAC for organising the event and noted the importance of collaboration between YJAA and YSIAC.
The workshop was followed by an opportunity for the audience to enjoy drinks and to mingle with the leading young practitioners and prominent leaders in the field.
24 August 2018
SIAC Signs Memorandum of Understanding with the Shenzhen Court of International Arbitration
The Singapore International Arbitration Centre (SIAC) is pleased to announce that it has entered into a Memorandum of Understanding (MOU) with the Shenzhen Court of International Arbitration (SCIA) to promote international arbitration as a preferred method of dispute resolution for resolving international disputes.
The MOU was signed at the 9th Singapore-Guangdong Collaboration Council meeting on 24 August 2018, by Ms Lim Seok Hui, Chief Executive Officer of SIAC, and Dr Liu Xiaochun, President of the Shenzhen Court of International Arbitration. The signing was witnessed by the Co-Chairmen of the Council, Singapore Minister for Education Ong Ye Kung and Guangdong Governor Ma Xingrui.
Under the MOU, SIAC and SCIA will work together to jointly promote international arbitration to serve the needs of businesses. SIAC and SCIA will hold an annual joint signature event on international arbitration in either China or Singapore. In addition, the institutions will also co-organise conferences, seminars and workshops on international arbitration in China and Singapore. Both institutions will, upon request and where appropriate, provide recommendations of arbitrators to each other. Pursuant to the MOU, SCIA will also extend the use of its hearing facilities at preferential rates for SIAC arbitrations that are held in China.
By working together, SIAC and SCIA can share their expertise and networks to better support the development of the Guangdong-Hong Kong-Macau Greater Bay Area and help connect the Greater Bay Area with the rest of Asia and the rest of the world.
Dr Liu Xiaochun, President of the Shenzhen Court of International Arbitration, said, "We are confident that the MOU will provide both institutions with an enhanced platform to extend our outreach efforts to existing and potential users of international arbitration in China and Belt and Road economies, across a range of industry sectors including construction, infrastructure, energy, maritime and finance."
Ms Lim Seok Hui, CEO of SIAC, commented that "This MOU represents a key milestone in our commitment and ongoing efforts to work closely with SCIA and other Chinese arbitral institutions to promote international arbitration to Chinese investors, companies and businesses as the preferred mode of dispute resolution for the resolution of cross-border commercial and investment disputes, particularly in the context of the Belt and Road Initiative."
For more information, please contact:
Singapore International Arbitration Centre
T: +65 6713 9777
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W: www.siac.org.sg
17 May 2018
The Honourable the Chief Justice Sundaresh Menon: Keynote Address delivered at the SIAC Congress 2018
At the SIAC Congress 2018 held in Singapore on 17 May 2018, The Honourable the Chief Justice Sundaresh Menon, Supreme Court of Singapore, gave an insightful keynote speech on the special role and responsibility of arbitral institutions in charting the future of international arbitration.
The growth of institutional arbitration is very much a feature of international arbitration's "golden age". By providing administrative and logistical support and pre-established rules and procedures, arbitral institutions have paved the way for its widespread adoption. Over time, arbitral institutions have morphed from private service providers, concerned only with commercial matters, to quasi-public bodies involved in the development, organisation, and promotion of international arbitration.
In his address, Chief Justice Sundaresh Menon discussed some of the challenges that come with this expanded role, and set out his thoughts on the ways in which arbitral institutions such as the SIAC can and must take the lead in securing the future of the industry in the face of the challenges that lie ahead.
The full text of the speech may be found here.
14 - 18 May 2018
SIAC Congress Week
The SIAC Congress Week brought together distinguished members of the judiciary, the SIAC Board of Directors, the SIAC Court of Arbitration, and other leading international arbitration experts for a lively and interesting series of seminars, debates and a workshop.
SIAC would like to thank all speakers, sponsors and participants for their many contributions to the success of the SIAC Congress Week.
It was a great privilege and pleasure to have our guests of honour, The Honourable the Chief Justice Sundaresh Menon, Supreme Court of Singapore, Mr Heng Swee Keat, Minister for Finance, Singapore and Ms Indranee Rajah, SC, Minister in the Prime Minister’s Office and Second Minister for Finance and Education, Singapore, grace us with their presence at the SIAC Congress.
The various reports on the SIAC Congress Week can be accessed here.
10 May 2018
SIAC is Most Preferred Arbitral Institution in Asia and 3rd in the World
The Singapore International Arbitration Centre (SIAC) is pleased to announce that in the latest Queen Mary University of London International Arbitration Survey (QMUL Survey) released on 9 May 2018, SIAC ranked as the most preferred arbitral institution in Asia, and 3rd out of the top 5 arbitral institutions in the world.
The QMUL Survey is in its eighth edition and is one of the most prestigious International Arbitration surveys in the market. QMUL stated that this year’s QMUL Survey is the most “comprehensive empirical study” ever conducted by the university, with findings based on the questionnaire responses of 922 participants, including in-house counsel, arbitrators, firm practitioners, the staff of arbitral institutions, expert witnesses and third-party funders. 142 interviews were also conducted.
Singapore is the 3rd most preferred seat worldwide, after London and Paris, and ahead of Hong Kong, Geneva, New York and Stockholm. Singapore is the most preferred seat in Asia.
Mr Gary Born, President of the SIAC Court of Arbitration, commented, “The QMUL Survey confirms recent caseload statistics: Singapore and SIAC are preferred, around the world, as forums for resolving international disputes. We are committed to delivering the expertise, efficiency and independence that business and other users seek.”
Mr Davinder Singh, SC, Chairman of SIAC, said, “The survey findings firmly underscore Singapore’s and SIAC’s position at the forefront of international arbitration in the world.”
Ms Lim Seok Hui, CEO of SIAC, added, “We are truly delighted with this milestone achievement, which would not have been possible without the continued unwavering support of our users around the world. We are deeply grateful and appreciative of the trust they have placed in us.”
For more information, please contact:
Singapore International Arbitration Centre
T: +65 6713 9777
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W: www.siac.org.sg
8 May 2018
SIAC Announces Appointment of New Court Vice President
The Singapore International Arbitration Centre (SIAC) is pleased to announce the appointment of Prof Lucy Reed as a Vice President of the SIAC Court of Arbitration with effect from 29 June 2018. Prof Reed succeeds Mr John Savage QC, who previously served as a member of the SIAC Board of Directors from 2009 to 2017, and concurrently served as a Vice President of the SIAC Court of Arbitration from 2013 to March 2018. Mr Savage will continue to serve as a member of the SIAC Court.
Prof Reed is the Director of the Centre for International Law and Professor on the Law Faculty of the National University of Singapore. She previously led the global international arbitration group in Freshfields Bruckhaus Deringer, and has represented private and public clients in investment treaty and commercial arbitrations for more than 35 years. She now sits regularly as arbitrator in commercial and investment treaty cases.
Prof Reed said of her appointment, “I am honoured and excited to be taking on this role, and look forward to working closely with Gary, Cavinder and other SIAC Court members and the SIAC Secretariat to ensure that SIAC stays right at the very top of global arbitral institutions.”
Mr Gary Born, President of the SIAC Court of Arbitration, commented, “I am delighted to welcome Lucy as our new Vice President. She brings with her a wealth of experience and deep specialist knowledge in both commercial as well as investment arbitration. Her impressive reputation and professionalism will further enhance the international standing and profile of SIAC. We are deeply appreciative to John for his many insightful contributions during his term as Vice President, and for his continued support as a member of the SIAC Court.”
Following this latest appointment, the members of the SIAC Court of Arbitration are as follows:
| 1. | Mr Gary Born – Wilmer Cutler Pickering Hale and Dorr LLP, UK (President) |
| 2. | Mr Cavinder Bull, SC – Drew & Napier LLC, Singapore (Vice President) |
| 3. | Prof Lucy Reed – Centre for International Law, National University of Singapore, Singapore (Vice President) |
| 4. | Dr Michael Pryles AO PBM – Melbourne, Australia (Founder President) |
| 5. | Ms Catherine Amirfar – Debevoise & Plimpton LLP, USA |
| 6. | Dr Claudia Annacker – Cleary Gottlieb Steen & Hamilton LLP, France |
| 7. | Mr Nigel Blackaby - Freshfields Bruckhaus Deringer, USA |
| 8. | Prof Lawrence Boo – The Arbitration Chambers, Singapore |
| 9. | Mr Cao Lijun – Zhong Lun Law Firm, China |
| 10. | Mr Paul Friedland – White & Case LLP, USA |
| 11. | Mr Emmanuel Gaillard– Shearman & Sterling LLP, France |
| 12. | Prof Bernard Hanotiau – Hanotiau & van den Berg, Belgium |
| 13. | Mr Darius Khambata, SC – India |
| 14. | Mr Toby Landau QC – Essex Court Chambers, UK |
| 15. | Dr Eun Young Park – Kim & Chang, Korea |
| 16. | Prof Jan Paulsson – Three Crowns LLP, USA |
| 17. | Mr Harish Salve, SC – Blackstone Chambers, India |
| 18. | Mr John Savage QC – King & Spalding LLP, UK |
| 19. | Mr Hiroyuki Tezuka – Nishimura & Asahi, Japan |
| 20. | Mr Alan Thambiayah – The Arbitration Chambers, Singapore |
| 21. | Ms Ariel Ye – King & Wood Mallesons, China |
| 22. | Mr Alvin Yeo, SC – WongPartnership LLP, Singapore |
For more information, please contact:
Singapore International Arbitration Centre
T: +65 6713 9777
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W: www.siac.org.sg
23 April 2018
A Three-Part Workshop: “Arbitration at the SIAC: The Inside Track”
Workshop 3: Applications under the SIAC Rules 2016
On 23 April 2018, the finale of a three-part workshop on arbitration at the Singapore International Arbitration Centre (SIAC) was successfully held by SIAC and the Chartered Institute of Arbitrators, Singapore (CIArb, Singapore). The workshop was attended by arbitrators, practitioners, in-house counsel and third-party funders, who were eager to hear the Secretariat’s views on the various applications that may be made under the SIAC Rules.
Similar to the first two workshops, the final leg commenced with a welcome address by Ms Camilla Godman (Regional Director, CIArb), where the primacy of various applications under the SIAC Rules was addressed. Ms Godman then concluded her address by introducing the moderator of the day, Mr Timothy Cooke (Partner, Stephenson Harwood LLP) and the panel from SIAC, Mr Kevin Nash (Deputy Registrar & Centre Director, SIAC), Ms Khyati Raniwala (Associate Counsel, SIAC) and Ms Qian Wu (Associate Counsel, SIAC).
