7 March 2018
A Three-Part Workshop: “Arbitration at the SIAC: The Inside Track”

Workshop 2: Starting an Arbitration

On 7 March 2018, the Singapore International Arbitration Centre (SIAC) and the Chartered Institute of Arbitrators, Singapore (CIArb, Singapore) successfully co-organised the second of a three-part workshop on arbitration at SIAC. The workshop, which attracted an excellent turnout of attendees from law firms, arbitral institutions, and private companies, sought to offer a behind-the-scenes glimpse into the commencement of arbitral proceedings at SIAC.

The workshop kicked-off with a Welcome Address by Ms Camilla Godman (Regional Director, CIArb) who stressed that “getting all the elements right at the start of an arbitration is critical not just for limitation reasons but also the ultimate creation of an enforceable award”.

The session was moderated by Mr Timothy Cooke (Partner, Stephenson Harwood LLP) and the panel of speakers comprised Ms Delphine Ho (Registrar, SIAC), Mr Kendista Wantah (Associate Counsel, SIAC), and Ms Allison Goh (Associate Counsel, SIAC). The panel discussed various potential issues that a lawyer or a party may face when commencing an arbitration, and offered their insights on these issues from an institutional perspective.

Amongst others, the discussion touched on practical topics including what would amount to a “complete” or “substantially complete” Notice of Arbitration for the purpose of commencing an arbitration at SIAC, issues involving a non-paying respondent in an SIAC- administered arbitration and the approach taken by SIAC when dealing with ambiguous arbitration agreements.

The panel shared their experiences and elaborated on the rationale behind the institution’s approach under the SIAC Rules on these issues. Of particular interest to the attendees was SIAC’s considerations when determining the amount of deposits payable, especially in cases involving substantial counterclaims. The Registrar, Ms Ho highlighted the importance for parties to provide an estimated quantification of their claims early in the case to avoid “surprises”.

The workshop ended on a high note with the panel addressing further burning questions from the attendees on, inter alia, the consolidation mechanism under the SIAC Rules and appointments by SIAC in ad hoc arbitrations. To end the session, Mr Cooke expressed his gratitude to the panel from SIAC for taking their time to share their insights with the attendees.

2 March 2018
YSIAC Debate

By Melissa Mak, Senior Associate, Allen & Gledhill LLP

“Tribunals with women arbitrators make better decisions.” As is well known, in a relationship, one person is always right and the other person is male – surely, this must be good counsel when selecting an arbitrator, where judgment and perceptiveness are crucial attributes.

The YSIAC Debate held on 2 March 2018 sought to challenge this received wisdom. The moderator for the debate was Mr Chelva Rajah, SC (Member, SIAC Board of Directors, Managing Partner, Tan Rajah & Cheah). Arguing for the motion – and ostensibly with the “easier” task – was the duo of Mr Toby Landau QC (Member, SIAC Court of Arbitration; Barrister and Arbitrator, Essex Court Chambers) and Mr Paul Tan (Partner, Rajah & Tann Singapore LLP), with brains and beauty to spare. Arguing against the motion were the formidable team of Ms Deborah Barker, SC (Managing Partner, Withers KhattarWong) and Ms Jae Hee Suh (Associate, Allen & Overy), who persuaded the packed audience of 128 attendees with impassioned advocacy (and song).

This debate was a timely one, coming slightly less than two years after the arbitration community drew up the Equal Representation in Arbitration Pledge, with signatories committing to diversify the pool of arbitrators and improve the profile and representation of women in arbitrations.

Mr Tan fired the opening salvo with the central thesis that women outperform men in personal qualities that were relevant to arbitral decision making – women tended to have more initiative and creativity, and displayed honesty and social awareness. Citing various statistical studies (as well as anecdotal evidence that women were smarter and live longer), Mr Tan presented a compelling case in favour of the participation of women on arbitral tribunals to improve decision making.

Mr Tan’s arguments were met with a confident rebuttal from Ms Jae Hee Suh, who challenged the underlying assumption in the motion that women arbitrators had to make “better” decisions to justify their appointments to arbitral tribunals. She argued that gender should make no difference to decision-making: expertise and efficiency bore little correlation to one’s gender. Women arbitrators should be appointed on an equal opportunity basis, and not because of their gender. Ms Jae concluded that supporting the motion would harm, instead of support, women, by perpetuating gender stereotypes and suggesting that the participation of women in arbitral tribunals was no more than a form of tokenism.

Following on the heels of Ms Jae’s challenge to the idea that woman had to show that they have a “right” to be there, Mr Landau presented yet another perspective that focussed on the importance of diversity in group decision-making. Quite apart from the fact that women might have specific personal qualities and characteristics that lent themselves to the process of decision-making, the individual skills of a diverse group collectively contributed to greater group intelligence and translated to greater collaboration in making sense of evidence and submissions. Mr Landau explained that “better” might not just mean right or wrong, but whether a decision was regarded by users as legitimate and acceptable. Gender diversity was a fact of the modern world, and the composition of tribunals should reflect this.

Ms Barker responded, to rapturous applause from the audience, by breaking out the ukulele and in song with the aptly titled song “Man Smart, Woman Smarter”. The lyrics speak for themselves: “And not me but the people they say; That the men are leading the women astray; But I say, that the women of today; Smarter than the man in every way.” Ms Barker asked, rhetorically: how would the inclusion of females improve decision making? The oft-quoted description of arbitrators as a “male, pale and stale” group that would somehow benefit from the participation of women undermined the wider issues of unconscious bias and lack of equal opportunities that have contributed to the imbalance.

At the end of this spirited debate, the audience spoke, and awarded the debate to Ms Barker and Ms Jae. What appeared at first to be a straightforward motion reflected the nature of the complex and multi-faceted debate on inclusivity in the community. Whilst the concept was widely supported, the unconscious bias in the system cannot be changed by the mere assertion that tribunals with woman arbitrators are “better”. The women were still right on this score.

24 January 2018
A Three-Part Workshop: “Arbitration at the SIAC: The Inside Track”

Workshop 1: The SIAC Court and the SIAC Secretariat

Kicking off a new three-part series of workshops co-organised by the Singapore International Arbitration Centre (SIAC) and the Chartered Institute of Arbitrators, Singapore (CIArb, Singapore), the first session of “Arbitration at the SIAC: The Inside Track”, was held on 24 January 2018.

Eager to gain a glimpse behind the proverbial curtain at SIAC, a packed crowd comprising both young and experienced practitioners, in-house counsel and arbitrators came to hear Mr Gary Born (President, SIAC Court of Arbitration; Chair, International Arbitration Practice Group, Wilmer Cutler Pickering Hale and Dorr LLP), Mr Kevin Nash (Deputy Registrar & Centre Director, SIAC), Ms Aliona Bitkivskaja (Associate Counsel, SIAC), Mr Christopher Bloch (Associate Counsel, SIAC), and moderator Mr Timothy Cooke (Partner, Stephenson Harwood LLP), expound on the roles and interplay between the SIAC Court and the SIAC Secretariat.

With Mr Born present to weigh in on how the President and the SIAC Court dealt with some of the applications filed by parties under the SIAC Rules 2016, including applications for emergency arbitration, Expedited Procedure, consolidation and joinder, and prima facie decisions on jurisdiction, participants were able to gain valuable insights on how to develop an effective case strategy in cases administered under the SIAC Rules.

In terms of procedure, Mr Born noted that the President and the SIAC Court would look to the Secretariat to brief them on the facts, procedural complexities and competing arguments for each case. This briefing allowed the President and the Court Members to perform a detailed analysis of the merits of each application in complex cases where time was often of the essence. For efficiency, many of these applications to the SIAC Court were handled by a three-member ‘Committee’ of the SIAC Court.

Unsurprisingly, one of the hottest topics raised by the audience related to various provisions in the SIAC Rules concerned with speed and costs, showing that this remained an important factor for parties.

