12 June 2018
As at the time of my writing this, it is back on again! I am talking about the much anticipated meeting between President Donald Trump and Supreme Leader Kim Jong Un. Regardless of whether or not the meeting actually takes place, the choice of Singapore as the venue is worth reflecting on. Why is this relevant to international arbitration? I believe the factors that led to Singapore being chosen for this historic meeting is a reflection of the Singapore brand values that have shaped Singapore into being leading seat for global dispute resolution. Singapore was chosen because of its neutrality, safety, reliability, integrity, efficiency, excellence and openness. Singapore’s commitment to being a good host is further reflected by Minister of Defence, Ng Eng Hen’s stating that Singapore will willingly bear some of the costs of the planned summit.
It is such commitment to these Singapore “brand values” that will ensure Singapore keeps making strides in international arbitration. At the recently concluded SIAC Congress, Chief Justice Sundaresh Menon mentioned that one of the challenges was to ensure a constant pipeline of trained and future-ready practitioners. Read More
17 May 2018
INVITATION TO JOIN THE SIARB POETRY COMPETITION
Open to SIArb members only.
Please write a poem about arbitration. The poem can be in any poetry style and can be about any facet of arbitration. There are no requirements as to the length of the poem.
Poems need to be received by 1 October 2018.
Click HERE for more details.
20 March 2018
It has been an eventful start for the Singapore Institute of Arbitrators (SIArb) for 2018.
We continue to be blessed with leading arbitrators sharing their knowledge at our events. I had the privilege of Chairing Professor Lawrence Boo’s talk on the developments in Singapore Arbitration in January 2018. It was an invigorating session with Prof Boo sharing his thoughts on landmark Singapore decisions such as Kingdom of Lesotho v Swissbourgh Diamond Mines (Pty) Limited & 8 othes  SGHC 195 in which the Singapore High Court set aside an investor-state arbitration award. February brought us an insightful session on Oil & Gas Arbitration by Mr Shourav Lahiri, Director, Lahiri LLC. I encourage all of you to also attend the upcoming session on 28 March on The Anatomy of Concurrent Evidence or Witness Conferencing, aka “Hot Tubbing”. Professor Leslie Chew will share with us the objective and mechanics of witness conferencing. Read More
15 December 2017
2017 has been a significant year for Arbitration in Singapore and for the SIArb. As the year comes to an end, it is a time not only to reflect and give thanks but also to recharge and prepare for 2018.
SIArb celebrated its 36th Anniversary with a memorable dinner at Aura, National Gallery on 1 November. The organisers of the dinner, led by Tan Weiyi and assisted by our secretariat, Intellitrain repeated the success of last year’s dinner at the same venue. We thank our Guest of Honour, Mr VK Rajah SC, for his insights on the important issue of ethics in International Arbitration which has given us much food for thought. We also just concluded an excellent Symposium on 16 November at the iconic Old Parliament House. Kudos to Tay Yu-Jin and his committee on a sterling job done. Read More
1 December 2017
SIArb LinkedIn Page
SIArb is pleased to announce: the launch of its new LinkedIn page.
We encourage you to follow, like and share our page, as well as contribute comments on our posts.
3 November 2017
Extension of time for Public Consultation on draft SIArb Guidelines on Party-Representative Ethics
SIArb announced the commencement of the public consultation process on the draft SIArb Guidelines on Party-Representative Ethics (“Guidelines”) in October 2017.
As this important subject is receiving keen attention and helpful consideration from many quarters, SIArb is pleased to extend the consultation period to 31 January 2018.
View/Download Consultation paper HERE.
View/Download the draft Guidelines HERE.
20 October 2017
Dear Fellows, Members and Associate Members of Singapore Institute of Arbitrators,
1. COUNCIL AND OFFICE-BEARERS:
Following the elections at the Annual General Meeting on 28 September 2017, and co-options made at the Council meeting of 5 October 2017, the following is a listing of the Office-Bearers and Council Members till the next AGM in 2018.