In the course of the discussion, the panel offered their insights on various procedures under the SIAC Rules, such as the emergency arbitrator, jurisdictional objection, early dismissal, joinder, multiple contracts and consolidation, and expedited procedure. The panel shed light on practical issues such as the tests generally adopted by emergency arbitrators in determining whether to grant emergency interim relief, the difference between the tests of “exceeding the scope of its jurisdiction” and “manifestly outside the jurisdiction of the tribunal” under Rules 28.3(b) and 29.1(b) of the SIAC Rules 2016, how the institution treated confidentiality of an arbitration in the event a non-party was joined to the arbitration, and the meaning of each criteria under Rule 8.1 for the consolidation of arbitrations.
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| Left to Right: Timothy Cooke, Khyati Raniwala, Kevin Nash and Qian Wu |
Members of the audience |
The participants took the opportunity to seek the Secretariat’s views on some interesting issues relating to the various procedures. One of which was whether it would be helpful for parties, who would like to facilitate consolidation to the maximum extent possible, to include express language in the arbitration agreement consenting to consolidation. The panel explained that although such language might be sufficient to bring in an application, the circumstances and the extent to which the parties wished to consolidate the arbitrations in the event of a dispute would nonetheless be examined. Mr Nash also stressed that even with an agreement on consolidation, the “stamp of approval” by the SIAC Court was still required.
The workshop concluded with Mr Cooke thanking the participants for coming not only to the finale but also the other two workshops. Mr Cooke then expressed his gratitude to the panel from SIAC for taking the time to share their insights with the attendees.
The workshop concluded with Mr Cooke thanking the participants for coming not only to the finale but also the other two workshops. Mr Cooke then expressed his gratitude to the panel from SIAC for taking the time to share their insights with the attendees.
22 March 2018
Authors rate SIAC as Most Cost-Competitive and Efficient International Arbitral Institution
In a recent article by CMS Holborn Asia and the Society of International Law (Singapore), titled “Costs and Duration: A Comparison of the HKIAC, LCIA, SCC and SIAC Studies”, the authors concluded that “SIAC remains the most cost-competitive option for both sole-arbitrator and three-arbitrator cases” and that “for three-arbitrator cases in particular, SIAC remains significantly cheaper than LCIA and SCC where the costs extend to six-digit figures”. According to the article, SIAC arbitrations are “the most efficient in comparison to the other arbitral institutions”.
The authors said that they compared the latest figures released by HKIAC, LCIA, SCC and SIAC in their respective costs and duration studies. They presented the following conclusions:
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"SIAC remains the most cost-competitive option for both sole-arbitrator and three-arbitrator cases. For three-arbitrator cases in particular, SIAC remains significantly cheaper than LCIA and SCC where the costs extend to six-digit figures.”
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| • | “SIAC arbitrations are the most efficient in comparison to the other arbitral institutions. The median duration of an SIAC arbitration is the shortest at 11.7 months.” |
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The article added that “based on a comparison of the four studies, the costs and duration of arbitral proceedings are ostensibly most attractive when administered by SIAC”.
A copy of the article may be accessed here.
Further details on SIAC’s Costs and Duration Study may be found here.
For more information, please contact:
Singapore International Arbitration Centre
T: +65 6713 9777
E: This email address is being protected from spambots. You need JavaScript enabled to view it.
W: www.siac.org.sg
7 March 2018
SIAC Annual Appreciation Event 2018
SIAC’s Annual Appreciation Event took place on 7 March 2018 in Singapore and attracted a record turnout of 240 members from the local and international arbitration communities.
The evening commenced with a Welcome Address from Mr Davinder Singh, SC, Chairman of SIAC, who announced that SIAC had received a record 452 new cases, and administered 93% or 421 of the cases filed in 2017.
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| Welcome Address delivered by Davinder Singh, SC |
Left to Right: Pauline Low, Allison Goh, Lim Shi Jean, Lim Seok Hui, Gary Born, Piyush Prasad, Michelle Chiam and Doria Teo |
Mr Singh thanked the SIAC Board and Court members for their dedication and support for SIAC’s various initiatives, as well as the management and staff of SIAC for their contributions to SIAC’s goals.
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| Announcement of 2017 Case Statistics by Gary Born |
Guests at the event |
In her opening remarks, Ms Lim Seok Hui, CEO of SIAC, noted that 2017 was a year of firsts and innovations that included the proposal for a cross-institution consolidation protocol, the inaugural SIAC Academy and the first-ever SIAC-CIL Academic-Practitioner Colloquium. Ms Lim gave special thanks, on behalf of everyone at SIAC, to Mr Singh and Mr Born for their inspirational leadership and support.
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| Left to Right: Prof Lawrence Boo, Gloria Lim, Delphine Ho and Joan Janssen |
Left to Right: Prof Lucy Reed, Lim Seok Hui, Kevin Nash and Emily Choo |
Mr Gary Born, President of the Court of Arbitration of SIAC, presented SIAC’s key case statistics for 2017, concluding that SIAC’s success could be attributed to its continued commitment to innovate and be responsive to the needs of its users.
7 March 2018
SIAC Announces New Records for 2017
The Singapore International Arbitration Centre (SIAC) is pleased to announce the official release of its 2017 Annual Report.
2017 saw SIAC set a new record for the highest number of new case filings and administered cases. SIAC’s caseload continues to grow year on year, and has increased by more than 5 times in the last decade.
In 2017, SIAC received 452 new cases from parties in 58 countries in 6 continents. This was a 32% increase from the 343 cases filed in 2016 and a 67% increase from the 271 cases filed in 2015.
SIAC administered 93% or 421 of the cases filed in 2017. The aggregate sum in dispute for all new case filings amounted to USD4.07 billion (SGD5.44 billion).
Whilst India and China remained significant contributors to SIAC’s caseload, SIAC’s top ten foreign user rankings also saw new entrants from Europe and the Middle East, underscoring SIAC’s global appeal to users from diverse legal systems and cultures.
Further details of SIAC’s case numbers are available in the 2017 Annual Report.
Mr Gary Born, President of the Court of Arbitration of SIAC, said, “SIAC has seen significant increases in its caseload each year and more parties from a growing number of jurisdictions, which is a testament both to user confidence as well as SIAC’s international reach and standing as a premier global arbitral institution.”
Mr Davinder Singh, SC, Chairman of SIAC, commented, “SIAC is where it is today because of Singapore’s reputation for integrity and the rule of law, its status as a trusted and sophisticated hub and the Singapore Courts’ support for and active contribution to the development of the law and practice of international arbitration. I would like to thank the SIAC Court of Arbitration, the Board of Directors and the excellent management and staff of SIAC for their invaluable contributions and relentless pursuit of SIAC’s goals.”
Ms Lim Seok Hui, CEO of SIAC, said, “We are delighted to have recorded another milestone achievement. This will keep us firmly motivated to do better. My team and I would like to thank our partners and friends in the local and international legal and business communities for their continued faith in SIAC.”
For more information, please contact:
Singapore International Arbitration Centre
T: +65 6713 9777
E: This email address is being protected from spambots. You need JavaScript enabled to view it.
W: www.siac.org.sg
7 March 2018
A Three-Part Workshop: “Arbitration at the SIAC: The Inside Track”
Workshop 2: Starting an Arbitration
On 7 March 2018, the Singapore International Arbitration Centre (SIAC) and the Chartered Institute of Arbitrators, Singapore (CIArb, Singapore) successfully co-organised the second of a three-part workshop on arbitration at SIAC. The workshop, which attracted an excellent turnout of attendees from law firms, arbitral institutions, and private companies, sought to offer a behind-the-scenes glimpse into the commencement of arbitral proceedings at SIAC.
The workshop kicked-off with a Welcome Address by Ms Camilla Godman (Regional Director, CIArb) who stressed that “getting all the elements right at the start of an arbitration is critical not just for limitation reasons but also the ultimate creation of an enforceable award”.
The session was moderated by Mr Timothy Cooke (Partner, Stephenson Harwood LLP) and the panel of speakers comprised Ms Delphine Ho (Registrar, SIAC), Mr Kendista Wantah (Associate Counsel, SIAC), and Ms Allison Goh (Associate Counsel, SIAC). The panel discussed various potential issues that a lawyer or a party may face when commencing an arbitration, and offered their insights on these issues from an institutional perspective.
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| Members of the audience |
Left to Right: Timothy Cooke, Allison Goh, Delphine Ho and Kendista Wantah |
Amongst others, the discussion touched on practical topics including what would amount to a “complete” or “substantially complete” Notice of Arbitration for the purpose of commencing an arbitration at SIAC, issues involving a non-paying respondent in an SIAC- administered arbitration and the approach taken by SIAC when dealing with ambiguous arbitration agreements.
The panel shared their experiences and elaborated on the rationale behind the institution’s approach under the SIAC Rules on these issues. Of particular interest to the attendees was SIAC’s considerations when determining the amount of deposits payable, especially in cases involving substantial counterclaims. The Registrar, Ms Ho highlighted the importance for parties to provide an estimated quantification of their claims early in the case to avoid “surprises”.
The workshop ended on a high note with the panel addressing further burning questions from the attendees on, inter alia, the consolidation mechanism under the SIAC Rules and appointments by SIAC in ad hoc arbitrations. To end the session, Mr Cooke expressed his gratitude to the panel from SIAC for taking their time to share their insights with the attendees.
The panel shared their experiences and elaborated on the rationale behind the institution’s approach under the SIAC Rules on these issues. Of particular interest to the attendees was SIAC’s considerations when determining the amount of deposits payable, especially in cases involving substantial counterclaims. The Registrar, Ms Ho highlighted the importance for parties to provide an estimated quantification of their claims early in the case to avoid “surprises”.
The workshop ended on a high note with the panel addressing further burning questions from the attendees on, inter alia, the consolidation mechanism under the SIAC Rules and appointments by SIAC in ad hoc arbitrations. To end the session, Mr Cooke expressed his gratitude to the panel from SIAC for taking their time to share their insights with the attendees.
2 March 2018
YSIAC Debate
By Melissa Mak, Senior Associate, Allen & Gledhill LLP
“Tribunals with women arbitrators make better decisions.” As is well known, in a relationship, one person is always right and the other person is male – surely, this must be good counsel when selecting an arbitrator, where judgment and perceptiveness are crucial attributes.
