6 November 2019
YSIAC Manila Workshop
By Marco Carlo S. Sana, Professor, Far Eastern University – Institute of Law

The YSIAC Manila Workshop was titled “Demystifying the Commencement of an Arbitration”, and was primarily targeted at younger lawyers who are interested to develop their practice in international commercial arbitration.

Mr Kevin Nash (Deputy Registrar & Centre Director, SIAC) kicked off the workshop by sharing relatable stories about some of the panelists who had previously worked at SIAC.

Ms Adriana Uson (Member, YSIAC Committee; Associate, Norton Rose Fulbright (Asia) LLP) moderated the workshop and started the session by asking the panelists comprising Mr Dinesh Dhillon (Partner and Co-Head, International Arbitration, Allen & Gledhill LLP), Mr Nash, Mr Louie Ogsimer (Partner, Romulo Mabanta Buenaventura Sayoc & de los Angeles), Mr Siraj Omar, SC (Director, Drew & Napier LLC), Ms Maricef Valderrama (Associate, Allen & Overy LLP), and Ms Jane Yu (Senior State Solicitor, Office of the Solicitor General of the Philippines) about their first experience with arbitration.

In line with the lively and collaborative mood of the workshop, each of the panelists shared their first personal experience with arbitration. The stories shared ranged from nightmares about stacks of endless binders to living the dream as counsel for a hockey team. Surprisingly, one of the panelists could have been a qualified arbitrator by age 14 because her father, a distinguished arbitration lawyer, took her to a seminar where she ended up passing a sample arbitrator exam.

The panel first discussed the key features of an arbitration agreement. The panelists unanimously agreed that the provision for arbitration must be clear because the powers of the tribunal relies on it. Mr Nash emphasized that a short and clearly worded agreement is preferred, with the provision clearly distinguishing between ad hoc or institutional, and identifying the venue and seat of arbitration.

Ms Uson then asked the Filipino panelists for their advice on commercial arbitration under Philippine law. Mr Ogsimer pointed out that practitioners must be conscious of the different laws that govern domestic arbitration and international arbitration under the Philippines Republic Act 9285. Whilst domestic arbitration is governed by the Philippines Republic Act 876, international arbitration is governed by the 1985 UNCITRAL Model Law. Ms Yu emphasized that the notice for arbitration must be the addressed to the proper government agency, which requires some knowledge of Philippine administrative law.

The panel then discussed the requisite preparations for filing a notice of arbitration. Mr Omar highlighted the need to comply with preconditions stated in the arbitration provision before filing the notice. Mr Dhillon added that the provisions under Rule 3 of the SIAC Rules 2016 must be complied with for a notice of arbitration filed with SIAC. He also explained that strategy plays a part in crafting the notice, such as deciding between filing a substantive notice of arbitration to present a strong case as opposed to providing a bare-bones version for immediate relief.

As a last topic for discussion, Ms Uson asked the panelists for key pointers to take note of in the constitution of the tribunal. Ms Yu emphasized that the impartiality and the independence of the tribunal is of utmost importance. That is why doing one’s homework and asking for feedback on potential candidates is crucial. Mr Omar added that institutional arbitration offered some benefits in this regard. For instance, you can rely on SIAC’s repository of knowledge about potential arbitrators, including the Secretariat’s experience in working with the arbitrators. The payment of the requisite filing fees was given particular importance by all the panelists.

Finally, the participants of the workshop engaged in a class exercise, which involved identifying defects in a sample Notice of Arbitration, and determining the appropriate arbitrators to avoid a jurisdictional challenge.

31 October 2019
YSIAC Club Event on The “Spirit” of Arbitration
By Chloé Vialard and Artis Straupenieks, Shearman & Sterling LLP

On Halloween, the Singapore international arbitration community had its own encounter with “spirits”, albeit not of a supernatural kind. More than 60 arbitration enthusiasts gathered at a YSIAC Club event to hear a panel of experts from the alcohol beverage industry discuss the legal and dispute resolution trends in the beer, wine and whisky business.

The event was moderated by Daryl Chew (Member, YSIAC Committee; Partner, Shearman & Sterling LLP). The panellists included Amy Seow, (Co-founder, Raison Wines (Former International Disputes Lawyer)), Geraldine Lim (Regional Legal Director, Heineken Asia Pacific, Singapore), James Nicholson (Senior Managing Director, FTI Consulting), Matthew Tan (Associate Legal Director, South East Asia, Pernod Ricard Singapore Pte Ltd) and Angela Yap (Associate Counsel, SIAC).

Many insights emerged from the panel discussion. For example, it was reiterated that legal teams are effectively business partners of the business units they support. As one panellist put it, “We don’t always say ‘us and them—commercial’. It’s all us.” Thus, in contrast to “riskaverse” disputes lawyers for whom risk avoidance is “a job hazard”, business owners and inhouse counsel must regularly take, share and bear risks.

The panellists acknowledged that a key challenge faced by the beverage industry in Southeast Asia is legal instability. “Sometimes there are laws, sometimes there are new laws, sometimes the laws change,” said one speaker, concluding that “that’s kind of, in a nutshell, our life in Southeast Asia.” The speaker said that beyond that, there was another layer of difficulties, namely, that laws were sometimes not enforced, while, at other times, they were not enforced in a balanced manner. The speakers also mentioned advertising as a recurring issue, especially in the context of religious rules or the broad discretion accorded to the regulatory authorities.

When the discussion moved to disputes, everyone agreed that the objective was to avoid them, particularly as “the industry is so small and relationships matter so much”. Most disputes that do arise were naturally resolved by negotiation and cooperation.

One might assume that mediation is widely used by the industry, although that did not seem to be the case. The panellists recognised that “mediation is always a good idea”, since disputes are kept “low-key” and resolved informally at management level. However, formal mediations with professional mediators appeared to be uncommon. One speaker underscored the importance of the mediator being familiar with the industry.

The handful of disputes resolved by arbitration typically concerned matters relating to production, distribution or transportation of beverages. These disputes tended to arise from material and high-stakes contracts, as smaller-scale contracts did not typically include arbitration provisions.

Another panellist observed that certain incidences of fraud would necessitate forensic investigation. Recalling one such instance, the panellist recounted his experience about falsification of brewing costs by a smaller entity brewing for a large multinational company under a cost-plus contract.

The panellists then considered ways to keep costs low if a dispute did materialise. The panellists discussed consolidation and the benefit of emergency arbitrator proceedings, for example, in disputes involving perishable beverages.

The discussion was followed by concluding remarks delivered by Chaitanya Arora, Senior Managing Director at FTI Consulting. He shared personal insights and recounted a matter involving allegations of fraud in the context of an international brand’s joint venture with a bottling company in an emerging market. He also noted the critical role of trademarks in the beverage industry, and the prospect for IP related disputes. Finally, he shared a story about the origin of the term “bootleg” (which apparently was coined as a result of smugglers concealing illegal bottles of alcohol in their boots).

Finally, Anant Tyagi, the owner and managing director of French restaurant JAG, delivered a presentation on mixology trends. He focused on sustainability themes and explained that sustainability took many forms, including the shift to non-alcoholic drinks, replacement of plastic straws with corn or metal ones, the increasing popularity of natural wines and, more generally, reducing the carbon footprint of production.

The presentation on mixology trends was followed by the highlight of the evening: a longawaited interactive tasting session. No one needed reminding that the best safeguard against disputes is a strong relationship and connection among stakeholders, and that there was no better opportunity to develop those bonds than over a beverage of choice.

25 October 2019
YSIAC Paris Forum 2019
By Katya Hartl and Juliette Musso, White & Case LLP

The YSIAC Paris Forum 2019 was titled “Emergency Arbitration: Perspectives from Asia and Europe” and attracted approximately 68 practitioners, in-house counsel and students.

Lucas de Ferrari (White & Case, Paris) gave the opening address focusing on the representation of Asian clients abroad. He explained that while there is a clear trend towards standardization in international arbitration, the parties’ nationality and place of arbitration still have an impact on the particularities of the proceedings. He cautioned against oversimplifications and stereotypes but highlighted the importance to acknowledge certain cultural specificities and use them to the client’s benefit.

Emmanuel Foy (Derains & Gharavi International, Paris) moderated the panel and noted that emergency arbitration is a hot topic that raises a number of issues such as due process, party representation and enforcement.

Topic I: Emergency Arbitration under SIAC Rules

Kartikey Mahajan (YSIAC Committee Member; King & Spalding, London) began by explaining the purpose and importance of emergency arbitration proceedings. He then addressed its implementation and development across different arbitral institutions, particularly in Singapore. He explained how the cultural proclivity of South Asian parties such as India for interim measures/relief coupled with the efficient administration of these applications by SIAC, have contributed to the increase in emergency arbitration applications under SIAC Rules.

Topic II: Best Practices for Emergency Arbitration

Nora Fredstie (Latham & Watkins, Paris) first observed that there was no universal approach to emergency arbitration. She then suggested some best practices in handling emergency arbitration applications, in light of the short timing that these proceedings entailed, and provided practical advice on preparing the submissions to the emergency arbitrator. Finally, she tackled the issue of resorting to emergency arbitration proceedings when faced with a multi-tiered dispute resolution clause.

Topic III: Enforceability of Emergency Arbitration Awards

Angélica André (White & Case, Paris) started the discussion acknowledging that, according to many surveys, most of the emergency arbitrators’ decisions are voluntarily complied with. However, the concern regarding their enforcement was not unjustified because several issues can arise, such as whether emergency arbitrators can be termed as arbitrators or whether their decisions are considered awards, according to the New York Convention. She discussed these issues from a comparative law perspective and finally drew potential solutions to them.

