Michael Pryles

Chairman of the Singapore International Arbitration Centre

Singapore International Arbitration Centre

Introduction

I was delighted when David Samuels, the managing editor of Global Arbitration Review, asked me to write a short introduction for The Asia-Pacific Arbitration Review. The first thing I must do is to congratulate GAR on its decision to publish The Asia-Pacific Arbitration Review. I say this not only out of self-interest, as a person intimately connected with arbitration in Asia, but because of my conviction that the Asian region is assuming an ever greater significance to the world of international arbitration. This is borne out by the available statistics and by the decisions of leading law firms from Europe and North America to open arbitration practices in Singapore, Hong Kong, mainland China and elsewhere in the region. Moreover, it is not only the law firms that are establishing offices in Asia. Recently, the London Court of International Arbitration (LCIA) opened an office in India and the ICC International Court of Arbitration has opened a branch office in Hong Kong and a representative office in Singapore. In addition, the leading indigenous Asian arbitration centres in Singapore, Hong Kong and mainland China are showing a healthy increase in case numbers and market penetration. This development is good for consumers who insert arbitration clauses in their agreements, who now have a broad range of alternatives, as far as administered arbitrations are concerned.

I now turn to highlight some recent developments in the region. My overview is by no means comprehensive and merely highlights some recent developments of which I am aware.

Statistics¹

Commencing with mainland China, the China International Economic and Trade Arbitration Commission (CIETAC) had 1,230 cases. The Beijing Arbitration Commission had 2,057 cases of which 56 were classified as international cases.

The total caseload of the Hong Kong International Arbitration Centre (HKIAC) was 602 cases. 373 of these cases concern commercial disputes and 229 were domain name disputes. Of the 373 cases, 12 cases were administered by HKIAC and the rest were cases where HKIAC had other involvement such as performing statutory functions (deciding the number of arbitrators or appointing the arbitrator or providing other services, or both).

The Singapore International Arbitration Centre (SIAC) received 85 new administered cases. These brought the total number of cases administered in 2008 to over 200. Of the 85 new cases received, 71 were international and 14 were domestic. In addition, the SIAC appointed arbitrators or provided facilities for a further 43 cases.

The number of cases registered with the Korean Commercial Arbitration Board (KCAB) was 166. Of these cases, 30 were international and 130 were domestic.

For the first seven months of 2009, HKIAC received over 20 administered arbitration cases. For the first eight months of 2009, SIAC received 76 new administered cases.

For the first eight months of 2009, KCAB received a total of 220 case registrations, of which 56 were international and 164 were domestic.

The statistics for the Kuala Lumpur Regional Centre for Arbitration (KLRCA) for 2008 are 30 domestic arbitrations and eight international arbitrations.

Legislation

There has been significant legislative activity in the region. In November 2008, the Attorney General of Australia announced the Australian government’s intention to review the International Arbitration Act 1974. Comments and submissions were sought in relation to a number of questions set out in a discussion paper. Some of these relate to overturning what are regarded as unsatisfactory judicial decisions. One question inquires whether the Act should be amended to make it clear that the grounds for refusing to recognise and enforce an arbitral award as set out in the New York Convention are exclusive. This would overcome dicta of the Supreme Court of Queensland in Resort Condominiums International Inc v Bolwell [1995] 1 Qd R 406 where it was suggested that the grounds are not exclusive and that the court retains a general discretion whether or not to enforce a foreign arbitral award. Likewise, another question focuses on the decision in Eisenwerk v Australian Granites Ltd [2001] 1 Qd R 461 where it was held that by adopting a set of arbitral rules, the parties had evinced an intention to exclude the UNCITRAL Model Law and inquires whether it should be overturned by legislation. In this regard, it is interesting to note that the Eisenwerk decision was followed in Singapore in John Holland Pty Ltd v Toyo Engineering Corp [2001] 2 SLR 262 but was subsequently reversed by an amendment to the International Arbitration Act of Singapore (subsection 15(2)).

Other questions posed for review in Australia include broadening the definition of the writing requirement for an arbitration agreement, clarifying that when the UNCITRAL Model Law applies, it excludes the application of state law, removing inconsistencies in drafting and adopting recent amendments to the UNCITRAL Model Law. Another question asks whether the International Arbitration Act should be amended to allow regulations to be made designating an arbitral institution to perform the functions set out in articles 11(3) and 11(4) of the UNCITRAL Model Law. A final but significant question inquires whether the Federal Court of Australia should be given exclusive jurisdiction for all matters arising under the International Arbitration Act, thereby excluding the jurisdiction of the state courts. This is an interesting proposal and is perhaps aimed at overcoming the inconsistent or patchy approaches to, and appreciation of, international arbitration as demonstrated by various state courts in Australia.

It will be interesting to see which proposals, if any, are adopted and enacted. Legislation is likely to be introduced into the Australian parliament in the latter part of 2009.

In Hong Kong, significant legislation is also planned. At present, the existing Arbitration Ordinance provides separate regimes for the conduct of domestic and international arbitrations in Hong Kong. The former is largely based on United Kingdom legislation while the latter is based on the UNCITRAL Model Law. The Bill gives effect to those provisions of the Model Law that are to apply in Hong Kong subject to such modifications and adaptations as are appropriate and will provide one law for all arbitrations in Hong Kong. If passed, the Arbitration Bill will therefore simplify the law in Hong Kong which, it is hoped, will make the law more user-friendly.

