Arbitration in Singapore - Chapter 8 - International Commercial Arbitration in Asia - 2nd Edition
About the Editors:
Philip J. McConnaughay is Dean and Professor of Law at the Penn State University School of Law and Former Professor of Law at the University of Illinois College of Law in Urbana-Champaign, Illinois. Dean McConnaughay joined the College of Law faculty at Illinois in1996 following seventeen years of international practice with Morrison & Foerster LLP, including almost ten years as a resident Partner in Morrison & Foerster's Tokyo and Hong Kong offices. He has represented parties from throughout the world in major international arbitrations in China, Japan, Southeast Asia, and the United States, including representing Fujitsu Limited in the celebrated IBM/Fujitsu Arbitration. Dean McConnaughay has served as a foreign advisor to arbitration law reform efforts in Indonesia, he has lectured on international arbitration and economic development in China, Vietnam, Japan, and elsewhere in Asia, Europe, and North America.
Thomas B. Ginsburg is Professor of Law at the University of Chicago, where he works on comparative and international law from an interdisciplinary perspective. He holds B.A., J.D. and Ph.D. degrees from the University of California at Berkeley. One of his books, Judicial Review in New Democracies, (Cambridge University Press, 2003) won the C. Herman Pritchett Award from the American Political Science Association for best book on law and courts. He has served as a visiting professor at the University of Tokyo, Kyushu University, Seoul National University, the Interdisciplinary Center Herzliya, the University of Pennsylvania, and the University of Trento. He currently directs a project funded by the National Science Foundation to gather and analyze the constitutions of all independent nation-states since 1789. Before entering law teaching, he served as a legal advisor at the Iran-U.S. Claims Tribunal, The Hague, Netherlands, and has consulted with numerous international development agencies and governments on legal and constitutional reform.
# About the Contributors:
Jingzhou Tao (China). Jingzhou Tao is the Managing Partner of the Beijing office of DLA Piper. Based in Beijing since 1991, Mr. Tao specializes in Joint Venture Law and Arbitration. Mr. Tao serves as an arbitrator with CIETAC, and as an Adjunct Professor of Law at Beijing University. He is also a member of the International Chamber of Commerce (ICC) International Court of Arbitration.
# David Sandborg (Hong Kong). David Sandborg is a member of the Faculty of the School of Law of the City University of Hong Kong, where he is the Programme Leader for the Masters Degree Programme in Arbitration and Dispute Resolution. He is a Fellow of the Chartered Institute of Arbitrators (East Asia Branch) and of the Hong Kong Institute of Arbitrators. He is listed on arbitration panels throughout Asia, Europe, and the United States, including those of CIETAC (China), HKIAC (Hong Kong), SIAC (Singapore), KCAB (Korea), the Kuala Lumpur Centre, WIPO (Geneva), the AAA Complex Case Panel, and the Center for Public Resources Panel of Distinguished Neutrals. For 12 years, Professor Sandborg was Chair of the AAA Asia Pacific Center for the Resolution of International Business Disputes. He has served as both advocate and arbitrator in ICC arbitration proceedings, and he has worked with the Vietnam Ministry of Justice on arbitration law reform in Vietnam.
# Sebastiaan Pompe and Marie-Christine van Waes (Indonesia). Dr. Sebastiaan Pompe, formerly Senior Lecturer at Leiden University Law School, The Netherlands, currently is Legal Advisor to the International Monetary Fund in Jakarta. Marie-Christine Schröeder-van Waes is a practising lawyer, and presently is Of Counsel to the law firm Ali Budiardjo Nugroho Reksodiputro in Jakarta.
# David A. Livdahl and Asako Yamagami (Japan). Now serving as Chief Representative, Paul Hastings Beijing Office, Mr. Livdahl practiced law in California from 1977 to 1988. He has practiced law and resided in Tokyo, Hong Kong, and Beijing since 1988; he speaks and reads Japanese and Mandarin Chinese. Mr. Livdahl is a Fellow of The Chartered Institute of Arbitrators, and he is an international panelist of the Hong Kong International Arbitration Center and the China International, Economic & Trade Arbitration Commission. He has been active in representing clients in transactions and arbitrations throughout Asia. Asako Yamagami is owed a special thanks for assistance in updating this article to reflect the 2004 Japanese Arbitration Law. Ms. Yamagami is an attorney with Taiyo Law Office in association with Paul, Hastings, Janofsky & Walker Gaikokuho Jimu Bengoshi Jimusho in Tokyo.
