If regional arbitration has a home, it is in Asia. More accurately, in Hong Kong. The growth of the Hong Kong International Arbitration Centre (HKIAC) proved that if a credible local alternative to the ICC and LCIA exists, users will come, especially those on its doorstep. The HKIAC inspired similar efforts around the world (hence this book).
Indeed, Asia alone now boasts 40-plus arbitral organisations, including Hong Kong’s big rival Singapore. They have a club: the Asia Pacific Regional Arbitration Group (APRAG). Some of the organisations that have joined recently include the Bangladesh International Arbitration Centre; the Mumbai Arbitration Centre; and two city branches of China’s CIETAC that decided to go independent.
For users, though, with choice comes anxiety. Are all of these centres equally good? If not, then which are the safer ones? Would we be better sticking with a known quantity? After all, you don’t want to get five years down the line and discover the centre nominated in your clause no longer exists. That’s where this guide comes in. Many of the centres it lists in its directories are good options – and others can be, in certain situations. Knowing which is which, and by extension when it would be safe to say “ok” if the other side proposes one, can be a great bargaining tool; you then get to ask for something in return. In reality, you know you haven’t given up anything.
So that’s the purpose of this guide. To help users make informed decisions, and use some of these regional centres and other less well-known institutions when it makes sense.
To that end, below and throughout this book, you will find two lists offered per region: “white list” and a “worth a closer look”. White-listed centres are dependable in all scenarios; worth a closer look institutions can be acceptable for the right type of dispute.
- Hong Kong International Arbitration Centre (HKIAC)
- Singapore International Arbitration Centre (SIAC)
Worth a Closer Look
- Australian Centre for International Commercial Arbitration (ACICA)
- Beijing Arbitration Commission (BAC)
- Chinese International Economic and Trade Arbitration Commission (CIETAC)
- Japan Commercial Arbitration Association (JCAA)
- Korean Commercial Arbitration Board (KCAB)
- Kuala Lumpur Regional Centre for Arbitration (KLRCA)
Hong Kong International Arbitration Centre (HKIAC)
Why is the HKIAC on a white list of regional arbitration providers?
Regional arbitration pretty much began with the HKIAC. No regional institution has been running for so long, or with such success.
How successful is it?
In case terms, very. In 2018, the centre registered 521 cases, 71% of which were international (almost identical numbers to 2017). Although the total value in dispute fluctuates, it’s always in the billions.
Doesn’t it count cases a little differently from others?
Yes. For historical reasons, the centre counts both total cases and cases administered under its own or UNCITRAL arbitration rules.
How’s the second figure been changing?
It also fluctuates year on year but is generally seen as travelling in a healthy direction. In 2018, the centre administered 146 (compared with 156 in 2017).
Are the cases mostly construction and maritime arbitration?
They used to be but not any more. Though both categories continue to feature in the make-up of its work, the biggest category by far is now commercial, with international trade disputes the biggest portion of that.
How did the HKIAC establish itself?
A combination of luck and good judgement. It was arguably in a good place at the right time – Hong Kong was undergoing a construction boom – but it’s also enjoyed a succession of excellent leaders. Its founding fathers are Neil Kaplan QC and Michael Moser – these days towering figures but less well known then. They had a vision that extended beyond domestic work in Hong Kong. And the government has helped too.
What has the government done?
Once stand-offish, it’s grown into a keen supporter. It ensured the HKIAC got a whole floor in downtown Hong Kong to turn into a hearing centre (no easy task in that real estate market). The chief executive of Hong Kong (head of the government) and the justice minister have regularly been seen at significant HKIAC events.
Is being on China’s doorstep part of its success?
Hong Kong absolutely benefits from being seen as China-friendly yet neutral territory, for international business, thanks to the one-country, two systems doctrine. How long it can preserve that impression is another matter. The deal underpinning its separate identity expires in 2047. Opinion differs on whether it will suit China’s rulers to keep Hong Kong as it is. So far, it must be said, China has shown nothing but support for its independent judiciary and legal system. But expats report the character of the place is changing – it is day by day becoming more Chinese. In some walks of life, it is harder to imagine yourself getting ahead if you are not Chinese.
What are the HKIAC’s strengths?
Its proven track record (now spanning two decades); excellent and modern rules; and light-touch case administration. It is also affordable, when compared with rivals (surprisingly perhaps given Hong Kong’s general expensiveness). The HKIAC was the first institution to give parties a choice in how they pay arbitrators (by value of case or an hourly rate). It’s gone even further recently on arbitrator costs.
How does the HKIAC differ from SIAC?
The two have different structures. The HKIAC’s rules are more UNCITRAL-inspired, while SIAC is closer to the ICC approach. They also had quite different beginnings. The HKIAC grew more organically – an offshoot of the local bar (it started life as a very successful branch of the CIArb). The SIAC, by contrast, was a government idea.
Do these differing origins matter?
It tells you a bit about Hong Kong’s legal culture and its understanding arbitration – the expertise you’ll find on the ground. It has also helped to make the HKIAC resilient. It’s arguable it would have been poorer at responding to Singapore’s marketing push had it not had such a literate and supportive bar. Those voices helped it to make the case for upgrading Hong Kong’s arbitration infrastructure.