A lively Q&A session ensued, with active participation from the audience. Emmanuel Foy then closed the panel discussion, followed by closing remarks by Kartikey Mahajan (YSIAC Committee Member).

18 October 2019
SIAC-THAC Bangkok Conference 2019
by Dr Stephanie Garner, Senior Associate, Watson Farley & Williams

The inaugural SIAC-THAC Bangkok Conference titled “Effective Management of International Arbitration Proceedings in Thailand and Singapore: Techniques, Tips and Strategies to Save Time and Costs” was attended by over 80 delegates and panellists, many of whom had flown from Singapore.

Ms Lim Seok Hui (CEO, SIAC) and Ms Machimdhorn Khampiranont (Arbitration and Mediation Director, THAC) delivered the opening addresses. In her opening address, Ms Lim noted that arbitration is the preferred dispute resolution mechanism for cross-border disputes in the region and attributed this to the five Es: even-handedness, efficiency, expedition, expertise and enforceability of awards. In her opening address, Ms Khampiranont stressed the importance of effective management of proceedings and emphasised the role played by arbitration centres in managing costs and ensuring expeditious resolution of disputes by tribunals.

Panel Session 1: Tactical Considerations for Commencing an Arbitration

The first panel discussion was moderated by Mr K Minh Dang (Member, SIAC Court of Arbitration; Senior Partner, YKVN). Mr Prakash Pillai (Partner, Clyde & Co Clasis Singapore) began the session with his thoughts on drafting the notice of arbitration. He stressed the significance of this stage for the claimant: it fixes the date of the commencement of arbitration and provides notice to the Respondent. Mr Pillai and the other panellists also discussed their views on how long the notice of arbitration document should be, with the majority erring on the side of brevity.

Mr Nathee Silacharoen (Counsel, Chandler MHM Limited) addressed preparation for the arbitration. The key points were to review the arbitration agreement and consider reaching further agreement on arbitral procedure (such as the use of the expedited procedure) that would be appropriate to the dispute. He also highlighted the good practice of producing written summaries and a chronology of key events and witness interviews in advance of the drafting of the pleadings.

In considering the selection and appointment of arbitrators, Mr Sebastian Seelmann-Eggebert (Partner, Latham & Watkins) painted a caricature of seven types of arbitrator: the vanishing arbitrator (who is too busy after appointment), the unprepared arbitrator, the inexperienced arbitrator, the procrastinating arbitrator, the advocate, the unethical arbitrator and finally Fredo Corleone (the black sheep). Mr Seelmann-Eggebert highlighted how some of these characteristics can be both positive and negative.

Consolidation and joinder is typically a tricky issue because of the consensual nature of the arbitration agreement. Mr John Rainbird (Counsel, Allen & Overy) broke the topic down into three questions: can you, should you and, if so, when? Amongst other strategic considerations, Mr Rainbird highlighted the importance of the consistency of legal rulings, cost and time efficiency, evidential quarantine between cases and the SIAC rules governing the timing of such applications.

Mr Steven Burkill (Partner, Watson Farley & Williams (Thailand) Ltd) spoke on prima facie jurisdictional objections. He set out the legal principle of competence – competence, whereby the arbitral tribunal is empowered to determine its own jurisdiction. Any jurisdictional challenges should be raised as soon as possible, but the question of when the Tribunal decides a jurisdictional challenge is more subtle and the question of bifurcation should be considered.

Panel Session 2: Saving Time and Costs under the SIAC Rules (Expedited Procedure, Emergency Arbitrator, Early Dismissal)

Mr Pisut Attakamol (Partner, Baker & McKenzie) moderated the second panel discussion of the afternoon, which focused on particular provisions of the SIAC Rules designed to ensure effective time and cost management of the case.

Mr Kirindeep Singh (Senior Partner, Dentons Rodyk, Singapore) spoke of his experience with the expedited procedure under Rule 5 of the SIAC Rules 2016. He set out the three criteria for an application and drew the delegates’ attention to the case of AQZ v ARA [2015] SGHC 49, confirming that the expedited procedure applies even where the arbitration agreement contains contrary terms.

Mr Siraj Omar, SC (Director, Drew & Napier LLC) presented his experience of the emergency arbitrator procedure under Rule 30 and Schedule 1 of the SIAC Rules 2016. He compared the use of an emergency arbitrator with seeking emergency or interim relief from Singapore courts. He further identified the guidelines emergency arbitrators typically use: prima facie evaluation of merits of claim, urgency and evaluation of convenience/prejudice.

Mr Chou Sean Yu (Partner, WongPartnershipLLP) considered the early dismissal procedure under Rule 29 of the SIAC Rules 2016. SIAC was the first major international arbitration centre to introduce this procedure in 2016. This novelty has led some to question whether the procedure is open to abuse through the potential of being used as a delaying tactic and whether tribunals may be overly cautious in judging claims. Mr Chou’s verdict was positive and he noted that tribunals have not been hesitant to dismiss claims if they meet the criteria.

Mr Chua Kee Loon (Partner, Allen & Gledhill) closed the discussions by posing questions to the other panellists to assess the effectiveness of the expedited procedure, emergency arbitrator, and early dismissal mechanisms in saving time and costs for parties. In relation to the ground of “exceptional urgency” in Rule 5.1(c) of the SIAC Rules 2016 for the expedited procedure, the panel concluded that such a ground would only usually apply in insolvency cases, or cases involving loss of license and regulatory consequences in the event of delay.

Panel Session 3: Comparative Perspectives on International Arbitration in Thailand and Singapore

The final session of the day was devoted to a discussion between the various panellists, moderated by Mr Robert Tang (Senior Consultant, DLA Piper (Thailand) Limited). The session considered the various mechanisms introduced to save time and costs raised in the second session (expedited procedure, emergency arbitrator, early dismissal) and sought to evaluate their effectiveness as well as making broader comparisons between arbitration in Singapore and in Thailand.

Mr Paul Sandosham (Partner, Clifford Chance) expressed the view that the expedited procedure was one of the best innovations for the international arbitration process as it ran counter to the natural tendency of counsel and tribunals to seek to slow down the proceedings.

Mr Warathorn Wongsawangsiri (Member, YSIAC Committee; Partner, Herbert Smith Freehills (Thailand) Limited) noted that expedited procedure is also possible in Thailand (under THAC Rules Section 8). Mr Pariyapol Kamolsilp (Partner, Kudun & Partners) added that the procedure is new to Thailand and practitioners had limited experience of its use. Furthermore, THAC Rules require parties’ consent for the expedited procedure to apply.

Mr Avinash Pradhan (Partner, Rajah & Tann Singapore LLP) emphasised the advantage for a Claimant using the expedited procedure, given their control over the selection of the commencement date, which had been discussed by the very first panellist of the day.

The discussion benefitted from input from Mr Chaitanya Arora (Senior Managing Director, FTI Consulting), the conference’s only non-lawyer panellist. As a quantum expert, Mr Arora was able to comment on the importance of obtaining expert input ahead of applying to use the expedited procedure, because of the limitations on the claim value.

Conclusion

The event closed with brief closing remarks by Mr K Minh Dang.

18 October 2019
YSIAC Bangkok Advocacy Workshop 2019
By Amornwit Phesprasert, Associate, Herbert Smith Freehills

The YSIAC Advocacy Workshop was held on 18 October 2019 in Bangkok, and was specially designed to hone the advocacy skills of younger arbitration practitioners through a mock hearing demonstration of cross-examination of witnesses in an arbitration. The workshop was attended by around 60 participants, and provided invaluable insights on how to conduct a successful cross-examination in international arbitration.

The welcome address and opening address were delivered by Mr Warathorn Wongsawangsiri (Member, YSIAC Committee; Partner, Herbert Smith Freehills (Thailand) Limited) and Ms Lim Seok Hui (CEO, SIAC) respectively. Ms Lim shared that the objectives of YSIAC are to nurture and provide opportunities for younger arbitration practitioners and arbitrators to develop their skills while Mr Wongsawangsiri explained why this workshop would be beneficial to the attendees.

Ms Wendy Lin (Co-Chair, YSIAC Committee; Partner, WongPartnership LLP) then introduced the case scenario and concept of the workshop.

The case scenario concerned a dispute over the construction of a nuclear power plant, and the contract in question provided for disputes to be referred to arbitration in Singapore under the SIAC Rules. The Workshop programme featured mock cross-examination of factual witnesses by up-and-coming as well as experienced arbitration practitioners.

Both the first and second cross-examination sessions were presided over by Mr Chatchai Inthasuwan (Head of Litigation, Chandler MHM Limited), Mr K. Minh Dang (Member, SIAC Court of Arbitration; Senior Partner, YKVN) and Mr Siraj Omar, SC (Director, Drew & Napier LLC) as members of the Tribunal.

For the first cross-examination session, Mr Ramesh Selvaraj (Co-Chair, YSIAC Committee; Partner, Allen & Gledhill LLP) acted as the Respondent’s Counsel and Mr Kongwat Akaramanee (Associate, Kudun and Partners) was the Claimant’s first factual witness. Mr Selvaraj asked several leading questions in his cross-examination of Mr Akaramanee, and appeared to have cornered Mr Akaramanee with his questioning when his time ran out.

The Claimant’s second witness played by Mr David Lawrence (Partner, Pisut & Partners) was cross-examined by Respondent’s Counsel, Mr Pisut Attakamol (Partner, Baker & Mckenzie Ltd). Mr Attakamol adopted an aggressive manner in his cross-examination and attacked the witness from every direction through his questioning, which made for an exciting experience for the audience. However, Mr Lawrence kept his cool as a witness, and did not allow the rapid questioning to get to him.