# Byung-Chol Yoon, Jung-Keol Suh, Dai-Hyun Kim, and Grant L. Kim (Korea). Byung-Chol Yoon and Jung-Keol Suh are attorneys at the international law firm of Kim & Chang in Seoul, Korea (www.kimchang.com). Dai-Hyun Kim is an arbitration specialist at Kim & Chang and a former official of the Korea Commercial Arbitration Board. Grant L. Kim is a Foreign Legal Consultant at Kim & Chang and a former partner of Morrison & Foerster LLP, San Francisco, California.
# Vinayak P. Pradhan and Varsha Doshi (Malaysia). Vinayak Pradhan is Commissioner of the United Nations Compensation Commission, Geneva, Switzerland, and a Partner of Skrine and Co, Kuala Lumpur. He is a Fellow of the Malaysian Institute of Arbitrators and of the Chartered Institute of Arbitrators (U.K.) and was Chairman of it’s Malaysian branch. He appears as counsel and sits as arbitrator in domestic and international arbitrations. He is a member and on the panel of various arbitral institutions. Varsha Doshi is a Partner of Zaid Ibrahim & Co., Kuala Lumpur. She has authored two books on the law for laymen as well as “Restitutionary Remedies in Illegal Agreements” for lawyers.
# Victor P. Lazatin and Patricia Ann T. Prodigalidad (Philippines). Victor Lazatin is the Managing Partner of Abello Concepcion Regala & Cruz, Manila. Mr. Lazatin is a member of the Faculty and a Construction Arbitrator for the Construction Industry Arbitration Commission, Director of the Philippine Institute of Construction Arbitrators, a Member of the Philippine Dispute Resolution Center, and, Director of the International Chamber of Commerce, Philippine Council. Patricia Ann T. Prodigalidad is an Associate of Abello Concepcion Regala & Cruz, Manila.
# Lih Shyng Yang and Leslie Chew (Singapore). Lih Shyng Yang is a Partner and Head of the Shipping and International Trade Department of Khattar Wong, Singapore. He is listed on the arbitration panel of the Singapore International Arbitration Centre (SIAC), and regularly serves as counsel or arbitrator in international commercial and shipping disputes conducted in either Chinese or English. Leslie Chew is a Senior Counsel in Singapore (Singapore’s equivalent of Queen’s Counsel) and the Managing Partner of Khattar Wong. He is the immediate past President of the Singapore Institute of Arbitrators, a Fellow of the Singapore and Chartered Institute of Arbitrators, and a member of the arbitration panels of SIAC, HKIAC (Hong Kong), and BANI (Indonesia).
# Nigel N.T. Li and David W. Su (Taiwan). Nigel N.T. Li is a Partner and David W. Su is a Senior Attorney with Lee & Li in Taipei, Taiwan. Both Mr. Li and Mr. Su are Adjunct Professors of Law at Soochow University Graduate School of Law in Taipei. Both Mr. Li and Mr. Su are Editors of the CAA Arbitration Journal, a publication by the Arbitration Association of the ROC.
# Anan Chantara-opakorn (Thailand). Anan Chantara-opakorn in a Barrister-at-Law and Associate Professor of Law and Former Director of the International Law and Business Training Institute, Faculty of Law, Thammasat University, Thailand. Professor Chantara-opakorn is an advisor or member of numerous government legislative committees, including the Senate’s Committee on Draft Small and Medium Enterprises Promotion Act; the Senate’s Committee on Draft Anti-dumping and Subsidies Act; the House of Representatives’ Committee on Draft Trade Secrets Act; the Working Group for the Council of State on Draft International Sales of Goods Act; the Drafting Committee on Code of Ethics for Arbitrators, Ministry of Justice; and the Maritime Law Committee, Office of Maritime Commercial Promotion.
# Do Y Thanh (Vietnam). Do Y Thanh is the Deputy Director General of the Viet Nam Chamber of Commerce & Industry (VCCI), Ho Chi Minh City Branch, Director of VCCI’s Legal Department, Ho Chi Minh City Branch, and Vice President of the Viet Nam General Average Adjustment Committee. Ms. Thanh has lectured throughout Asia, Europe, and North and South America on trade, intellectual property, and commercial dispute resolution topics.