Has the HKIAC been hurt by the rise of Singapore?
There’s no doubt the two are serious rivals. In the 2018 Queen Mary survey, Singapore supplanted Hong Kong as the most popular arbitral seat in Asia (not by much). In the past, though, the two had at least one area they monopolised – for the HKIAC it was China, while Singapore had India (as Hong Kong awards weren’t enforceable there, owing to a technicality of Indian law). Since then Singapore has lost that advantage, because India has “gazetted” Hong Kong, while Hong Kong is starting to face the perception, in some quarters that, now it is part of China, it is less neutral for China disputes than it was.
Is Singapore one day going to eat HK’s lunch?
Long term – who knows. But so far, Hong Kong’s share of Chinese work is much as it has always been. It’s also (like all institutions) doing its best to annexe more – particularly disputes arising from China’s One Belt, One Road initiative – the plan to create vast new infrastructure linking China with trading partners: in 2018, it launched an advisory committee and website to assist entities with Belt and Road disputes.)
And the HKIAC isn’t alone in the fight to defend Hong Kong’s position. Several other institutions are now based there, and have a vested interest in preserving the status quo – including the ICC and CIETAC. Meanwhile, there are plans to create a free trade zone, probably with international arbitration infrastructure, in nearby Shenzen.
What are the HKIAC’s rules like?
They’re modern and have useful “regional” elements, such as broader powers on joinder. Asian investments are required to have a series of contracts, owing to the ownership structures of the region’s – usually family owned – businesses. The HKIAC rules give the institution and tribunals greater powers to organise and centralise related cases. These powers are now common – but they started at the HKIAC.
The rules also contain some interesting elements aimed at controlling arbitrator costs.
How do they do that?
They give parties a choice of how to pay the arbitrators. And they contain a cap on the arbitrator’s hourly rate unless the parties agree otherwise.
Is that useful?
Well, arbitrators will tell you that the percentage of total costs they account for is very low. But every little helps, and rules like this go down particularly well with Asian parties. The cap is HK$6,500 an hour.
Are there any pitfalls?
With the HKIAC itself? No. With Hong Kong as a seat, Korean lawyers and sometimes civil trained lawyers find the local style of arbitration “a little litigation influenced”, to quote one. Also, there’s always a slight concern that in 15 years’ time, Hong Kong may not be the place it is today.
What’s the mood of the centre like?
Over the medium term – buoyant. Hong Kong’s legal infrastructure is in better shape thanks to a fresh arbitration ordinance (and some very favourable court decisions) and it’s now successfully through a very important transition.
What transition was that?
In late 2015, it said goodbye to long-serving secretary general – and extremely popular – Chiann Bao. (Her retirement dinner featured so many standing ovations one attendee compared it to President Obama’s farewell.) She was replaced by Sarah Grimmer, formerly of the Permanent Court of Arbitration.
How is she doing?
Great. Grimmer preserved the core of Bao’s team in the secretariat – and added to it (adding two more people in 2017 at managing counsel level; including Wesley Pang, formerly of Shearman & Sterling).
She’s focused the centre on exploiting the opportunities expected to come from China: in 2018, it appointed former professor Ling Yang to manage its office in Shanghai with one eye on Belt and Road disputes. The HKIAC has also announced that developing nations can use its hearing space for free.
More recently, the HKIAC has become the first foreign institution licensed to provide arbitration in Russia. It also promoted its long-time counsel Joe Liu to deputy secretary general. Liu is a Chinese national.
Where is it located in Hong Kong?
The HKIAC is in the main financial area, Exchange Square, right by the express link to the airport. Its offices include a state-of-the-art hearing centre, which opened with much razzmatazz (including a very frisky Chinese dragon) a few years ago. For a while it looked as if the HKIAC might lose this prized location; the government mooted the idea of moving it to a new justice hub elsewhere. But the idea has now been dropped; the justice secretary who announced that referenced GAR’s favourable review of the centre in this guide. So the HKIAC remains in exactly the right part of town.
What’s it like arbitrating at the HKIAC?
According to statistics released by the centre, it is slightly faster and cheaper than elsewhere. In 2017, the centre released figures showing that its cases conclude faster, on average, than those at the LCIA, SCC and SIA, and that its administrative fees are lower than the LCIA (SIAC was also lower than the LCIA). The full comparison is available on the HKIAC’s website.
Does it have anything to worry about?
Longer term, there’s an existential question looming over Hong Kong. Nobody knows what China’s long-term plans are or how much it values Hong Kong. There’s some evidence that US parties already view Hong Kong as no longer independent, and are shifting their dealings to Singapore. On the other hand, many think that China needs a financial centre and are aware that Shanghai will always struggle to convince on that score. In which case, Hong Kong’s future looks more certain.