In the second cross-examination session, Mr Paul Sandosham (Partner, Clifford Chance) acted as the Claimant’s counsel while Ms Sarocha Thongperm (Senior Associate, Weerawong C&P) acted as the Respondent’s first witness. The Claimant’s second witness was played by Mr John Rainbird (Counsel, Allen & Overy) who was cross-examined by the Respondent’s Counsel, played by Mr Ekasit Suttawat (Associate, DLA Piper (Thailand) Limited). This second cross-examination session also provided a demonstration of various cross-examination techniques and the skills that lawyers need in order to get the answers they want from witnesses.

A panel discussion, moderated by Mr Wongsawangsiri, took place thereafter. The panellists comprised Mr Inthasuwan, Mr Dang, Mr Omar, SC and Mr Sandosham. Mr. Wongsawangsiri invited the panel to discuss the essentials of cross-examination and tips for a successful cross-examination. The panel emphasised the importance of ‘asking leading questions’, ‘knowing the answer to the question you ask’ and on witness preparation. The panel also shared some thoughts on asking leading questions and opined that in certain circumstances, open-ended questions may work to a counsel’s advantage. It was noted by the panel that good lawyers must be able to observe the answers from the witness and decide how to order and structure their questions. The panel also discussed the scenario where a tribunal may interrupt and ask too many questions during cross-examination and cause the counsel to lose the flow of their questions due to the frequent interruptions.

We hope this interesting and successful event would be the first of many more such events held in Bangkok in the future.

15 October 2019
SIAC Signs Memorandum of Understanding with the Beijing Arbitration Commission/ Beijing 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 Beijing Arbitration Commission/ Beijing International Arbitration Center (BAC/BIAC) to promote international arbitration as a preferred method of dispute resolution for resolving international disputes.

The MOU was signed on 15 October 2019 at the 2019 Singapore Summit on Commercial Dispute Resolution in China, by Ms Lim Seok Hui, Chief Executive Officer of SIAC, and Dr. Fuyong Chen, Deputy Secretary-General of BAC/BIAC. The signing was witnessed by Mr Zhang Xumin, Chargé d'Affaires ad interim of the Chinese Embassy in Singapore and Ms Gloria Lim, Director, Legal Industry Division, Ministry of Law.

Under the MOU, SIAC and BAC/BIAC will work together to jointly promote international arbitration to serve the needs of businesses. SIAC and BAC/BIAC 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 Beijing or by BAC/BIAC 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.

Dr. Fuyong Chen, Deputy Secretary-General of BAC/BIAC, said, “This MOU marks a key milestone for BAC/BIAC in its collaboration efforts with SIAC, and underscores the commitment of both institutions to jointly promote the benefits of international arbitration to existing and potential users in China and other Belt and Road economies.”

Ms Lim Seok Hui, CEO of SIAC, said, “We are delighted to be entering into this MOU, and to be co-hosting the 2019 Singapore Summit on Commercial Dispute Resolution in China with BAC/BIAC in Singapore as a first step under this partnership. We look forward to working closely together with BAC/BIAC to better support the needs of companies, businesses and investors in Belt and Road projects all over the world.”


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 September 2019
SIAC-SHIAC Conference 2019
By Vicky Zhao, Partner, AnJie Law Firm

The SIAC-SHIAC Conference was held on 17 September 2019 in Shanghai with the theme “Effective Dispute Resolution for BRI Investments”, and attracted arbitrators, representatives of arbitration institutions, attorneys, and in-house counsel from both China and Singapore.

Mr Li Zhigang (Vice Chairman, Council for the Promotion of International Trade Shanghai; Vice Chairman, SHIAC) opened the session, reporting on the establishment of the Singapore-Shanghai Comprehensive Cooperation Council. He mentioned that this conference was held in accordance with the Memorandum of Understanding signed by SHIAC and SIAC. Mr Chan Leng Sun, SC (Deputy Chairman, SIAC Board of Directors; Senior Counsel and Arbitrator, Essex Court Chambers Duxton) followed with the opening address. He introduced SIAC’s recent developments and practice. He held that the cooperation between SHIAC and SIAC would foster closer ties between arbitration professionals from Shanghai and Singapore.

Ms Chen Jingying (Vice President, East China University of Political Science and Law (ECUPL)) gave a special address. She said that the cooperation between arbitration institutions and universities would promote the development of commercial arbitration by nurturing legal talent and outstanding arbitration practitioners. SIAC signed the Memorandum of Understanding with ECUPL during the conference.

During the keynote speeches, Mr Yu Weifeng (Chairman, Shanghai Arbitration Association; Partner, Llinks Law Offices Shanghai Office/Hong Kong Office) introduced the establishment of Shanghai Arbitration Association, and Mr Hee Theng Fong (JP, Consultant, Eversheds Harry Elias LLP) compared different practices between common law and civil law jurisdictions on presenting and examining evidence.

Panel Session I: Effective Dispute Resolution for BRI Investments

The first panel discussed effective dispute resolution for BRI investments. Mr Huang Ningning (Managing Partner, Grandall Law Firm) moderated a panel comprising Mr Guan Feng (Partner,King & Wood Mallesons Shanghai Office), Mr Hu Ke (Partner, Jingtian & Gongcheng), Mr John Liu (Senior Partner, AllBright Law Offices), Mr Prakash Pillai, (Partner, Clyde & Co Clasis Singapore), Mr Wang Zhao (Partner, JunHe Law Firm Shanghai Office) and Mr Wang Lingqi (Partner, Fangda Partners).

The panelists covered topics ranging from the benefits of arbitration for BRI disputes, considerations when selecting the arbitral seat and the venue, potential uses and enforceability of interim measures and emergency arbitrator decisions, considerations when appointing arbitrators, effective witnesses and the role of experts, to the role of mediation and Arb-Med-Arb for BRI disputes.

Panel Session II: Comparative Perspectives on Arbitration in China and Singapore

The second panel, which was moderated by Mr Chan Leng Sun, SC, focused on comparative perspectives on arbitration in China and Singapore. The panelists, comprising Mr Chua Kee Loon (Partner, Allen & Gledhill LLP), Mr Hee Theng Fong, Mr Lei Shi (Partner, Clifford Chance), Ms Vicky Zhao (Member, YSIAC Committee; Partner, AnJie Law Firm) and Mr Zhiqiang Zou (Senior Partner, Dentons Law Offices (Shanghai), shared their views and perspectives. The discussion encompassed different approaches to cross-examination, document production and witness conferencing as well as cultural considerations on crossexamination of witnesses and experts, the differences between setting-aside and resisting enforcement of awards and the scrutiny process of draft awards.

Ms Jessica Fei (Member, SIAC Court of Arbitration; Partner, King & Wood Mallesons) and Ms Wang Weijun (Deputy Secretary-General, SHIAC) concluded the event with closing remarks.

The interactive and informative sessions gave arbitration practitioners from China and Singapore an interesting insight into the trend of harmonization of different practices in the field of international commercial arbitration.

19 September 2019
SIAC-KCAB Seoul Conference 2019
By Arie Eernisse, Foreign Attorney, Shin & Kim

The SIAC-KCAB Seoul Conference 2019 was titled “Cross-Border Construction Disputes in 21st Century Asia” and attracted more than 70 practitioners, in-house counsel and professionals.

Ms Seok Hui Lim (CEO, SIAC) opened the session, reporting that Korean parties are one of the top ten users of SIAC and that there are currently two members of the SIAC Court of Arbitration who are based in Korea. Mr Hi-Taek Shin (Chairman, KCAB International) followed with his opening address. He noted that Seoul is becoming a hub of international arbitration and that Korean construction companies have become frequent users of international arbitration, with approximately one-third of KCAB’s disputes arising from construction. He remarked that the availability of many dispute resolution options is a blessing, but it also means that careful planning is required.

Panel Session I: Strategic Considerations When Pursuing Construction Disputes
The first panel session addressed strategic considerations in construction disputes, mainly at the onset of the dispute resolution process. Mr John P. Bang (Member, SIAC Court of Arbitration; Senior Foreign Attorney, Bae, Kim & Lee LLC) expertly moderated a panel comprising Mr Michael Ashcroft QC (Arbitrator and Barrister, Twenty Essex), Mr Im Byung Woo (Partner, Kim & Chang), Mr Steven Y. H. Lim (Arbitrator and Barrister, 39 Essex Chambers), Mr Iain Potter (Director, MDD Forensic Accountants, Singapore), Mr Matthew Skinner (Partner, Jones Day), and Mr Thomas Walsh (Partner, Clifford Chance LLP).

The panel began with an interactive panel exchange about adopting appropriate dispute resolution mechanisms. Mr Bang observed that early strategic choices are critical in large and complex construction disputes as such choices can make a difference in terms of how quickly the dispute is resolved, how resources are utilised and whether remedies are appropriate. Mr Walsh explained that he often sees arbitration clauses in construction contracts that involve various complications and that escalation clauses are common. Mr Im opined that escalation clauses have become necessary to save time and costs but cautioned that Korean companies should be aware of differences between the typical Korean style of mediation and mediation pursuant to an international construction contract’s step clause. Offering a critical view, Mr Skinner remarked that it is difficult to know the merits of the case at the early stages of a dispute and, thus, a requirement to mediate early in a dispute may be disadvantageous and put the parties at risk.

Moving on to strategic considerations in the context of arbitration, the panellists discussed how companies are increasingly trying to ensure that they are covered by investor-state dispute resolution mechanisms. They also touched on the importance of using claims consultants or lawyers who evaluate claims when arbitration is being considered, and on the importance of ensuring that notice requirements are met (to avoid complete dismissal of claims despite lengthy arbitration proceedings).