The YSIAC Debate held on 2 March 2018 sought to challenge this received wisdom. The moderator for the debate was Mr Chelva Rajah, SC (Member, SIAC Board of Directors, Managing Partner, Tan Rajah & Cheah). Arguing for the motion – and ostensibly with the “easier” task – was the duo of Mr Toby Landau QC (Member, SIAC Court of Arbitration; Barrister and Arbitrator, Essex Court Chambers) and Mr Paul Tan (Partner, Rajah & Tann Singapore LLP), with brains and beauty to spare. Arguing against the motion were the formidable team of Ms Deborah Barker, SC (Managing Partner, Withers KhattarWong) and Ms Jae Hee Suh (Associate, Allen & Overy), who persuaded the packed audience of 128 attendees with impassioned advocacy (and song).
This debate was a timely one, coming slightly less than two years after the arbitration community drew up the Equal Representation in Arbitration Pledge, with signatories committing to diversify the pool of arbitrators and improve the profile and representation of women in arbitrations.
Mr Tan fired the opening salvo with the central thesis that women outperform men in personal qualities that were relevant to arbitral decision making – women tended to have more initiative and creativity, and displayed honesty and social awareness. Citing various statistical studies (as well as anecdotal evidence that women were smarter and live longer), Mr Tan presented a compelling case in favour of the participation of women on arbitral tribunals to improve decision making.
Mr Tan’s arguments were met with a confident rebuttal from Ms Jae Hee Suh, who challenged the underlying assumption in the motion that women arbitrators had to make “better” decisions to justify their appointments to arbitral tribunals. She argued that gender should make no difference to decision-making: expertise and efficiency bore little correlation to one’s gender. Women arbitrators should be appointed on an equal opportunity basis, and not because of their gender. Ms Jae concluded that supporting the motion would harm, instead of support, women, by perpetuating gender stereotypes and suggesting that the participation of women in arbitral tribunals was no more than a form of tokenism.
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| Ms Lim Seok Hui delivering the Welcome Address |
Left to Right: Mr Chong Yee Leong, Mr Toby Landau QC, Mr Paul Tan, Ms Lim Seok Hui, Ms Deborah Barker, SC, Ms Jae Hee Suh, Mr Kabir Singh and Mr Chelva Rajah, SC |
Following on the heels of Ms Jae’s challenge to the idea that woman had to show that they have a “right” to be there, Mr Landau presented yet another perspective that focussed on the importance of diversity in group decision-making. Quite apart from the fact that women might have specific personal qualities and characteristics that lent themselves to the process of decision-making, the individual skills of a diverse group collectively contributed to greater group intelligence and translated to greater collaboration in making sense of evidence and submissions. Mr Landau explained that “better” might not just mean right or wrong, but whether a decision was regarded by users as legitimate and acceptable. Gender diversity was a fact of the modern world, and the composition of tribunals should reflect this.
Ms Barker responded, to rapturous applause from the audience, by breaking out the ukulele and in song with the aptly titled song “Man Smart, Woman Smarter”. The lyrics speak for themselves: “And not me but the people they say; That the men are leading the women astray; But I say, that the women of today; Smarter than the man in every way.” Ms Barker asked, rhetorically: how would the inclusion of females improve decision making? The oft-quoted description of arbitrators as a “male, pale and stale” group that would somehow benefit from the participation of women undermined the wider issues of unconscious bias and lack of equal opportunities that have contributed to the imbalance.
At the end of this spirited debate, the audience spoke, and awarded the debate to Ms Barker and Ms Jae. What appeared at first to be a straightforward motion reflected the nature of the complex and multi-faceted debate on inclusivity in the community. Whilst the concept was widely supported, the unconscious bias in the system cannot be changed by the mere assertion that tribunals with woman arbitrators are “better”. The women were still right on this score.
Ms Barker responded, to rapturous applause from the audience, by breaking out the ukulele and in song with the aptly titled song “Man Smart, Woman Smarter”. The lyrics speak for themselves: “And not me but the people they say; That the men are leading the women astray; But I say, that the women of today; Smarter than the man in every way.” Ms Barker asked, rhetorically: how would the inclusion of females improve decision making? The oft-quoted description of arbitrators as a “male, pale and stale” group that would somehow benefit from the participation of women undermined the wider issues of unconscious bias and lack of equal opportunities that have contributed to the imbalance.
At the end of this spirited debate, the audience spoke, and awarded the debate to Ms Barker and Ms Jae. What appeared at first to be a straightforward motion reflected the nature of the complex and multi-faceted debate on inclusivity in the community. Whilst the concept was widely supported, the unconscious bias in the system cannot be changed by the mere assertion that tribunals with woman arbitrators are “better”. The women were still right on this score.
24 January 2018
A Three-Part Workshop: “Arbitration at the SIAC: The Inside Track”
Workshop 1: The SIAC Court and the SIAC Secretariat
Kicking off a new three-part series of workshops co-organised by the Singapore International Arbitration Centre (SIAC) and the Chartered Institute of Arbitrators, Singapore (CIArb, Singapore), the first session of “Arbitration at the SIAC: The Inside Track”, was held on 24 January 2018.
Eager to gain a glimpse behind the proverbial curtain at SIAC, a packed crowd comprising both young and experienced practitioners, in-house counsel and arbitrators came to hear Mr Gary Born (President, SIAC Court of Arbitration; Chair, International Arbitration Practice Group, Wilmer Cutler Pickering Hale and Dorr LLP), Mr Kevin Nash (Deputy Registrar & Centre Director, SIAC), Ms Aliona Bitkivskaja (Associate Counsel, SIAC), Mr Christopher Bloch (Associate Counsel, SIAC), and moderator Mr Timothy Cooke (Partner, Stephenson Harwood LLP), expound on the roles and interplay between the SIAC Court and the SIAC Secretariat.
With Mr Born present to weigh in on how the President and the SIAC Court dealt with some of the applications filed by parties under the SIAC Rules 2016, including applications for emergency arbitration, Expedited Procedure, consolidation and joinder, and prima facie decisions on jurisdiction, participants were able to gain valuable insights on how to develop an effective case strategy in cases administered under the SIAC Rules.
In terms of procedure, Mr Born noted that the President and the SIAC Court would look to the Secretariat to brief them on the facts, procedural complexities and competing arguments for each case. This briefing allowed the President and the Court Members to perform a detailed analysis of the merits of each application in complex cases where time was often of the essence. For efficiency, many of these applications to the SIAC Court were handled by a three-member ‘Committee’ of the SIAC Court.
Unsurprisingly, one of the hottest topics raised by the audience related to various provisions in the SIAC Rules concerned with speed and costs, showing that this remained an important factor for parties.
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| Members of the audience |
Left to Right: Gary Born, Christopher Bloch, Timothy Cooke, Aliona Bitkivskaja and Kevin Nash |
The first of these topics to be addressed was the revision to the emergency arbitration provisions in the SIAC Rules 2016 – namely the switch to a flat fee for emergency arbitrators (revised from the prior ad valorem scale where emergency arbitrators’ fees were capped at 20% of a sole arbitrator’s fee cap under the SIAC Rules 2013). Mr Nash noted that SIAC had seen this as an important change, noting that “there has been an uptick in the number of EA applications coming in since the amendment, presumably because of the greater predictability and cost savings with the new fixed fee”.
Mr Bloch noted anecdotally that “parties often file their emergency arbitrations just before close of business on either a Friday night or eve of a public holiday – clearly a strategic decision on their part – but with our tight timelines, SIAC [would] get the emergency arbitrator appointed and underway, whether that [meant] being in the office on Saturday or over Chinese New Year”. The pro tip received: Give SIAC an indication that you would be preparing to file an emergency arbitration so that the internal processes can be begun to ensure the quickest turnaround possible.
Another “special procedure” which received much attention for its time and cost saving potential was SIAC’s Expedited Procedure, which allowed for a dispute to be heard, from constitution of the tribunal to final award, within 6 months. In response to questions on timelines, the Secretariat confirmed that the overwhelming majority of tribunals were able to meet the deadline. Mr Born explained that this may be due to the robust approach adopted by SIAC in consideration of these applications. For instance, even if an application for Expedited Procedure met any of the threshold criterion under Rule 5.1 of the SIAC Rules, the President maintained the discretion to reject the application where the surrounding circumstances suggested that the regular procedure should be maintained. In 2017, SIAC received 107 applications for Expedited Procedure, and of those, 55 have been accepted, a 51% acceptance rate.
As the discussion moved to the finer points of the Expedited Procedure, the panel received a comment on the possibility of SIAC affirmatively taking into account the efficiency with which an arbitrator dealt with a dispute when determining the costs of the arbitration, noting that sometimes it was substantially more difficult for an arbitrator to hear a case on a short timeframe and issue a quick award. The question then followed as to “whether an arbitrator should be paid more for efficient handling of an Expedited Procedure case?” Upon a straw poll being conducted by Mr Born on the spot, the crowd seemed split, but the majority were receptive to this proposal.
In addition to questions on these special procedures, there was significant interest from the audience on the general financial management of arbitrations and remuneration of tribunals in SIAC-administered cases. When discussing the fee structure, Ms Bitkivskaja noted that the SIAC Rules 2016 provided for a default ad valorem fee scale which linked the fees to the amount in dispute, but also noted that parties were free to agree to alternative remuneration for arbitrators. She described one method of alternative remuneration that SIAC had encountered which she coined a “hybrid” system – where arbitrators were paid on an hourly basis, but their fees were capped based on the amount in dispute. In this regard, Ms Bitkivskaja explained that SIAC’s Schedule of Fees (and even such a hybrid system) gave parties visibility on the potential costs of arbitration, “allowing parties to control their financial exposure and budgets”.
As this was the opening salvo to the three-part series, the panel set the tone for the full and frank discussion of the SIAC Secretariat’s processes and procedures. Mr Cooke summarised that the participants had confirmed what he had previously suspected – namely, that there was an incredible amount of interest from the community in getting a look behind the curtain and gaining insight on how SIAC, and institutions generally, operate.
Mr Bloch noted anecdotally that “parties often file their emergency arbitrations just before close of business on either a Friday night or eve of a public holiday – clearly a strategic decision on their part – but with our tight timelines, SIAC [would] get the emergency arbitrator appointed and underway, whether that [meant] being in the office on Saturday or over Chinese New Year”. The pro tip received: Give SIAC an indication that you would be preparing to file an emergency arbitration so that the internal processes can be begun to ensure the quickest turnaround possible.
