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

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

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

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

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Gift exchange between Anthony Neoh, QC, SC and
Lim Seok Hui

Members of the audience

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

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

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

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Left to Right: Chan Hock Keng, Lexi Menish,
Dr Christopher Boog, Armstrong Chen and Zhen-an (Tony) Zhang

Left to Right: Simon Dunbar, Jiong (John) Liu, Chan Leng Sun, SC, Prof Dr Peter Malanczuk and Dr Yifei Lin

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

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

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

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

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

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

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

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

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

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