The panellists focused next on stays, anti-suit injunctions and court-ordered interim relief, as well as notable aspects of emergency arbitrator proceedings. Mr Lim gave a detailed and helpful overview of the current state of the law. Mr Ashcroft called anti-suit injunctions a powerful weapon for parties, but he stressed that timing is crucial and that delay itself may cause a party to lose an anti-suit injunction application. Offering a forensic accounting expert’s view, Mr Potter examined the pros and cons of using the same expert for interim relief and substantive issues.

Further discussion ensued on pursuing investor-state arbitration in conjunction with, or in lieu of, commercial arbitration, third party funding for investment and commercial arbitration, and asserting claims against third parties and joining non-signatories.

Panel Session II: Managing Proceedings and Proving Your Claims
The second panel session, which was deftlymoderated by Ms Sue Hyun Lim (Secretary-General, KCAB International), featured as panellists Mr Chris Bailey (Partner, King & Spalding), Mr Braden Billiet (Managing Director, FTI Consulting), Mr Chan Hock Keng (Partner, WongPartnership), Mr Michael Lee (Arbitrator, Twenty Essex), Mr Eugene Tan (Partner, Clyde & Co Clasis Singapore) and Mr Rob Palmer (Office Managing Partner, Ashurst LLP).

The discussion began with a focus on ancillary dispute proceedings and parallel proceedings, with the takeaway being that arbitrators and parties should take a cautious approach to these proceedings when they arise. On the issues of consolidation and joinder, the panellists suggested that where parties foresee the possibility of multiple related disputes between themselves, they should proactively adopt contract language that allows for more convenient resolution of disputes between them.

Mr Billiet, a damages expert, next gave his views on the role of a technical expert, which he said was to assist the tribunal on matters within his or her expertise. When asked a question from the audience about a situation involving a tribunal that had ordered a single expert to give testimony on various disciplines, the panellists agreed that, in such a case, finding the right expert suited for the discipline on which expertise is required is important, and that experts should not stray outside the boundaries of their expertise.

The panel then discussed some important procedural and logistical issues to bear in mind while managing proceedings. Mr Chan stressed the importance of adopting appropriate rules for document production (e.g., IBA Rules or Prague Rules) to benefit one’s client. Mr Lee hailed the use of a case management conference to raise the tribunal’s awareness of what the case is about from the start and to ensure that it is able to understand the key issues at the disclosure stage. Mr Palmer shared that construction disputes are document (and expert) heavy and that Asia’s increasingly diverse arbitral panels may take varied approaches to assessing the evidence. However, he said it should not be automatically assumed that they will adopt their home jurisdiction’s common practices, as there are various international norms that are followed as well (e.g., witness statements).

Mr Palmer amusingly introduced the next topic with a quote from (the draconian) section 229 of Hammurabi’s Code (“If a builder builds a house for a man and does not make its construction sound, and the house which he has built collapses and causes the death of the owner of the house, the builder shall be put to death”). Mr Bailey then shared some critical insights about the importance of understanding and recognizing tensions between FIDIC contracts (which have a common law approach in mind) and non-common-law applicable law. Mr Tan homed in on another cross-jurisdictional challenge: ensuring commencement of proceedings within the required period of time in a foreign jurisdiction, considering the variance in statute of limitations periods, rules on when to start calculating delay and rules on waiver. An exchange with an audience member from Vietnam highlighted the importance of being aware of such differences.

Finally, Mr Billiet provided a concise and helpful overview of quantifying damages in a construction case, followed by Mr Bailey’s closing thoughts on the importance of taking a proactive approach to understanding how to address issues of damages and experts.

Conclusion
Both panels provided keen insights on a broad range of critically important topics for practitioners. Audience members not only gained numerous tips useful for construction arbitration practice but also a strategic framework for organizing this useful knowledge.

17 September 2019
YSIAC-KCAB Next Seoul Workshop 2019
Interim Relief in International Arbitration: Techniques, Tips and Strategies
By Dipl.-Jur. Paolina P. Ilieva, Trainee Lawyer, Lee & Ko

This year’s YSIAC-KCAB Next Seoul Workshop 2019 tackled the topic of interim relief in international arbitration. The Workshop – titled Interim Relief in International Arbitration: Techniques, Tips and Strategies – attracted over 50 practitioners from the arbitration community in Korea and throughout Asia.

The evening commenced with a Welcome Address by Dr Eun Young Park (Member, SIAC Court of Arbitration; Partner, Kim & Chang) that centered around a story from Greek mythology: the Judgment of Paris. According to the myth, an argument among three goddesses – Hera, Aphrodite and Athena – over which of them possessed unmatched beauty ultimately led to the Trojan War. The takeaway that Dr Park impressed upon the audience from this myth was that strong advocacy skills are key in the world of international arbitration, in the same way that they were essential to preventing a war in ancient times.

Dr Park’s Welcome Address was followed by a brief Opening Address by Ms Michele Sonen (Head (North East Asia), SIAC). Ms Sonen introduced YSIAC and explained that the purpose of YSIAC is to provide young practitioners with a platform to learn, develop and enhance their skills as counsel and arbitrators.

Ms Wendy Lin (Co-Chair, YSIAC Committee; Partner, WongPartnership LLP) followed Ms Sonen with an Introduction to the Panel Session. She noted that practitioners have strong feelings about interim relief; it can trigger both positive and negative emotions when practitioners are in the midst of seeking interim relief or defending their clients against an application lodged against them.

Panel Session: Interim Relief: Techniques, Tips and Strategies.

The panel session was moderated by Ms Wonyoung Karyn Yoo (Member, YSIAC Committee; Senior Associate, Kim & Chang). Ms Yoo first invited Ms Dana Kim (Steering Committee Member, KCAB Next; Of Counsel, Herbert Smith Freehills) to open the session with a discussion of the different types of interim relief available in international arbitration. Ms Kim addressed issues such as which forums can grant interim relief; when is the appropriate time to seek interim relief; and what rules empower the Arbitral Tribunal to grant interim measures. Ms Kim also provided a checklist of practical considerations that an arbitration lawyer should bear in mind before turning to the Tribunal with a request for interim relief.

Ms Kate Apostolova (Member, YSIAC Committee; Senior Associate, Freshfields Bruckhaus Deringer) also delivered valuable practical input from her experience as an arbitration practitioner. She outlined several factors that influence whether to seek interim measures from the domestic courts, an Arbitral Tribunal, or an Emergency Arbitrator. For instance, Ms Apostolova pointed out that when a party requires document production in order to support its application for interim relief, it may be more strategic to seek interim relief from national courts rather than an Emergency Arbitrator because the latter would most likely exclude the possibility of document production.

Mr Steven Y. H. Lim (Arbitrator and Barrister, 39 Essex Chambers) continued the panel session by discussing the applicable legal standards for granting interim relief in an arbitration proceeding. He identified three legal standards that have been developed by international arbitration practice, and the similarities and differences between these tests.

On the question of why a party may need an interim measure from a domestic court, Mr Mino Han (Senior Associate, Bae, Kim & Lee) enumerated five important considerations:

1. Enforceability
2. Ex parte applications
3. Prejudice
4. Time
5. Risk of amendments of the interim measure

Mr Han further explained that certain common types of interim measures are not allowed in Korea, such as anti-arbitration injunctions or anti-suit injunctions.

The topic of Emergency Arbitration was presented by Ms Kate Apostolova. She first revealed that the purpose of Emergency Arbitration is to provide urgent relief in the time between filing a Request for Arbitration and the constitution of an Arbitral Tribunal, which in many cases could take months. Ms. Apostolova highlighted that SIAC was the first arbitral institution based in Asia to introduce the Emergency Arbitration procedure in 2010. Since then, nearly 100 applications have been filed with SIAC.

The SIAC Rules require appointment of an Emergency Arbitrator (EA) within one calendar day and an award must be rendered by the EA within 14 days from his or her appointment. Mr Steven Lim shared his experience that the appointment of an EA can happen at any time, regardless of whether it is a weekend.

On the topic of applicable standards before an EA, Ms Apostolova explained that all of the legal standards mentioned earlier by Mr Lim may also apply during an Emergency Arbitration, supplemented by one additional requirement: a party seeking emergency interim relief must demonstrate such urgency that the requested relief cannot await constitution of the Arbitral Tribunal.

Finally, Ms Julia Jiyeon Yu (Partner, Oon & Bazul LLP) addressed the topic of non-compliance and enforceability of interim measures. Ms Yu drew the audience’s attention to the important question of whether to apply for interim relief from an Arbitral Tribunal or an EA even though that measure may lack enforceability in some national courts. In response, Ms Yu highlighted the extremely high rate of voluntary compliance with arbitral awards granting interim measures, as parties generally seek to avoid casting a dark shadow on their case that may negatively affect the later stages of the arbitration.

After the panel session, Ms Sonen concluded the event with brief closing remarks thanking the panelists for the lively discussion and for sharing their experiences. The YSIAC-KCAB Next Workshop 2019 left the attendees with a better understanding of interim measures in international arbitration.

17 September 2019
SIAC Signs Memorandum of Understanding with the East China University of Political Science and Law

The Singapore International Arbitration Centre (SIAC) is pleased to announce that it has entered into a Memorandum of Understanding (MOU) with the East China University of Political Science and Law (ECUPL).

