On a bright Monday morning in June 2012, the then-Attorney General of Singapore, Sundaresh Menon (now Chief Justice of Singapore) delivered a thought-provoking, award-winning opening address at the International Council for Commercial Arbitration (ICCA) Annual Congress in Singapore. He began by referring to the new age of arbitration for Asia – and elsewhere in the world – as its golden age. Perhaps as a testament to this, the 2012 ICCA Congress was the best-attended Congress ever and the first to be held in South East Asia.
Chief Justice Menon suggested that international arbitration practitioners should throw caution to the wind and consider issues of accountability and checks on arbitral institutions, the lack of a central organising structure or a regulatory body supervising the evolution of the body of investment arbitration law and the tenuous relationship between the judiciary and the arbitration world. His speech provoked intense debate over the next four days at the Congress and, thereafter, across the world.
Meanwhile, in Hong Kong, Dr Julian Lew QC spoke of the shift of economic power from the West to the East. Dr Lew predicted that countries that have adopted the Model Law will be at the vanguard of the development of international arbitration law and practice. He went on to say that Asian countries with the highest concentration of Model Law-based arbitration legislation were likely to be increasingly attractive arbitration destinations.
At the heart of it all, the Singapore International Arbitration Centre (SIAC) saw a record caseload in 2012 with 235 new cases filed with the institution in its 21st year: a 25 per cent increase on the previous year. 191 of these cases were administered by the SIAC. Parties from 39 jurisdictions were involved in cases at the SIAC with mainland Chinese and Indian parties featuring as the most frequent users. A total sum in dispute of S$3.61 billion was involved in these cases.
The HKIAC handled 293 cases for the same period, 68 of which were administered by the institution. The London Court of International Arbitration (LCIA) handled 265 new cases in 2012, of which 15 per cent of cases involved Asian parties. CIETAC Beijing handled 975 cases for the same period.
Arbitral institutions are expanding and new institutions are developing in Asia. The National Arbitration Centre in Cambodia was launched in March 2013. In May 2013, the SIAC opened its first overseas office in Mumbai, India, in a bid to reach out to users in that jurisdiction that has traditionally been the largest contributor of cases to the SIAC. In May 2013, South Korea saw the opening of a brand new arbitration hearing facility, the Seoul International Dispute Resolution Centre, which also plays host to offices of the SIAC, the HKIAC and the LCIA. Less encouraging, however, is the split between CIETAC Beijing and its sub-commissions in Shanghai and Shenzhen, a development that has raised (and is likely to continue to raise) issues of enforcement of awards from the former sub-commissions that have since formed new independent bodies.
The ICC’s International Court of Arbitration introduced a new set of rules in January 2012. The HKIAC is poised to introduce its own new set of rules in November 2013 for administered cases. Both institutional rules set out detailed provisions on arbitrations involving multiple parties and contracts and joinder of parties. The HKIAC will also introduce provisions for a default capped hourly rate for arbitrators. The SIAC also introduced a new set of rules in April 2013 bringing into effect changes to its governance structure with the introduction of a new Court of Arbitration consisting of 16 eminent international arbitration practitioners to oversee case management at the SIAC. The SIAC’s new rules also streamlined various procedures, amended existing rules to bring them in line with recent Singapore law on arbitration and introduced provisions permitting the SIAC to publish awards in redacted form for the benefit of its current and potential users.
New measures to obtain interim relief through the appointment of an emergency arbitrator is a new, exciting area of arbitration law. The SIAC introduced such provisions in its 2010 rules and has, to date, received 27 applications requesting the appointment of an emergency arbitrator. In nine of these cases, the interim relief requested was not granted by the emergency arbitrator appointed by the SIAC. These provisions have proved quite popular with Asian parties, who – in 12 of these cases – have made the application requesting urgent interim relief. In their new rules, the ICC and the HKIAC follow suit with the introduction of provisions for the appointment of an emergency arbitrator. The ICC has received two cases thus far under these provisions.
There were also significant court decisions in 2012. In India, the Supreme Court handed down its now-famous decision in Balco to settle the position that, under the Indian arbitration legislation, Indian courts did not have jurisdiction to grant interim measures in respect of foreign-seated arbitrations or to deal with challenges to foreign awards. The Court firmly endorsed the seat as the ‘centre of gravity’ of an arbitration to determine jurisdiction of courts. Perhaps most important is the Court’s elucidation of the interpretation of the phrase ‘of the country in which, or under the law of which, that award was made’ in article V(1)(e) of the New York Convention. While the phrase has been the subject of discussion worldwide, the Court took the view that there cannot be concurrent jurisdiction of two separate courts: at the seat and at the courts of the jurisdiction of the governing law of the arbitration – it can only be the court at the seat of arbitration that can exercise such jurisdiction to deal with a challenge. The Court, however, confined the application of its dicta to arbitration agreements executed after its decision (ie, after 6 September 2012). In doing so, the Court may not have found strong enthusiasts but the position remains. Nonetheless, the decision is a hugely positive development for India and brings the Indian position in line with international arbitration jurisprudence and understanding. In Australia, in March 2013, the High Court upheld the constitutional validity of its arbitration legislation in TCL Air Conditioner and confirmed the commitment of Australian courts to enforcing arbitral awards.
The period between now and 2014 promises to be exciting for international arbitration in Asia, and The Asia-Pacific Arbitration Review will provide greater detail on some of these recent developments in key jurisdictions in the region.