In the Hot Seat

Questions:

 How and why did you make the switch to become a full time arbitrator?

To your point, I am not a full time arbitrator as I have other professional interests but I did make a switch from being a full time salaried employee to become an independent arbitrator – let me explain. I was the Executive Director of the Spore Chamber of Maritime Arbitration (“SCMA”) from 2010-2016 which provided me with a very broad foundation to better understand arbitration’s role in ADR and to connect with a really broad base of arbitration stakeholders. My mentor, the late Goh Joon Seng, saw something in me that I could not see in myself and suggested that the time was ripe to leave and establish my own practice as an ADR consultant, which included being a practising arbitrator. With his encouragement and support, I took the plunge to leave SCMA, founded LWP.Sg Consultants in 2016 and his words have proved prophetic. The timing could not have been more perfect for me and COVID-19 was a great help.

What is your favourite dish?

Outram char kway teow plus additional cockles located at Hong Lim food centre. I get invited to lots of fancy dinners featuring excellent cuisines but this dish hits me right in the gut where all of my meal response cells are located.

What is a typical year for you  - how do you divide your time between the different hats you wear and the different countries in which you practise?

As the Regional Advisor to the Thomas Miller Group, I allocate about 5 to 7 days in a month to further their interests through a broad spectrum of activities, particularly the UK P&I Club.

In addition, there are various enquiries for arbitrator, mediator or adjudicator appointments to attend to – for conflict checks if nothing else. For those which end up in appointments, I would need to allocate time to finalise appointments, fee agreements, engage with parties to give directions to kick start the process and work with parties to move towards a hearing and start reading the bundles as and when they are submitted. Arbitrations are particularly time consuming as and when they approach the actual hearing milestone with issuance of directions for hearing arrangements after consultation with parties and lots of reading of submissions, skeletals and authorities in order to be as fully prepared as possible at the Hearings themselves. The award writing process is also very time consuming. Mediation tend to be less intensive due to the shorter nature of the hearings (usually not more than 2 days plus not having to spend time writing awards) and the submissions for reading is considerably less. Adjudication is somewhere in between.

I also conduct courses on shipbroking and chartering for members of the Spore Shipping Association (SSA). The duration of each course is 2.5 days of lectures which I deliver personally and SSA typically organises anything from 2 to 4 courses a year. I have been conducting these lectures for over 30 years and have taught thousands of members of the shipping / commodity trading community.

In support of ADR development, I am also a Coach of Coaches as well as an Assessor at SMC and am engaged every quarter for their training courses. This includes the rather massive and intensive exercise at every year’s end (currently in progress) organised by them for law students taking their Part B Mediation Advocacy course. As interest in mediation continues to rise, this is mirrored in the number of students registered and this year’s batch number in excess of a two hundred. I would also be invited to judge various competitions in mediation each year and am very honoured to be invited to judge the semi finals / finals of SMU Mediation Advocacy Competition 2022.

So in a nutshell, there is no fixed pattern of time allocation for me and a typical year would involve flexibility to juggle all of the above plus an annual trip to the UK (except for the past 2.5 years due to Covid) to catch up with my contacts there. Lastly, I also spend time putting on my hat as grandfather and chasing after my 2 very active grandchildren as they grow up so as not to lose out (Kiasu FOMO at work!!) on the joys of grand fatherhood. The one  observation I can share with everyone reading is that each passing year becomes more busy than the one before. This is a good profession to be in where things have an excellent chance of getting better with age, both in terms of number / type / quality of appointments and with them, attendant fees!!!

What is the most memorable arbitration or arbitration-related matter that you were involved in, and why?

To be party appointed as an arbitrator to a 3-person (3-men in my case) Tribunal with my opposite being a newly appointed QC (as he was then) who is now KC and the chair being a very established (read as quite OLD, ha ha) QC / KC with another established QC / KC (not as old as the Chair) arguing for one side together with the instructing local firm and an international law firm arguing for the other side. It was memorable for the very complicated issues of law and the commodity industry subject matters involved which required the application of the Tribunal’s combined knowledge and experience to deal with many of the issues expeditiously and (I hope) without undue error in getting the fact finding and application of the law done and dusted.