Another “special procedure” which received much attention for its time and cost saving potential was SIAC’s Expedited Procedure, which allowed for a dispute to be heard, from constitution of the tribunal to final award, within 6 months. In response to questions on timelines, the Secretariat confirmed that the overwhelming majority of tribunals were able to meet the deadline. Mr Born explained that this may be due to the robust approach adopted by SIAC in consideration of these applications. For instance, even if an application for Expedited Procedure met any of the threshold criterion under Rule 5.1 of the SIAC Rules, the President maintained the discretion to reject the application where the surrounding circumstances suggested that the regular procedure should be maintained. In 2017, SIAC received 107 applications for Expedited Procedure, and of those, 55 have been accepted, a 51% acceptance rate.
As the discussion moved to the finer points of the Expedited Procedure, the panel received a comment on the possibility of SIAC affirmatively taking into account the efficiency with which an arbitrator dealt with a dispute when determining the costs of the arbitration, noting that sometimes it was substantially more difficult for an arbitrator to hear a case on a short timeframe and issue a quick award. The question then followed as to “whether an arbitrator should be paid more for efficient handling of an Expedited Procedure case?” Upon a straw poll being conducted by Mr Born on the spot, the crowd seemed split, but the majority were receptive to this proposal.
In addition to questions on these special procedures, there was significant interest from the audience on the general financial management of arbitrations and remuneration of tribunals in SIAC-administered cases. When discussing the fee structure, Ms Bitkivskaja noted that the SIAC Rules 2016 provided for a default ad valorem fee scale which linked the fees to the amount in dispute, but also noted that parties were free to agree to alternative remuneration for arbitrators. She described one method of alternative remuneration that SIAC had encountered which she coined a “hybrid” system – where arbitrators were paid on an hourly basis, but their fees were capped based on the amount in dispute. In this regard, Ms Bitkivskaja explained that SIAC’s Schedule of Fees (and even such a hybrid system) gave parties visibility on the potential costs of arbitration, “allowing parties to control their financial exposure and budgets”.
As this was the opening salvo to the three-part series, the panel set the tone for the full and frank discussion of the SIAC Secretariat’s processes and procedures. Mr Cooke summarised that the participants had confirmed what he had previously suspected – namely, that there was an incredible amount of interest from the community in getting a look behind the curtain and gaining insight on how SIAC, and institutions generally, operate.
SIAC Year in Review 2017
Happy New Year from all of us at SIAC and best wishes for a happy, healthy and successful 2018.
As we welcome the new year, we look back fondly at some of the highlights of 2017.
| 1 | New SIAC Board and Court Members |
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| Left to Right: Mr Chan Leng Sun, SC, Mr Chong Yee Leong, Mr Tham Sai Choy, Ms Catherine Amirfar, Mr Nigel Blackaby, Professor Lawrence Boo, and Mr Alan Thambiayah |
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In April 2017, SIAC welcomed three new directors to SIAC’s Board of Directors under the chairmanship of Mr Davinder Singh, SC. They are Mr Chan Leng Sun, SC, of Baker McKenzie Wong & Leow, Mr Chong Yee Leong of Allen & Gledhill LLP, and Mr Tham Sai Choy, formerly the Chairman of KPMG in Asia Pacific. Mr Chan was appointed Deputy Chairman.
Four new members were also appointed to SIAC’s Court of Arbitration in April 2017, which continues under the leadership of Mr Gary Born as its President. They are Professor Lawrence Boo and Mr Alan Thambiayah of The Arbitration Chambers, Ms Catherine Amirfar of Debevoise & Plimpton LLP, and Mr Nigel Blackaby of Freshfields Bruckhaus Deringer. |
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| 2 | Proposal on Cross-Institution Consolidation Protocol |
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In December 2017, SIAC announced its proposal on cross-institution cooperation for the consolidation of international arbitral proceedings. The SIAC proposal, which was initiated by Mr Gary Born, the President of the SIAC Court of Arbitration, is detailed in letters from Mr Born to other international arbitral institutions together with an attached memorandum. The memorandum proposes the adoption of a protocol by arbitral institutions permitting the cross-institution consolidation of arbitral proceedings subject to different institutional arbitration rules.
Through institutional cooperation, the cross-institution consolidation proposal is designed to facilitate the efficient and enforceable resolution of international commercial disputes, which will lead to significant gains for parties. |
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| 3 | Opening of SIAC’s Second Representative Office in GIFT City, India |
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In August 2017, SIAC announced the opening of its second representative office in India (after its Mumbai representative office which was established in 2013), in the International Financial Services Centre in Gujarat International Finance Tec-City (GIFT IFSC), Gujarat.
The opening of a second SIAC office in India in GIFT IFSC will allow SIAC to participate in GIFT’s economic development through the provision of a world-class dispute resolution mechanism to businesses and investors within GIFT IFSC, and will deepen SIAC’s existing ties with the legal and business communities in India. |
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| 4 | New Hires in the SIAC Secretariat |
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In the course of 2017, SIAC strengthened its Secretariat workforce with six new associate counsel hires who are qualified in India, Indonesia, Malaysia, and Singapore. Our new colleagues are Ms Allison Goh, Ms Lim Shi Jean, Ms Pauline Low, Mr Piyush Prasad, Mr Kendista Wantah and Ms Angela Yap. With the latest additions to the team, SIAC now has lawyers from these and the following other countries: Canada, China, and USA.
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| 5 | SIAC Academy |
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The inaugural SIAC Academy, titled “Time and Cost Savers at SIAC: Emergency Arbitration, Expedited Procedure and Early Dismissal”, was held in Singapore on 6 and 7 November 2017, to provide practical, “hands-on” training for arbitration practitioners and arbitrators.
Mr Gary Born, President of the SIAC Court of Arbitration, chaired the teaching faculty which included Mr Chan Leng Sun, SC, Deputy Chairman of SIAC, members of the SIAC Court of Arbitration (Mr Toby Landau QC, Professor Lawrence Boo, Mr Alan Thambiayah) and other international arbitration luminaries. Ms Indranee Rajah, SC, Senior Minister of State for the Ministry of Law and Ministry of Finance, made a special appearance in a frank, highly interesting and lively discussion with Mr Born on developments in international arbitration in Singapore and in the region. SIAC Court members, Professor Lucy Reed and Mr Toby Landau QC also spoke as panellists in an engaging lunchtime fireside chat. The Academy attracted a good turnout from both Singapore as well as overseas delegates from Bulgaria, China, Hong Kong, India, Indonesia, Japan, Korea, Malaysia, the United Kingdom and Vietnam. |
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| Left to Right: Mr Kent Phillips, Mr Richard Tan, Professor Lawrence Boo, Mr Thio Shen Yi, SC and Mr Andrew Yeo | Left to Right: Mr Gary Born, Ms Lim Seok Hui, Ms Indranee Rajah, SC, Senior Minister of State, Ministry of Law and Ministry of Finance, and Mr Davinder Singh, SC |
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| Left to Right: Mr Alastair Henderson, Dr Michael Hwang, SC, Mr Gary Born and Mr Andre Yeap, SC | Left to Right: Mr Chou Sean Yu, Mr Elliott Geisinger, Mr Chan Leng Sun, SC, Mr Paul Sandosham and Mr Alan Thambiayah |
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| 6 | SIAC-CIL Academic-Practitioner Colloquium |
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SIAC and the Centre for International Law, NUS (CIL), jointly organised the inaugural SIAC-CIL Academic-Practitioner Colloquium in November 2017. The format for the workshop involved two roundtable sessions, during which an academic presented her research paper on a current hot arbitration topic before a panel of eminent international arbitration experts who then engaged in an analytical discussion before an audience. The two academics were Ms Elsa Sardinha and Dr Ula Cartwright-Finch, and the event featured a stellar line-up of panellists, including SIAC Court President, Mr Gary Born, members of the SIAC Court of Arbitration (Mr Toby Landau QC, Professor Lucy Reed and Mr Alan Thambiayah) and SIAC Board member, Mr Chelva Rajah, SC.
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| Left to Right: Ms Elsa Sardinha, Professor Muthucumaraswamy Sornarajah, Professor Nicolas Jansen Calamita, Ms Koh Swee Yen and Mr Gary Born | Left to Right: Dr Ula Cartwright-Finch, Mr Toby Landau QC, Mr Chelva Rajah, SC, Professor Lucy Reed and Mr Alan Thambiayah |
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| 7 | SIAC Conferences and Seminars |
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In 2017, SIAC organised a series of conferences and seminars in New Delhi, St. Petersburg, Seoul, Tokyo, and Xiamen. Ms Indranee Rajah, SC, Senior Minister of State for the Ministry of Law and Ministry of Finance, Singapore, delivered the opening address at the SIAC Hard Talk in New Delhi, as well as the special address at the SIAC India Conference. The Hon’ble Mr Justice Dipak Misra, Chief Justice of India delivered the special address for the SIAC Hard Talk, which was attended by the Hon’ble Mr Justice A K Sikri of the Supreme Court of India, Justice Gita Mittal, Acting Chief Justice of the High Court of Delhi and several other judges of the Delhi High Court.
SIAC also partnered with other institutions to hold joint seminars and events in Shanghai with the Shanghai International Arbitration Centre (SHIAC), in Seoul with the Korea In-House Counsel Association (KICA) and Korean Commercial Arbitration Board (KCAB), and in Singapore with the Chartered Institute of Arbitrators, Singapore branch. Panellists included the President and members of the SIAC Board and Court, as well as leading arbitration practitioners and in-house counsel. The events were well-attended by private practitioners, in-house counsel, government officials and members of the academe. |
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| Ms Indranee Rajah, SC, Senior Minister of State, Ministry of Law and Ministry of Finance, delivering the Special Address at the SIAC India Conference in New Delhi | Left to Right (foreground): Hon’ble Mr Justice Dipak Misra, Chief Justice of India, Hon’ble Mr Justice A K Sikri and Mr Rajiv K. Luthra at the SIAC Hard Talk in New Delhi |
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| 8 | New YSIAC Committee |
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In January 2017, the YSIAC Committee, led by co-chairs Mr Ankit Goyal and Ms Koh Swee Yen, welcomed new committee members, Ms Jeong Hye Ahn, Ms Holly Blackwell, Mr Rishab Gupta, Mr Moazzam Khan, Mr Nicholas Lingard and Ms Julie Raneda.