The first of these topics to be addressed was the revision to the emergency arbitration provisions in the SIAC Rules 2016 – namely the switch to a flat fee for emergency arbitrators (revised from the prior ad valorem scale where emergency arbitrators’ fees were capped at 20% of a sole arbitrator’s fee cap under the SIAC Rules 2013). Mr Nash noted that SIAC had seen this as an important change, noting that “there has been an uptick in the number of EA applications coming in since the amendment, presumably because of the greater predictability and cost savings with the new fixed fee”.

Mr Bloch noted anecdotally that “parties often file their emergency arbitrations just before close of business on either a Friday night or eve of a public holiday – clearly a strategic decision on their part – but with our tight timelines, SIAC [would] get the emergency arbitrator appointed and underway, whether that [meant] being in the office on Saturday or over Chinese New Year”. The pro tip received: Give SIAC an indication that you would be preparing to file an emergency arbitration so that the internal processes can be begun to ensure the quickest turnaround possible.

Another “special procedure” which received much attention for its time and cost saving potential was SIAC’s Expedited Procedure, which allowed for a dispute to be heard, from constitution of the tribunal to final award, within 6 months. In response to questions on timelines, the Secretariat confirmed that the overwhelming majority of tribunals were able to meet the deadline. Mr Born explained that this may be due to the robust approach adopted by SIAC in consideration of these applications. For instance, even if an application for Expedited Procedure met any of the threshold criterion under Rule 5.1 of the SIAC Rules, the President maintained the discretion to reject the application where the surrounding circumstances suggested that the regular procedure should be maintained. In 2017, SIAC received 107 applications for Expedited Procedure, and of those, 55 have been accepted, a 51% acceptance rate.

As the discussion moved to the finer points of the Expedited Procedure, the panel received a comment on the possibility of SIAC affirmatively taking into account the efficiency with which an arbitrator dealt with a dispute when determining the costs of the arbitration, noting that sometimes it was substantially more difficult for an arbitrator to hear a case on a short timeframe and issue a quick award. The question then followed as to “whether an arbitrator should be paid more for efficient handling of an Expedited Procedure case?” Upon a straw poll being conducted by Mr Born on the spot, the crowd seemed split, but the majority were receptive to this proposal.

In addition to questions on these special procedures, there was significant interest from the audience on the general financial management of arbitrations and remuneration of tribunals in SIAC-administered cases. When discussing the fee structure, Ms Bitkivskaja noted that the SIAC Rules 2016 provided for a default ad valorem fee scale which linked the fees to the amount in dispute, but also noted that parties were free to agree to alternative remuneration for arbitrators. She described one method of alternative remuneration that SIAC had encountered which she coined a “hybrid” system – where arbitrators were paid on an hourly basis, but their fees were capped based on the amount in dispute. In this regard, Ms Bitkivskaja explained that SIAC’s Schedule of Fees (and even such a hybrid system) gave parties visibility on the potential costs of arbitration, “allowing parties to control their financial exposure and budgets”.

As this was the opening salvo to the three-part series, the panel set the tone for the full and frank discussion of the SIAC Secretariat’s processes and procedures. Mr Cooke summarised that the participants had confirmed what he had previously suspected – namely, that there was an incredible amount of interest from the community in getting a look behind the curtain and gaining insight on how SIAC, and institutions generally, operate.

As we welcome the new year, we look back fondly at some of the highlights of 2017.

We would like to express our heartfelt thanks and appreciation to members of the SIAC Board, Court and the YSIAC Committee as well as all of our partners and friends in the local and international legal and business communities for their many contributions and consistent support.


With best regards,
The SIAC Team

19 December 2017
Proposal on Cross-Institution Consolidation Protocol

The Singapore International Arbitration Centre (SIAC) is pleased to announce its proposal on cross-institution cooperation for the consolidation of international arbitral proceedings. The SIAC proposal, which was initiated by Mr Gary Born, the President of the SIAC Court of Arbitration, is detailed in letters from Mr Born to other international arbitral institutions together with an attached memorandum. The memorandum proposes the adoption of a protocol by arbitral institutions permitting the cross-institution consolidation of arbitral proceedings subject to different institutional arbitration rules.

Through institutional cooperation, the cross-institution consolidation proposal is designed to facilitate the efficient and enforceable resolution of international commercial disputes, which will lead to significant gains for parties. Mr Born commented, “We welcome cooperation with other leading arbitral institutions around the world in further enhancing the efficiency and efficacy of the arbitral process. The cross-institution consolidation protocol is an important step in this direction and we look forward to working with our colleagues at other institutions in implementing the proposal.”

Rules on consolidation, joinder and intervention in international arbitration play an important role in the international arbitral process. By allowing related issues to be resolved in a single proceeding, consolidation permits more efficient and cost-effective dispute resolution, whilst minimising the risk of inconsistent decisions in related disputes.

These benefits have led a number of arbitral institutions to adopt provisions in their institutional rules that allow the consolidation of related disputes and/or the joinder of additional parties. The 2016 SIAC Arbitration Rules contain a state-of-the art set of provisions for consolidation, as do the rules of other leading arbitral institutions, including the International Chamber of Commerce Court of Arbitration (ICC).

Importantly, however, the consolidation provisions of existing institutional rules of leading arbitral institutions do not permit the consolidation of arbitrations that are subject to different sets of institutional arbitration rules (for example, SIAC and ICC arbitrations), even if they satisfy the other criteria for consolidation. Instead, existing institutional rules provide for the consolidation of arbitral proceedings only where the parties’ various arbitration agreements are compatible, including by incorporating the same institutional arbitration rules. Thus, a SIAC arbitration can be consolidated with another SIAC arbitration, but not with an ICC arbitration; likewise, an ICC arbitration can be consolidated with another ICC arbitration, but an ICC arbitration cannot be consolidated with a SIAC arbitration.

The lack of any existing mechanism for “cross-institution” consolidation of arbitrations subject to different institutional arbitration rules substantially limits the types of disputes that can be consolidated. In turn, this prevents related disputes, which otherwise meet the criteria for consolidation, from being heard together and thus limits the ability of arbitration to reach its full potential as a dispute resolution mechanism to serve the needs of users.

SIAC has sought to address this shortcoming in the existing treatment of consolidation by arbitral institutions through enhanced institutional cooperation. In particular, the efficiency and efficacy of the international arbitral process would be materially improved by the adoption of a consolidation protocol by leading arbitral institutions, providing for the cross-institution consolidation of arbitrations, where such proceedings otherwise satisfy the criteria for consolidation.

Mr Born and SIAC have therefore proposed a cross-institution consolidation protocol, which leading arbitral institutions could adopt and incorporate into their institutional arbitration rules and utilise for administering consolidated arbitrations:

a. The consolidation protocol would set out a new, standalone mechanism for addressing the timing of consolidation applications, the appropriate decision-maker (i.e. the institution(s) or the tribunal) and the applicable criteria to determine when arbitral proceedings are sufficiently related to warrant cross-institution consolidation. A joint committee appointed from members of the Courts or Boards of the concerned arbitral institutions would be mandated to decide the applications, with a specific committee being appointed for each application.

b. Once consolidated, the proceedings should be administered only by one institution applying its own arbitration rules. The institutions can agree on objective criteria to determine which institution should administer the consolidated dispute, such as the number of disputes subject to the different rules or the time of commencement of the first proceeding.

The arbitral institutions’ rules would be amended to incorporate the consolidation protocol. By adopting the institutional rules in their arbitration agreements, parties would in turn give the protocol the same contractual force as other provisions of the institutional rules. The consolidation protocol would not change the current requirement that the arbitration agreements designate the same seat.

The consolidation of arbitral proceedings offers important benefits to parties that help reduce the complexity, cost and time of proceedings. The cross-institution consolidation of arbitrations under different institutional rules takes these benefits further, making arbitration an even more effective system of dispute resolution.

Mr Davinder Singh, SC, Chairman of SIAC, observed that “SIAC is indebted to Mr Born for his continuing efforts to enhance SIAC’s role in thought leadership. Arbitral institutions play an increasingly important role in progressing international arbitration and SIAC is confident that this proposal offers arbitral institutions the opportunity to engage once again in thought-leadership.”