As an arbitrator, what in your view are the key qualities or traits an arbitration counsel should possess when representing a party?

Without ranking them in any particular order, I would mention Integrity / Deep knowledge of both domestic and international arbitration law and practice / Tackling and strategising enforcement issues with the client / Willingness to consider blending of other types of ADR such as mediation / neutral evaluation into the mix as a total solution and to be strong enough to advise their clients without worrying that they may be viewed as “weak” / Strong advocacy skills.

What advice do you have for a young fellow practitioner interested in developing a career as an arbitrator?

Don’t ever believe that the runway for your career as an arbitrator is cleared for take off simply because you have passed your Fellowship exams. It is merely the starting point, as much of what has been learned and examined are foundational in nature. There is still so much more to learn in terms of practice like how to actually run an arbitration from start to finish practically and getting yourself known and accepted in the industry as someone who can be trusted to be an arbitrator. I would therefore advise that you need to surround yourself with people who wish to see you succeed as a new arbitrator through their actual words and deeds instead of just paying you lip service so that can help facilitate you to be immersed constantly into the soup of the arbitration community. If someone who is really experienced, successful and recognised as an arbitrator takes an interest in your development and is prepared to be your mentor, drop everything else and capitalise on the offer to the maximum – such persons appearing in your life are like unicorns. I speak from experience so I should know – it happened to me.

You're fluent in English, ****, **** and ****. Rank them in order of difficulty.

I am fluent in English, Chinese and Malay – To be totally honest, only true for English actually – my Chinese is bad and Malay is really bad. If I am held hostage and have to negotiate in Chinese or Malay to secure my personal release, it’s time to start looking for slots to print my obituary.

Would you rather win an Olympic medal, an Academy Award or the Nobel Peace prize?

Nobel Peace prize – no reasons given because I was not asked – just like how some decisions to resolve disputes are not accompanied by reasons – don’t ask, don’t give reasons for your decisions – sound advice from my mentor.

Who would play you in a movie of your life?

My mentor, Goh Joon Seng.

How would you describe yourself in three words?

Calm, collected and compassionate.

How did you first get involved in arbitration work?

The first Executive Director of the SCMA after it was re-organised was working on a part time basis and was leaving for a full time job. Being a good friend of mine, he called me to apply, which I did - even though I had no legal training. Instead, what I had in my bag was an extensive network of close contacts in the maritime industry and much to my surprise, was accepted. My real involvement in arbitration work actually started on the morning of my first day of work - when I had to force down the vomit of manic fear and panic that I might have dug too deep a hole for myself in taking up the new challenge. Calming myself down suitably after swallowing the vile taste of my vomit, I gamely turned up for my first day of work and have kept going on ever since into my 12th year now. I’m not suggesting that swallowing your vomit is a good way to get started in arbitration but fighting down your inner fears so that they don’t get the better of you is never a bad thing.  

In the course of your work, do you notice a trend in clients preferring arbitration over litigation as a form of dispute resolution?

No, I think arbitration and litigation are chosen by savvy clients for their own unique reasons to strategise which form of dispute resolution works best for their particular business contracts should disputes arise - such as whether they are cross border in nature or to take into account pre-existing relationships between parties. Parties who don’t know better will continue to rely on using past contracts and counsel for guidance. For resolving tortious disputes such as claims arising from ship collisions, instead of using litigation which is the default method, there is now an option to arbitrate using a carve out called SCMA EXPEDITED ARBITRAL DETERMINATION OF COLLISION CLAIMS (“SEADOCC TERMS”) - a procedure which I created with assistance and support from several lawyers very experienced in collision disputes back when I was ED of SCMA. Finally, arbitrators are at the receiving end of the dispute resolution chain, i.e. they only get to see cases when disputes actually arise. The right parties to ask this question are the lawyers as they are at the front end of the food chain, advising their clients on choosing litigation or arbitration to be negotiated into their contracts for dispute resolution and are thus able to get a better sense of the pulse.