Under the MOU, SIAC and ECUPL will work together to place law students from ECUPL in internships at SIAC. In addition, SIAC and ECUPL will collaborate to incorporate a module on "SIAC and Institutional Arbitration" into the ECUPL law programme. Upon request by SIAC or ECUPL, 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 entered into during a signing ceremony on 17 September 2019 at the SIAC-Shanghai International Arbitration Center (SHIAC) Conference 2019, and was signed by Ms Lim Seok Hui, Chief Executive Officer of SIAC, and Ms Chen Jingying, Vice President of ECUPL. During the signing ceremony, Ms Chen signed the MOU on behalf of ECUPL, and Mr Liu Rundong, Deputy Head (China) of SIAC, affixed the SIAC seal to the MOU. The signing ceremony was witnessed by Mr Chan Leng Sun, SC, Deputy Chairman of SIAC.

Ms Chen Jingying, Vice President of ECUPL, said, "We believe this MOU will enable our students to learn from one of the world's top arbitral institutions, and look forward to working closely with SIAC to nurture and develop future generations of talented young arbitration practitioners in China."

Ms Lim Seok Hui, CEO of SIAC, said, "We are honoured and delighted to be entering into this MOU with ECUPL, a leading Chinese academic institution. We are confident that this collaboration will enable us to contribute further towards the development of international arbitration in China and foster closer ties within the Chinese arbitration community."


For more information, please contact:

Singapore International Arbitration Centre
T: +65 6713 9777
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W: www.siac.org.sg

12 September 2019
SIAC-CIL Academic-Practitioner Colloquium

Mr Csaba Kovács’ presentation of his paper titled “Attribution of the Conduct of State-owned Enterprises to the State”
By Lexi Menish and Samantha Tan, Freshfields Bruckhaus Deringer

Introduction

The 3rd SIAC-CIL Academic-Practitioner Colloquium brought to life a critical but complex and often misunderstood international investment law question: when is a State responsible for the conduct of a separate legal entity?

This question is obviously fraught with uncertainty. The apparent irreconcilabilities in the arbitral case law on attribution inspired Mr Csaba Kovács to dive in and attempt to make sense of it all in his book, Attribution in International Investment Law, the first published monograph dedicated to this topic.

The Colloquium’s panellists reviewed Mr Kovács’ book and peppered him with challenging questions on the topic. The esteemed Vice-President of the SIAC Court of Arbitration; Director of the Centre for International Law (Singapore), Professor Lucy Reed, told us in her opening address that the Academic-Practitioner Colloquium was designed for that very purpose, for academics to gather comments from practitioners on their work, and for cross-pollination of ideas between legal academics and practitioners. Mr Kovács was impressive. In the spirit of lively discourse, the discussion at times resembled a cross-examination, and Mr Kovács defended his publication valiantly.

The general focus of the panel was the question of how satisfactory the International Law Commission’s Draft articles on Responsibility of States for International Wrongful Acts (ILC Articles) are as the generally accepted rules for attributing conduct to a State. The Colloquium also addressed, on the flipside of attribution, when a State-owned enterprise should be precluded from bringing a claim against another State under an investment treaty.

This discussion among experts in this complex area of law was intellectually rigorous, yet elegantly translated into easy-to-understand pieces, including by the moderator, Mr Toby Landau QC (whose light-hearted interjections in this substantive two-hour session were no doubt appreciated by the audience).

Mr Kovács’ introduction to his paper

To frame the panel discussion, Mr Kovács introduced the premise: a State can be responsible for internationally wrongful conduct only if it consists of an action or an omission that is attributable to the State under international law.

Mr Kovács then explained the legal framework for answering the question of when conduct is attributable to the State under international law: special rules in the treaty under which the claim against the State has been brought, i.e., lex specialis; and, in the absence of express treaty wording, the ILC Articles.

Under the ILC Articles, Mr Kovács explained, an act can be attributed to the State if the person performing the act:

•	is an organ of the State (Article 4);
•	exercises governmental powers delegated by the State in relation to this act (Article 5); or
•	acts on the instructions, or under the direction or control, of the State (Article 8).

Mr Kovács then discussed the challenges commonly faced in applying the ILC Articles to the infinitely diverse structures that States adopt to conduct their affairs.

Mr Kovács introduced Article 4 of the ILC Articles as focusing on the entity in question, rather than on its act. He explained:

•

to equate a State-owned enterprise with a State organ when it does not have that status under internal law must be “exceptional”, requiring “proof of a particularly great degree of State control over them”, i.e., a relationship of “complete dependence”; and

•

investment tribunals have identified a number of factors that could indicate that a State-owned enterprise is a State organ, such as its establishment by law, lack of separate legal personality, lack of institutional or operational independence, performance of core governmental functions, lack of separate patrimony, lack of financial autonomy, and its being subject to judicial review or governmental oversight, but not its ownership or control of shareholding by the State.

On Article 5 of the ILC Articles, Mr Kovács discussed the trickiness of determining whether an act was commercial or sovereign, only the latter of which would be the basis for State responsibility. He postulated the following rebuttable presumptions based on the arbitral jurisprudence:

•	an act is commercial if a private entity in an open, competitive market could also perform it, even if such act serves a general interest; and
•	an act is governmental if it concerns an asset or activity normally reserved to the State, even if such act was performed through contractual or commercial means.

On Article 8, Mr Kovács distinguished between conduct carried out on the State’s instructions—which he said covers only express instructions—and conduct carried out under the State’s direction or control—which he said requires the State to have directed or controlled the specific operation of which the impugned conduct was an integral part. He highlighted that there may also be an additional requirement that the State-owned enterprise’s exercise of public powers or the State’s use of its ownership interest or control of a State-owned enterprise was “to achieve a particular result”.

Mr Kovács concluded that the investment arbitration jurisprudence showed that the ILC Articles were widely accepted and largely applied consistently to determine attribution, and that the expansion of the current scope of such attribution rules is unlikely, although their application requires flexibility.

Mr Colin Liew, Advocate, Essex Court Chambers Duxton, commented that the test of control used for the Article 4 analysis had been doubted by a decision of the International Criminal Tribunal for the Former Yugoslavia in which it formulated an alternative “overall control” test. Mr Liew also observed that according to the jurisprudence, in less than “exceptional” cases entities have also been deemed to be State organs under Article 4.

Mr Kovács agreed that the tribunals in Flemingo DutyFree Shop v Poland and Ampal-American Israel et al v Egypt had indeed found State-owned entities to be State organs despite their being separate legal entities. He opined, however, that those cases are outliers and context-specific. Mr Kovács explained that in Flemingo, for example, Poland had made concessions that the entity in question performed strategic functions for the State that could not be transferred to a private party, and such evidence is rare. Mr Landau added that the “complete dependence” test was adopted from the Nicaragua decision by the International Court of Justice about State control over conduct in a State-State dispute, which might not apply in the same way in an investor-State context.

Left to Right: Prof Vincent-Joel Proulx, Nicholas Lingard, Csaba Kovacs, Toby Landau QC, Darius Chan and Colin Liew	Members of the audience

2 September 2019
SIAC holds SIAC India Summit in New Delhi

The Singapore International Arbitration Centre (SIAC) held a two-day SIAC India Summit titled “Modern Trends and Perspectives on Investor-State and International Commercial Arbitration” on 30 and 31 August 2019. Day 1 of the Summit featured an inaugural conference on Investor State Dispute Settlement (ISDS) which focused on the future of ISDS in Asia and the state of play for investment arbitration in India. International commercial arbitration took centre stage on Day 2 of the Summit at SIAC’s annual India flagship event which examined recent arbitration developments in India and the use of institutional procedures to deal with emerging issues in international arbitration.

SIAC was honoured to have Mr. K. Shanmugam, SC, Minister for Home Affairs and Minister for Law, Singapore, and Mr Ravi Shankar Prasad, Minister of Law & Justice, Communications and Electronics & Information Technology, India, grace the Summit. Minister Shanmugam delivered the Opening Addresses on both days, Minister Prasad delivered the Special Address, and the Honourable Justice Rohinton Nariman, Judge, Supreme Court of India, delivered the Keynote Address at SIAC’s annual international commercial arbitration conference on Day 2 of the Summit. The Honourable Justice B.N. Srikrishna, Retired Judge, Supreme Court of India, participated as a panellist at the ISDS conference. Mr Edwin Tong, SC, Senior Minister of State, Ministry of Law & Ministry of Health, Singapore, also attended the Summit.

Mr Davinder Singh, SC, Chairman of SIAC, delivered the Welcome Addresses for both events, and Mr Gary Born, President of the SIAC Court of Arbitration, delivered the Keynote Address at the inaugural ISDS conference.

The Summit featured a stellar-lineup of SIAC Board and Court members as well as other international arbitration luminaries including Prof. Bernard Hanotiau, Mr Tejas Karia, Mr Darius Khambata, SC, Mr Toby Landau QC, Mr Rajiv Luthra, Ms Shaneen Parikh, and Mr Michael Hwang, SC.

Close to 600 delegates attended the Summit.


For more information, please contact:

Singapore International Arbitration Centre
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30 August 2019
SIAC India Summit 2019 - Investor State Arbitration
By Abhijnan Jha, Senior Associate, AZB & Partners

The two-day SIAC India Summit 2019 titled “Modern Trends and Perspectives on Investor State Dispute Settlement and International Commercial Arbitration” opened with an inaugural conference on Investor State Dispute Settlement (ISDS) which featured a star-studded line-up of speakers. More than 250 delegates including practitioners, in-house counsel, professionals and students were in attendance on the first day of the Summit.

Mr. Davinder Singh, SC, Chairman of SIAC and Executive Chairman, Davinder Singh Chambers LLC, gave the welcome address, which was followed by the opening address by Mr. K. Shanmugam, SC, Minister for Home Affairs and Minister for Law, Singapore, and the keynote address by Mr. Gary Born, President, SIAC Court of Arbitration and Chair, International Arbitration Practice, Wilmer Cutler Pickering Hale and Dorr LLP.