A related concern is that Hong Kong’s legal talent might simply up sticks and move elsewhere. A lot of the bar are expats (in contrast to Singapore, which has more home-grown legal talent). Schools etc, aside, there’s nothing tying them long term to the former colony. So they could easily move – en masse potentially. In which case, the HKIAC would lose the patronage that has been so helpful to it til now. On the other hand, the obvious place to go is Singapore – though there would be downsides to such a move. In particular, Singapore restricts the type of court work foreign lawyers can do, so the economics of practice are different.
Anything else to know?
Those from a civil law background occasionally comment that arbitration in Hong Kong is a too close to common law litigation.
Have the 2019 protests had an impact?
This has been a talking point at international arbitration events – including GAR Live Singapore, 2019. There, the view was that the protests are yet to embroil the justice system, or Hong Kong’s excellent arbitration ‘furniture’, so ought to be considered irrelevant.
Alas, this smacks of wishful thinking (and the view came mainly from Hong Kong-based speakers).
The protests have proved a major disruption to every part of basic life – including transport. Hearings have had to be moved, on occasion, to London because of them (the new arbitration centre in Fleet Street has been a beneficiary). So it’s incorrect to say Hong Kong’s arbitration business is immune. Peace and order matter too when considering where to organise a hearing (just ask anyone about the pain of being in Paris for a hearing during a run of strikes). The impact may not be great – yet – but it is not imaginary. The HKIAC won’t flourish in an unstable society.
Singapore International Arbitration Centre (SIAC)
Why is SIAC white-listed?
In the poetic realm, the SIAC stands for the proposition dreams can come true, and persistence pays off. Fourteen years ago, it was a small (if well-funded) player. Today, it’s probably the fastest-growing arbitral provider in this report. Waxing less lyrical, the SIAC is a safe pair of hands (and seat) in a non-Chinese part of Asia.
How was this transformation achieved?
Slowly. SIAC was launched in 1991, but didn’t see casework take off until fairly recently. So success didn’t come overnight.
What finally swung it?
The glib answer is, building the world’s biggest international arbitration hearing centre. The 2010 opening of Maxwell Chambers – a mega-sized hearing complex dedicated entirely to international arbitration – put Singapore firmly on the arbitration map.
How’s that connected to SIAC?
SIAC proposed the idea, after canvassing sources around the world on how to kick-start its profile. In some ways, Maxwell Chambers is a distillation of Singapore’s wider approach to international arbitration: trawl the world for good ideas and take advantage of government backing to copy them.
So has the government been an important part of SIAC’s success?
Absolutely. Barely a year goes by without some change to Singapore’s arbitration regime – or “ecosystem” (in local parlance). Often those require legislative time.
Ways the government has helped SIAC include introducing tax perks for foreign arbitrators and arbitration firms that work in Singapore, plus almost countless adjustments to the law to fill lacunae or ensure SIAC’s rules work as intended.
Do the rules not work as intended?
It’s more that, in their enthusiasm to be cutting edge, they’re continually changing. When SIAC released its latest set in 2016, it was the fourth change since 2007. Most providers amend their rules every nine or 10 years. The 2016 rules added powers on joinder and consolidation to keep up with rivals such as the HKIAC and ICC.
More recently, SIAC has released investment arbitration rules.
So it’s a simplification to say Maxwell Chambers put Singapore on the map?
Yes. Although Maxwell Chambers helped, it takes more than a new hearing centre to get to the top – even a really good one.
It so happens that SIAC hit the road hard between 2001 and 2007, promoting itself to law firms, corporations and its own government. More recently it’s brought in big international names to assist with its administrate cases, including Gary Born as president and Lucy Reed as vice president. In 2016, it expanded its international reach with offices in Shanghai and Gujarat – its third and fourth overseas outposts after Mumbai and Seoul.
The government also gave SIAC a big boost when it opened Singapore’s legal market to foreign firms (partially, at any rate). Once foreign firms were in place, they had an incentive to promote Singapore as an international arbitration centre, as it was a service in which they had a competitive advantage over local players.
Are these efforts paying off?
There’s evidence that they are. In 2017, SIAC recorded its highest tally of new cases – 452; up from 271 in 2015. 2018 continued the trend – with 402 cases registered (375 SIAC-administered).
On top of that, the clauses producing these were mostly written in the past five years. So SIAC seems firmly implanted in deal lawyers’ minds. Anecdotally, many say SIAC has gained a solid reputation and is easy to agree on, particularly if you have a party that doesn’t want to arbitrate in Europe or the US.
More importantly, the value of those cases is much bigger than it used to be. In 2018, its caseload was worth a collective US$7.06 billion.
What’s arbitrating at SIAC like?
It’s a lot like being at the ICC. In 2013, changes to the rules completed the homage (it was already fairly similar). Above all, they added a Court of Arbitration to the process, to resolve issues arising mid-case. This court comprises 16 illustrious names from the international arbitration firmament.
The rules also offer the various bells and whistles that have become standard – since 2010, for example, SIAC has offered an expedited procedure for use when certain criteria are met, and the option of an emergency arbitrator.
Of course, the rules are one thing, but how the arbitrators apply them is another one. If SIAC has a flaw, it’s that local arbitrators set things up too much like Singaporean court litigation.
What are the new investment rules like?