Originally from: International Commercial Arbitration in Asia - 2nd Edition
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Arbitration in Singapore
Philip J. McConnaughay and Thomas B. Ginsburg
I. INTRODUCTION
Arbitration is being utilized with increasing frequency in Singapore,
reflecting the country’s status as a leading global financial and
commercial centre. With its common law heritage, well-respected legal
system, and diverse Asian population, Singapore offers an attractive
environment for international commercial arbitration in Southeast Asia.
Arbitration is also facilitated by the existence of a well-respected
institution, the Singapore International Arbitration Centre, and the
country’s decision to adopt the UNCITRAL Model Law as the basis for
regulating international arbitration.
Currently, Singapore has three statutes regulating commercial
arbitration. These are (1) the Arbitration Act (Cap 10, 2002 Edition),
which was enacted in 2001 and relates mainly to domestic arbitration in
Singapore; (2) the International Arbitration Act of 1995, which relates to
international commercial arbitration; and (3) the Arbitration (International
Investment Disputes) Act of 1985, which deals with the recognition and
enforcement of awards in investment disputes involving a State party.
The Arbitration Act, first enacted in 1953, was the first Singapore
statute to establish a legislative regime regulating arbitration proceedings
and the enforcement of arbitral awards. The Act did not make a
distinction between those arbitrations that involve a foreign or
international element and those that do not. Both the Arbitration
(International Investment Disputes) Act of 1985 and the Arbitration
(Foreign Awards) Act of 1986 (predecessor to the International
Arbitration Act), deal with disputes and awards that involve an
international element. The 1985 Arbitration Act is mainly applied to
domestic arbitrations – see below for the current position.
In 1997, the Attorney-General set up the Review of Arbitration Act
Committee. The objective of this committee was mainly to update the
law as well as to narrow the differences between the domestic and the
international regimes existing in Singapore. Implicit in the objective was
Singapore’s intention to ensure that its arbitration laws are, as far as
possible, in line with international standards. In the course of the review,
Singapore also consciously chose to maintain a dual regime of arbitral
laws, one for domestic arbitrations and the other for international
commercial arbitrations. This is to be contrasted with that of the UK
which opted for a single comprehensive arbitration law – the UK 1996
Arbitration Act.
The result of the review by the Committee, was a completely new
arbitration Act namely the Arbitration Act of 2001 now known as the
Arbitration Act (Cap. 10, 2002 Edition). The Arbitration Act of 2001,
essentially adapted the provisions of the UNCITRAL Model Law and
incorporated these into the new Act. The Arbitration Act 2001 however,
retained the substance of much of the original arbitration Act. It now
also includes adapted provisions of the UK 1996 Arbitration Act.
Full Table of Contents from "International Commercial Arbitration in Asia - 2nd Edition"