Panel Session I: Future of ISDS in Asia

The first panel session was moderated by Dr. Rishab Gupta, Partner, Shardul Amarchand Mangaldas.

The panellists were Justice B.N. Srikrishna (Former Judge of the Supreme Court of India), Mr Gary Born, Professor Bernard Hanotiau, Partner, Hanotiau and Van Den Berg, and Mr. Andre Yeap, SC, Senior Partner, Rajah and Tann Singapore LLP.

In this session, the panellists discussed major developments in treaty-making in the Asia Pacific region, multilateral investment courts, the current ISDS regime, third party funding in ISDS, the role of ISDS in addressing disputes arising from the Belt and Road Initiative, and diversity in arbitrator appointments.

Panel Session II: Speed Round: The State of Play of Investment Arbitration in India (Part A)

The second panel session was moderated by Ms. Shaneen Parikh, Member, SIAC Court of Arbitration and Partner, Cyril Amarchand Mangaldas.

The panellists were Mr. Toby Landau QC, Member, SIAC Court of Arbitration; Barrister & Arbitrator, Essex Court Chambers Duxton (Singapore Group Practice) and Essex Court Chambers (London), Mr. Abhileen Chaturvedi, Associate Partner, Economic Laws Practice, Ms. Anuradha Dutt, Founder and Managing Partner, DMD Advocates, and Mr. Kent Phillips, Partner, Hogan Lovells.

In this session, the panellists discussed the state of play of investment arbitration in India with a special focus on the new India model bilateral investment treaty, parallel proceedings, anti-arbitration injunctions, and enforcement of investment treaty awards.

Panel Session III: Speed Round: The State of Play of Investment Arbitration in India (Part B)

The final panel session on investment arbitration was moderated by Mr. Prakash Pillai, Partner, Clyde & Co Clasis Singapore.

The panellists were Ms. Shwetha Bidhuri, Head (South Asia), SIAC, Mr. Arvind Datar, SA, Madras High Court, and Dr. Romesh Weeramantry, Counsel, Clifford Chance. In this session, the panellists discussed the evolution of the current landscape of bilateral investment treaties in India, the impact of change in India’s approach towards investor protection on the inflow of foreign direct investment, protection of investors investing outside India and exclusion of tax measures from investment treaties.

Mr. Rajiv Luthra, Member, SIAC Board of Directors; Founder and Managing Partner, L&L Partners, concluded Day 1 of the Summit with closing remarks in his inimitable style.

16 August 2019
SIAC Announces the Appointment of New Co-Deputy Head (China)



The Singapore International Arbitration Centre (SIAC) is pleased to announce that Ms Sophia Liu Jianying has been appointed to the position of Co-Deputy Head (China). Ms Liu joins Mr Leo Liu Rundong who is the current Deputy Head (China).

Both the China representatives are based in SIAC’s Shanghai office, and are responsible for promoting the development of international arbitration through arbitration events and training programmes in China.

Prior to joining SIAC, Sophia practised in the fields of arbitration, litigation and finance at various law firms in China.

Ms Lim Seok Hui, CEO of SIAC, said, “We are delighted to welcome Sophia to the SIAC team. Her combined disputes and transactional experience will bring a commercially nuanced perspective to her role, which will further enhance and cement our ties within the international arbitration community in China."


For more information, please contact:

Singapore International Arbitration Centre
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W: www.siac.org.sg

5 August 2019
SIAC-SCIA Seminar on ‘’Effective Dispute Resolution for Greater Bay Area Companies Investing in ASEAN’’
By Kevin Elbert, Associate, TSMP Law Corporation

On 5 August 2019, the Singapore International Arbitration Centre (SIAC) and Shenzhen Court of International Arbitration (SCIA) organised a seminar titled ‘’Effective Dispute Resolution for Greater Bay Area Companies Investing in ASEAN’’. The topic for the seminar was particularly appropriate in view of the signing of the Singapore Mediation Convention on 7 August 2019, and the seminar was well attended by guests from all around the world who visited Singapore to witness the signing of the Singapore Mediation Convention.

The session was opened by Ms Lim Seok Hui (CEO, SIAC) who delivered the welcome address. Ms Lim said that SIAC is well-positioned to support the commercial needs of Chinese investors, companies and businesses involved in cross-border projects and investments, particularly in the context of the Belt and Road Initiative. SIAC has many arbitrators who are proficient in Chinese and have handled Chinese cases, and there are eminent Chinese international arbitration practitioners on the SIAC Court of Arbitration. As China takes centre stage in the global economy, SIAC is looking forward to deepening ties with its Chinese partners.

This was followed by an opening address by Mr Anthony Neoh QC, SC (Vice Chairman, SCIA). Mr Neoh emphasised the importance of the Greater Bay Area in the global economy. For instance, Shenzhen is now the base for many important international companies. This means that there is an important role for Shenzhen to take the lead in promoting the dispute resolution processes in the area. To further this aim, SCIA is looking forward to forming more collaborations with its global partners in the future.

Panel Session I: Trends and Recent Developments in Dispute Resolution Involving BRI Investments in ASEAN Countries

The first panel discussed the issue of trends and recent developments in ASEAN countries: Dr Christopher Boog (Partner, Schellenberg Wittmer Ltd) moderated a panel comprising Mr Chan Hock Keng (Partner, WongPartnership LLP), Mr Armstrong Chen (Senior Partner, Dentons Law Offices (Shanghai)), Ms Lexi Menish (Senior Associate, Freshfields Bruckhaus Deringer) and Mr Tony Zhang (Senior Partner, Co-Effort Law Firm LLP).

The panel session started with the question: why is arbitration appropriate for BRI investments for ASEAN countries. Ms Menish explained that arbitration is appropriate because of factors such as neutrality and enforceability. Neutrality is especially important because disputes relating to infrastructure and projects often involve a state-owned entity and one may not want to litigate in the national courts. Mr Zhang added that due to the enforceability of arbitral awards under the New York Convention, arbitration is also an appealing choice for Chinese parties.

On the topic of choice of institution, Mr Chen pointed out that while European parties prefer traditional institutions such as ICC or HKIAC, and Chinese parties would prefer a Chinese arbitration commission, the trend is now to pick a neutral option such as SIAC. However, at the end of the day, parties’ main concerns are costs and efficiency of the arbitral proceedings and parties will generally opt for the most cost-competitive and most efficient institution.

Ms Menish added that in response to BRI investments, institutions have modified their rules, citing the recent update to the HKIAC rules to allow for consolidation of multiple contracts. There is also an arrangement for the enforcement of interim measures between Hongkong and mainland China. Mr Zhang then discussed how China is amending its arbitration laws and practices to meet the needs and expectations of international users, such as an internal court system for enforcement whereby the lower courts would report to the upper courts on their decisions on enforcement of arbitral awards, to ensure consistency in the application of law.

From arbitration, the topic then moved on to commercial courts. Dr Boog started the discussion by asking what role commercial courts such as the Singapore International Commercial Court (SICC) can play in BRI disputes involving ASEAN parties. Mr Chan responded that SICC can be used for BRI disputes, but parties have to agree to bring their case to SICC so as to have foreign judges hear the case. Mr Chen commented on the Chinese International Commercial Courts (CICC), noting that the benefit of referring disputes to CICC is potentially easier enforcement in China. The Chinese state-owned enterprises in particular would prefer to refer their disputes to CICC.

Panel Session II: Procedural Tips, Techniques and Strategies in International Arbitration for BRI Disputes

The second panel discussed tips, techniques and strategies in international arbitration for BRI disputes. The panel was moderated by Dr Yifei Lin (Principal Consultant, Guangdong Yi & Partners Law Firm), and the panellists were Mr Chan Leng Sun, SC (Senior Counsel and Arbitrator, Essex Court Chambers Duxton), Mr Simon Dunbar (Partner, King & Spalding), Mr Jiong (John) Liu (Senior Partner, AllBright Law Offices) and Prof Dr Peter Malanczuk (SCIA, Council Member).

The first topic that the panel touched on was interim measures and emergency arbitration. Mr Chan started off the topic by sharing that in Singapore, interim measures can be granted by the courts and tribunals, but the tricky tactical decision in arbitration is where to seek such measures, which would be dependent on the facts of each case.

On the topic of investor-state dispute settlement, Dr Malanczuk shared that in China there are distinctions between treaty-based claims and contract-based claims. Treaty-based claims are excluded from the purview of CICC, but the position is not so clear in respect of contract-based claims. This may give rise to issues of parallel proceedings.

On procedural strategies, Mr Dunbar spoke about the importance of the seat and selection of arbitrators. The seat determines the legal regime of the arbitration due to the role of the supervisory court, and convenience should not be a factor to determine the seat. On the selection of arbitrators, parties have to consider factors such as the expertise of the arbitrator.

Mr Liu commented on interim measures in China. Even though obtaining interim measures locally may be easy, enforcing a tribunal order on interim measures may be difficult. Parties also need to know whether there are assets to be enforced against in the jurisdiction.

The panel ended with an audience discussion on online dispute resolution. All the panellists agreed that the use of technology in arbitration such as e-discovery should be encouraged.

1 August 2019
SIAC Signs Memorandum of Understanding with the University of Malaya

The Singapore International Arbitration Centre (SIAC) is pleased to announce that it has entered into a Memorandum of Understanding (MOU) with the University of Malaya (UM) Faculty of Law.