They’re an adaptation of the regular rules to accommodate the esoteric aspects of investor–state and state–state disputes. Useful features include an early dismissal mechanism, time limits on arbitrator challenges and the option for the case to continue in parallel to such a challenges (if the arbitrators deem it appropriate). They also require disclosure of any third-party funding.
Are there any pitfalls to beware of?
No pitfalls per se, but a few little things to monitor. One is that the rule on confidentiality is particularly broad. Another is that the model clause makes a few choices for you that other clauses leave blank (such as Singapore as a seat). Other than that, no real traps exist for the unwary, although with the rules changing often, there can be scope for arguments about which set should apply.
As a seat, Singapore is in an unusual position – for now – when it comes to tribunals’ jurisdictional rulings.
Worth a Closer Look
Asia’s also home to a number of “local” institutions that – for the right sort of disputes – are more than suitable. What’s more, appearing to give ground and accept a lesser-known entity can be parlayed into other concessions during a negotiation.
Here is our selection of other institutions that shouldn’t be dismissed out of hand. They may give you an extra bargaining chip, if you know enough about them.
Australian Centre for International Commercial Arbitration (ACICA)
Why’s ACICA an institution to watch?
It’s backed by some very driven individuals who think they’ve got an excellent case to make for Sydney as an arbitral centre.
Do they have a point?
Certainly. Australia has an excellent UNCITRAL-inspired law, as well as high-quality lawyers and arbitrators, and all available at a more affordable price than its nearest arbitral neighbours. Of course, there is a “but”.
What’s the “but”?
Sydney is nearly as far from Beijing as Paris is. And depending where you come from, you’re in a pretty rubbish time zone. “I’ve loved my four Australian cases,” comments one US lawyer, “but being somewhere where day is night and night is day is frankly a pain.”
What do the Australians say in response?
They know it’s a long journey. But they say it’s worth it when you get there. And it’s only a medium-long trip if you’re starting from Asia – then you’re only shifting from your normal day by a couple of time zones. Sydney can also make the case that it’s less subject to China’s influence than either Singapore or Hong Kong.
Australia and New Zealand had a chance to showcase their merits to the wider arbitration world as the joint hosts of the 2018 ICCA Congress.
So how’s it doing?
It’s very active and has a well-established brand thanks to a succession of strong presidents, notably Doug Jones, until 2015, and now Brenda Horrigan, a Herbert Smith Freehills partner and well-known IA name.
It’s launched a panel of tribunal secretaries and guidelines on their role and in 2016 issued updated rules (among other things these grant arbitrators “robust immunity” in the words of Doug Jones).
Caseload has been slower, though. At press time, no case figures were available on ACICA’s website (www.acica.org.au) but those close to it maintain the ACICA clause is now frequently inserted into contracts.
This is likely to accelerate – thanks to the Singapore effect.
What’s the Singapore effect?
Singapore has become popular for arbitration. But foreign firms are limited in the work they can undertake. They can’t conduct local litigation or recruit local lawyers (easily). As a result, it’s hard to build a large disputes team there: the economics don’t work.
How does that help Sydney?
Because of the limitations in Singapore, big international firms often run their Singapore work from Australia. That’s leading to sizeable arbitration groups in Sydney. It’s in those people’s interest to promote Sydney as much as they can.
Beijing Arbitration Commission (BAC)
Why’s it worth a closer look?
The BAC has many admirers, including the Economist Intelligence Unit. It described the BAC as “the only local arbitration commission which meets global standards”. Anecdotal evidence in Hong Kong’s arbitration community supports this.
What sets it apart?
“Professionalism, competence and transparency,” according to one respected source, speaking at GAR Live Hong Kong a few years ago. He called it the standout option among China’s 250-odd local arbitration commissions (CIETAC’s local competition). That view was confirmed this June by a respected Chinese arbitration source. The source who spoke described the BAC as “the rising star in China; they work really hard.”
What’s so good about it?
The BAC’s rules are the most flexible on offer for mainland China when it comes to party autonomy, where they approach the international norm. It’s possible to run a case pretty much any way you want, even when it comes to the vexed topic of which laws should apply. They also contain helpful elements on joinder, and what to do if a med-arb has gone wrong (they allow for the arbitrators to be changed, which will be welcome to international parties).
The BAC also gets points for the quality of its secretariat, where staff turnover is lower than at other arbitration commissions (including CIETAC). BAC staff are reputed to take pride in their work: “BAC secretariat has a team spirit,” comments our respected Chinese source. “They feel like it’s their enterprise. It’s very rare.”
Another popular feature is that the BAC is self-funded (and has been since 1998); it’s not an arm of government.
Who succeeded in doing all that?
The credit is usually given to Madame Wang Hongsong, the BAC’s charismatic vice chairperson.
She insisted, legend has it, that as the capital’s commission, the BAC ought to hold itself to a higher standard, and it was she who personally visited a vast number of state-owned companies to inform them so. With some success. There has been extensive uptake of the BAC in Chinese domestic contracts, as the figures show. “It’s like the story of the tortoise and the hare,” says our source. “While CIETAC slept, the BAC moved ahead.”
