David L. Kreider
The Metropolis, Unit 1708
1 Courthouse Lane
One International Finance Centre
1 Harbor View Street, Central
Hong Kong SAR, China
Legal Director, Vodafone New Zealand (2005-2013); General Counsel, China Mobile (1999-2004); Counsel, Sidley Austin Brown & Wood (1997-1998); Director of Corporate Finance, Hong Kong Securities & Futures Commission (1995-1997); Branch Chief, Enforcement, United States Securities and Exchange Commission (1992-1994); Pillsbury Winthrop Shaw Pittman LLP (1984-1992).
What do you regard as the most important differences between arbitration and litigation in court?
Arbitration is a consensual, private, and flexible process and awards rendered pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) are final and enforceable. Parties have a voice in selecting the decision-maker and in the majority of international commercial arbitration cases there is an allocation of costs in favour of the successful party.
Do you prefer to be a party appointed arbitrator or the chairman of a three-arbitrator panel?
I prefer a mix of roles, with some balance between sitting as co-arbitrator and sitting as the Chair. Sitting as the Chair with experienced co-arbitrators is both a privilege and a pleasure.
How do you deal with requests for subpoenas of third-party witnesses and/or documents?
After requesting submissions from the parties, I express a view whether the Tribunal would be likely to find the third-party evidence helpful – expressly stating that my view may be shared with the third-party witness and the relevant court and (in the appropriate case) that any party may apply to the relevant court for a subpoena (ad testificantum or duces tecum) pursuant to statutory requirements.Once the subpoena is issued, the Tribunal is then invariably empowered by the Court to direct the manner by which the third-party witness’ evidence will be given. The Tribunal will then issue detailed directions about how the parties are to proceed with the witness, being sure to allow the non-party witness some flexibility and latitude. The parties may be directed to undertake to pay in equal shares (initially) the witness’ legal and other costs.
Chairman, New Zealand National Committee of the ICC International Court of Arbitration, Paris (2016-present); Alternate Member of the ICC International Court of Arbitration, Paris (2014-2017); Director, AAA (2010-2016); Director, Australia Centre for International Commercial Arbitration (2011-2017); Member of the New Zealand Markets Disciplinary Tribunal (2013-2017); Chartered Arbitrator of The Chartered Institute of Arbitrators (since 2006); Faculty member of the Chartered Institute of Arbitrators, London (Since 2015); Fellow, Hong Kong Institute of Arbitrators; Fellow, Singapore Institute of Arbitrators; Fellow (Arb.), Arbitrators and Mediators Institute of New Zealand.
AAA/ICDR; CIETAC; HKIAC; SIAC; ACICA; BJAC; AMINZ; DIAC; KCAB and others.
David Kreider has been appointed as chairman, sole arbitrator or co-arbitrator in more than 100 cross-border arbitration references and Internet domain name disputes, including ICC, HKIAC, SIAC and ICDR administered and ad hoc proceedings:
- Sole arbitrator in a Hong Kong seated dispute between a telecommunications equipment manufacturer and an insurer under a professional liability insurance policy. HKIAC Domestic Arbitration Rules. Amount in dispute more than US$10,000,000.
- Co-arbitrator in a Hong Kong seated dispute arising out of an agreement to fund a virtual currency exchange. Hong Kong law. UNCITRAL Rules. Amount in dispute US$100,000,000.
- Presiding arbitrator in a Singapore-seated dispute between Asian parties arising out of a trademark license agreement for consumer electronics. New York law. SIAC Rules. Amount in dispute more than US$100,000,000.
- Emergency Arbitrator in a Hong Kong seated shareholder dispute between P.R. China and offshore parties arising out of a corporate restructuring agreement. Hong Kong law. HKIAC Administered Arbitration Rules. Amount in dispute more than US$100,000,000.
- Appointed President upon joint nomination by the co-arbitrators in a Seoul seated dispute between Asian parties arising out of a technology licensing agreement governed by Korean law. ICC Rules. Amount in controversy US$9,000,000.
- Sole arbitrator in a Hong Kong seated dispute between Japanese and Chinese parties arising out of agreements for the sale and purchase of precision scientific equipment governed by Hong Kong law. HKIAC Administered Arbitration Rules. Amount in controversy US$5,000,000.
- Co-arbitrator in a Singapore seated dispute between Asian parties arising out of various hotel management agreements. SIAC Arbitration Rules. The arbitration agreement requires that the arbitrators “shall have experience of the hospitality industry”. Amount in controversy US$15,000,000.
- Co-arbitrator in a Macao seated dispute between Macanese and Indochinese parties concerning a gaming joint venture. SIAC Arbitration Rules. Amount in controversy US$200,000,000.