Chapter 1 Arbitration in China
Introduction
I. Comparison of Arbitration and Litigation
A. The Advantages of Arbitration over Litigation
B. Difficulties in Resolving Disputes before PRC Courts
II. The Legal Framework of Arbitration in China
A. The PRC Arbitration Law
B. The New York Convention
III. Domestic and Foreign Related Arbitration in China
A. Domestic Arbitration
B. Foreign related Arbitration
C. The China Arbitration Association
IV. CIETAC
A. CIETAC's Administrative Structure
B. CIETAC Arbitrators
C. Language of CIETAC Arbitration
D. Limitation Period for Initiating a CIETAC Arbitration
E. CIETAC Rules
F. CIETAC Rules
G. CIETAC Rules and Reasons for Revisions
V. Arbitration Agreements: Permissible Scope, Requirements, and Severability
A. Permissible Scope
B. Requirements
C. Severability
VI. Recommended Arbitration Clause
VII. Applicable Law
VIII. Combining Arbitration with Conciliation
A. Why Combine Conciliation with Arbitration?
B. Prerequisites and Procedure
C. Conciliation Settlements
IX. The Enforcement of Domestic, Foreign Related and Foreign Arbitral Awards in China
A. The Set Aside and Enforcement of Domestic Arbitral Awards
B. The Set Aside and Enforcement of Foreign Related Arbitral Awards Rendered in the PRC
C. The Enforcement of Foreign Arbitral Awards
D. The Future of Award Enforcement in China
E. Accounting for Failure
F. Special Issues Concerning the Enforcement of Hong Kong Arbitration Awards
G. Special Issues Concerning the Enforcement of Taiwanese Arbitral Awards
Chapter 2 Arbitration in Hong Kong
I. Introduction
II. The Enforcement of Awards Between Hong Kong and Mainland China
III. The Hong Kong International Arbitration Centre
A. Arbitration Rules of the HKIAC
B. The HKIAC's Default Appointing Authority
C. HKIAC Mediation Activities and Other Recent Developments
IV. The Historical Evolution of Hong Kong's Arbitration Ordinance
V. The Structure and Key Features of Hong Kong's Current Arbitration Ordinance
A. The Structure of the Arbitration Ordinance
B. The Key Features of the Arbitration Ordinance
VI. Professional Arbitration Organizations in Hong Kong
A. Chartered Institute of Arbitrators (East Asia Branch)
B. The Hong Kong Institute of Arbitrators (HKIArb)
VII. Construction Arbitration
VIII. Maritime Arbitration in Hong Kong
IX. Arbitration Law Reform in hong Kong: The Way Forward
Chapter 3 Arbitration in Indonesia
Introduction
I. The New Indonesian Arbitration Law
A. General Provisions
B. The Initiation of Arbitration and the Appointment, Recusal and Compensation of Arbitration
C. The Arbitration: Procedures, Interim Measures, and Awards
D. The Enforcement of Awards
II. Recent Judicial Developments Regarding Arbitration in Indonesia
A. Arbitration and State Court Jurisdiction
B. The Enforcement of Arbitral Awards
C. Arbitration and Bankruptcy
III. Arbitration Institutions in Indonesia
Chapter 4 Arbitration in Japan
I. Introduction
II. The Legal Environment Concerning International Arbitration
A. Japan's Enforcement of Foreign Arbitral Agreements and Awards
B. Japan's Suitability as a Site for International Arbitrations
III. Private Arbitral Institutions in Japan: The JCAA
A. Representation Issues
B. The Appointment of Arbitrators
C. Arbitrator Practices and Ethics
D. The Language of the Arbitration
E. Consecutive day Hearings
F. Deadlines
G. Expedited Procedures in Smaller Cases`
H. Allocation of Expenses and Remuneration of Arbitrators
I. Miscellaneous Rules
IV. Differences Between Japanese and Western Commercial Dispute Resolution Practices
A. A Brief History of Legal Dispute Resolution in Japan
B. Japanese Contracting Practices
C. Japanese Notions of Commercial Justice
V. Conclusion
Chapter 5 Arbitration in Korea
I. Introduction
II. The Legal Framework for International Commercial Arbitration in Korea
A. Applicable Law
B. The Role of Courts with Respect to Arbitrations in Korea
C. Parallel Court and Arbitration Proceedings
D. The Form and Scope of Arbitration Agreements
E. The Scope of Arbitrable Claims
F. Choice of Law and the Permissibility of Lex Mercatoria or Equity
G. Selection of and Challenge to Arbitrators
H. Place and Language of Arbitration
I. Conduct of the Arbitration Proceedings
J. Issuance and Correction of the Arbitral Award
III. Arbitration Practice in Korea
A. KCAB Arbitration
B. Some Practical Considerations for Arbitration In Korea
IV. Enforcement and Setting Aside of Arbitral Awards
A. General Structure for Enforcement
B. Enforcement and Setting Aside Domestic Arbitral Awards
C. Enforcement of Foreign Arbitral Awards
D. Korean courts and the Enforcement of Arbitral Awards
Chapter 6 Dispute Resolution and Arbitration in Malaysia