Mr Dinesh Dhillon
(2017 – 2019) – Elected at AGM 2017
Mr Tay Yu-Jin
(2017 – 2018) – appointed under Art 18.104.22.168 to
fill vacancy caused by Council Member’s
Dinesh’s appointment as Vice-President
Mr Naresh Mahtani
(2016 – 2018) – Elected at AGM 2016
Mr Mohan R Pillay
(2017 – 2019) – Elected at AGM 2017
Immediate Past President
Mr Chan Leng Sun S.C.
(2017 – 2019) (Imm. Past President) – under
Mr Chia Chor Leong
(2017 – 2019) – appointed under Art. 22.214.171.124
w.e.f. 5 October 2017
Mr Chia Ho Choon
(2017 – 2019) – Elected at AGM 2017
Mr Francis Goh Siong Pheck
(2016 – 2018) – Elected at AGM 2016
Ms Adrienne Louise Beatrice Kouwenhoven
(2017 – 2018) – Co-opted by Council under Art. 7.1.4 w.e.f. 5 October 2017
Mr Andrew Pullen
(2017 – 2019) – Elected at AGM 2017
Ms Tan Weiyi
(2016 – 2018) – Elected at AGM 2016
Mr Yeo Boon Tat
(2016 – 2018) – Elected at AGM 2016
The Council invites all Fellows and Members to volunteer to serve on Committees of the Institute. The Committees and their respective Chairs are as follows; and if you are interested in joining any of the Committees, please respond using the REPLY SLIP and email to the Secretariat by 3 November 2017. (You may select up to 3 Committees only).
For your information, please refer HERE for the Terms of Reference of these Committees and a list of the Committees for 2016-2017.
Chair: Mr Andrew Pullen
Vice Chair: Ms Adrienne Louise Beatrice Kouwenhoven
Mr Tay Yu-Jin
Continuing Professional Development (CPD)
Chair: Mr Francis Goh
Vice Chair: Mr Andrew Pullen
Education & Training
Mr Naresh Mahtani
Publications & Website
Mr Yeo Boon Tat
Mr Chia Chor Leong
26 September 2017
I am coming to the end of my second term as President of the Singapore Institute of Arbitrators. So much has happened in these four years. I will take this opportunity to take stock.
Some of you will remember that Intellitrain took over the running of our Secretariat at the end of 2013. It did a sterling job helping us to tidy up our internal records. Actual paid-up membership at that time was estimated to be about 665. We are now more than 900 members. I am fairly confident that we will hit the 1000 mark within a year. That will surely be a milestone to remember.
SIArb hosted the Regional Arbitral Institutes Forum (RAIF) Conference for the second time in August 2014, after the Conference had made its rounds to the homes of our fellow RAIF members. It was a tremendous success, attended by 120 lawyers from more than 10 countries. Read More
28 August 2017
NOTICE OF ANNUAL GENERAL MEETING
NOTICE IS HEREBY GIVEN that the 36th Annual General Meeting of the Singapore Institute of Arbitrators will be held on 28 September 2017 at 6.00pm at
1 Marina Boulevard, NTUC Centre, Level 9, Room 903, Singapore 018989.
SIArb members, please log-in to the Members' Resources for more details.
18 May 2017
SIArb Guidelines for Third Party Funders
SIArb released its draft Guidelines for Third Party Funders for public consultation on 28 February 2017. This was followed by a lively seminar on Third Party Funding with panelists from SIArb, the Law Society and the Singapore International Arbitration Centre in March 2017. A number of law firms and third party funders have written in with their helpful comments on the draft Guidelines. Following the consultation period, SIArb has finalised its Guidelines for Third Party Funders on 18 May 2017.