Ms Lim Seok Hui, CEO of SIAC, commented, “This proposal represents an opportunity for arbitral institutions to cooperate in the joint development of a framework for complex arbitrations, and materially enhance the international arbitral process.”

The memorandum that discusses SIAC’s proposal for cross-institution consolidation can be accessed here, and comments on the proposal can be sent to This email address is being protected from spambots. You need JavaScript enabled to view it. by 31 January 2018.

SIAC looks forward to receiving comments from, and working together with, users and other arbitral institutions to further explore and implement the proposal for cross-institution consolidation.


For more information, please contact:

Singapore International Arbitration Centre
T: +65 6713 9777
E: This email address is being protected from spambots. You need JavaScript enabled to view it.
W: www.siac.org.sg

9 November 2017
SIAC-KCAB Seminar on Multiple Proceedings in Multiple Fora - Strategies and Synergies

By Richard Jung Yeun Won, Foreign Attorney, Shin & Kim

The SIAC-KCAB joint seminar, “Multiple Proceedings in Multiple Fora – Strategies and Synergies”, covered everything one would expect and more from a seminar addressing a pertinent and timely topic in the ever-evolving world of international arbitration.

SIAC and KCAB jointly hosted the seminar at Seoul Global Center on 9 November 2017, as part of the week-long Seoul ADR Festival. Over 75 practitioners and in-house counsel attended the event, thanks to the all-star lineup of speakers and panellists who addressed joinder and consolidation provisions as a means to improve efficiency when dealing with multiple parties, contracts, and claims.

Ms Lim Seok Hui (CEO, SIAC and SIMC) welcomed the attendees by stressing the importance of time and cost considerations when developing strategies for cross-border projects and transactions. She also articulated a vision in which Singapore and Seoul would work in synchrony as arbitration hubs in the APAC region, as what the arbitration hubs of Paris and Geneva had done for Europe.

Professor Lucy Reed (Member, SIAC Court of Arbitration; Director, Centre for International Law (Singapore); Professor, Faculty of Law, National University of Singapore) delivered the Keynote Address by describing how national laws and arbitration rules were in conflict, and how each jurisdiction had the responsibility to respect the rules of other jurisdictions while fulfilling its own responsibilities and duties to the parties. While she stressed the importance of joinder and consolidation provisions as tools to overcome consent requirements when adding additional parties, she also wondered if, in practice, joinder and consolidation provisions actually improved efficiency of the arbitral proceedings and led to cost savings for the parties.

The first panel session included leading arbitrators and practitioners from across Asia, with each panellist wearing the hat of a different arbitral institution to discuss the different joinder and consolidation rules. Mr Kap-You (Kevin) Kim (Chair, International Arbitration Committee, KCAB; Head, International Arbitration & Litigation Practice Group, Bae, Kim & Lee LLC) was the moderator for the first panel session, which included panellists Mr Beomsu Kim (Managing Partner, KL Partners), Dr Eun Young Park (Member, SIAC Court of Arbitration; Partner, Kim & Chang), Professor Lucy Reed, and Mr Paul Sandosham (Partner, Clifford Chance).

Some notable points included:

• Professor Lucy Reed, representing the ICC in this role-play, noted that with respect to making final decisions regarding consolidation and joinder, the ICC court was the main actor when there was a dispute, and not the tribunal;

• Mr Paul Sandosham, representing SIAC, noted that applications for joinder and consolidation could be made to the SIAC court or the tribunal, essentially providing applicants two separate opportunities to join a party or consolidate claims, thereby making SIAC’s rules an attractive choice;

• Dr Eun Young Park, representing the LCIA, noted that the power to join or consolidate lay with the tribunal, but that the power to approve lay with the LCIA court; and

• Mr Beomsu Kim, representing the KCAB, noted how the simpler and more straightforward KCAB rules, which implemented a joinder provision in 2016, only allowed for parties to the current arbitration to apply for joinder and not third parties such as in other jurisdictions.

The afternoon’s second panel session included younger attorneys from a broad spectrum of international arbitration practices in Asia. Ms Sae Youn Kim (Partner, Yulchon LLC), in moderating the panel, likened the experienced panellists of the first session to “generals” and the panellists of the second session to “soldiers” who executed the generals’ commands. The afternoon’s “soldiers” included Ms Dana Kim (Of Counsel, Herbert Smith Freehills LLP), Mr Sam Kim (Foreign Attorney, Yoon & Yang LLC), Ms Hyunyang Koo (Associate, Lee & Ko), Ms Seungmin Lee (Partner, Shin & Kim), and Mr Matthew Secomb (Partner, White & Case LLP).

The panellists of the second session shared their experiences in working with complicated arbitration cases, and the lessons that they had learned along the way. Mr Matthew Secomb described how some parties had used joinder and consolidation as tools for tactical advantages, and labelled parties who wanted to keep things simple as “angels”, and parties who sought to complicate matters as “devils”.

Mr Kap-You (Kevin) Kim brought the afternoon to a close, noting that with the number of multiparty international disputes growing in Korea, the timing of the seminar could not have been more opportune.

8 November 2017
YSIAC-KOCIA YAPF Seoul Fireside Chat with Professor Lucy Reed

By Curie Lee, Yulchon LLC

On 8 November 2017, YSIAC and KOCIA YAPF hosted the “Fireside Chat with Professor Lucy Reed” at Yulchon LLC, attracting a vibrant crowd of over 55 attendees from a variety of professional and legal backgrounds. Among the attendees were in-house counsel, practising lawyers and academics.

The event opened with a Welcome Address by Ms Lim Seok Hui (CEO, SIAC and SIMC), who outlined the recent developments in international dispute resolution around the globe. Ms Lim’s address was followed by the highlight of the event, the Fireside Chat with Professor Reed. The chat was moderated by Ms Jeong Hye Ahn (Member, YSIAC Committee; Partner, Yulchon LLC) and Mr Jern-Fei Ng (Member, YSIAC Committee; Barrister, Essex Court Chambers).

The Chat provided a forum for discussing hot topics such as challenges and opportunities arising from recent developments in international commercial and investor-state arbitration, gender diversity in international arbitration, and other burning questions that the participants wished to pose to Professor Reed. Of particular interest to the attendees was the future of mediation and arbitration in Seoul. Professor Reed provided insight on how Seoul could develop into an arbitration hub and the ways in which Korea could establish mediation as one of the primary mechanisms of dispute resolution.

The event ended with Closing Remarks by Ms Sae Youn Kim (Partner, Yulchon LLC), who shared her personal observations and insights into what it meant to be a practitioner in the field of international arbitration. Emphasising the vast diversity of issues that may arise in international arbitration, Ms. Kim talked about the intellectually challenging yet highly rewarding nature of her work. The pursuit of knowledge is never-ending for a practitioner of international arbitration.

7 November 2017
SIAC-CIL Academic-Practitioner Colloquium

By Daniel Ow, Associate, WongPartnership LLP

The inaugural SIAC-CIL Academic-Practitioner Colloquium on 7 November 2017 was significant as it marked an important development in the Singapore arbitration arena. Essentially, the event provided academics with a platform to showcase their current research work in the field of international arbitration, and to test their ideas on a panel of arbitration practitioners and fellow academics. In turn, the event provided practitioners with an opportunity to interact with academics researching on issues that might have relevance to their areas of practice. The event was well attended, and attracted an audience of 100 attendees, comprising corporate counsel, practising lawyers and academics.

Mr Toby Landau QC (Member, SIAC Court of Arbitration; Barrister and Arbitrator, Essex Court Chambers) kicked off the event with opening remarks explaining the format and purpose of the seminar. This was then followed by the paper presentations by the two academics and panel discussions.

The two researchers who presented at the inaugural event provided an insightful discussion on the integration of a two-tier court system into new trade agreements, and also shed light on how a witness’ memory might be distorted and the impact of this on witness testimony in international arbitration. The panel sessions comprising seasoned arbitration practitioners also provided participants with candid, and at times, critical insight into the realities of international arbitration practice.