In Singapore, the Arbitration (Amendment) Bill will amend the International Arbitration Act of Singapore. The proposed amendments are as follows. First, the Singapore courts will be empowered to grant interim orders (including discovery of documents and orders to freeze assets) in aid of arbitrations held outside Singapore, which they are not presently able to do. Secondly, it is proposed to broaden the definition of an arbitration agreement to make it clear that Singapore recognises an arbitration agreement contained in electronic communications such as electronic emails or electronic data exchange. Thirdly, the minister for law will be empowered to designate entities to authenticate arbitration awards made in Singapore.

Regional Organisation and APRAG

Asia has its own regional organisation of arbitration institutions. The Asia Pacific Regional Arbitration Group (APRAG) was formed in November 2004 as an association of arbitration institutions in the Asia-Pacific region. It aims to improve standards and knowledge of international arbitration and to make submissions on behalf of the region to national and international organisations. APRAG also maintains a panel of arbitrators. There are now 31 members of APRAG which comprise almost all the arbitration centres, associations and institutions in the region.

Approximately every two years the APRAG council meets to elect a new executive. At the same time, a major conference is organised. The first APRAG conference was held in Sydney in November 2004, followed by a conference in Hong Kong in 2006. In June 2009, the third Asia Pacific Regional Arbitration Group Conference was held in Seoul, Korea. Some 300 people attended the two-day conference and speakers included experts from the region including Michael Moser, Michael Hwang, Neil Kaplan, Cecil Abraham, Philip Yang and Sally Harpole. There were also distinguished speakers from Europe including Wolfgang Peter, John Beechey and Lucy Reed. Expert speakers from North America included David Rivkin and Richard Naimark.

At the council meeting, the following offices were elected: co-presidents - president Seung Wha Chang (Korean Council for International Arbitration) and Mr Doh Jae Moon (Korean Commercial Arbitration Board). The vice presidents elected are: Doug Jones (ACICA), Mr Shishir Dholakia (Indian Council for Arbitration), Dr Michael Moser (HKIAC), Dr Colin Ong (Arbitration Association of Brunei Darusalem), Mr Sundaresh Menon (SIAC), Ms Hongsong Wang (Beijing Arbitration Commission), Mr Kosuke Yamamoto (JCAA) and Mr Jian Long Yu (CIETAC).

Maxwell Chambers

A purpose built dispute resolution facility has recently been completed in Singapore. Known as Maxwell Chambers, it houses a number of organisations including SIAC, ICDR and WIPO. It also provides outstanding facilities for the conduct of arbitrations, including 14 custom-designed and fully equipped hearing rooms and 12 preparation rooms. In addition, there is a lounge for arbitrators and a gymnasium. This state-of-the-art facility provides for wireless internet coverage, long-term document storage, catering, technical support, and concierge and secretarial services.

The formal opening of Maxwell Chambers will take place in January 2010 and the Inaugural Singapore International Arbitration Forum will be held in conjunction with the official opening on 21 and 22 January 2010.

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Arbitration in Asia is on the move. Foreign law firms and arbitral institutions are opening offices in the region and the leading local firms and arbitral institutions are enjoying growth. The available statistics indicate a healthy increase in arbitrations, which suggests a bright future for practitioners and a broad range of services available to disputants.

About the author

Michael Pryles is a well-known international arbitrator with offices in Melbourne, Singapore and London. He has sat in over 200 cases involving both commercial and investor-state disputes. These have included ad hoc and institutional arbitrations under the rules of all of the leading arbitral organisations.

Currently, he is chairman of the Singapore International Arbitration Centre and a member of the board of trustees of the Dubai International Arbitration Centre. He was the foundation president of the Asia Pacific Regional Arbitration Group (an association of 31 arbitration centres and organisations) and has held senior appointments at the ICC and LCIA. Formerly, he was a partner in a major Australian law firm and prior to that he held a chair in Law in Australia’s largest law school. Further information can be found at www.michaelpryles.com.

Notes

1

The statistics below relate to the calendar year 2008 unless otherwise indicated.

The Singapore International Arbitration Centre (SIAC), which was established in July 1991, is now recognised as one of the leading arbitral centres in the world. It has undergone a significant transformation during the course of 2009 to give it a broader international focus, to increase the transparency in its operations and to be more responsive to the needs of parties and their legal counsel.

During the course of the year a new board of directors was appointed and a council of advisers established. These comprised leading arbitral practitioners from Europe, North America and throughout Asia. An extensive revision of the SIAC Rules is being undertaken and the SIAC Practice Notes have been revised. In addition, SIAC moved its location to its new premises within Maxwell Chambers. This purpose built arbitration facility, perhaps unmatched anywhere else in the world, comprises some 14 hearing rooms, an arbitrator’s lounge, gymnasium, concierge service and four restaurants. It has already become a focus for arbitration in Singapore and the Asian region. In addition to housing SIAC, the following organisations have offices at Maxwell Chambers: WIPO, ICDR, Singapore Institute of Arbitrators and ICC.

The most pleasing development during the year has been a significant increase in the number of new cases. In 2007, SIAC received 86 new cases. The number increased to 99 in 2008 and in the first 10 months of 2009, 112 new cases have been received. The total number of cases administered by SIAC now exceeds 200.

SIAC, together with Maxwell Chambers, will co-host a major arbitration conference entitled ‘The Singapore Arbitration Forum’ on 21 and 22 January 2010 in connection with the official opening of Maxwell Chambers.