How busy is the BAC?
It’s very busy, especially when compared to CIETAC. In 2018, the BAC handled 4,872 cases – up from 3,550 in 2017. These figures are almost double what they were in 2007.
And how small or large are the cases?
The average has been about US$1.5 million per case since 2012. But much larger cases are known. It handled one matter worth US$1.7 billion in 2015.
Is any of the work international?
The centre isn’t so at home with international work. It’s now seeking to change that by building its international profile. Even so, it handled 69 cases with one foreign party in 2016, and 52 the year before, which is more international work than some better known organisations. The centre reports that the number of international cases remained stable in 2017 (the last year for which these figures are available).
What is it doing to improve its international profile?
It has become more and more active outside China. It has adopted an international name – the Beijing International Arbitration Commission (BIAC) – and now organises more foreign conferences per year than CIETAC. It is also taking part in the UNCITRAL working group as an observer. In 2017, it teamed up with arbitral centres in Kuala Lumpur and Cairo to tackle disputes arising from China’s One Belt, One Road policy.
Are there any eccentricities to keep an eye on?
As with any Chinese mainland arbitration, the process tends towards the shallower version of arbitration rather than a deep quest for absolute truth. The BAC aims to complete all matters within six months.
Med-arb is also a regular feature; the BAC uses an “evaluative” rather than “adjudicative” style.
Is there an enforcement penalty to pay, if selecting the BAC? How easy is it to enforce a BAC award in other parts of China?
The BAC is unusual among city commissions in that 60% of its users are not from Beijing (ie, one side in the case). Thus courts in other parts of China are now familiar with its name, which has led to dependable enforcement.
Anything else to know?
The staff are regarded as particularly helpful and are often fluent in English. They can, however, be slow to respond. All cases are run using a state-of-the-art case-management system. And the BAC’s hearing rooms have a lovely view of Beijing.
China International Economic and Trade Arbitration Commission (CIETAC)
Why is it worth a closer look, rather than being on the white list?
CIETAC is China’s home-grown international arbitration institution, and government rules have gifted it a huge caseload and created decades of experience (its main office and city subcommissions handled a total of 2,962 in 2018.
It’s also the best-known Chinese arbitration provider among China’s judiciary, giving it an enforcement advantage against many of the 200-plus other Chinese providers.
On the other hand, for a number of reasons – some of which it has no power over – it remains an acquired taste.
What are the complaints?
It’s in a poor seat (which is hardly CIETAC’s fault).
Why isn’t China a good seat?
The usual answer is that courts interfere too much. But there are some other related difficulties. A lot of the Chinese law firms of the sort encountered on cases at CIETAC use tactics that aren’t pleasant to deal with (although their conduct is said to be improving). “Even if you lower your expectations, it’s still not enough,” one source put it to GAR. So it makes sense, if possible, to get such an opponent away from their home turf. If that’s not an option, then CIETAC is often a perfectly serviceable option. The only advice is to go in with your eyes open.
What should a newcomer to CIETAC know in advance?
The process can be “frighteningly fast”, as GAR has reported in the past – and not always very surgical. A speaker at a GAR Live Hong Kong once gave it “five out of 10 for efficiency”, saying that speed without accuracy isn’t much help. CIETAC is fast because takes an inquisitorial approach, and very little time is devoted to testing evidence.
At other times, CIETAC can be frustratingly slow. This is usually if it’s asked to handle a complex multiparty case, or because it is attempting to administer a matter under another institution’s rules (which happens from time to time), or if an opponent is politically connected and doesn’t want an award any time soon.
The secretariat also has far more of a case-management role than is perhaps the norm. It likes to take charge of all procedural matters, things that would usually be the domain of the tribunal. CIETAC is also not the most multilingual of organisations, and suffers at times from high staff turnover and the occasional unmotivated bad apple among the staff. Finally, it has a tendency to impose med-arb.
Isn’t med-arb viewed with distrust?
In many parts of the world, that’s true. In Asia, where the desire to negotiate a problem away can be great, but also accompanied by a reluctance to make the first move, med-arb can be a big help. It allows talks to start without anyone losing face. In CIETAC’s 50 years, a substantial percentage of cases have been resolved in med-arb.
As a process, it’s also less scary than it was. CIETAC and others have steps in place in case the “med” part of the med-arb fails.
Why is CIETAC so busy?
Government rules prevent foreign arbitral providers from administering mainland-seated arbitrations. They also require all arbitrations in China to be administered by some sort of arbitration organisation. Therefore, Chinese providers have a monopoly, with CIETAC at the apex of the pyramid.
Because it is one of the best-known options, if you are likely to need court support during a case then CIETAC makes practical sense. Ditto if the award needs to be enforced inside China.
What does CIETAC say in response to critics?
To its credit, it has listened to complaints and worked hard to improve both its offering and China as a seat. It will probably always be hampered by being a government organisation.
How international is it?