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| 9 | YSIAC Conference 2017 and other YSIAC Events |
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The biennial YSIAC Conference titled “Evolution and Innovation: Keeping Pace with the Future of Arbitration” was held in Singapore on 9 June 2017. The conference attracted almost 200 delegates from 12 jurisdictions, with delegates from places as far away as Sint Maarten, the United Kingdom and the United States.
In conjunction with the YSIAC Conference, SIAC also organised the third YSIAC Essay competition, which received a record 73 entries from 25 jurisdictions. The winner was Mr Gabriel Li of Drew & Napier LLC. The 1st Runner Up was Ms Amy Seow of Rajah & Tann Singapore LLP and the 2nd Runner up was Mr Parul Kumar of Luthra & Luthra Law Offices. Other YSIAC events held in 2017 included the YPG KLRCA-YSIAC Advocacy Workshop in Kuala Lumpur, YSIAC Lunchtime Events in Singapore, YSIAC Oral Advocacy Workshop in New Delhi, and the YSIAC-KOCIA YAPF Fireside Chat in Seoul. |
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| Left to Right: Mr Davinder Singh, SC, Ms Koh Swee Yen, Ms Lim Seok Hui, Mr Gary Born and Mr Duncan Matthews QC at the YSIAC Conference | Left to Right: Mr Emmanuel Gaillard, Mr Toby Landau QC, Ms Foo Yuet Min, Ms Lim Seok Hui, Mr Darius J. Khambata, SC and Mr Jern-Fei Ng at the YSIAC Conference |
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| Delegates during the Cocktail Evening after the YSIAC Conference | Left to Right: Mr Bhaskar Chandran, Mr Cameron Ford, Mr Chelva Rajah, SC, Ms Geraldine Lim and Ms Valerie Tan at the YSIAC Conference |
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| 10 | Cooperation Agreement with Arbitrator Intelligence |
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In June 2017, SIAC entered into a Cooperation Agreement with Arbitrator Intelligence (AI), an entity affiliated with Penn State Law, to promote the use of the Arbitrator Intelligence Questionnaire (AIQ). The AIQ is a new feedback mechanism that will collect objective information and professional assessments of arbitrators’ case management skills and decision-making from users following the conclusion of their arbitrations. The data will be anonymised and be published only with the arbitrator’s consent. They will appear in reports which will be made available to subscribers.
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We would like to express our heartfelt thanks and appreciation to members of the SIAC Board, Court and the YSIAC Committee as well as all of our partners and friends in the local and international legal and business communities for their many contributions and consistent support.
With best regards,
The SIAC Team
19 December 2017
Proposal on Cross-Institution Consolidation Protocol
The Singapore International Arbitration Centre (SIAC) is pleased to announce its proposal on cross-institution cooperation for the consolidation of international arbitral proceedings. The SIAC proposal, which was initiated by Mr Gary Born, the President of the SIAC Court of Arbitration, is detailed in letters from Mr Born to other international arbitral institutions together with an attached memorandum. The memorandum proposes the adoption of a protocol by arbitral institutions permitting the cross-institution consolidation of arbitral proceedings subject to different institutional arbitration rules.
Through institutional cooperation, the cross-institution consolidation proposal is designed to facilitate the efficient and enforceable resolution of international commercial disputes, which will lead to significant gains for parties. Mr Born commented, “We welcome cooperation with other leading arbitral institutions around the world in further enhancing the efficiency and efficacy of the arbitral process. The cross-institution consolidation protocol is an important step in this direction and we look forward to working with our colleagues at other institutions in implementing the proposal.”
Rules on consolidation, joinder and intervention in international arbitration play an important role in the international arbitral process. By allowing related issues to be resolved in a single proceeding, consolidation permits more efficient and cost-effective dispute resolution, whilst minimising the risk of inconsistent decisions in related disputes.
These benefits have led a number of arbitral institutions to adopt provisions in their institutional rules that allow the consolidation of related disputes and/or the joinder of additional parties. The 2016 SIAC Arbitration Rules contain a state-of-the art set of provisions for consolidation, as do the rules of other leading arbitral institutions, including the International Chamber of Commerce Court of Arbitration (ICC).
Importantly, however, the consolidation provisions of existing institutional rules of leading arbitral institutions do not permit the consolidation of arbitrations that are subject to different sets of institutional arbitration rules (for example, SIAC and ICC arbitrations), even if they satisfy the other criteria for consolidation. Instead, existing institutional rules provide for the consolidation of arbitral proceedings only where the parties’ various arbitration agreements are compatible, including by incorporating the same institutional arbitration rules. Thus, a SIAC arbitration can be consolidated with another SIAC arbitration, but not with an ICC arbitration; likewise, an ICC arbitration can be consolidated with another ICC arbitration, but an ICC arbitration cannot be consolidated with a SIAC arbitration.
The lack of any existing mechanism for “cross-institution” consolidation of arbitrations subject to different institutional arbitration rules substantially limits the types of disputes that can be consolidated. In turn, this prevents related disputes, which otherwise meet the criteria for consolidation, from being heard together and thus limits the ability of arbitration to reach its full potential as a dispute resolution mechanism to serve the needs of users.
SIAC has sought to address this shortcoming in the existing treatment of consolidation by arbitral institutions through enhanced institutional cooperation. In particular, the efficiency and efficacy of the international arbitral process would be materially improved by the adoption of a consolidation protocol by leading arbitral institutions, providing for the cross-institution consolidation of arbitrations, where such proceedings otherwise satisfy the criteria for consolidation.
Mr Born and SIAC have therefore proposed a cross-institution consolidation protocol, which leading arbitral institutions could adopt and incorporate into their institutional arbitration rules and utilise for administering consolidated arbitrations:
a. The consolidation protocol would set out a new, standalone mechanism for addressing the timing of consolidation applications, the appropriate decision-maker (i.e. the institution(s) or the tribunal) and the applicable criteria to determine when arbitral proceedings are sufficiently related to warrant cross-institution consolidation. A joint committee appointed from members of the Courts or Boards of the concerned arbitral institutions would be mandated to decide the applications, with a specific committee being appointed for each application.
b. Once consolidated, the proceedings should be administered only by one institution applying its own arbitration rules. The institutions can agree on objective criteria to determine which institution should administer the consolidated dispute, such as the number of disputes subject to the different rules or the time of commencement of the first proceeding.
The arbitral institutions’ rules would be amended to incorporate the consolidation protocol. By adopting the institutional rules in their arbitration agreements, parties would in turn give the protocol the same contractual force as other provisions of the institutional rules. The consolidation protocol would not change the current requirement that the arbitration agreements designate the same seat.
The consolidation of arbitral proceedings offers important benefits to parties that help reduce the complexity, cost and time of proceedings. The cross-institution consolidation of arbitrations under different institutional rules takes these benefits further, making arbitration an even more effective system of dispute resolution.
Mr Davinder Singh, SC, Chairman of SIAC, observed that “SIAC is indebted to Mr Born for his continuing efforts to enhance SIAC’s role in thought leadership. Arbitral institutions play an increasingly important role in progressing international arbitration and SIAC is confident that this proposal offers arbitral institutions the opportunity to engage once again in thought-leadership.”
Ms Lim Seok Hui, CEO of SIAC, commented, “This proposal represents an opportunity for arbitral institutions to cooperate in the joint development of a framework for complex arbitrations, and materially enhance the international arbitral process.”
The memorandum that discusses SIAC’s proposal for cross-institution consolidation can be accessed here, and comments on the proposal can be sent to This email address is being protected from spambots. You need JavaScript enabled to view it. by 31 January 2018.
SIAC looks forward to receiving comments from, and working together with, users and other arbitral institutions to further explore and implement the proposal for cross-institution consolidation.
For more information, please contact:
Singapore International Arbitration Centre
T: +65 6713 9777
E: This email address is being protected from spambots. You need JavaScript enabled to view it.
W: www.siac.org.sg
9 November 2017
SIAC-KCAB Seminar on Multiple Proceedings in Multiple Fora - Strategies and Synergies
By Richard Jung Yeun Won, Foreign Attorney, Shin & Kim
The SIAC-KCAB joint seminar, “Multiple Proceedings in Multiple Fora – Strategies and Synergies”, covered everything one would expect and more from a seminar addressing a pertinent and timely topic in the ever-evolving world of international arbitration.
SIAC and KCAB jointly hosted the seminar at Seoul Global Center on 9 November 2017, as part of the week-long Seoul ADR Festival. Over 75 practitioners and in-house counsel attended the event, thanks to the all-star lineup of speakers and panellists who addressed joinder and consolidation provisions as a means to improve efficiency when dealing with multiple parties, contracts, and claims.
Ms Lim Seok Hui (CEO, SIAC and SIMC) welcomed the attendees by stressing the importance of time and cost considerations when developing strategies for cross-border projects and transactions. She also articulated a vision in which Singapore and Seoul would work in synchrony as arbitration hubs in the APAC region, as what the arbitration hubs of Paris and Geneva had done for Europe.
Professor Lucy Reed (Member, SIAC Court of Arbitration; Director, Centre for International Law (Singapore); Professor, Faculty of Law, National University of Singapore) delivered the Keynote Address by describing how national laws and arbitration rules were in conflict, and how each jurisdiction had the responsibility to respect the rules of other jurisdictions while fulfilling its own responsibilities and duties to the parties. While she stressed the importance of joinder and consolidation provisions as tools to overcome consent requirements when adding additional parties, she also wondered if, in practice, joinder and consolidation provisions actually improved efficiency of the arbitral proceedings and led to cost savings for the parties.
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| Members of the audience |
Left to Right: Paul Sandosham, Professor Lucy Reed, Kap-You (Kevin) Kim, Dr Eun Young Park and Beomsu Kim |
The first panel session included leading arbitrators and practitioners from across Asia, with each panellist wearing the hat of a different arbitral institution to discuss the different joinder and consolidation rules. Mr Kap-You (Kevin) Kim (Chair, International Arbitration Committee, KCAB; Head, International Arbitration & Litigation Practice Group, Bae, Kim & Lee LLC) was the moderator for the first panel session, which included panellists Mr Beomsu Kim (Managing Partner, KL Partners), Dr Eun Young Park (Member, SIAC Court of Arbitration; Partner, Kim & Chang), Professor Lucy Reed, and Mr Paul Sandosham (Partner, Clifford Chance).