Under the MOU, SIAC and UM will work together to place law students from UM in internships at SIAC. In addition, SIAC and UM will collaborate to incorporate a module on "SIAC and Institutional Arbitration" into the UM law programme. Upon request by SIAC or UM, both parties will also conduct joint training programmes, seminars, workshops or other events in Malaysia to promote the development and practice of international arbitration.

The MOU was signed on 1 August 2019, by Ms Lim Seok Hui, Chief Executive Officer of SIAC, and Dato' Associate Professor Dr Johan Shamsuddin Bin Hj Sabaruddin (Dato' Dr Johan Shamsuddin), Dean of UM Faculty of Law.

Dato' Dr Johan Shamsuddin, Dean of UM Faculty of Law, said, "Following the recent collaboration between UM Faculty of Law and SIAC to jointly host the highly successful Kuala Lumpur edition of the SIAC Academy in March 2019, we look forward to deepening our cooperation efforts to cultivate and promote the benefits of international arbitration to future generations of  international arbitration experts in Malaysia."

Ms Lim Seok Hui, CEO of SIAC, said, "We are honoured and delighted to be given the opportunity to work closely with UM, a premier Malaysian academic institution. Malaysian parties have consistently ranked amongst SIAC's top ten foreign users, and Malaysia is a key market for us. This partnership provides an excellent platform for SIAC to contribute further towards the development of international arbitration in Malaysia and to forge closer ties with key stakeholders in the Malaysian arbitration community.


For more information, please contact:

Singapore International Arbitration Centre
T: +65 6713 9777
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W: www.siac.org.sg

05 July 2019
SIAC Jakarta Conference 2019
By Julia Nugroho, Senior Associate, Dewi Negara Fachri & Partners (in association with Hogan Lovells)

The SIAC Jakarta Conference 2019 was titled "Damages in International Arbitration: Contemporary Principles and Practices" and it attracted over 200 participants, including in-house counsel and professionals.

Mr. Kevin Nash (Deputy Registrar & Centre Director, SIAC) opened the session noting the release of the SIAC Rules 2016 which sought to make arbitration faster and more efficient. SIAC has arguably handled more Emergency Arbitration applications than any other jurisdiction in the world, and was the first commercial arbitration institution to release the early dismissal procedure for claims and defences. SIAC also has a robust provision for joinder and consolidation provisions.

Mr. Cavinder Bull, SC (Vice President of SIAC Court of Arbitration) followed with the opening address noting the stellar performance of SIAC in 2018. In 2017, Singapore was ranked the 3rd most preferred seat of arbitration in the world, and SIAC was the 3rd most preferred arbitration institution in the world. Parties need to have an effective way to resolve cross border transactions, and arbitration has proven to be the best solution to resolve those disputes. Arbitration gives us, among others, a flexible procedure, speedy resolution, low cost, suitability for complex dispute, confidentiality, and international enforceability.

Panel Session I: Contemporary Damages Principles in International Arbitration

The first panel discussed the contemporary damages principles. Dr. Mohamed Idwan (‘Kiki’) Gani (Managing Partner of Lubis Ganie Surowidjojo) moderated a panel of distinguished speakers comprising Mr. Andi Kadir (Partner of HHP Law Firm), Mr. Ignatius Andy S.H. (Partner, Ignatius Andy Law Offices), Mr. Simon Barrie Sasmoyo (Senior Associate of Assegaf Hamzah & Partners), and Mr. Simon Dunbar (Partner of King & Spalding).

Mr. Andy discussed the damages that can be recovered for a breach of contract claim which under Indonesian Civil Code (ICC) is comprised of compensation of cost, loss, and interest. An interesting point raised by Mr. Andi Kadir was the good faith concept in Indonesia and whether it is the “unruly horse” of the ICC. Good faith principle has been used to relax the application of the ICC, to make certain deviation on the calculation of damages. In relation to this, Indonesian courts do not provide a clear reasoning and do not provide a clear threshold when the parties and the court can invoke the notion of good faith. If there is a violation of justice, the court has the authority to apply the notion of good faith to rectify or remedy the situation, and it is in line with the principle of justice. This may create legal uncertainty. Similar concerns may also be noted from the open-ended notion of the public policy concept.

Mr. Sasmoyo continued the session by sharing his experience and practical tips. Based on his experience, he has seen the Tribunal grant liquidated damages because it is a more reasonable calculation by the parties as opposed to a penalty, which is punitive in nature. Therefore, stipulating exorbitant figures (e.g., twice or triple the contract amount) in the penalty clause would not be wise.

Mr. Dunbar discussed examples of typical damages clauses in a contract. Limitation of liability, no consequential loss, and liquidated damages provisions are generally treated as boilerplate provisions but have significant impact on the economics of the transaction. He emphasised the importance of clarity on what you want to exclude in the contract.

Panel Session II: Quantifying Damages in Post-M&A Disputes

The second panel focused on quantifying damages in post M&A disputes, and was moderated by Mr. Cavinder Bull, SC. The speakers were Mr. Oommen Mathew (Managing Partner of DWF LLP), Mr. Iain Potter (MDD Forensic Accountants), Mr. Ajinderpal Singh (Senior Partner of Denton Rodyks & Davidson LLP), and Mr. Kabir Singh (Partner of Clifford Chance).

Mr. Mathew gave an overview on proof of damages including the preservation of evidence and providing the evidence in arbitration. Post-M&A disputes often arise out of breach of warranty provisions, fraudulent misrepresentation, and valuation or tax disputes. As such, the examination of the relevant documentary evidence would be crucial. Mr. Kabir Singh advised that being aware of the local limitation period is very important in the transaction. Mr. Ajinderpal Singh also shared practical insights on clauses relating to warranties by the seller, fraudulent misrepresentation, seller's limitation of liability, and notice period.

Panel Session III: Assessment of Damages in Construction Disputes

The last session of the conference was moderated by Mr. Chong Yee Leong (Member of SIAC Board of Directors). The panel members were Mr. Tony Budidjaja (Managing Partner of Budidjaja International Lawyers), Mr. Rob Palmer (Office Managing Partner of Ashurst LLP), and Mr. James Taylor (Senior Managing Director of FTI Consulting).

Mr. Taylor explained that typical causes of construction disputes generally include, among others, variation order, suspension of work, defective works, and payment delay. Mr. Palmer then explained the concept of concurrent delay in a construction project. In the Indonesian context, it can be contractually agreed by the parties to "share the risk". Finally, Mr. Budidjdja commented that the use of experts on the subject matter is needed because construction disputes are generally highly technical in nature and may require intensive fact-investigation. He also emphasised that the quality of the expert report will determine the speed of the arbitration proceedings.

The interesting and very informative conference concluded with brief closing remarks from Mr Chong.

24 June 2019
SIAC – SHCCIE Seminar 2019
By John Liu, Senior Partner, AllBright Law Offices

The SIAC – SHCCIE Seminar 2019 was titled “Advancing the BRI: Navigating the Legal Landscape”, and attracted around 50 practitioners, in-house counsel and professionals.

Ms. Lim Seok Hui (CEO, SIAC) opened the session, reporting the outstanding performance of SIAC in 2018, as well as its excellent people (the SIAC Court of Arbitration and the SIAC Secretariat) and the state-of-the-art hearing facilities in Maxwell Chambers. Mr. Tony Zhang (Deputy Chairman, Shanghai Chamber of Commerce for Import and Export (“SHCCIE”)) followed with the opening address. He first reported the recent achievements and developments of the SHCCIE and then expressed the hope of continuing future event collaborations with SIAC.

Panel Session : Managing the Legal Risks and Use of Effective Dispute Resolution for BRI Investments

Dr. Li Shen (Chief Legal Officer, Noah Holdings) began with a speech titled “Private Equity Fund Investment Mode and Legal Risk Control in BRI Investment”. He introduced the advantages of PE investment, including the advantages of information in the industry sector, reducing the political risks of investment, broadening the channels of fund raising, and providing professional technology for mergers and acquisitions. He also stressed the risks in private equity investment, such as the short-term and medium-term risks of debt of leveraged buyouts, insider trading and the related moral risks, and the risks of the capital operations of the acquired enterprises. After that, he further emphasized the importance of selecting an internationally well-regarded arbitration institution, as the arbitration awards issued by a reputable arbitral institution are more likely to be recognized and enforced by other contracting States of the New York Convention.

Mr. David Gu (Partner, Tiantong Law Firm) then delivered a presentation titled “Introduction to International Arbitration for Chinese Enterprises: Arbitration Institutions, Arbitration Clauses and Arbitrators”. Mr. Gu gave a brief introduction to relevant aspects of international arbitration, in which the importance of selecting arbitrators was highlighted, as well as strategies and tips in the selection process. He also emphasized that parties should pay attention to the selection of arbitration institutions, the update of the rules of arbitration institutions and the constitution of arbitral tribunals. With regard to drafting of the dispute resolution clause, reference could be made to the model clauses of arbitration institutions.

Mr. John Liu (Senior Partner, AllBright Law Offices) spoke on the topic “Risk Prevention in Overseas Investments by Chinese Enterprises”. He pointed out that risk prevention could be divided into three levels. The first level is prevention in advance, namely compliance framework. If an enterprise completes compliance framework at an early stage, it could better avoid risks later. The second level is in-process prevention, which means the prevention awareness of relevant issues in the process, especially in the process of international trade. When encountering problems or potential risks, companies should work out how to respond. The third level is the post-event remedy. When disputes occur, companies should actively seek professional advice to resolve the disputes. The Chinese enterprises which go abroad should pay more attention to risk prevention.