It’s a mixed picture. The numbers are quite good, with around one-third of the work classed as international (in 2015, that was 485 cases). But when it comes to the make-up of the organisation, CIETAC panels are still usually all Chinese, or have two Chinese members and one Chinese-speaking foreigner. It is theoretically possible to achieve a non-Chinese tribunal, but in practice it’s difficult because of the poor rates of pay.
How independent are the arbitrators appointed?
Opinions vary. There are stories of mainland arbitrators “who would be given one out of 10” for independence or “who are clearly partisan or communicating with one of the parties” (quotes from a past edition of GAR Live Hong Kong); while others “deserve 10 out of 10”. Non-career arbitrators – those who sit as a sideline rather than as their main professional activity – are viewed as safer on this score.
How up to date are the rules?
The arbitration rules were revised in 2014, to add emergency arbitrator provisions and new options for consolidation and joinder, and to make it easier to dispose of more valuable cases with a summary arbitration procedure. The rules now include the ability to have a case administered by CIETAC’s Hong Kong subcommission. In 2017, CIETAC introduced special rules for investment disputes.
Hasn’t CIETAC had some ups and downs of late?
There have been some “incidents”. In 2006, its secretary general was arrested (later released without charge), while more recently, CIETAC branches in Shenzhen and Shanghai have broken away and set up as competition. As surprising as those instances were, neither seems to have left a permanent mark. More concerning is CIETAC’s failure to match the energy of other local Chinese providers (notably the BAC).
On the upside, it has a new secretary general, Wang Chengjie, previously of CIETAC’s sister mediation institution. And it recently opened a centre in Xian, a historic stop in northwest China along the Silk Road, to field disputes arising from the country’s One Belt, One Road policy.
Where does CIETAC Hong Kong fit in?
CIETAC Hong Kong is a branch of CIETAC, in Hong Kong, which opened in 2012. Without case numbers (not available) it’s hard to say if it is proving a success. But the logic certainly works: all the upsides of using CIETAC, but in a better seat.
Japan Commercial Arbitration Association (JCAA)
Why is it worth a closer look?
The JCAA is Japan’s only international arbitration provider, founded in the 1950s.
So why isn’t it better known?
It’s never had that much work. On average, the JCAA gets only 15 to 20 new cases a year, and some of those include an element of double counting.
The majority are, however, international.
Why doesn’t it get more cases?
There are various theories. Some point to Japanese culture, which is averse to disputes and at ease with courts. But statistics on domestic arbitration appear to give the lie to that (they show extensive use of arbitration). So it seems to be down to “soft factors”.
What soft factors?
Neither Tokyo nor Osaka is home to many potential arbitrators (in contrast to, say, Hong Kong or Seoul, which are where Japanese cases tend to go). One well-placed source reports that “only two or three names come to mind immediately” as suitable for a big international case. So companies don’t feel a particular pull to stay local.
Then there’s the general expense. The JCAA isn’t cheap: “For the size of the filing fee, you might as well go to the ICC.” On top of that you have expensive hotel rooms or conference space to rent (there’s no hearing facility). The upshot is, waging international arbitration in Japan isn’t cheap!
Is there anything in the JCAA’s favour?
There is one area in which the JCAA can potentially save you money. A JCAA case comes with its own tribunal secretary, paid for by the JCAA.
Why are you listing it in this section?
Despite the obstacles, the JCAA is seen as being on the up. One foreign counsel who sat there as arbitrator recently said his experience was very good and “very different” from previous occasions: “They provide a very good service now. I would absolutely recommend them in the right case.” Japanese businesses are also pushing the JCAA in negotiations with business partners.
Because the JCAA has been asking them to, ever since it upgraded its rules.
When did it upgrade the rules?
It has had improved rules since February 2014. These revised rules introduced the option to request an emergency arbitrator; improved things on interim measures (bringing the JCAA more in line with the UNCITRAL Model Law); and changed when expedited arbitration could be used. They also introduced the possibility of mediation within the same process.
Are there any pitfalls to be aware of?
With the JCAA, not really. With Japan, an issue may lurk regarding foreign counsel. In theory, all should be fine. Local bar rules permit foreigners to act on Japanese soil in “international disputes”. But a flag has been raised where the foreign lawyer’s client has dual identity – the Japanese subsidiary of an international name, say. If such an entity were in dispute with a Japanese firm (eg, a supplier), the foreign lawyer could face a challenge.
Are there any recent positives?
There’s been a statement that Tokyo will have a hearing centre by 2020, in time for the Tokyo 2020 Olympics. The centre will provide hearing facilities so parties can hold cases under the auspices of the JCAA, with a focus on international commercial and sports disputes.
Korean Commercial Arbitration Board (KCAB)
Why is the KCAB worth knowing more about?
The KCAB – and lawyers in Korea – has serious plans to become an international arbitration destination. It’s already busy with domestic work, and for various reasons the next logical step is seen as servicing cases that have no connection with Korea.
How busy is “busy”?
In 2017, KCAB handled 385 arbitrations, of which 307 were domestic and 78 international. This compares well to a total of 381 the year before (and 62 international cases). The total sum in dispute at KCAB in 2017 was US$810 million.
Does it have government support?