Some notable points included:
• Professor Lucy Reed, representing the ICC in this role-play, noted that with respect to making final decisions regarding consolidation and joinder, the ICC court was the main actor when there was a dispute, and not the tribunal;
• Mr Paul Sandosham, representing SIAC, noted that applications for joinder and consolidation could be made to the SIAC court or the tribunal, essentially providing applicants two separate opportunities to join a party or consolidate claims, thereby making SIAC’s rules an attractive choice;
• Dr Eun Young Park, representing the LCIA, noted that the power to join or consolidate lay with the tribunal, but that the power to approve lay with the LCIA court; and
• Mr Beomsu Kim, representing the KCAB, noted how the simpler and more straightforward KCAB rules, which implemented a joinder provision in 2016, only allowed for parties to the current arbitration to apply for joinder and not third parties such as in other jurisdictions.
The afternoon’s second panel session included younger attorneys from a broad spectrum of international arbitration practices in Asia. Ms Sae Youn Kim (Partner, Yulchon LLC), in moderating the panel, likened the experienced panellists of the first session to “generals” and the panellists of the second session to “soldiers” who executed the generals’ commands. The afternoon’s “soldiers” included Ms Dana Kim (Of Counsel, Herbert Smith Freehills LLP), Mr Sam Kim (Foreign Attorney, Yoon & Yang LLC), Ms Hyunyang Koo (Associate, Lee & Ko), Ms Seungmin Lee (Partner, Shin & Kim), and Mr Matthew Secomb (Partner, White & Case LLP).
Some notable points included:
• Professor Lucy Reed, representing the ICC in this role-play, noted that with respect to making final decisions regarding consolidation and joinder, the ICC court was the main actor when there was a dispute, and not the tribunal;
• Mr Paul Sandosham, representing SIAC, noted that applications for joinder and consolidation could be made to the SIAC court or the tribunal, essentially providing applicants two separate opportunities to join a party or consolidate claims, thereby making SIAC’s rules an attractive choice;
• Dr Eun Young Park, representing the LCIA, noted that the power to join or consolidate lay with the tribunal, but that the power to approve lay with the LCIA court; and
• Mr Beomsu Kim, representing the KCAB, noted how the simpler and more straightforward KCAB rules, which implemented a joinder provision in 2016, only allowed for parties to the current arbitration to apply for joinder and not third parties such as in other jurisdictions.
The afternoon’s second panel session included younger attorneys from a broad spectrum of international arbitration practices in Asia. Ms Sae Youn Kim (Partner, Yulchon LLC), in moderating the panel, likened the experienced panellists of the first session to “generals” and the panellists of the second session to “soldiers” who executed the generals’ commands. The afternoon’s “soldiers” included Ms Dana Kim (Of Counsel, Herbert Smith Freehills LLP), Mr Sam Kim (Foreign Attorney, Yoon & Yang LLC), Ms Hyunyang Koo (Associate, Lee & Ko), Ms Seungmin Lee (Partner, Shin & Kim), and Mr Matthew Secomb (Partner, White & Case LLP).
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| Left to Right: Matthew Secomb, Seungmin Lee, Hyunyang Koo, Sae Youn Kim, Sam Kim and Dana Kim |
Closing Remarks delivered by Kap-You (Kevin) Kim |
The panellists of the second session shared their experiences in working with complicated arbitration cases, and the lessons that they had learned along the way. Mr Matthew Secomb described how some parties had used joinder and consolidation as tools for tactical advantages, and labelled parties who wanted to keep things simple as “angels”, and parties who sought to complicate matters as “devils”.
Mr Kap-You (Kevin) Kim brought the afternoon to a close, noting that with the number of multiparty international disputes growing in Korea, the timing of the seminar could not have been more opportune.
Mr Kap-You (Kevin) Kim brought the afternoon to a close, noting that with the number of multiparty international disputes growing in Korea, the timing of the seminar could not have been more opportune.
8 November 2017
YSIAC-KOCIA YAPF Seoul Fireside Chat with Professor Lucy Reed
By Curie Lee, Yulchon LLC
On 8 November 2017, YSIAC and KOCIA YAPF hosted the “Fireside Chat with Professor Lucy Reed” at Yulchon LLC, attracting a vibrant crowd of over 55 attendees from a variety of professional and legal backgrounds. Among the attendees were in-house counsel, practising lawyers and academics.
The event opened with a Welcome Address by Ms Lim Seok Hui (CEO, SIAC and SIMC), who outlined the recent developments in international dispute resolution around the globe. Ms Lim’s address was followed by the highlight of the event, the Fireside Chat with Professor Reed. The chat was moderated by Ms Jeong Hye Ahn (Member, YSIAC Committee; Partner, Yulchon LLC) and Mr Jern-Fei Ng (Member, YSIAC Committee; Barrister, Essex Court Chambers).
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| Left to Right: Professor Lucy Reed, Jeong Hye Ahn and Jern-Fei Ng |
Left to Right: Sae Youn Kim, Professor Lucy Reed, Lim Seok Hui, Jeong Hye Ahn, Jern-Fei Ng and Seah Lee |
The Chat provided a forum for discussing hot topics such as challenges and opportunities arising from recent developments in international commercial and investor-state arbitration, gender diversity in international arbitration, and other burning questions that the participants wished to pose to Professor Reed. Of particular interest to the attendees was the future of mediation and arbitration in Seoul. Professor Reed provided insight on how Seoul could develop into an arbitration hub and the ways in which Korea could establish mediation as one of the primary mechanisms of dispute resolution.
The event ended with Closing Remarks by Ms Sae Youn Kim (Partner, Yulchon LLC), who shared her personal observations and insights into what it meant to be a practitioner in the field of international arbitration. Emphasising the vast diversity of issues that may arise in international arbitration, Ms. Kim talked about the intellectually challenging yet highly rewarding nature of her work. The pursuit of knowledge is never-ending for a practitioner of international arbitration.
The event ended with Closing Remarks by Ms Sae Youn Kim (Partner, Yulchon LLC), who shared her personal observations and insights into what it meant to be a practitioner in the field of international arbitration. Emphasising the vast diversity of issues that may arise in international arbitration, Ms. Kim talked about the intellectually challenging yet highly rewarding nature of her work. The pursuit of knowledge is never-ending for a practitioner of international arbitration.
7 November 2017
SIAC-CIL Academic-Practitioner Colloquium
By Daniel Ow, Associate, WongPartnership LLP
The inaugural SIAC-CIL Academic-Practitioner Colloquium on 7 November 2017 was significant as it marked an important development in the Singapore arbitration arena. Essentially, the event provided academics with a platform to showcase their current research work in the field of international arbitration, and to test their ideas on a panel of arbitration practitioners and fellow academics. In turn, the event provided practitioners with an opportunity to interact with academics researching on issues that might have relevance to their areas of practice. The event was well attended, and attracted an audience of 100 attendees, comprising corporate counsel, practising lawyers and academics.
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| Left to Right: Professor Lucy Reed, Toby Landau QC and Lim Seok Hui |
Opening Address delivered by Toby Landau QC |
Mr Toby Landau QC (Member, SIAC Court of Arbitration; Barrister and Arbitrator, Essex Court Chambers) kicked off the event with opening remarks explaining the format and purpose of the seminar. This was then followed by the paper presentations by the two academics and panel discussions.
The two researchers who presented at the inaugural event provided an insightful discussion on the integration of a two-tier court system into new trade agreements, and also shed light on how a witness’ memory might be distorted and the impact of this on witness testimony in international arbitration. The panel sessions comprising seasoned arbitration practitioners also provided participants with candid, and at times, critical insight into the realities of international arbitration practice.
Paper Presentation 1: The New EU-Led Approach to Investor-State Arbitration: The Investment Tribunal System in the Comprehensive Economic Trade Agreement (CETA) and the EU-Vietnam Free Trade Agreement
Ms Elsa Sardinha (Research Associate & Practice Fellow to Chris Thomas QC, Investment Law & Policy Group, Centre for International Law (Singapore); National University of Singapore) presented the first paper. The first panel session was moderated by Professor Nicolas Jansen Calamita (Head, Investment Treaty Law & Policy, Principal Research Fellow; Research Associate Professor, Centre for International Law (Singapore); National University of Singapore), and comprised Mr Gary Born (President, SIAC Court of Arbitration; Chair, International Arbitration Practice Group, Wilmer Cutler Pickering Hale and Dorr LLP), Ms Koh Swee Yen (Co-Chair, YSIAC Committee; Partner, WongPartnership LLP) and Professor Muthucumaraswamy Sornarajah (C J Koh Professor, Faculty of Law, National University of Singapore).
Since 2004, treaties have become more complex and more precisely drafted to provide a richer context for interpretation. Two new treaties that were recently introduced – the Canada-EU Comprehensive Economic Trade Agreement (CETA) and the EU-Vietnam Free Trade Agreement (EU-Vietnam FTA) – were reflective of this shift in treaty-drafting practice. Both treaties established a two-tier investment tribunal system (ITS), where a permanent appellate tribunal has the power to review tribunal decisions. The ITS provides for a spectrum of possible challenges to arbitral awards by incorporating the grounds for annulment in Article 52 of the ICSID Arbitration Rules into both treaties, together with the power to review for errors of law and fact. Further, the CETA has a 24-month deadline for the final award to be rendered whereas the EU-Vietnam FTA has an 18-month deadline for the final award to be rendered.
The two researchers who presented at the inaugural event provided an insightful discussion on the integration of a two-tier court system into new trade agreements, and also shed light on how a witness’ memory might be distorted and the impact of this on witness testimony in international arbitration. The panel sessions comprising seasoned arbitration practitioners also provided participants with candid, and at times, critical insight into the realities of international arbitration practice.
Paper Presentation 1: The New EU-Led Approach to Investor-State Arbitration: The Investment Tribunal System in the Comprehensive Economic Trade Agreement (CETA) and the EU-Vietnam Free Trade Agreement
Ms Elsa Sardinha (Research Associate & Practice Fellow to Chris Thomas QC, Investment Law & Policy Group, Centre for International Law (Singapore); National University of Singapore) presented the first paper. The first panel session was moderated by Professor Nicolas Jansen Calamita (Head, Investment Treaty Law & Policy, Principal Research Fellow; Research Associate Professor, Centre for International Law (Singapore); National University of Singapore), and comprised Mr Gary Born (President, SIAC Court of Arbitration; Chair, International Arbitration Practice Group, Wilmer Cutler Pickering Hale and Dorr LLP), Ms Koh Swee Yen (Co-Chair, YSIAC Committee; Partner, WongPartnership LLP) and Professor Muthucumaraswamy Sornarajah (C J Koh Professor, Faculty of Law, National University of Singapore).