I. Introduction
II. The Courts
A. Courts Jurisdiction
B. Alternative dispute Resolution and the Judicial Role in Settlement
III. A Historical Perspective on ADR and Arbitration
IV. Factors Encouraging the Use of Arbitration in Malaysia
V. The Conduct of Arbitration in Malaysia
A. Arbitration Under the Arbitration Act
B. Convention and Centre Arbitrations
VI. Incorporation of Mediation and Conciliation into Arbitral Proceedings
VII. Conclusion: Have Lawyers Caught on?
Chapter 7 Arbitration in the Philippines
I. Introduction
A. History of Arbitration in the Philippines
B. The Practice of Arbitration in the Philippines Today
C. Sources of Law
D. Traditional and Cultural Modes of Dispute Resolution in the Philippines
II. Choice of Philippine Law: Consequences for the Arbitration Agreement and Arbitrability of the Dispute
A. Arbitration Agreement: Intrinsic and Extrinsic Validity
B. Arbitrability of Disputes
III. The Philippines as the Place of Arbitration
A. Law Applicable to the Proceedings
B. Law Applicable to the Merits
IV. Consequences of Philippine Law as the Law Applicable to the Proceedings
A. Enforcement of the Arbitration Agreement
B. Establishment of the Arbitral Tribunal
C. Arbitration Proceedings Proper
D. The Arbitral Award
E. Participation of Foreign Lawyers
F. Fees
V. Enforcement and Execution of Arbitral Awards
A. Enforcement of Domestic Awards
B. Enforcement of Foreign Awards
C. Judicial Remedies Against Enforcement and Execution
D. Other Means of Judicial Interference and Review
VI. Conclusion
Chapter 8 Arbitration in Singapore
I. Introduction
II. Singapore as a Site for International Arbitration
A. Definition of International Arbitration
B. Singapore Courts' Role in Local Arbitration
C. Local Practice and Licensing Requirements for Foreign Lawyers
D. Arbitration Institutions
III. Arbitrability of Claims
IV. Arbitral Choice of Law, Lex Mercatoria and Amiable Composition
V. Arbitrator Ethics and Rules of Professional Responsibility
A. Ethics
B. Immunity
C. The Arbitrator as Conciliator
VI. Particular Features of Arbitration in Singapore
VII. Enforcement of Arbitral Awards
A. Awards Made in Singapore
B. Awards Made Outside Singapore
C. Enforcement of Arbitral Awards as Judgments
VIII. Conclusion
Chapter 9 Arbitration in Taiwan, Republic of China
I. Introduction
II. Taiwan's Legal and dispute Resolution Traditions
III. The Arbitration Law
A. The Arbitration Agreement
B. Institutional and Ad Hoc Arbitration
C. Formation of the Arbitral Tribunal
D. Arbitrability
E. Choice of Law in Arbitration Proceedings
F. Amiable Composition
G. Arbitration Proceedings
H. Interim Measures
I. Annulment of Arbitral Awards
IV. Using Taiwan as the Situs for an International Commercial Arbitration
A. The Enforceability Abroad of Awards Rendered in Taiwan
B. Costs
C. Logistics
D. Neutrality
E. Availability of Qualified Arbitrators
F. Availability of Foreign Counsel
G. Interference by Local Courts
V. The Enforcement of Arbitral Awards in Taiwan
VI. Conclusion: The Future of International Arbitration in Taiwan
Chapter 10 Arbitration in Thailand
I. Historical Background
II. In Court Arbitration
III. Out of Court Arbitration
A. Arbitration Agreement
B. Composition of the Arbitral Tribunal
C. Procedural Issues
D. Choice of Law
E. Arbitration Ex Aequo Et Bono
F. Arbitral Awards
G. Enforcement of Arbitral Awards
IV. Arbitration Institutions
A. The Office of the Arbitration Tribunal of the Board of Trade
B. The Arbitration Office of the Ministry of Justice
V. Conclusion
Chapter 11 Arbitration in Vietnam
I. Introduction
II. Commercial Dispute Resolution and Arbitration in Viet Nam Before
A. Background History
B. State Economic Arbitration
C. FTAC and MAC
III. Viet Nam's Arbitration Institutions and Regulations Since Doi Moi
A. The Viet Nam International Arbitration Centre (VIAC)
B. Economic Arbitration Centers (Domestic Cases Only)
IV. The Future of Commercial Arbitration in Viet Nam
V. Conclusion
Chapter 12 Rethinking the Role of Law and Contracts in East West Commercial Relationships
I. The Role of Law and Contracts in the Structure and Governance of Western Commercial Relationships
II. The Role of Law and Contracts in the Structure and Governance of Asian Commercial Relationships
A. The Traditional Role of Law in Asian Commercial Affairs
B. Traditional Asian Contracting Practices
C. Traditional Asian Dispute Resolution Practices
III. Accommodating Different Conceptions Regarding the Role of Law and Contracts in the Structure and Governance of Commercial Relationships
A. Rethinking International Commercial Arbitration
B. Rethinking Contractual Choice of Law
C. Rethinking East West Contract Terms
IV. Conclusion