What are the challenges you think arbitration practitioners will face in the upcoming years?

The field is getting more and more crowded. Disputes are becoming more and more complicated because of businesses are becoming increasingly complex which in turn demand more extensive and intensive subject matter knowledge. The risk of Tribunals getting it wrong in terms of fact finding in such disputes has increased. Added to that, the rise in international trades between more and more new partners which can make cross border disputes much more difficult to manage in terms of conflicting cultural value systems and expectations.

With the establishment of the Singapore International Mediation Centre and the introduction of the SIAC-SIMC Arb-Med-Arb Protocol, do you see mediation as now having a bigger role to play in assisting parties to resolve their disputes?

Yes but with respect, I would venture to say that SMC was the lead organisation that really kick started this process together with the courts in the first place.

Who is the person(s) who has had the greatest impact and/or influence on your career?

The late former Justice Goh Joon Seng

If you weren’t in your current profession, what profession would you be in?

I would be a senior citizen dispensing advice in the shipping world, where OLD is not necessarily GOLD unlike the world of ADR. I would certainly not be engaged in day to day shipping work as the pace is too fast moving and more suited for the younger generation like my son. Although not asked and slightly off your point - I would have liked to be an actor where OLD still has the potential to be GOLD.

What’s your guilty pleasure?

Spending time playing with my grandchildren and influencing them positively in their growing up process.

What is one talent that not many people know you have?

That I once ran a 100 km ultra marathon non-stop in my 50’s and completed it in 16 hrs and still had enough energy to attend a wedding shortly after that before returning home to get some much needed sleep….

Fill in the blank: “Arbitration is to dispute resolution as salt is to _________."

"the sea"

71% of the world is covered by the sea water and if you tried to separate them, you will have the world’s entire population of fish and other sea creatures beating a path to your door disputing your decision and demanding that you set things right again.

Questions:

Could you please give us a brief overview of your career?

As an Austrian and German admitted attorney advising international, mainly Asian clients, I have worked many years at large international law firms. I started my career in corporate litigation and M&A and built up a practice group serving China related matters for one of the largest Austrian law firm. Due to the fact that arbitration clauses are essential when dealing with cross-border transactions, I gained my new passion for arbitration law when acting as counsel for a well-known multinational Chinese company with a technical dispute.

You are also the founder of the European Chinese Arbitrators Association (ECAA). Could you please elaborate on ECAA’ main ideas, values, missions and targets?

I am one of the ten founding members of European Chinese Arbitrators Association. We have five Chinese arbitrators and five European arbitrators as founding members of ECAA. Our vision is to bring Chinese arbitration experts closer to European arbitration experts. Following the advice of CIETAC (Beijing) with its establishment of the CIETAC European Arbitration Centre in Vienna, I saw an increased need for national balanced arbitration panels. The nomination of arbitrators is generally based on professional recommendations and on professional exchange within independent platforms. ECAA further envisages to draw the Chinese and the European legal cultures closer to each other.

On 1 January 2023, the German Supply Chain Due Diligence Act enters into force ensuring compliance with human rights and material standards of environmental protection along international supply chains. Please let us know your view on the impact of the German Supply Chain Due Diligence Act on supply chains involving Asian companies. Do you think that the German Supply Chain Due Diligence Act will give rise to more supply chain-related arbitrations?

The German Supply Chain Due Diligence Act originates from a very impressive vision, i.e. to create more fairness for the smaller business players and to prevent unfair treatment, human rights violation and environmental pollutions, which often have been tolerated justified by the goal of profit maximization. I believe that the German Supply Chain Due Diligence Act will form part of the contract negotiations and eventually be part of the supply chain-related arbitrations.