Since 2004, treaties have become more complex and more precisely drafted to provide a richer context for interpretation. Two new treaties that were recently introduced – the Canada-EU Comprehensive Economic Trade Agreement (CETA) and the EU-Vietnam Free Trade Agreement (EU-Vietnam FTA) – were reflective of this shift in treaty-drafting practice. Both treaties established a two-tier investment tribunal system (ITS), where a permanent appellate tribunal has the power to review tribunal decisions. The ITS provides for a spectrum of possible challenges to arbitral awards by incorporating the grounds for annulment in Article 52 of the ICSID Arbitration Rules into both treaties, together with the power to review for errors of law and fact. Further, the CETA has a 24-month deadline for the final award to be rendered whereas the EU-Vietnam FTA has an 18-month deadline for the final award to be rendered.
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| Elsa Sardinha |
Left to Right: Elsa Sardinha, Professor Muthucumaraswamy Sornarajah, Professor Nicolas Jansen Calamita, Koh Swee Yen and Gary Born |
Elsa analysed the ITS under these two treaties, and argued that the treaties contained some potentially problematic features, such as the removal of the involvement of disputing parties in the selection of the tribunal members and the extremely tight deadlines to render final awards. In particular, considering the number of rounds of pleadings and the time that the tribunal would require to digest submissions in order to reach its decision, she suggested that the short deadline was unrealistic.
While the creation of the ITS aimed to solve the problem of the lack of independence and impartiality of some arbitrators, the panellists questioned whether this problem was in reality so prevalent in practice that it warranted such a drastic change. The panellists also pointed out other problems with the ITS, such as the limited term of tribunal members and the potential effect of the lack of tenure on tribunal members’ decision-making, and the disadvantages which might be faced by States with less bargaining power. Whilst there may be some potential benefits of implementing such a tribunal system, the panellists did acknowledge that such a radical change should be cautiously proceeded with.
Paper Presentation 2: Human Memory and Witness Evidence in International Arbitration
Dr Ula Cartwright-Finch (Managing Associate, Linklaters LLP, London) presented the second paper on “Human Memory and Witness Evidence in International Arbitration”. The second panel session was moderated by Mr Chelva Rajah, SC (Member, SIAC Board of Directors; Managing Partner, Tan Rajah & Cheah), and comprised Mr Toby Landau QC, Professor Lucy Reed (Member, SIAC Court of Arbitration; Director, Centre for International Law (Singapore); Professor, Faculty of Law, National University of Singapore) and Mr Alan Thambiayah (Member, SIAC Court of Arbitration; Professional Arbitrator, The Arbitration Chambers).
The accuracy of a witness’ memory is crucial to the various stages of an international arbitration, from the initial investigation, to the focused investigation, the preparation of witness statement and the hearing.
However, the ability of witnesses accurately to recollect events from the past and provide reliable testimony has always been a controversial issue in international arbitration. Drawing on research in psychology and neuroscience, Ula suggested that the human memory undergoes a continuous reconstructive process that is susceptible to distortion.
In her presentation, Ula discussed 3 instances in which a witness’ memory might be distorted and how these effects might arise in the context of witness testimony in international arbitration.
While the creation of the ITS aimed to solve the problem of the lack of independence and impartiality of some arbitrators, the panellists questioned whether this problem was in reality so prevalent in practice that it warranted such a drastic change. The panellists also pointed out other problems with the ITS, such as the limited term of tribunal members and the potential effect of the lack of tenure on tribunal members’ decision-making, and the disadvantages which might be faced by States with less bargaining power. Whilst there may be some potential benefits of implementing such a tribunal system, the panellists did acknowledge that such a radical change should be cautiously proceeded with.
Paper Presentation 2: Human Memory and Witness Evidence in International Arbitration
Dr Ula Cartwright-Finch (Managing Associate, Linklaters LLP, London) presented the second paper on “Human Memory and Witness Evidence in International Arbitration”. The second panel session was moderated by Mr Chelva Rajah, SC (Member, SIAC Board of Directors; Managing Partner, Tan Rajah & Cheah), and comprised Mr Toby Landau QC, Professor Lucy Reed (Member, SIAC Court of Arbitration; Director, Centre for International Law (Singapore); Professor, Faculty of Law, National University of Singapore) and Mr Alan Thambiayah (Member, SIAC Court of Arbitration; Professional Arbitrator, The Arbitration Chambers).
The accuracy of a witness’ memory is crucial to the various stages of an international arbitration, from the initial investigation, to the focused investigation, the preparation of witness statement and the hearing.
However, the ability of witnesses accurately to recollect events from the past and provide reliable testimony has always been a controversial issue in international arbitration. Drawing on research in psychology and neuroscience, Ula suggested that the human memory undergoes a continuous reconstructive process that is susceptible to distortion.
In her presentation, Ula discussed 3 instances in which a witness’ memory might be distorted and how these effects might arise in the context of witness testimony in international arbitration.
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| Ula Cartwright-Finch |
Left to Right: Ula Cartwright-Finch, Toby Landau QC, Chelva Rajah, SC, Professor Lucy Reed and Alan Thambiayah |
Firstly, the misinformation effect, whereby a witness’ recollection of episodic memories could become less accurate due to post-event information such as the way that a question was posed during the cross-examination. In a 1975 research by Loftus & Zanni, after a video was shown to participants, they were split into two focus groups. The first group was asked whether they had seen a broken headlight, whereas the second group was asked whether they had seen the broken headlight. It was shown that participants in the second group were more likely to report having seen a broken headlight.
Secondly, a witness might be susceptible to false memories, whereby his or her recollection of events might be affected by his or her personal belief or opinion. This was exemplified by the “lost in the mall” scenario, whereby confabulations about events that never took place – such as having been lost in a shopping mall as a child – could be created through suggestions made to participants.
Lastly, a witness’ memory might be conformed and compromised when another person’s recollection of a memory influences his or her recollection of the same experience.
Distortions of witness’ memories may have severe consequences by impacting the witness’ testimonies and consequently the findings of fact in an award. Therefore, in her paper, Ula proposed some practical strategies to mitigate the potential impact of these effects on memory, such as carrying out timely witness interviews and taking special precautions in framing the questions during the interviews.
Secondly, a witness might be susceptible to false memories, whereby his or her recollection of events might be affected by his or her personal belief or opinion. This was exemplified by the “lost in the mall” scenario, whereby confabulations about events that never took place – such as having been lost in a shopping mall as a child – could be created through suggestions made to participants.
Lastly, a witness’ memory might be conformed and compromised when another person’s recollection of a memory influences his or her recollection of the same experience.
Distortions of witness’ memories may have severe consequences by impacting the witness’ testimonies and consequently the findings of fact in an award. Therefore, in her paper, Ula proposed some practical strategies to mitigate the potential impact of these effects on memory, such as carrying out timely witness interviews and taking special precautions in framing the questions during the interviews.
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| Members of the audience |
Members of the audience during networking drinks |
The panellists noted that the problems with witness recollection would extend to the cross-examination and re-examination stages of the arbitration as well. The panellists also observed that the research conducted on witness recollection have thus far been carried out in relatively controlled scenarios, and hence might not accurately reflect or be directly applicable to international arbitration processes. There was nonetheless consensus in the room that these witness recollection issues highlighted the importance of arbitration tribunals in the assessment of witness testimonies.
6 - 7 November 2017
SIAC Academy
The inaugural SIAC Academy, titled “Time and Cost Savers at SIAC: Emergency Arbitration, Expedited Procedure and Early Dismissal”, was held in Singapore on 6 and 7 November 2017, to provide practical, “hands-on” training for arbitration practitioners and arbitrators.
Mr Gary Born, President of the SIAC Court of Arbitration, chaired the teaching faculty which included Mr Chan Leng Sun, SC, Deputy Chairman of SIAC, members of the SIAC Court of Arbitration (Mr Toby Landau QC, Professor Lawrence Boo, Mr Alan Thambiayah) and other international arbitration luminaries. Ms Indranee Rajah, SC, Senior Minister of State for the Ministry of Law and Ministry of Finance, made a special appearance in a frank, highly interesting and lively discussion with Mr Born on developments in international arbitration in Singapore and in the region. SIAC Court members, Professor Lucy Reed and Mr Toby Landau QC also spoke as panellists in an engaging lunchtime fireside chat.
The Academy attracted a good turnout from both Singapore as well as overseas delegates from Bulgaria, China, Hong Kong, India, Indonesia, Japan, Korea, Malaysia, the United Kingdom and Vietnam.
The various reports on the SIAC Academy can be accessed here.
Backed by popular demand, the SIAC Academy 2018 will be held in Seoul (15 to 16 June 2018), Tokyo (7 to 8 September 2018) and Mumbai (6 to 7 October 2018). Please mark your calendars.
13 October 2017
YSIAC Oral Advocacy Workshop 2017
By Vibhor Jain, Associate, Luthra & Luthra Law Offices
On the evening of Friday, 13 October 2017, a room full of arbitration luminaries and enthusiasts engaged in an open dialogue on the “art” of oral advocacy and conducted a mock application for emergency interim relief.
The Emergency Arbitrators for the mock scenario comprised Mr Gary Born (President, SIAC Court of Arbitration; Chair, International Arbitration Practice Group, Wilmer Cutler Pickering Hale and Dorr LLP), Mr Toby Landau QC (Member, SIAC Court of Arbitration; Barrister and Arbitrator, Essex Court Chambers), Mr Ciccu Mukhopadhaya, SC (Supreme Court of India), and Mr Harish Salve, SC (Member, SIAC Court of Arbitration; Blackstone Chambers).
Mr Kevin Nash (Deputy Registrar & Centre Director, SIAC) kicked off the workshop charting how SIAC had become a major player among international arbitral institutions, and one of the preferred arbitral institutions amongst Indian parties. This was followed by a brief introduction to the mock case scenario by Mr Rishab Gupta (Member, YSIAC Committee; Partner, Shardul Amarchand Mangaldas & Co). Thereafter, the ball started rolling and the Preliminary Objections Session began.
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| Left to Right: Gary Born, Toby Landau QC and Ciccu Mukhopadhaya, SC |
Members of the audience |
The first three sets of counsel dealt with three jurisdictional objections raised in the mock case scenario: (i) whether, by the reference to “Singapore Chamber of Commerce”, a non-existent entity, the parties had intended to choose SIAC as the administering institution for arbitration; (ii) whether mediation talks between the parties were a pre-condition to arbitration and had been satisfied; and (iii) who were the proper parties to the arbitration.