28 February 2017
Public Consultation on SIArb Guidelines for Third Party Funders
The Civil Law (Amendment) Act (CLA) and the Civil Law (Third-Party Funding) Regulations 2017 (CLA Regulations) to facilitate third party funding of Singapore-seated international arbitrations and related court or mediation proceedings take effect from 1 March 2017. This statutory framework is meant to be supplemented by industry-led guidelines to promote best practices amongst stakeholders.
20 February 2017
Discontinuation of Continuing Professional Development (CPD) Return Form
We will be discontinuing the current practice of requiring submission of the annual Continuing Professional Development (CPD) Return forms to SIArb by Panel Arbitrators with immediate effect.
SIArb Panel Arbitrators will continue to have the individual responsibility, on an honour basis, to engage in continuing professional development activities to remain equipped to serve as arbitrators on the Panel, as per the Panel Arbitration CPD Points Guidelines HERE.
24 January 2017
SIArb is pleased to announce that its newsletter has gone fully online, and the hardcopy edition has been replaced with an e-newsletter.
We will continue to bring you quality content and timely updates, delivered right to your inbox.
By Justin Gan, Sarah Kuek and Tan Yi Lei – Stephenson Harwood (Singapore) Alliance
The last quarter has seen a number of arbitration decisions reported. We focus on 2 decisions in this edition of the newsletter
- Hilton International Manage (Maldives) Pvt Ltd v Sun Travels & Tours Pvt Ltd  SGHC 56
- Rakna Arakshaka Lanka Ltd v Avant Garde Maritime Services (Private) Limited  SGHC 78
Hilton International Manage (Maldives) Pvt Ltd v Sun Travels & Tours Pvt Ltd  SGHC 56
Hilton v Sun Travels clarifies the basis of the Court's power to grant permanent anti-suit injunctions in support of an arbitration agreement, and is an example of the Court exercising discretion to cure irregular service out of jurisdiction. It also emphasises the need for an otherwise meritorious applicant to seek relief expeditiously.
Under a hotel management agreement, the Defendant (Sun Travels) agreed to let a hotel it owned in the Maldives be managed by Hilton under Hilton's brand for an initial period of 20 years. Sun Travels became dissatisfied with the hotel’s performance under Hilton's management. In April 2013, Hilton gave Sun Travels notice terminating the agreement with immediate effect. On 2 May 2013, Sun Travels accepted Hilton's termination as repudiation of the agreement.
Hilton commenced arbitration before the International Chamber of Commerce ("ICC") on 16 May 2013. The ICC Court of Arbitration fixed Singapore as the seat. Parties participated in the reference and following oral hearings in July 2014, Hilton obtained a Partial Award in its favour on 27 May 2015. Sun Travels ceased participating in the reference. On 17 August 2015, a Final Award was issued in Hilton's favour.
Hilton applied to the Maldivian Courts to enforce the Awards. Sun Travels resisted strenuously and succeeded on a jurisdictional point at first instance, before Hilton overturned the jurisdictional point on appeal. The enforcement question was remitted to the first instance Maldivian Court. In the meantime, Sun Travels commenced Maldivian proceedings against Hilton arising out of the same facts – and the Maldivian Courts found Hilton liable to Sun Travels (contrary to the Awards). Hilton appealed that decision (which appeal remained pending). Sun Travels then relied on that Maldivian decision to resist the Maldivian enforcement proceedings.
Hilton applied to the Singapore Courts for a permanent anti-suit injunction restraining Sun Travels from participating in the Maldivian proceedings, and for declaratory relief.
An anti-suit injunction over a foreign defendant requires the Court to have in personam jurisdiction over that defendant i.e. if Sun Travels submitted to jurisdiction, or was served out of jurisdiction. For leave to serve out, Hilton needed to show its claim (i) was sufficiently meritorious, (ii) falls within ROC O11, and (iii) that Singapore is the most appropriate forum.