Considering the well-developed case law and the pro-arbitration stance of courts in Singapore, do you view Singapore as the ideal neutral seat for arbitrations between European and Asian parties?

Singapore has a very impressive effective jurisdiction and is a neutral forum for disputes between Chinese and European parties.

As an arbitrator, what in your view are the key qualities or traits an arbitration counsel should possess when representing a party?

An arbitration counsel shall be prepared to study all relevant technical and material information applicable for the case, in particular the counsel shall try to understand the expert statements in detail. Without full understanding of the logical technical, mechanical or other non-legal details of the case, a successful cross examination of experts cannot be completed.

How would you describe yourself in three words?

Determined, ambitious, choosy

Given the choice of anyone in the world, whom would you want as a dinner guest?

In these times of conflict, my first preference would be Gandhi.

Is there something that you have always wanted to do but never had a chance to accomplish it?

Studying physics.

What’s your guilty pleasure?

Cooking.

What is one talent that not many people know you have?

One may describe it as “effective communication”, others may see if as “direct communication” – I like asking the right questions while sparing unnecessary additional time. 

5 August 2022

Questions:

How would you describe yourself in three words?

Pioneer. Professional. Passionate.

How did you first get involved in arbitration work?

In the course of your work, do you notice a trend in clients preferring arbitration over litigation as a form of dispute resolution?

In sectors such as construction, clients have always preferred arbitration over litigation and that trend is continuing. In other sectors, such as insurance, that trend is growing as the insurance market demands confidential awards that carry no precedent value. But in other sectors, such as energy, clients are starting to prefer litigation over arbitration for two reasons. First, procedural rules are being modernised and industry specialist judges are being appointed to commercial courts. Second, the cost of the arbitral tribunal is becoming too expensive and the arbitral tribunals are publishing awards that are more frequently set aside. These trends have to be reversed if confidence in arbitration as an effective dispute resolution process is to be maintained. For example, a one (not three) person tribunal should be mandatory.    

What is the most memorable arbitration or arbitration related matter that you were involved in, and why?

To provide a balanced answer, perhaps I can offer two such matters. I was instructed in both matters by an international construction company in connection with two iconic building projects developed ten years apart. The first matter was against the design engineer. We succeeded and recovered a nine-figure dollar sum from the engineer’s insurers. More importantly, the contractor was approved for future projects which led to the creation of thousands of jobs over the subsequent 15 years. The second matter was against construction all risks insurers. We did not succeed notwithstanding that the claim was clearly covered. This decision led to the destruction of trust in all risks cover and in the arbitration process, exemplified by the fact that the tribunal was incapable of drafting the Final Award without an agreed draft from counsel. The lesson learned is that the selection of the tribunal is the most important step in an arbitration.    

What advice do you have for a young fellow practitioner interested in arbitration work?

I would first parrot my then Pupil Master’s advice to me, and that is to decide on early specialisation and get into the arbitration circuit as soon as you are qualified to do so. Secondly, I would encourage young practitioners to consider the myriad dimensions in which arbitration cross-fertilises with other forms of ADR, because there is no “one size fits all” solution to dispute resolution.

What are the challenges you think arbitration practitioners will face in the upcoming years?

Clients want honest advice, whether to resolve the dispute through arbitration or settle the dispute on best commercial terms. To get that advice, clients want counsel who know their industries (to understand the dispute), know the arbitration rules (to resolve the dispute) and know the good and the bad arbitrators (to succeed in the dispute). So, look to establish yourself in a particular industry and in the arbitration profession.

What are the challenges you think arbitration practitioners will face in the upcoming years?