On the first jurisdictional objection, counsel for the Claimant, Mr Sonal Kumar Singh (Partner, M/s A. K. Singh & Co.), stressed how certain arbitral institutions had become synonymous with geographical areas, and that the reference to “Singapore” must signify SIAC. On this point, Mr Landau QC was quick to point out that by the same token, the words “Chamber of Commerce” could signify the parties’ intent to choose the ICC. Counsel for the Respondent, Mr Moazzam Khan (Member, YSIAC Committee; Co-Head, International Disputes Practice, Nishith Desai Associates), argued that it was not possible to infer from the clause any intention as to “which institution” and “where”, and was only possible to infer that there was an intention to arbitrate.
On the second jurisdictional objection, Mr Prateek Bagaria (Partner, Singularity Legal), argued that the arbitration clause would only “mature” upon the activation of the temporal jurisdiction of the tribunal after the stipulated time period for mediation talks had expired. This led Mr Born to wonder aloud, “Are arbitration clauses teenagers that they would ‘mature’?”, which led to much laughter from the audience, including Mr Bagaria. Next, counsel for the Claimant, Mr Anirban Bhattacharya (Partner, Luthra & Luthra Law Offices) submitted that the agreement to mediate, being an agreement to agree, was not enforceable under the governing law, which in his submission was Indian law. Mr Landau QC inquired whether it was artificial to submit that the “agreement to mediate” was illegal, and separate it from the “agreement to arbitrate”, when both the arbitration and mediation clauses were subordinate clauses of the same clause in the agreement. Mr Bhattacharya responded that while both subordinate clauses were related, only the latter was an arbitration agreement, and hence, different laws would in his opinion apply to both.
On the third jurisdictional objection, submissions were made for the Respondent by Mr Lomesh Kiran Nidumuri (Partner, IndusLaw) and for the Claimant by Ms Sheila Ahuja (Of Counsel, Allen & Overy). The discussion between the counsel and the arbitrators revolved around exceptions to the rule of privity of contract, and how, given that the emergency arbitration mechanism was a provisional measure, the emergency arbitrator (EA) was only required to take a prima facie view on proper parties.
On the first jurisdictional objection, counsel for the Claimant, Mr Sonal Kumar Singh (Partner, M/s A. K. Singh & Co.), stressed how certain arbitral institutions had become synonymous with geographical areas, and that the reference to “Singapore” must signify SIAC. On this point, Mr Landau QC was quick to point out that by the same token, the words “Chamber of Commerce” could signify the parties’ intent to choose the ICC. Counsel for the Respondent, Mr Moazzam Khan (Member, YSIAC Committee; Co-Head, International Disputes Practice, Nishith Desai Associates), argued that it was not possible to infer from the clause any intention as to “which institution” and “where”, and was only possible to infer that there was an intention to arbitrate.
On the second jurisdictional objection, Mr Prateek Bagaria (Partner, Singularity Legal), argued that the arbitration clause would only “mature” upon the activation of the temporal jurisdiction of the tribunal after the stipulated time period for mediation talks had expired. This led Mr Born to wonder aloud, “Are arbitration clauses teenagers that they would ‘mature’?”, which led to much laughter from the audience, including Mr Bagaria. Next, counsel for the Claimant, Mr Anirban Bhattacharya (Partner, Luthra & Luthra Law Offices) submitted that the agreement to mediate, being an agreement to agree, was not enforceable under the governing law, which in his submission was Indian law. Mr Landau QC inquired whether it was artificial to submit that the “agreement to mediate” was illegal, and separate it from the “agreement to arbitrate”, when both the arbitration and mediation clauses were subordinate clauses of the same clause in the agreement. Mr Bhattacharya responded that while both subordinate clauses were related, only the latter was an arbitration agreement, and hence, different laws would in his opinion apply to both.
On the third jurisdictional objection, submissions were made for the Respondent by Mr Lomesh Kiran Nidumuri (Partner, IndusLaw) and for the Claimant by Ms Sheila Ahuja (Of Counsel, Allen & Overy). The discussion between the counsel and the arbitrators revolved around exceptions to the rule of privity of contract, and how, given that the emergency arbitration mechanism was a provisional measure, the emergency arbitrator (EA) was only required to take a prima facie view on proper parties.
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| Left to Right: Moazzam Khan, Prateek Bagaria and Lomesh Kiran Nidumuri | Left to Right: Sonal Kumar Singh, Anirban Bhattacharya and Sheila Ahuja |
After a short break, the Workshop proceeded to the fourth session, with counsel making submissions on the applicable test for interim relief. Ms Elodie Dulac (Partner, King & Spalding), who acted as counsel for the Claimant, submitted that the essential conditions were fulfilled: there being presence of risk, causation of irreparable harm, and a prima facie case on the merits. She also submitted that the test of urgency was also satisfied, namely “whether harm could happen before an award was passed on the merits”. However, Mr Born was of the view that such tests would make the threshold for the grant of interim relief too low. Acting for the Respondent, Mr Promod Nair (Founding Partner, Arista Chambers) submitted that the three jurisdictional objections submitted previously showed the absence of a prima facie case, and that the EA ought to pass an order that was “necessary”, not “appropriate”, thereby signifying a higher threshold for grant of interim relief.
The fifth session pertained to whether or not emergency interim relief should be granted by the EA. Mr P.V. Kapur, SC, argued for interim relief to be granted since there were risks involved as one of the Respondents did not own any known assets. Acting for the Respondent was Mr Landau QC (who had switched from being an EA to counsel), who submitted that there was no prima facie case on the merits, to which Mr Salve, SC, intervened and asked how the EA could possibly decide at the present stage that there was no prima facie case on the merits from the Claimant’s side. Mr Landau QC responded by saying the burden to prove the same, as well as the burden to prove that the Respondent was ill-intentioned and there was a risk involved if the relief was not granted, lay solely with the Claimant.
The fifth session pertained to whether or not emergency interim relief should be granted by the EA. Mr P.V. Kapur, SC, argued for interim relief to be granted since there were risks involved as one of the Respondents did not own any known assets. Acting for the Respondent was Mr Landau QC (who had switched from being an EA to counsel), who submitted that there was no prima facie case on the merits, to which Mr Salve, SC, intervened and asked how the EA could possibly decide at the present stage that there was no prima facie case on the merits from the Claimant’s side. Mr Landau QC responded by saying the burden to prove the same, as well as the burden to prove that the Respondent was ill-intentioned and there was a risk involved if the relief was not granted, lay solely with the Claimant.
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| Left to Right: P.V. Kapur, SC and Elodie Dulac | Application for Emergency Relief Session |
With that, the mock arbitration hearing concluded. In short, these five sessions were thoroughly enlightening. What followed was even more exciting: the feedback by the Tribunal, moderated by Mr Kabir Singh (Member, YSIAC Committee; Partner, Clifford Chance). Mr Born was extremely impressed by the performance of the various counsel under fire from what he admitted was “not an easy tribunal”. Mr Landau QC, with a good sense of humour, chimed in with a remark that given the time allotted and the complexity of the problem, “everyone was brilliant, except counsel for the Respondent in the last session (himself)”!
The panellists then discussed the challenges affecting the growth of arbitration globally. Mr Landau QC and Mr Salve, SC emphasised the need to “unlearn”, noting that there needed to be more attempts to make a departure from “litigation advocacy” towards “arbitral advocacy”.
Talking further about such a transition, especially for young professionals, Mr Mukhopadhaya, SC, and Mr Born said that young professionals should enter into the world of arbitration from the very beginning, but never leave courtroom lawyering behind.
“Litigation and arbitration have as many similarities as dissimilarities”, Mr Born added. Mr Salve, SC spoke about how to “read” a tribunal, by trying to sell it an idea and understand their thought process. Mr Landau QC emphasised that the audience was neither the opponent, nor the client, but the tribunal. Mr P.V. Kapur, SC, spoke about the need for more cross-examination experience for young professionals, with Mr Salve, SC, noting that no case should be too small and every opportunity should be seized by young professionals.
On language barriers in arbitrations, Live Note service providers and transcriptions were recommended as the expensive and cheap options respectively. The panellists were also asked to recount their “best as well as worst experience professionally” to much interest and laughter.
The panellists then discussed the challenges affecting the growth of arbitration globally. Mr Landau QC and Mr Salve, SC emphasised the need to “unlearn”, noting that there needed to be more attempts to make a departure from “litigation advocacy” towards “arbitral advocacy”.
Talking further about such a transition, especially for young professionals, Mr Mukhopadhaya, SC, and Mr Born said that young professionals should enter into the world of arbitration from the very beginning, but never leave courtroom lawyering behind.
“Litigation and arbitration have as many similarities as dissimilarities”, Mr Born added. Mr Salve, SC spoke about how to “read” a tribunal, by trying to sell it an idea and understand their thought process. Mr Landau QC emphasised that the audience was neither the opponent, nor the client, but the tribunal. Mr P.V. Kapur, SC, spoke about the need for more cross-examination experience for young professionals, with Mr Salve, SC, noting that no case should be too small and every opportunity should be seized by young professionals.
On language barriers in arbitrations, Live Note service providers and transcriptions were recommended as the expensive and cheap options respectively. The panellists were also asked to recount their “best as well as worst experience professionally” to much interest and laughter.
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| Left to Right: Gary Born, Harish Salve, SC, Kabir Singh, Toby Landau QC, P.V. Kapur, SC and Ciccu Mukhopadhaya, SC |
Toby Landau QC and Rajiv K. Luthra with members of the audience |
In the Closing Remarks, Mr Nish Shetty (Partner, Clifford Chance) applauded SIAC for organising the workshop which offered invaluable insights into the practice of arbitration through the mock arbitration. He also mentioned that the growing practice of arbitration in India will lead to the emergence of an “arbitration bar” and that such events were contributing to the same. He expressed hope that arbitration would go from being an “extra-curricular” to a full-time career. He expressed gratitude to the counsel and members of the EA Tribunal for taking time from their busy schedules for what was, indeed, a unique night of learning.
(The YSIAC Oral Advocacy Workshop was well-received by the Indian legal and business community and attracted a total of 145 delegates, comprising practitioners, in-house counsel and academics.)
(The YSIAC Oral Advocacy Workshop was well-received by the Indian legal and business community and attracted a total of 145 delegates, comprising practitioners, in-house counsel and academics.)