Paper Presentation 1: The New EU-Led Approach to Investor-State Arbitration: The Investment Tribunal System in the Comprehensive Economic Trade Agreement (CETA) and the EU-Vietnam Free Trade Agreement

Ms Elsa Sardinha (Research Associate & Practice Fellow to Chris Thomas QC, Investment Law & Policy Group, Centre for International Law (Singapore); National University of Singapore) presented the first paper. The first panel session was moderated by Professor Nicolas Jansen Calamita (Head, Investment Treaty Law & Policy, Principal Research Fellow; Research Associate Professor, Centre for International Law (Singapore); National University of Singapore), and comprised Mr Gary Born (President, SIAC Court of Arbitration; Chair, International Arbitration Practice Group, Wilmer Cutler Pickering Hale and Dorr LLP), Ms Koh Swee Yen (Co-Chair, YSIAC Committee; Partner, WongPartnership LLP) and Professor Muthucumaraswamy Sornarajah (C J Koh Professor, Faculty of Law, National University of Singapore).

Since 2004, treaties have become more complex and more precisely drafted to provide a richer context for interpretation. Two new treaties that were recently introduced – the Canada-EU Comprehensive Economic Trade Agreement (CETA) and the EU-Vietnam Free Trade Agreement (EU-Vietnam FTA) – were reflective of this shift in treaty-drafting practice. Both treaties established a two-tier investment tribunal system (ITS), where a permanent appellate tribunal has the power to review tribunal decisions. The ITS provides for a spectrum of possible challenges to arbitral awards by incorporating the grounds for annulment in Article 52 of the ICSID Arbitration Rules into both treaties, together with the power to review for errors of law and fact. Further, the CETA has a 24-month deadline for the final award to be rendered whereas the EU-Vietnam FTA has an 18-month deadline for the final award to be rendered.

Elsa analysed the ITS under these two treaties, and argued that the treaties contained some potentially problematic features, such as the removal of the involvement of disputing parties in the selection of the tribunal members and the extremely tight deadlines to render final awards. In particular, considering the number of rounds of pleadings and the time that the tribunal would require to digest submissions in order to reach its decision, she suggested that the short deadline was unrealistic.

While the creation of the ITS aimed to solve the problem of the lack of independence and impartiality of some arbitrators, the panellists questioned whether this problem was in reality so prevalent in practice that it warranted such a drastic change. The panellists also pointed out other problems with the ITS, such as the limited term of tribunal members and the potential effect of the lack of tenure on tribunal members’ decision-making, and the disadvantages which might be faced by States with less bargaining power. Whilst there may be some potential benefits of implementing such a tribunal system, the panellists did acknowledge that such a radical change should be cautiously proceeded with.

Paper Presentation 2: Human Memory and Witness Evidence in International Arbitration

Dr Ula Cartwright-Finch (Managing Associate, Linklaters LLP, London) presented the second paper on “Human Memory and Witness Evidence in International Arbitration”. The second panel session was moderated by Mr Chelva Rajah, SC (Member, SIAC Board of Directors; Managing Partner, Tan Rajah & Cheah), and comprised Mr Toby Landau QC, Professor Lucy Reed (Member, SIAC Court of Arbitration; Director, Centre for International Law (Singapore); Professor, Faculty of Law, National University of Singapore) and Mr Alan Thambiayah (Member, SIAC Court of Arbitration; Professional Arbitrator, The Arbitration Chambers).

The accuracy of a witness’ memory is crucial to the various stages of an international arbitration, from the initial investigation, to the focused investigation, the preparation of witness statement and the hearing.

However, the ability of witnesses accurately to recollect events from the past and provide reliable testimony has always been a controversial issue in international arbitration. Drawing on research in psychology and neuroscience, Ula suggested that the human memory undergoes a continuous reconstructive process that is susceptible to distortion.

In her presentation, Ula discussed 3 instances in which a witness’ memory might be distorted and how these effects might arise in the context of witness testimony in international arbitration.

Firstly, the misinformation effect, whereby a witness’ recollection of episodic memories could become less accurate due to post-event information such as the way that a question was posed during the cross-examination. In a 1975 research by Loftus & Zanni, after a video was shown to participants, they were split into two focus groups. The first group was asked whether they had seen a broken headlight, whereas the second group was asked whether they had seen the broken headlight. It was shown that participants in the second group were more likely to report having seen a broken headlight.

Secondly, a witness might be susceptible to false memories, whereby his or her recollection of events might be affected by his or her personal belief or opinion. This was exemplified by the “lost in the mall” scenario, whereby confabulations about events that never took place – such as having been lost in a shopping mall as a child – could be created through suggestions made to participants.

Lastly, a witness’ memory might be conformed and compromised when another person’s recollection of a memory influences his or her recollection of the same experience.

Distortions of witness’ memories may have severe consequences by impacting the witness’ testimonies and consequently the findings of fact in an award. Therefore, in her paper, Ula proposed some practical strategies to mitigate the potential impact of these effects on memory, such as carrying out timely witness interviews and taking special precautions in framing the questions during the interviews.

The panellists noted that the problems with witness recollection would extend to the cross-examination and re-examination stages of the arbitration as well. The panellists also observed that the research conducted on witness recollection have thus far been carried out in relatively controlled scenarios, and hence might not accurately reflect or be directly applicable to international arbitration processes. There was nonetheless consensus in the room that these witness recollection issues highlighted the importance of arbitration tribunals in the assessment of witness testimonies.

6 - 7 November 2017
SIAC Academy

The inaugural SIAC Academy, titled “Time and Cost Savers at SIAC: Emergency Arbitration, Expedited Procedure and Early Dismissal”, was held in Singapore on 6 and 7 November 2017, to provide practical, “hands-on” training for arbitration practitioners and arbitrators.

Mr Gary Born, President of the SIAC Court of Arbitration, chaired the teaching faculty which included Mr Chan Leng Sun, SC, Deputy Chairman of SIAC, members of the SIAC Court of Arbitration (Mr Toby Landau QC, Professor Lawrence Boo, Mr Alan Thambiayah) and other international arbitration luminaries. Ms Indranee Rajah, SC, Senior Minister of State for the Ministry of Law and Ministry of Finance, made a special appearance in a frank, highly interesting and lively discussion with Mr Born on developments in international arbitration in Singapore and in the region. SIAC Court members, Professor Lucy Reed and Mr Toby Landau QC also spoke as panellists in an engaging lunchtime fireside chat.

The Academy attracted a good turnout from both Singapore as well as overseas delegates from Bulgaria, China, Hong Kong, India, Indonesia, Japan, Korea, Malaysia, the United Kingdom and Vietnam.

The various reports on the SIAC Academy can be accessed here.

Backed by popular demand, the SIAC Academy 2018 will be held in Seoul (15 to 16 June 2018), Tokyo (7 to 8 September 2018) and Mumbai (6 to 7 October 2018). Please mark your calendars.

13 October 2017
YSIAC Oral Advocacy Workshop 2017

By Vibhor Jain, Associate, Luthra & Luthra Law Offices

On the evening of Friday, 13 October 2017, a room full of arbitration luminaries and enthusiasts engaged in an open dialogue on the “art” of oral advocacy and conducted a mock application for emergency interim relief.

The Emergency Arbitrators for the mock scenario comprised Mr Gary Born (President, SIAC Court of Arbitration; Chair, International Arbitration Practice Group, Wilmer Cutler Pickering Hale and Dorr LLP), Mr Toby Landau QC (Member, SIAC Court of Arbitration; Barrister and Arbitrator, Essex Court Chambers), Mr Ciccu Mukhopadhaya, SC (Supreme Court of India), and Mr Harish Salve, SC (Member, SIAC Court of Arbitration; Blackstone Chambers).

Mr Kevin Nash (Deputy Registrar & Centre Director, SIAC) kicked off the workshop charting how SIAC had become a major player among international arbitral institutions, and one of the preferred arbitral institutions amongst Indian parties. This was followed by a brief introduction to the mock case scenario by Mr Rishab Gupta (Member, YSIAC Committee; Partner, Shardul Amarchand Mangaldas & Co). Thereafter, the ball started rolling and the Preliminary Objections Session began.