- Co-arbitrator in a Hong Kong seated dispute arising from a settlement agreement between shareholders. HKIAC Administered Arbitration Rules. Amount in dispute US$2,500,000.
- Co-arbitrator in a Singapore seated dispute between Bermudan and Indonesian parties arising out of an agreement for the sale and purchase of telecommunications equipment governed by Singapore law. SIAC Arbitration Rules. Amount in controversy US$17,000,000.
- Co-arbitrator in Hong Kong seated arbitral proceedings involving a dispute between Dutch and Chinese parties to a hotel management agreement governed by Chinese law. HKIAC Administered Arbitration Rules. Amount in controversy US$3,500,000.
- Sole arbitrator in a Hong Kong seated trademark licensing dispute between Japanese and Chinese parties. HKIAC Administered Arbitration Rules. Amount in controversy US$2,500,000.
- Co-arbitrator in 4 Hong Kong seated references between a Singapore claimant and Asian and off shore respondents alleging breach of a share purchase agreement and related guarantees. UNCITRAL Rules. Amount in controversy US$15,000,000.
- Co-arbitrator in 5 Singapore seated references by a U.S. based securities broker alleging breach of customer agreements by multiple Asian respondents. ICDR Rules. Amount in controversy US$15,000,000.
- Sole arbitrator in a trademark licensing dispute seated in Hong Kong between Dutch and Chinese parties pertaining to the manufacture and distribution of luxury clothing and household furnishing products. ICC Rules. Amount in controversy €4,500,000.
- Sole arbitrator and chairman, respectively, in 2 related Hong Kong seated proceedings involving a trademark licensing dispute between Singapore and Chinese parties pertaining to a luxury hotel brand in China. The arbitration agreement required that the arbitrator be ‘bilingual in both Chinese and English’. HKIAC Administered Arbitration Rules. Amount in controversy US$3,500,000.
- Co-arbitrator in a dispute seated in Toronto over a trademark licensing and product distribution agreement for water treatment technologies. ICDR Rules. Amount in controversy US$12,000,000.
- Chairman in a dispute seated in Singapore between Australian and Malaysian parties to a software distribution and trademark licensing agreement. The arbitration agreement required that the arbitrator ‘must have recognized expertise in information technology’. SIAC Rules. Amount in controversy US$ 600,000.
- Co-arbitrator in a Hong Kong seated dispute between a UK telecommunications company and a Chinese telecommunications VAS (Value Added Services) provider for breach of an acquisition agreement. ICC Rules. Amount in controversy US$110,000,000.
- Co-arbitrator in a Hong Kong seated ad hoc arbitration between U.S. and Chinese parties involving a failed acquisition agreement and telecommunications and IP licensing issues under Chinese law. UNCITRAL Rules. Amount in controversy US$80,000,000. Sole arbitrator in a Singapore seated dispute arising under an agreement between a Singapore ISP (Internet Services Provider) and a Singapore hotel management company for the installation of a VoIP (Voice over Internet Protocol) telecommunications network. SIAC Rules. Amount in controversy US$500,000.
- Sole arbitrator under a contract between Singapore parties for the construction and testing of a POS (Point-Of-Sale) computer system. SIAC Domestic Arbitration Rules. Amount in controversy US$150,000.
- Rendered more than 130 administrative panel decisions in Internet domain name disputes, both in English and in Chinese.
How Much Justice is Enough? Comparative Law Journal of the Pacific, vol. 22 (September 2016) 47; Chapter 12 – ‘The Award’, in P Yuen, D McDonald and A Dong (eds), Chinese Arbitration Law (Hong Kong, LexisNexis) 339 – 364; Whose Dispute is it Anyway? Dispute Resolution from the User’s Perspective, Korean Arbitration Review, October 2014; Selecting the Arbitrator, Journal of the Institute of Arbitrators & Mediators, Australia, December 2013; Managing Offshore Arbitration Proceedings - Selecting the Arbitrator, paper presented at Asia Pacific Regional Arbitration Group Conference, 27-29 June 2013, Beijing; The Right Clauses for Your Client's Next Big Deal - How to Draft an International Disputes Clause, paper presented at Arbitrators' and Mediators' Institute of New Zealand Annual Conference, 2-4 August 2012, Wellington; A Corporate General Counsel's Perspective on Arbitration, paper presented at Arbitrators' and Mediators' Institute of New Zealand Annual Conference, 4-6 August 2011, Auckland; Dispute Resolution Practices in the Chinese Telecommunications Industry, Asian Dispute Review, October 2007; New Zealand’s Telecommunications Industry Volunteers a Dispute Resolution Scheme for Consumers, Asian Dispute Review, January 2007.