Sun Travels also alleged it had not been properly served in the Maldives, as Maldivian law requires service by a Court official, and ROC O11 r4(4) requires a local language (Dhivehi) translation to be served as well. Hilton had served the Singapore Court papers on Sun Travel by leaving them with Sun Travel's receptionist, and emailed them to Sun Travel's management. The Court held service on the receptionist was invalid but exercised its discretion to cure the irregularity – as Sun Travel was aware of the proceedings but had declined to accept service, and as the papers had been provided to Sun Travel's management in any event.
Power to grant a permanent anti-suit injunction
The Court held its power to grant a permanent anti-suit injunction arose from the Supreme Court of Judicature Act (Cap.322), s.18(2) read with First Schedule para.14. These provisions give the Court power to "grant all reliefs and remedies at law and in equity", including the equitable remedy of a permanent injunction.
Article 5 of the Model Law ("In matters governed by this Law, no court shall intervene except where so provided in this Law") was held to present no bar to the Court's power above. This is especially so if arbitration proceedings have concluded, as there is no concern over excessive judicial interference into ongoing arbitral proceedings.
For completeness, the Court found it had no such power under the (i) International Arbitration Act (Cap.143A), s.12A(2) read with s.12(1)(i), and (ii) Civil Law Act (Cap.43), s.4(10) – as both refer only to interim/interlocutory injunctions.
Exercise of discretion
While an anti-suit injunction is an equitable remedy, where the suit to be injuncted is in breach of a valid arbitration agreement, the Court will be ready to grant injunctive relief, unless good reason is shown. After all, the offending party had promised not to bring such a suit.
Sun Travels argued the anti-suit injunction sought was not in support of an ongoing arbitration, as the Final Award had been issued and the reference terminated. Sun Travels argued the Maldivian proceedings (that it had commenced on the merits) were simply the exercise of its right to resist enforcement, in the Maldives.
The Court rejected Sun Travels' arguments. An agreement to arbitrate contains at least 2 implied negative obligations: (i) not to commence Court proceedings to pursue claims which parties have agreed to refer to arbitration, and (ii) not to undermine the award apart from trying to set aside at the seat, or trying to resist enforcement. The distinction between trying to undermine the award and simply trying to resist enforcement lies in whether the foreign litigation seeks to re-open matters decided in arbitration. If so, it is a breach of (ii), impermissible, and may be considered vexatious and oppressive. That said, a Court will be sensitive to the risk of practically interfering with the processes of a foreign Court.
On the facts, Sun Travels' Maldivian proceedings breached negative obligation (ii). It re-litigated the same issues already determined in the Singapore arbitration. It was timed in the midst of Hilton's enforcement proceedings in the Maldives – and sought to re-visit the merits instead of being confined to the (usual) limited grounds for setting aside. It was vexatious and oppressive.
However, Hilton only applied for the permanent anti-suit injunction 9 months after commencement of Sun Travels' Maldivian proceedings. Only after Hilton's enforcement proceedings in Maldives failed, and while Hilton's appeal in Sun Travel's Maldivian proceedings was on foot, did Hilton pursue the permanent anti-suit injunction in Singapore. The Maldivian proceedings were too far progressed. As a result, Hilton was denied the permanent anti-suit injunction it sought.
Instead, the Court permanently restrained Sun Travels from taking any steps in reliance on the first instance decision in Sun Travel's Maldivian proceedings (or any decision upholding the first instance decision). The Court also declared the Awards final, valid, and binding – and declared Sun Travels' Maldivian proceedings to concern the same subject matter as the arbitration and so in breach of the arbitration agreement.
Rakna Arakshaka Lanka Ltd v Avant Garde Maritime Services (Private) Limited  SGHC 78
Rakna Arakshaka Lanka Ltd ("RALL") v Avant Garde Maritime Services ("AGMS") is a recent illustration of the Court's attitude towards unmeritorious allegations of (a) failures of natural justice in the arbitration process, and (b) illegality/public policy. The decision also supports the position that a party wishing to challenge a tribunal's preliminary ruling on jurisdiction can: (1) actively apply for Court determination at the seat within 30 days: Model Law Art.16(3), or (2) raise the issue when exercising its passive remedy of resisting enforcement proceedings. Failure to do (1) does not preclude (2). However, a party cannot allow the deadline for (1) to lapse and then later try to challenge jurisdiction in the Courts of the seat in setting-aside proceedings.