The first three sets of counsel dealt with three jurisdictional objections raised in the mock case scenario: (i) whether, by the reference to “Singapore Chamber of Commerce”, a non-existent entity, the parties had intended to choose SIAC as the administering institution for arbitration; (ii) whether mediation talks between the parties were a pre-condition to arbitration and had been satisfied; and (iii) who were the proper parties to the arbitration.

On the first jurisdictional objection, counsel for the Claimant, Mr Sonal Kumar Singh (Partner, M/s A. K. Singh & Co.), stressed how certain arbitral institutions had become synonymous with geographical areas, and that the reference to “Singapore” must signify SIAC. On this point, Mr Landau QC was quick to point out that by the same token, the words “Chamber of Commerce” could signify the parties’ intent to choose the ICC. Counsel for the Respondent, Mr Moazzam Khan (Member, YSIAC Committee; Co-Head, International Disputes Practice, Nishith Desai Associates), argued that it was not possible to infer from the clause any intention as to “which institution” and “where”, and was only possible to infer that there was an intention to arbitrate.

On the second jurisdictional objection, Mr Prateek Bagaria (Partner, Singularity Legal), argued that the arbitration clause would only “mature” upon the activation of the temporal jurisdiction of the tribunal after the stipulated time period for mediation talks had expired. This led Mr Born to wonder aloud, “Are arbitration clauses teenagers that they would ‘mature’?”, which led to much laughter from the audience, including Mr Bagaria. Next, counsel for the Claimant, Mr Anirban Bhattacharya (Partner, Luthra & Luthra Law Offices) submitted that the agreement to mediate, being an agreement to agree, was not enforceable under the governing law, which in his submission was Indian law. Mr Landau QC inquired whether it was artificial to submit that the “agreement to mediate” was illegal, and separate it from the “agreement to arbitrate”, when both the arbitration and mediation clauses were subordinate clauses of the same clause in the agreement. Mr Bhattacharya responded that while both subordinate clauses were related, only the latter was an arbitration agreement, and hence, different laws would in his opinion apply to both.

On the third jurisdictional objection, submissions were made for the Respondent by Mr Lomesh Kiran Nidumuri (Partner, IndusLaw) and for the Claimant by Ms Sheila Ahuja (Of Counsel, Allen & Overy). The discussion between the counsel and the arbitrators revolved around exceptions to the rule of privity of contract, and how, given that the emergency arbitration mechanism was a provisional measure, the emergency arbitrator (EA) was only required to take a prima facie view on proper parties.

After a short break, the Workshop proceeded to the fourth session, with counsel making submissions on the applicable test for interim relief. Ms Elodie Dulac (Partner, King & Spalding), who acted as counsel for the Claimant, submitted that the essential conditions were fulfilled: there being presence of risk, causation of irreparable harm, and a prima facie case on the merits. She also submitted that the test of urgency was also satisfied, namely “whether harm could happen before an award was passed on the merits”. However, Mr Born was of the view that such tests would make the threshold for the grant of interim relief too low. Acting for the Respondent, Mr Promod Nair (Founding Partner, Arista Chambers) submitted that the three jurisdictional objections submitted previously showed the absence of a prima facie case, and that the EA ought to pass an order that was “necessary”, not “appropriate”, thereby signifying a higher threshold for grant of interim relief.

The fifth session pertained to whether or not emergency interim relief should be granted by the EA. Mr P.V. Kapur, SC, argued for interim relief to be granted since there were risks involved as one of the Respondents did not own any known assets. Acting for the Respondent was Mr Landau QC (who had switched from being an EA to counsel), who submitted that there was no prima facie case on the merits, to which Mr Salve, SC, intervened and asked how the EA could possibly decide at the present stage that there was no prima facie case on the merits from the Claimant’s side. Mr Landau QC responded by saying the burden to prove the same, as well as the burden to prove that the Respondent was ill-intentioned and there was a risk involved if the relief was not granted, lay solely with the Claimant.

With that, the mock arbitration hearing concluded. In short, these five sessions were thoroughly enlightening. What followed was even more exciting: the feedback by the Tribunal, moderated by Mr Kabir Singh (Member, YSIAC Committee; Partner, Clifford Chance). Mr Born was extremely impressed by the performance of the various counsel under fire from what he admitted was “not an easy tribunal”. Mr Landau QC, with a good sense of humour, chimed in with a remark that given the time allotted and the complexity of the problem, “everyone was brilliant, except counsel for the Respondent in the last session (himself)”!

The panellists then discussed the challenges affecting the growth of arbitration globally. Mr Landau QC and Mr Salve, SC emphasised the need to “unlearn”, noting that there needed to be more attempts to make a departure from “litigation advocacy” towards “arbitral advocacy”.

Talking further about such a transition, especially for young professionals, Mr Mukhopadhaya, SC, and Mr Born said that young professionals should enter into the world of arbitration from the very beginning, but never leave courtroom lawyering behind.

“Litigation and arbitration have as many similarities as dissimilarities”, Mr Born added. Mr Salve, SC spoke about how to “read” a tribunal, by trying to sell it an idea and understand their thought process. Mr Landau QC emphasised that the audience was neither the opponent, nor the client, but the tribunal. Mr P.V. Kapur, SC, spoke about the need for more cross-examination experience for young professionals, with Mr Salve, SC, noting that no case should be too small and every opportunity should be seized by young professionals.

On language barriers in arbitrations, Live Note service providers and transcriptions were recommended as the expensive and cheap options respectively. The panellists were also asked to recount their “best as well as worst experience professionally” to much interest and laughter.

In the Closing Remarks, Mr Nish Shetty (Partner, Clifford Chance) applauded SIAC for organising the workshop which offered invaluable insights into the practice of arbitration through the mock arbitration. He also mentioned that the growing practice of arbitration in India will lead to the emergence of an “arbitration bar” and that such events were contributing to the same. He expressed hope that arbitration would go from being an “extra-curricular” to a full-time career. He expressed gratitude to the counsel and members of the EA Tribunal for taking time from their busy schedules for what was, indeed, a unique night of learning.

(The YSIAC Oral Advocacy Workshop was well-received by the Indian legal and business community and attracted a total of 145 delegates, comprising practitioners, in-house counsel and academics.)

17 October 2017
SIAC Signs Memorandum of Understanding with the Institute of Modern Arbitration of the Russian Federation

The Singapore International Arbitration Centre (SIAC) is pleased to announce that it has entered into a Memorandum of Understanding (MOU) with the Institute of Modern Arbitration (IMA) of the Russian Federation to support and promote the development of Singapore and Russia’s arbitration regimes.

Under the MOU, SIAC will conduct training programmes, seminars and workshops for IMA and the arbitrators of the Arbitration Center established at the IMA. In addition, the institutions will also co-organise seminars, conferences and workshops in international arbitration.

The MOU was signed by Ms Delphine Ho, Registrar of SIAC, and Mr Andrey Gorlenko, General Director of IMA, at the 8th Session of the High-Level Russia-Singapore Inter-Governmental Commission (IGC8) in Moscow.

Mr Andrey Gorlenko, General Director of IMA, said, "IMA has established The Arbitration Center at the IMA, which is one of the first permanent arbitral institutions authorised by the Russian Government to administer disputes under the new Russian arbitration law. We are delighted to have entered into an MOU with SIAC, and are confident that this collaboration will enable both institutions to forge closer ties with existing and potential users of international arbitration in both Russia and Singapore."

Ms Lim Seok Hui, CEO of SIAC, commented that “SIAC and IMA agree on the importance of staying focused on providing efficient, expert and enforceable dispute resolution services to parties from diverse legal systems and cultures such as Russia and Singapore. Through this MOU, we hope to work jointly with IMA to promote and develop international arbitration as a preferred mode of dispute resolution for cross-border commercial disputes involving Russian companies and businesses.”

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

12 October 2017
SIAC India Conference 2017: Crystal Ball Gazing into the Future of International Arbitration in India

By Aditya Vikram and Karan Dev Chopra, Senior Associates, Luthra & Luthra Law Offices

The SIAC India Conference 2017 was well received by the Indian legal and business community with 190 delegates in attendance. The audience comprised eminent lawyers and other professionals from reputable organisations, who were enthusiastic to learn more about managing arbitrations in light of the changes to the arbitration regime in India.