Competition, although the better term is probably saturation. As arbitration has become more popular, so it has attracted and become saturated with counsel and arbitrators who are general practitioners or retired industry professionals rather than specialist arbitration counsel or arbitrators. As a result, it has become increasingly difficult for clients to identify specialist counsel and experienced arbitrators from those (and there are many) who purport to have specialist expertise, in the industry or the procedure, when they do not. The result is that cases are poorly pleaded, weakly prosecuted and wrongly determined, leading to spiralling costs, an increase in the number of applications to set aside and a general wariness of the arbitration process. The answer is to limit the entrants to the legal profession by imposing a 25% bar exam pass rate. But this will never happen because it is politically and socially unattractive.

With the establishment of the Singapore International Mediation Centre and the introduction of the SIAC-SIMCArb-Med-Arb Protocol, do you see mediation as now having a bigger role to play in assisting parties to resolve their disputes?

Yes and No. Yes, in the sense that both the Centre and the Protocol raise the awareness of mediation as a means of resolving disputes. No, in the sense that it is the conduct of the mediation that determines whether the dispute is resolved or not. In my experience, the facilitative method of mediation (being the mediator couriering of offers backwards and forwards) is far less successful than the evaluative method (being the mediator assessing whether one party will win or lose). Put more bluntly, the best type of mediator is the worst type of bully. One that is not afraid to tell a party what they do not want to hear. The same could be said of counsel and arbitrators.

Who is the person(s) who has had the greatest impact and/or influence on your career?

Jose Maria Olazabal. I thought I wanted to be a touring golf professional until, as a decent amateur, I witnessed a 14-year-old who was to become one of the best touring professionals of his generation, and nicest guys you could meet. And it is a lesson that transfers to arbitration practice. It is only when you have conducted as counsel, not as instructing solicitor, a claim from the initial meeting with the client to the publication of the Final Award that you appreciate the rigours of the process, the detail required to prevail and the stubbornness (or charm) that you need to tell a client when to settle. 

If you weren’t in your current profession, what profession would you be in?

That part of the golf profession reserved for the least talented and most delusional.

What’s your guilty pleasure?

A recurring fantasy. Walking down the eighteenth fairway at St. Andrew’s in the final round of The Open with a three strokes lead on a beautiful summer’s evening in July having started the day six shots back of Tiger Woods, Rory McIlroy and John Rahm.

What is one talent that not many people know you have?

A combination of too much golf and too little marketing have meant that my ability to miss a putt from almost any distance is acknowledged far more widely than my ability to identify and resolve the two or three issues on which any insurance, energy or construction dispute inevitably turn, however large or seemingly complex.  

Fill in the blank: “Arbitration is to dispute resolution as salt is to an open wound”.

31 March 2022

Kelvin Aw is a partner in CMS and co-heads its infrastructure and construction practice in Singapore. He brings more than 25 years of court and board room experiences to champion clients’ interests in both contentious and transactional matters in the sector. Kelvin is consistently ranked as a leading individual by various legal ranking directories for his expertise in construction, projects & energy, and dispute resolution, such as Chambers Asia-Pacific: Leading Lawyers for Business, Legal 500, Best Lawyers and Benchmark Litigation. He has been described as “a very experienced construction lawyer who knows his stuff” and that “he is well-versed in contentious matters, including international arbitration”. Kelvin is also a Senior Accredited Specialist for Building and Construction recognised by the Singapore Academy of Law. He is a fellow of the Singapore and Chartered Institutes of Arbitrators, and an accredited Senior Adjudicator with the Singapore Mediation Centre. In addition, he has served on the Council of the Singapore Institute of Arbitrators and has taught construction law modules at the National University of Singapore.

Questions:

How would you describe yourself in three words?

Introverted yet extroverted

How did you first get involved in arbitration work?

I pupiled in Chan Tan & Partners, a rare boutique construction law practice, under Mr Raymond Chan. As a young lawyer, I was expected to navigate through piles of documents with little to no electronic aid, as was then common in the construction and arbitration bar. The masochist in me enjoyed the process thoroughly, and with the encouragement of my then boss, I specialised early in this field.