RALL provided comprehensive security services and issued arms, ammunition and related manpower for those services. The Defendant (AGMS) provided maritime security services. RALL is Sri Lanka state linked.
Parties entered into 6 agreements for various projects, subsequently consolidated as annexes under an umbrella agreement. One project was for the establishment of a floating armoury on the "MAHANUWARA" (Vessel). The umbrella agreement required RALL to provide "utmost assistance" vis-a-vis obtaining authorisations and approvals.
In January 2015, there was a regime change in Sri Lanka. Allegations were made against the floating armoury project and the Vessel was detained by Sri Lankan police. AGMS demanded RALL procure a Letter of Clearance from the new regime, but RALL said it could not do so as its board of directors (old regime appointees) had resigned.
On 9 April 2015, AGMS commenced arbitration. RALL sought extensions of time but ultimately did not respond to the Notice of Arbitration, file pleadings, pay its share of SIAC's fees, or nominate its arbitrator. On 22 July 2015, in the absence of a response or nomination from RALL, the SIAC appointed an arbitrator for RALL. On 21 August 2015, the SIAC directed that the reference would proceed.
On 21 August 2015 RALL's counsel wrote to the SIAC alleging the disputes were beyond the scope of the arbitration agreement and the arbitration conflicted with Sri Lankan public policy. No reasons were given. The Tribunal unanimously considered that this letter did not constitute a proper objection to the Tribunal’s jurisdiction.
On 20 October 2015, parties entered into a Memorandum of Understanding (MOU). On 12 November 2015, RALL informed the SIAC that settlement had been achieved and said it no longer needed to proceed with the arbitration.
On 15 November 2015, AGMS wrote to the SIAC indicating there was no longer any settlement (as RALL failed to ensure the continuity of the umbrella agreement), and there was an imminent threat that RALL would terminate the umbrella agreement. AGMS sought a preliminary hearing. RALL chose not to participate. The Tribunal found RALL failed to ensure the continuity of the umbrella agreement, which went to the root of the MOU, and therefore the dispute was still alive.
The arbitration proceeded. RALL did not participate but wrote to the SIAC twice asking about the status of the arbitration. A Final Award was rendered in AGMS' favour.
RALL applied to set the Final Award aside, for 3 reasons:
The application was dismissed.
The MOU did not terminate the reference to arbitration. First, the Tribunal found AGMS' agreement to withdraw was on the premise that RALL would ensure the continuity of the Master Agreement. That did not occur. Second, the MOU itself did not terminate the arbitration upon signing – instead AGMS had to take steps to withdraw.
The MOU did not withdraw parties' submission to arbitration or impact the Tribunal's jurisdiction. Clause 8 of the umbrella agreement contained an arbitration clause and applied the SIAC Rules, of which Rule 25.3 (2013) required objections to a Tribunal exceeding the scope of its jurisdiction to be raised promptly after the Tribunal indicated intent to decide on the matters said to be beyond its scope. After RALL told the SIAC the dispute was settled (12 November), AGMS disagreed and disputed that there was still any settlement (15 November). An interim hearing was held on the issue but RALL did not participate – and the Tribunal ruled it would continue with the arbitration.
Where a Tribunal rules on a plea that it has no jurisdiction, as a preliminary issue, that matter may be determined by the High Court if a party so applies within 30 days of the ruling: IAA s.10(3), Model Law Art.16(3). RALL's present application was out of time. RALL could not circumvent this deadline by attempting to set aside the Final Award at the seat on the basis of jurisdiction.