The conference commenced with a welcome address by Ms Lim Seok Hui (CEO, SIAC), where the theme of the conference and the efficacies of the SIAC arbitration procedures were discussed against the backdrop of India’s move towards global standards of institutional arbitration, and the recent pro-arbitration judgments being delivered by India’s Courts.

Ms Indranee Rajah, SC (Senior Minister of State, Ministry of Law and Ministry of Finance) delivered the special address and stressed that with the growth of cross-border transactions and cross-border disputes, there needed to be effective arbitral institutions to meet the demand for dispute resolution services. According to Ms Rajah, with the recent legislative amendments, the future of arbitration in India was bright, like a crisp summer day that the month of April promises.

The keynote address delivered by Mr Gary Born (President, SIAC Court of Arbitration; Chair, International Arbitration Practice Group, Wilmer Cutler Pickering Hale and Dorr LLP) was one of the highlights of the day. Mr Born shared his thoughts on the future of arbitration in India by first discussing the “enemies” of arbitration. Borrowing an analogy from the Game of Thrones, Mr Born stated that the enemy was just beyond the wall and cautioned that “winter is coming”. Mr Born stated that the enemies of arbitration were its harsh critics who constantly endeavored to critique the failings of the arbitral system, such as the bias of some arbitrators, and the lack of appellate review. Defending the arbitral system, Mr Born described the right to arbitrate as akin to a fundamental right. The only way forward was to “defeat” the enemy and turn the tables on them in order to protect the arbitral system, which has been the business community’s preferred way to resolve disputes. Referring to the increased powers of arbitral tribunals and the ever-growing caseloads at arbitral institutions, Mr Born was of the opinion that the future of arbitration is and had to be bright.

The first panel discussion on “Successfully Managing SIAC Arbitrations Under the New Indian Regime” comprised Mr Gary Born, Ms Elodie Dulac (Partner, King & Spalding), Mr Manish Lamba (General Counsel, Bharti Realty Limited), Mr Ng Kim Beng (Partner, Rajah & Tann Singapore LLP), Mr S. Ravi Shankar (Senior Partner, Law Senate) and Mr Kabir Singh (Member, YSIAC Committee; Partner, Clifford Chance). The discussion was moderated by Mr Steven Lim (Partner, CMS) and some of the topics discussed were the strategies involved in effectively managing arbitrations, the importance of choosing the right arbitrator or arbitral tribunal under the new Indian legislative regime, the freshly minted SIAC Rules 2016 and the improved Emergency Arbitrator and Expedited Procedure provisions under those rules.

In the course of the discussions, Mr Lamba shed light on the important role of in-house counsel in the arbitral process before the commencement of arbitration, such as in drafting an arbitration clause, choosing the substantive law, and taking into account the nuances of different procedural laws. Mr Lamba also stressed that once a dispute has arisen, a cost-benefit analysis should be undertaken to mitigate risks before commencing arbitration proceedings. Mr Born stressed the need to fully comprehend the factual record of the case at hand and rule out any other alternate dispute resolution mechanisms before moving towards arbitration. Mr Singh discussed about what he coined as “a Human Tribunal” and stated that the right tribunal could make or break a case. Highlighting the inclusion of disclosure requirements for arbitrators in section 12(5) of the 2015 Indian Arbitration Amendment Act, Mr Singh explained that this was a positive development for arbitration in India.

The discussions turned to focus on the SIAC Rules 2016 and it was pointed out by Mr Ng that party autonomy was given increased importance, and rightly so under the new rules. The usefulness and necessity of emergency arbitrator provisions, and the enforceability of emergency arbitrator awards under the New York Convention, were discussed. It was also highlighted that 70% of emergency arbitrator awards were complied with voluntarily by parties without the need for enforcement proceedings. The discussion also shed light on various positive legislative amendments that India had introduced to align itself with global standards of arbitration, but this begged the question as to whether the existing legislative amendments were sufficient or if further amendments were necessary to meet international best practices in arbitration.

The topic for the second panel discussion, “The Changed Face of Arbitration in India: Story so Far”, was a widely debated topic, especially amongst the legal fraternity in Southeast Asia. The eminent panel comprised Mr Bhaskar Chandran (Group President, Legal, GMR Group), Mr Tejas Karia (Partner, Shardul Amarchand Mangaldas & Co), Mr Toby Landau QC (Member, SIAC Court of Arbitration; Barrister and Arbitrator, Essex Court Chambers), Mr Lomesh Kiran Nidumuri (Partner, IndusLaw), Mr Prakash Pillai (Partner, Clyde & Co Clasis Singapore) and Mr Naresh Thacker (Partner, Economic Laws Practice), with the discussion being moderated by Mr Moazzam Khan (Member, YSIAC Committee; Co-Head, International Disputes Practice, Nishith Desai Associates). The panellists also discussed various aspects of the Indian Arbitration Amendment Act, especially the requirements of Section 29A, which requires that all Indian arbitrations must be completed within 1 year (or 18 months with parties’ agreement) of the constitution of the arbitral tribunal.

While appreciating and recognising the legislative intention behind Section 29A, the panellists unanimously shared the concern that the timeline to conclude an arbitration should not be rigidly imposed as a one-size-fits-all approach may not be a pragmatic approach, especially in respect of complex arbitrations. The panellists noted that the concept of “delay” had percolated into the dispute resolution culture in India, and were hopeful and confident for change over the next few years. The panellists were also of the view that courts in India should not infringe on party autonomy. The discussion also centered around the growth of arbitration infrastructure in India, and issues relating to transparency, lack of bias, rationality, streamlining of the commercial judicial courts and enforcement.

The discussions came to a close with both the panellists and audience recognising that the 2015 Indian Arbitration Amendment Act reflected a positive change of mindset regarding arbitration in India, and was a step in the right direction for a better, brighter and prosperous era of arbitration in India.

Please click here to view the SIAC India Conference 2017.

12 October 2017
SIAC Hard Talk 2017

By Abhishek Gupta, Associate, Luthra & Luthra Law Offices

The SIAC Hard Talk 2017 attracted approximately 170 attendees, comprising practising lawyers, in-house counsel and academics.

The event kicked off with a welcome address by Mr Rajiv K. Luthra (Member, SIAC Board of Directors; Founder and Managing Director, Luthra & Luthra Law Offices), who spoke on the need to improve the arbitration infrastructure in India, the pendency of cases in the Indian Courts and the resultant delay in the enforcement of contracts and arbitral awards.

Ms Indranee Rajah, SC (Senior Minister of State, Ministry of Law and Ministry of Finance) delivered the opening address and commented on the growing contribution of Asian countries to the development of international dispute resolution and the concomitant opportunities. She observed that the increase in commercial activity across nations had led to an increase in cross-border disputes, in turn increasing the demand for cross-border arbitration, and eventually resulting in the rise in supply of arbitral services and international arbitral institutions to meet this demand. The dilemma of technological advancements was also expounded on by Ms Rajah. On one hand, artificial intelligence (AI) has resulted in increased efficiency in the conduct of arbitral proceedings, but on the other, it has also given rise to AI products such as, Lex Machina and Premonition Legal Analytics, which have the potential of reducing the need for lawyers in certain tasks. She concluded her speech by highlighting the accomplishments of SIAC in being the first Asian arbitral institution to introduce emergency arbitrator provisions and the release of the SIAC Investment Arbitration Rules.