In the course of your work, do you notice a trend in clients preferring arbitration over litigation as a form of dispute resolution?

Earlier in my career, the trend was to prefer arbitration over litigation. However, with the rising costs associated with arbitral proceedings, coupled with the streamlining of the court process in Singapore and the emergence of the SICC, I have observed a renaissance of interest in litigation at least in Singapore. However, with arbitration still being prescribed in most industry-standard forms, clients invariably resolve their differences through arbitration instead of litigation. While this may appear to be a prescribed “choice”, it may not necessarily reflect a real “preference” at any one point in time.

What is the most memorable arbitration or arbitration related matter that you were involved in, and why?

In my 2nd year of practice, I was asked by my then boss to sit as local counsel in the closing submissions of an ICC international arbitration held in Vancouver but seated in Singapore. The award was subject matter of a setting aside proceedings in John Holland Pty Ltd v Toyo Engineering Corp [2001] SGHC 48 which has been recently affirmed by the Court of Appeal as to the elements needed to be established to set aside an award on grounds of natural justice under Singapore law. Under the Singaporean arbitration regime those days, foreign lawyers could only argue in Singapore seated arbitral proceedings in the presence of local counsel. In practice, to satisfy such a requirement, a junior lawyer from a Singapore law practice would usually be assigned to perform this task; a practice that is now redundant given the amendments to the International Arbitration Act 1994. I sat with the team at Clayton Utz, helmed by Professor Douglas Jones AO, who ran a paperless arbitration – a first for me those days. I had the good fortune of being shown their data room beside the hearing venue at the now Mandarin Oriental Hotel, Singapore. Fast forward 20 years, and with the advent of virtual hearing due to the pandemic, paperless arbitration is now something that is here to stay.

What advice do you have for a young fellow practitioner interested in arbitration work?

I would first parrot my then Pupil Master’s advice to me, and that is to decide on early specialisation and get into the arbitration circuit as soon as you are qualified to do so. Secondly, I would encourage young practitioners to consider the myriad dimensions in which arbitration cross-fertilises with other forms of ADR, because there is no “one size fits all” solution to dispute resolution.

What are the challenges you think arbitration practitioners will face in the upcoming years?

The pandemic has rendered virtual hearings a new normal, and with its adoption by progressive arbitral institutions around the world, arbitration practitioners will have to gear up on tech, both hardware and software, if not now then in the upcoming years. While it is encouraging to see that the arbitration bar getting younger and more tech savvy, senior members of the bar will need the support to adapt.

What advice do you have for a young fellow practitioner interested in developing a career as an arbitrator?

In my view, a good arbitrator is one who maintains objectivity throughout the proceedings. One good way of developing this sense of impartiality is to have prior experience advocating from either side of the issue or case. While those with legal training have a distinct advantage in this respect, industry professionals can equally hone their skills through training and courses provided by institutes such as the SIArb.

Who is the person(s) who has had the greatest impact and/or influence on your career?

I was fortunate to have pursued the MSc in Construction Law and Arbitration run jointly by King’s College London and the National University of Singapore. It was and still is the longest running multi-disciplinary construction law and arbitration course in the world. I recall that my first tutorial in the construction technology module was conducted by Professor Phillip Capper, who posed a question on the water closet or WC which none of us lawyers could answer. That tutorial left an indelible mark in me, to always be curious. Clearly, the “whys” and “why nots” have been a constant guide in my practice.

If you weren’t in your current profession, what profession would you be in?

I would have pursued music arrangement and be a producer in the music industry.

What’s your guilty pleasure?

A moist and frost-coated slice of carrot cake (not the Singaporean dish by the same name) paired with a cup of freshly brewed earl grey.

What is one talent that not many people know you have?

I conduct a community choir for folks from all walks of life who enjoy singing and community engagement.

Fill in the blank: “Arbitration is to dispute resolution as icing is to cake”.