Very much so. The government recently enacted the “Arbitration Industry Promotion Act”, under which it commits to providing “very significant measures of institutional and material support to the promotion of international arbitration in Korea” according to an article in the most recent Korean Arbitration Review.
Around the same time as enacting the Promotion Act, the government amended Korea’s Arbitration Act to be more in line with the latest version of the UNCITRAL Model Law.
What are its rules like?
The KCAB has a separate set of international rules that apply automatically in all international cases. The rules were first adopted in 2011 and updated in 2016 and embody all the key LCIA/ICC inspired norms.
What’s the KCAB doing to increase its international business?
It’s been tweaking various things. One was its rate of pay. In domestic matters, sitting as an arbitrator is regarded as an honour rather than a job, and the rate of pay is lower accordingly. But for international arbitrators, this pro bono approach has made Seoul unattractive. So the KCAB has been increasing its international case rates of pay. It has also introduced an International Arbitration Committee to its structure, to play the same role as the courts of other leading bodies. Current members include Jan Paulsson, Gary Born, Lucy Reed and Doug Jones, to name but a few. According to Kevin Kim, who was appointed as the committee’s first chair in 2017, these changes signal “KCAB International Arbitration Version 2.0”.
Is there a dedicated international arbitration hearing centre?
Yes. The Seoul Arbitration Centre opened in 2018 and has been described as the “world’s largest hearing centre,” occupying 1,911 square metres (that’s 1.5 times the size of the HKIAC and 3.8 times the size of the New York International Arbitration Centre). It replaces the former Seoul International Dispute Resolution Centre.
Does Asia need another seat?
Some civil-trained lawyers think so. The current major providers – chiefly Hong Kong and Singapore – are all common law, giving Seoul something unique. Geographically, Seoul is well located. Plus it’s near to several major economies – Russia, China, Japan and Mongolia – that could all come to view it as a useful neutral space. Koreans like to think they may emerge as the Switzerland of north Asia. On top of that, Seoul has a sizeable pool of arbitration talent, much of it home-grown.
South Korea’s currency crisis in the late 1990s created a wave of arbitration, as ICC figures testify (for a while South Korea was one of the bigger sources of ICC work). Local law firms noticed what was happening to their clients and astutely skilled up.
Very clever of them. How did they manage it?
They shared know-how as they gained it. If one Korean partner had a case (as co-counsel – initially Korean firms were always co-counsel), he or she shared the knowledge gained with whoever was interested back in Seoul, which could be colleagues and rivals alike, at lunch seminars and breakfast gatherings. Today, Korean lawyers are more likely to be the first chair as counsel and occupy leadership roles with all the international arbitration organisations such as ICCA, the ICC and the LCIA.
What’s the process like if you do go to Seoul?
Should you end up under the domestic rules, Korean arbitrators are pleasingly unfettered in their approach, which means you won’t just get a version of local litigation. These days you’ll probably end up under the international rules, where, especially with the recent organisational changes, things will resemble what parties are used to. The main difference is it’s likely to be faster. Korean society reveres speed (tourists quickly become familiar with the phrase “pali-pali” (“hurry hurry”)) and this extends to arbitration. The KCAB is proud of having a 200-day average case duration, and will try to hit that even in complex international arbitration.
Does everyone speak English?
Pretty much. Younger Korean lawyers are usually educated abroad these days, and most speak excellent English. Many are dual-qualified.
Korea is opening up its legal market. Do you expect that to have an effect on KCAB figures?
In time, it would be logical to see a rise in the figures. International firms opening offices in new markets view arbitration as one of their competitive advantages over local firms. New arrivals in Seoul will, therefore, have an incentive to promote the KCAB to provide a flow of such work. One of the common features of all the successful arbitration centres is a population of international cross-border law firms.
Are there any pitfalls?
Make clear you want all disputes to be under the international rules, for avoidance of doubt. Otherwise there is a small chance that, for example, a dispute between a locally incorporated subsidiary and a Korean firm could be classified as domestic. Be aware too that there have been one or two hiccups in the local courts.
There have been two decisions that look bad for Korea as a seat. Local lawyers are keen to portray these matters as a blip, saying they’ll be reversed on appeal. Until then, keep a watching brief.
Have there been any recent developments?
In 2016, the KCAB celebrated its 50th anniversary, and made the changes to its structure referred to above. It also introduced a Code of Ethics for Arbitrators. In 2018, it appointed Sue Hyun Lim – former partner at Bae Kim & Lee – as its first secretary general in a bid to handle its growing caseload.
So what do non-Koreans who’ve used it say?
On the whole, the feedback has been good. The rules are viewed as serviceable and the staff is energetic and well grooved from all the domestic arbitration. A number of international arbitrators have accepted appointments there since the rule changes in 2011 and 2016.
Asian International Arbitration Centre (AIAC) – formerly the KLRCA
Why’s it worth knowing more about?
Formerly known as the Kuala Lumpur Regional Centre for Arbitration, the AIAC marked its 40th anniversary in 2017 with a name change. It says its aim is to serve the whole of Asia, not just Malaysia, and is part of a larger modernisation and revitalisation programme that the centre has undertaken for the past seven years following a stint in the wilderness. It says it is planning on a new era of expansion, making the centre a credible option, for the right case.