The special address was delivered by Hon’ble Mr Justice Dipak Misra (Chief Justice of India), who firmly dispelled any fears of an approaching winter for arbitration. He gave due credit to the Indian Government in making India an ‘arbitration-friendly and attractive’ destination, exemplified by the latest 2015 Amendment to the Arbitration & Conciliation Act, 1996 (the Act). Justice Misra, inter alia, cited a few amendments from the Amendment Act of 2015, which were aimed at reducing the delay in adjudication of arbitral disputes, and ensuring affordable and cost-effective arbitration. These amendments include:

• Specified timelines of 1 year extendable by 6 months under Section 29A of the Act;
• Legislative bonus to the arbitrators for expeditious disposal of matters under Section 29A of the Act;
• Fast track procedure under Section 29B of the Act;
• Ensuring ethical conduct and morality of the Arbitrators through the Eligibility conditions under Schedule V and VII of the Act;
• No automatic stay on arbitral award under Section 36 read with Section 34 of the Act;
• Cap on the arbitrator’s fees; and
• Crystallisation of the amorphous concept of public policy.

The role of lawyers and practitioners in promoting and encouraging the amicable settlement of disputes under Section 30 of the Act was also highlighted by Justice Misra. He concluded the speech and set the ball rolling for the Hard Talk Session with his view that, “Arbitration can never get into winter; it is always in the midst of summer”.

The topic for the panel discussion centred on the statement made by Mr Gary Born (President, SIAC Court of Arbitration; Chair, International Arbitration Practice Group, Wilmer Cutler Pickering Hale and Dorr LLP), about the future of international arbitration, drawing inspiration from the TV Series “Game of Thrones”.

Ms Rohini Roy (Chief, International Legal Operations, Bharat Heavy Electricals Limited) conceded that winter was inevitable, but adequate preparation during the summers could make it cozy and comfortable. There would be no winter or summer or seasons if there were no disputes. Mr Christopher Lau, SC (Chartered Arbitrator, 3 Verulam Buildings) agreed with Mr Born’s statements while Mr Toby Landau QC (Member, SIAC Court of Arbitration; Barrister and Arbitrator, Essex Court Chambers) elucidated on the distinction between investor-state arbitration (ISA) and international commercial arbitration (ICA) and explained that there existed a thin line between the two, which must be recognised and appreciated. He further felt that ISA had gained a bad reputation of safeguarding the interests of multinational corporations over States, and that the controversies surrounding ISA have had a negative impact on ICA. Mr Vikram Nankani, SC (Bombay High Court) also commented that during the Transatlantic Trade and Investment Partnership (the Treaty), some stakeholders were not agreeable to have an arbitration clause in the Treaty. Ms Roy shared that some Public Sector Undertakings in India (NTPC Limited, for instance) have stopped including an arbitration clause in agreements and contracts, owing to growing mistrust of the arbitration regime, the rising costs of arbitration and the perceived diminishing utility of an arbitration. Whilst winter for international arbitration may indeed be near, when it comes, Mr Landau commented that this might cause the necessary improvements in the arbitral process to take place.

Mr Darius J. Khambata, SC (Member, SIAC Court of Arbitration) reflected on India’s increasing receptiveness towards arbitration and its recognition of the importance of upholding foreign awards. Recalling a remark from Lord Justice Thomas of England, who had once stated that common law would cease to develop because of arbitration, Mr Khambata shared that the same view was also echoed in India a few years ago, when it was felt that greater judicial interference in arbitral awards was needed to develop the common law in India. To rebuild trust in the arbitral system, Mr Khambata suggested that publication of arbitral awards might be the way to go. While it was ultimately a matter of parties’ discretion and the institutional rules governing arbitration, publication of awards would go a long way in reducing some of the concerns faced by parties, reinforce the trust in the arbitral proceedings, set precedents and improve judicial reasoning.

Mr Born concluded the discussion and highlighted that ICA is a public-private partnership between courts, the legislature and arbitrators, and the imminent winters could only be overcome by international cooperation of all stakeholders.

Please click here to view the SIAC Hard Talk 2017.

10 August 2017
SIAC Opens its Second Representative Office in India in GIFT

The Singapore International Arbitration Centre (SIAC) is pleased to announce that it has opened a second representative office in India (after its Mumbai representative office which was established in 2013), in the International Financial Services Centre in Gujarat International Finance Tec-City (GIFT IFSC), Gujarat. This is pursuant to the Memorandum of Agreement entered into last year between SIAC, the Gujarat International Finance Tec-City Company Limited (GIFTCL) and GIFT SEZ Limited (GIFT SEZ).

Mr Ajay Pandey, MD and Group CEO of GIFTCL, said, "We are delighted that SIAC has opened an office in GIFT IFSC. We believe SIAC will provide a neutral and independent dispute resolution platform to parties, thereby enabling them to undertake large international financial transactions from GIFT IFSC. GIFT companies will also start adopting SIAC's model clause as their preferred dispute resolution clause for international contracts exceeding a certain value. With increasing participation by international and domestic parties in GIFT IFSC, an international dispute resolution mechanism will be useful in making GIFT IFSC a global financial hub along the lines of London, Dubai, Hong Kong, Singapore and New York." Ms Lim Seok Hui, CEO of SIAC, commented that "SIAC greatly values its Indian users who have contributed significantly to the success of SIAC as one of the world's premier arbitral institutions. Opening a second SIAC office in India in GIFT IFSC will allow SIAC to participate in GIFT's economic development through the provision of a world-class dispute resolution mechanism to businesses and investors within GIFT IFSC, and will deepen SIAC's existing ties with the legal and business communities in India."

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

18 July 2017
Confidential and Restricted-Access Information in International Commercial Arbitration
(Elliott Geisinger, Partner, Schellenberg Wittmer Ltd)

By Elan Krishna, Senior Associate, Clifford Chance Asia

The YSIAC Lunchtime Event titled ‘’Confidential and Restricted-Access Information in International Commercial Arbitration’’, was held at Clifford Chance, Singapore, on 18 July 2017. The event attracted over 130 attendees, comprising corporate counsel, practising lawyers and academics.

The instructive session centered on the topic of confidentiality in arbitration, rather than confidentiality of arbitration (on which much has been written). The issue of confidential information is a significant one and arises frequently in international commercial arbitration, for example, in determining the impact of certain regulations (such as anti-trust regulations), on the conduct of proceedings, and the need for redacted information.

First, Mr Geisinger observed that confidentiality restrictions are meant to protect various legally recognised interests: (1) private interests (such as trade secrets and pricing strategies), (2) public interests (such as defence secrets and interests of the community represented by the State, like competition law), and (3) hybrid interests (such as data protection and legal privilege).

Second, he noted that while most institutional rules provided for general and broad powers of arbitrators to conduct proceedings as they deem appropriate and to decide on the admissibility of evidence, making such determinations in practice is often a complicated exercise.

He gave the example of an arbitration where he sat as an arbitrator. The disclosing party was given the choice of providing redacted documents or unredacted versions which would be disclosed to a limited group of individuals. The disclosing party chose to provide redacted documents and when there was a dispute as to the extent of the redactions, Mr Geisinger and his tribunal members had to render a 21-page procedural order to resolve the issue.

This raises the broader question of whether an arbitral tribunal should be given access to unredacted documents that one party does not have access to. Similar issues would arise when a party's expert issues "censored" and "uncensored" versions of expert reports. Mr Geisinger cautioned that this raises natural justice and due process concerns, and that an arbitral tribunal should be extremely slow to seek information that the least-informed party to the arbitration does not have access to.

To deal with this issue, it is increasingly common for parties and arbitral tribunal to agree to restrict the circle of recipients of confidential material. The terms "Counsel eyes only", "Tribunal's eyes only" and "Confidentiality clubs" have become part of the arbitration vocabulary. Mr Geisinger warned that whatever arrangement is agreed, there is still a need for appropriate confidentiality undertakings, including undertakings on the destruction of documents after the arbitration is completed. Such arrangements would only work if there is sufficient trust in the parties given access to the confidential material.

Third, the issue of confidentiality also arises in the issuance of the award. Arbitral tribunals have dealt with this by a variety of means, including, (1) issuing a single award without the confidential information, and (2) issuing two awards: one with "complete" reasons, and another "redacted"/ "censored" award.

