International Arbitration - Unfettered Freedom to Participate? - Part 5 Chapter 27 - The Practice of International Litigation - 2nd Edition
Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
An attraction of international arbitration is that proceedings can be held anywhere in the world and that participants – advocates and arbitrators – can be from anywhere in the world.
Arbitral institutions often make efforts, given the opportunity to appoint arbitrators, to include persons from nations other than that in which the arbitration is being held or those from which the parties hail. Clients take comfort in the fact that they can be represented by counsel of their choice and are not required, as they would be in national courts, to be represented by local lawyers whom they do not know and who do not know them.
Recent developments have, however, cast some doubt on whether the freedom to participate in international arbitration is in fact unfettered.
In Turner (East Asia) Pte Ltd. v. Builders Federal (Hong Kong) Ltd., 2 M.L.J. 280 (1988) (Sing.), the Singapore Supreme Court held that Debevoise & Plimpton could be enjoined from representing a party in arbitration proceedings in Singapore. This ruling met with an immediate negative response from arbitration specialists around the world, who regarded it as an unwarranted restriction on the right of parties to be represented by counsel of their choice, and parties started avoiding arbitration in Singapore. In 1992, in conjunction with the 1991 formation of the Singapore International Arbitration Centre (SIAC), the Singapore Legal Profession Act was amended to permit lawyers licensed abroad to represent clients in arbitration proceedings in Singapore in which foreign law governs. The current version of the statute explicitly states that the rules concerning unauthorized practice do not extend to arbitrators or lawyers representing parties in, or advising clients with respect to, arbitration proceedings.