Why was it in the wilderness?
Malaysia’s courts started being unsupportive of arbitration. That led users to avoid it as a seat.
So what changed?
The courts have improved in their support and understanding and the centre has had a makeover. In 2014, it moved to new premises inspired by the impressive facilities at Singapore’s Maxwell Chambers. But its biggest shot in the arm came back in 2010, when it appointed new director general (Sundra Rajoo) who kicked its efforts into overdrive.
What did he do?
In the years since 2010, the centre has changed its name, revised its rules, developed numerous sets of bespoke rules, upgraded its premises, added international names as advisers, and revamped its secretariat. It’s been far more present at international events too.
Is there space for it, squeezed between Singapore and Hong Kong?
Winning market share in international arbitration is never easy. The AIAC has the advantage of a supportive government. It also helps that it is a centre of Islamic finance expertise (a niche that neither of the rivals mentioned have). None of that will be worth anything though if Malaysia’s courts slip back into bad habits. Fortunately, so far they haven’t.
How busy is it?
2016 was the first year that the centre released figures. They showed 522 new cases registered that year. Most, however, were requests for adjudication. Within that, 62 were arbitrations; seven of them international.
In 2017, the centre published its last annual report under the KLRCA brand, revealing that it had handled a record 932 cases. While the centre does not identify how many of those cases were arbitration, it notes there was a 100% increase from the year before.
Will those figures grow?
There’s every possibility. Kuala Lumpur has some natural advantages its arbitration centre can exploit. Chief among them, the city has become a hub for Islamic finance. If the AIAC can persuade corporate lawyers that Kuala Lumpur is a better seat than, say, Dubai, for arbitration with an Islamic angle, the AIAC will be well provided for.
The centre has also recently signed a cooperation agreement with the Beijing Arbitration Commission and the Cairo Regional Centre for International Commercial Arbitration to capture a large share of the disputes arising from China’s Belt and Road project.
Is that likely?
Neither Dubai nor Kuala Lumpur has a great reputation for court interference (though Malaysia’s courts are an improvement on yesteryear). But as one Asian source put it, “At least with Malaysia, you have the prospect the government will step in and sort it all out. You’ll never have that in Dubai.”
In readiness, the AIAC, in its former guise, in 2012 released an innovative set of Islam-friendly arbitration rules (inspired by the Model Law) – for which it received a GAR Award for Innovation.
What are the rules like?
The AIAC last released rules in mid 2017, updating them in 2018 following the name change. They have a “light touch” in approach, and include provisions on joinder, consolidation and the review of awards. They give the director general a new power to consolidate disputes.
Hasn’t it has some scandal recently?
Correct. Director general Sundra Rajoo – who did much to galvanise the institution over the past few years – resigned in November 2018 to fight corruption charges. He is accused of paying bribes to ministers to secure his reappointment a few years ago. The allegations against him emerged after an anonymous letter was sent to the local anti-corruption agency and various officials, including the Attorney General.
Rajoo, who has claimed diplomatic immunity recently, returned to Malaysia to assist in the investigation. The AIAC has put out a statement saying it is cooperating with the authorities and has “zero tolerance” of any corrupt activities. For now, though, it is operating under something of a cloud.
The Chinese Arbitration Association, Taipei (CAA)
Why is it worth a closer look?
It’s the oldest, private arbitral institution in Taiwan, founded in 1955 after the Chinese nationalist government settled on the island following the civil war in mainland China.
Right. So how does Taiwan’s international status affect its reputation as a seat?
Enforceability can be a concern. Taiwan isn’t recognised as a sovereign state by countries that have diplomatic relations with China and it has yet to sign the New York Convention because of its historical status.
However, the CAA says its awards have been enforced outside Taiwan on the basis of reciprocal enforcement agreements with other countries and international law principles.
The country also has an up-to-date arbitration law based on the UNCITRAL Model Law.
What are its rules like?
The CAA has two sets of rules: one for arbitrations seated in Taiwan (launched in 2001) and a set of international rules introduced in 2017 for arbitrations seated outside the country.
Arbitrations under the international rules are automatically seated in Hong Kong, unless the parties agree otherwise. It also has several features not found in the local rules: emergency arbitration, joinder of parties, consolidation and criteria for starting a single arbitration under multiple contracts.
So is the CAA international in nature?
It certainly has the capacity to hear international disputes.
From 2001 to 2016, the CAA handled an average of 165 cases a year, including international cases. Construction, maritime, and trade and services disputes are particularly popular.
The CAA also offers arbitration in English and Mandarin and has a panel of 820 arbitrators, 30 of whom are foreign nationals. It has signed cooperative arrangements with more than 30 other institutions around the world, including those in Africa, Europe, the US and Latin America.
Any new developments?
In addition to its international rules, the CAA announced plans to open a post in Hong Kong in 2017 in a bid to capture more Belt and Road disputes emanating from China. The new office will open once all the required approvals are obtained.