After that, Mr. Nicholas Lum, Partner of Ince (Shanghai/Singapore offices) spoke on “The Notion of International Commercial Arbitration to Chinese Companies: Demystifying the Myths and Bridging the Cultural and Legal Differences”. He shared with the audience three (3) key points that Chinese companies need to keep in mind when “going out” and embarking on BRI projects. First, Chinese companies should be careful about using modest / non-confrontational tones (or not respond at all) as that may, at law, be argued to be behaviour viewed as concession or admission of fault, when there has clearly been no such intention at all. It was crucial to ensure that positions are properly set out and a proper paper trail established from the outset. Second, during the disclosure process in international arbitration, all evidence deemed relevant to the proceedings had to be disclosed, notwithstanding that such evidence may be adverse to one’s own case. This process has to be properly explained to Chinese companies, which may not be used to the same. Finally, the cross-examination of factual witnesses and experts in international arbitrations is a crucial part of a hearing - this is again quite different from a typical court or arbitration hearing in mainland China, and should be brought to the attention of Chinese companies.

Mr. Tony Zhang (Senior Partner, Co-effort Law Firm) gave a presentation on “Considerations for Selecting the Seat of Arbitration”. He pointed out that there are many legal, technical and procedural issues involved when choosing the seat of arbitration. The seat of arbitration determines the national court that has power to order interim measures in support of the arbitration, determine challenges of arbitrators and set aside the award, etc. During an arbitration, more attention should be paid to issues such as challenges of arbitrators and disclosure of challenge decisions. Therefore, he highly recommended arbitration institutions to disclose such information so as to ensure the transparency and fairness of the arbitration process.

Ms. Jianying Liu (Deputy Head (China), SIAC) moderated a panel comprising Mr. David Gu, Mr. John Liu, Mr. Nicolas Lum and Mr. Tony Zhang. The panelists shared valuable insights on dealing with disputes arising out of cross-border investments. Mr. Gu said that large companies should build a robust team with professional in-house counsel to deal with arbitration cases instead of entirely relying on outside attorneys. Mr. Liu emphasized that enterprises needed to pay more attention to the selection of arbitrators and drafting of arbitration clauses, equip themselves with more knowledge and skills to be fully prepared for unforeseen challenges. Mr. Lum advised that in-house counsel of Chinese companies should take note of pertinent clauses in cross-border contracts (governed by common law) which may be interpreted differently from what one would expect under the Chinese civil law regime. In the event that a matter resulted in a dispute, Mr. Lum stressed that it was vital that suitable steps be taken (whether strategic or legal in nature) to try and resolve it promptly, which would no doubt result in a saving of time and costs for parties. Mr. Zhang indicated that as the world of international arbitration is a professional playing field,practitioners experienced in arbitration should be engaged to represent the parties in an international arbitration case.

Mr Leo Liu Rundong, Deputy Head (China), SIAC concluded the event with brief closing remarks.

6 June 2019
SIAC Announces Appointment of New Court Members

The Singapore International Arbitration Centre (SIAC) is pleased to announce the appointment of new members to its Court of Arbitration.

Fourteen new members have been appointed to SIAC's Court of Arbitration, which continues under the leadership of Mr Gary Born as its President. The new Court members are:

	1.	Mr John P. Bang – Bae, Kim & Lee LLC, South Korea
	2.	Ms Yas Banifatemi – Shearman & Sterling, France
	3.	Ms Julie Bedard – Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates, USA
	4.	Mr K. Minh Dang – YKVN, Vietnam
	5.	Ms Jessica Fei – King & Wood Mallesons, China
	6.	Mr Eri Hertiawan – Assegaf Hamzah & Partners, Indonesia
	7.	Mr Tejas Karia – Shardul Amarchand Mangaldas & Co., India
	8.	Mr Fernando Mantilla-Serrano – Latham & Watkins LLP, France
	9.	Ms K. Shanti Mogan – Shearn Delamore & Co., Malaysia
	10.	Ms Shaneen Parikh – Cyril Amarchand Mangaldas, India
	11.	Mr Philippe Pinsolle – Quinn Emanuel Urquhart & Sullivan, LLP, Switzerland
	12.	Mr Michael E. Schneider – Lalive, Switzerland
	13.	Ms Abby Cohen Smutny – White & Case LLP, USA
	14.	Mr Thomas Snider – Al Tamimi & Co., UAE

SIAC would like to express its heartfelt thanks and appreciation to the three outgoing Court members, Mr Paul Friedland, Mr Emmanuel Gaillard, and Mr Jan Paulsson, as well as the outgoing Board member, Mr Nishith Desai, for their dedication, commitment and unstinting support. During their term of service, SIAC achieved a number of significant milestones, notably its ranking as the 3rd most preferred arbitral institution in the world in the prestigious Queen Mary University of London and White & Case International Arbitration Survey, which underscores its position as the most preferred arbitral institution in Asia.

SIAC's Board of Directors continues under the chairmanship of Mr Davinder Singh, SC, who commented, “I would like to thank our outgoing director, Nishith, for his invaluable contributions to SIAC. I am delighted to be working again with Gary, my fellow Board members and the team at SIAC to continue to deliver the highest levels of service and innovation to users all over the world.”

Mr Gary Born said of the new Court appointments, “We are indebted to our outgoing Court members, Emmanuel, Jan and Paul, for their hard work and tremendous contributions. It is a great pleasure to be working again with Davinder, the Court and the SIAC team. I extend a warm welcome to our new Court members whose illustrious reputations and stature in the international arbitration community and deep specialist knowledge across diverse legal systems and cultures will ensure that SIAC remains at the forefront of cutting-edge developments in the law and practice of commercial as well as investment arbitration.”

Ms Lim Seok Hui, CEO of SIAC, said, “We are extremely grateful to the Board and the Court for their extraordinary efforts and contributions in putting SIAC firmly on the world map, and wish to express our special thanks to Davinder and Gary for their visionary, and truly inspirational, leadership and guidance. With their wealth of experience and unmatched dynamism, we are confident that SIAC will burnish its standing as a global leader in dispute resolution services.”

The members of SIAC's Board of Directors are as follows:

	1.	Mr Davinder Singh, SC – Davinder Singh Chambers LLC, Singapore (Chairman)
	2.	Mr Chan Leng Sun, SC – Essex Court Chambers Duxton (Singapore Group Practice), Singapore (Deputy Chairman)
	3.	Mr Chong Yee Leong – Allen & Gledhill LLP, Singapore
	4.	Mr David Liu – Jun He Law Offices, China
	5.	Mr Rajiv K Luthra – L&L Partners (formerly Luthra & Luthra Law Offices), India
	6.	Dr Michael Moser – 20 Essex Street, Hong Kong SAR
	7.	Mr Chelva R. Rajah, SC – Tan Rajah & Cheah, Singapore
	8.	Mr Tham Sai Choy – Singapore

The members of SIAC's Court of Arbitration are as follows:

	1.	Mr Gary Born – Wilmer Cutler Pickering Hale and Dorr LLP, UK (President)
	2.	Dr Michael Pryles AO PBM – Melbourne, Australia (Founder President)
	3.	Mr Cavinder Bull, SC – Drew & Napier LLC, Singapore (Vice President)
	4.	Prof Lucy Reed – Centre for International Law, National University of Singapore, Singapore (Vice President)
	5.	Ms Catherine Amirfar – Debevoise & Plimpton LLP, USA
	6.	Dr Claudia Annacker – Cleary Gottlieb Steen & Hamilton LLP, France
	7.	Mr John P. Bang – Bae, Kim & Lee LLC, South Korea
	8.	Ms Yas Banifatemi – Shearman & Sterling, France
	9.	Ms Julie Bedard – Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates, USA
	10.	Mr Nigel Blackaby – Freshfields Bruckhaus Deringer, USA
	11.	Prof Lawrence Boo – The Arbitration Chambers, Singapore
	12.	Mr Cao Lijun – Zhong Lun Law Firm, China
	13.	Mr K. Minh Dang – YKVN, Vietnam
	14.	Ms Jessica Fei – King & Wood Mallesons, China
	15.	Prof Bernard Hanotiau – Hanotiau & van den Berg, Belgium
	16.	Mr Eri Hertiawan – Assegaf Hamzah & Partners, Indonesia
	17.	Mr Tejas Karia – Shardul Amarchand Mangaldas & Co., India
	18.	Mr Darius Khambata, SC – India
	19.	Mr Toby Landau QC – Essex Court Chambers Duxton (Singapore Group Practice) and Essex Court Chambers (London), Singapore and UK
	20.	Mr Fernando Mantilla-Serrano – Latham & Watkins LLP, France
	21.	Ms K. Shanti Mogan – Shearn Delamore & Co., Malaysia
	22.	Ms Shaneen Parikh – Cyril Amarchand Mangaldas, India
	23.	Dr Eun Young Park – Kim & Chang, South Korea
	24.	Mr Philippe Pinsolle – Quinn Emanuel Urquhart & Sullivan, LLP, Switzerland
	25.	Mr Harish Salve, SC – Blackstone Chambers, India
	26.	Mr John Savage QC – King & Spalding LLP, UK
	27.	Mr Michael E. Schneider – Lalive, Switzerland
	28.	Ms Abby Cohen Smutny – White & Case LLP, USA
	29.	Mr Thomas Snider – Al Tamimi & Co., UAE
	30.	Mr Hiroyuki Tezuka – Nishimura & Asahi, Japan
	31.	Mr Alan Thambiayah – The Arbitration Chambers, Singapore
	32.	Ms Ariel Ye – King & Wood Mallesons, China
	33.	Mr Alvin Yeo, SC – WongPartnership LLP, Singapore

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

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.

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.

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.