Mr Geisinger noted that the form of the award was a crucial issue, and one that required the parties' agreement or the arbitral tribunal's ruling on at an early stage. Otherwise, there might be major problems downstream. For example, if there were no parties’ agreement or tribunal’s ruling on whether the award was to contain reasons, and the arbitral tribunal did not set out its reasoning for its decision in the award, parties would face difficulty deciding whether or not to challenge the award, or would have no basis for such a challenge. Equally, at the enforcement of award stage, the enforcing court would not be able to decide whether the reasoning of the arbitral tribunal was open to scrutiny.

Fourth, Mr Geisinger discussed the notions of due process and equal treatment in dealing with the issue of confidentiality in arbitration. He noted that while these could be waived (unilaterally or by agreement) and that the arbitral tribunal had broad powers in the conduct of proceedings, such powers should be exercised with restraint and it was paramount to maintain trust between the parties and the arbitral tribunal.

He also highlighted the lack of uniformity in national legislation on the issue of confidentiality in arbitration, as well as the concomitant need to have regard to the law and judicial practice at the seat of the arbitration and the place of enforcement.

Finally, he closed by noting that there was no single response in practice because there was no single legal standard and a wide diversity in potential scenarios. His general recommendation was to identify potential confidentiality concerns as early as possible in the proceedings and to seek agreement between the parties and the arbitral tribunal at the outset.

14 July 2017
SIAC Seminar on "The Confluence of Civil Law and Common Law Influences in International Arbitration Practice and Procedure"

By Masao Fujino, Managing Associate, Orrick

On 14 July 2017, SIAC held a seminar at Nishimura & Asahi in Tokyo, titled, “The Confluence of Civil Law and Common Law Influences in International Arbitration Practice and Procedure”. An audience of over 70 attendees, comprising corporate counsel, practising lawyers and academics, attended the seminar.

In the first panel discussion, the civil law influences in international arbitration were discussed and examined by the civil law-trained practitioners. The panel was moderated by Mr Hiroyuki Tezuka (Member, SIAC Court of Arbitration; Partner, Nishimura & Asahi) and was comprised of Mr Aoi Inoue (Member, YSIAC committee; Partner, Anderson Mori & Tomotsune), Ms Yoshimi Ohara (Partner, Nagashima Ohno & Tsunematsu), Dr Eun Young Park (Member, SIAC Court of Arbitration; Partner, Kim & Chang) and Mr Mugi Sekido (Partner, Mori Hamada & Matsumoto).

The civil law-trained panellists were of the view that the court procedures in civil law jurisdictions were more efficient than the court procedures in common law jurisdictions. Mr Inoue commented that parties could exchange arguments more efficiently in civil law procedures by presenting all their important arguments and evidence at the initial stages, whereas common law court procedures allowed the parties to present their important arguments late in the proceedings, even after extensive discovery had taken place. Mr Tezuka pointed out that civil law-trained arbitrators would sometimes try to clarify the issues in dispute after the first round of document submission, whilst this would be an uncommon practice for common law-trained arbitrators. Mr Sekido shared his personal experience in an arbitration where the common law-trained arbitrators had allowed additional exchanges of briefs requested by the other party, upholding a party’s right to present their case, even though the adverse party’s arguments, in substance, were not entirely convincing.

In the second panel discussion, the common law influences in international arbitration were discussed and examined by the common law-trained practitioners. Mr Haig Oghigian (Senior Counsel, Squire Patton Boggs) was the moderator and the panellists were Mr Chris Bailey (Partner, King & Spalding), Mr Chan Leng Sun, SC (Deputy Chairman, SIAC Board of Directors; Principal, Baker McKenzie. Wong & Leow) and Mr Chong Yee Leong (Member, SIAC Board of Directors; Partner, Allen & Gledhill).

The common law-trained practitioners were sceptical whether, given the nature of civil law procedure, all relevant facts would be adduced in a pure civil law proceeding. Mr Bailey mentioned that in many disputes, most of one’s time and attention would be spent on examining and analysing the facts of the case, and not on the arbitral rules or procedures. In his view, what was most needed in international arbitration was a flexible set of arbitral rules or procedures that could be made applicable to a wide variety of factual scenarios. Mr Chong added that current international arbitration practice and procedure was a hybrid system of common law and civil law influences, as requests for documents were allowed, but only when a party had shown that the opposing party had a relevant document that is material to the outcome of the case. Parties were also given a limited time for cross examination. Noting that US procedures, such as depositions and unlimited discovery, had not been adopted in international arbitration, Mr Chan commented that civil law jurisdictions have probably had a greater influence in shaping this aspect of international arbitration practice as compared to common law jurisdictions.

In the last session, the civil law and common law-trained panellists from the first two sessions came together for a joint Q&A segment. One question raised by the audience was whether there were any significant differences regarding privilege rules between common law jurisdictions and civil law jurisdictions. Ms Ohara explained that in common law jurisdictions, due to the broad scope of discovery obligations, privilege rules exist as a means for parties to refuse to produce their correspondence with their attorneys. In contrast, in civil law jurisdictions, as there were no broad discovery obligations, attorneys were only bound by confidentiality obligations. She further explained that for international arbitrations, the IBA rules have dealt with these differences in practice by stating that arbitrators may exclude evidence based on privilege, but should also take into account considerations of fairness and equality between the parties.

Another issue discussed during the joint Q&A segment was whether a party should choose arbitrators from civil law jurisdictions when the seat of arbitration was a civil law jurisdiction. Mr Inoue answered that if the governing law was the national law of a civil law jurisdiction and the parties were from civil law jurisdictions, generally speaking, parties should choose civil law arbitrators because they would be more familiar with the traditions and substantive laws of civil law jurisdictions. Mr Oghigian added that his personal stance was that the issues to be adjudicated on were more important than where an arbitrator was from. On this issue, Mr Tezuka pointed out that common law arbitrators would tend to render broader interim measures. Dr Park also explained that since procedural rules of international arbitrations were not prescriptive and arbitrators had the power to decide actual procedures, following from common law practice, arbitrators from common law jurisdictions would tend to be more flexible in granting interim relief.SaveSaveSaveSaveSaveSave

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

By Saemee Kim, Associate, Lee & Ko

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

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

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

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

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

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

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

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

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

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

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

9 June 2017
YSIAC Conference 2017

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

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

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

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

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

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

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

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

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

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

8 June 2017
SIAC-CIArb Debate

Report by Emmanuel Chua
Senior Associate, Herbert Smith Freehills LLP

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

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

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

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

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

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

1 June 2017
SIAC Signs Cooperation Agreement with Arbitrator Intelligence

The Singapore International Arbitration Centre (SIAC) is pleased to announce that it has entered into a Cooperation Agreement with Arbitrator Intelligence (AI) to promote the use of the Arbitrator Intelligence Questionnaire (AIQ).

AI is an entity affiliated with Penn State Law. Its mission is to promote fairness, transparency, accountability, and diversity in arbitrator selection and appointments. Its Founder and Executive Director is Catherine Rogers, a professor of law at Penn State Law and Queen Mary, University of London. The AI Board of Advisors includes the Honourable Sundaresh Menon, Chief Justice of the Supreme Court of Singapore, and Gary Born, President of the SIAC Court of Arbitration.

Developed by AI, the AIQ is a new feedback mechanism that will collect objective information and professional assessments of arbitrators' case management skills and decision making from users following the conclusion of their arbitrations. The consolidated anonymised data will be made available in individual arbitrator reports, and will be similar to the types of information that are currently available only on an anecdotal basis or through discussions with peers and colleagues.

Under the Cooperation Agreement, SIAC will encourage participation in the AIQ by sending out emails inviting its users to participate in the survey, at the conclusion of the international arbitrations that it administers. Participation in the AIQ is entirely voluntary, and the AIQ is structured to ensure that the confidentiality of the proceedings is strictly maintained.

SIAC will not have access to either the AIQ website or the responses of users. SIAC will only be inviting participation in the feedback mechanism for arbitrators who are appointed after 1 June 2017.

SIAC aims to promote transparency and diversity of arbitrator appointments by nationality and gender. In 2016, SIAC appointed 341 arbitrators from 21 jurisdictions, of which 44 (or 12.9%) were female arbitrators. SIAC hopes that its support of this initiative will result in objective, practical information becoming available to parties about arbitrators being considered for appointment.

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