In reaching this conclusion, the Court:
- Declined to follow authority and commentary that where a party left the arbitral proceedings in protest, the 30-day deadline would not apply. In short, if a tribunal chooses to decide jurisdiction as a preliminary issue, a respondent cannot reserve its objections to the last minute (beyond the 30-day deadline) – for considerations of finality, certainty, practicality, cost, and preventing delay tactics.
- Highlighted the distinction between "active" (attacking the Award at its seat) and "passive" (resisting enforcement) remedies. The bar on circumventing the 30 day deadline applies only to jurisdiction challenges at the seat, where the applicant could have sought determination from the supervisory Court previously but opted not to do so.
RALL's main complaint was that it did not get notes of evidence of the substantive hearing – and so was prevented from taking steps in the 5 months between the hearing and the Final Award. This was rejected. RALL chose not to participate in the arbitration. It was not prevented from doing so. In fact RALL only requested the notes of evidence some months after proceedings closed.
RALL alleged that RALL's and AGMS' former chairmen had procured the umbrella agreement by bribery and corruption. Trial on charges of corruption was pending in the Sri Lankan Courts. So, RALL said, the Final Award was tainted by fraud and corruption, and enforcement would be contrary to public policy.
This was rejected. The allegations of fraud and corruption did not touch on the Award, only the underlying umbrella agreement. Further, RALL's and AGMS' former chairmen were facing trial; they were not convicted at the time of hearing, and presumed innocent unless proven otherwise.
RALL also argued Clause 3.1 required RALL to perform an illegal act, namely to procure a Letter of Clearance, and so, RALL said, an award enforcing such performance was contrary to Singapore's public policy. The Tribunal had considered this and found no illegality – a finding of fact not open to question by the supervisory Court. Further, the umbrella agreement continues to operate and RALL/AGMS are still engaged in other joint ventures – which the Sri Lanka government would not allow to continue if the agreement was procured by bribery or tainted by illegality.
By Chew Yee Teck, Eric – Director, ECYT Law LLC
I. INTRODUCTION OF SIARB DRAFT GUIDELINES
1. In the absence of a universally-applicable code for ethics in international arbitration, members of the Singapore Institute of Arbitrators (“SIArb”) Working Group drafted the Singapore Institute of Arbitrators Guidelines on Party-Representative Ethics Consultation Paper (the “Guidelines”) to address concerns on Party Representatives’ conduct in such proceedings.
2. As traditional means of dispute resolution are governed by statutory sanctions to ensure that lawyers behave ethically, with an appropriate level of decorum and courtesy, the introduction of the Guidelines similarly contributes to the development of sanctions regulating the conduct of Party Representatives in arbitration proceedings.
3. A consistent standard of ethics is reasonably expected of Party Representatives in arbitrations. However, problems are compounded by the lack of a unified body or internationally-accepted enforcement mechanism. In light of recent developments in the domestic arbitration sphere, this article highlights some of the persistent issues faced by the arbitration community, the difficulty in resolving them and the prospects of doing so.
II. OVERARCHING PRINCIPLES OF THE GUIDELINES
4. Essential values of integrity, honesty and professionalism are the cornerstones upon which the Guidelines are founded. These principles prevail throughout the Guidelines and provide further guidance on the conduct of Party Representatives in arbitrations.
5. At a glance, the core principles embodied in the Guidelines are as follows:
(a) Integrity – “A Party Representative should respect the integrity of international proceedings, including the independence of the Tribunal, the Tribunal’s members, and any Potential Arbitrator(s).1”
(b) Honesty – “A Party Representative should act honestly and with integrity in all of his or her dealings with the Tribunal and parties involved in the arbitration proceedings.2”
(c) Professionalism – “A Party Representative should treat the Tribunal and other parties with respect and act with the highest degree of professionalism.3”
6. The Guidelines bear resemblance to existing rules and codes on ethics in international arbitration, reiterating the salience and sanctity of a judicious process and a fair hearing.
III. ISSUES AND CONCERNS TO BE ADDRESSED
7. At his keynote address at the 1st ICCA Conference in South America, Doak Bishop succinctly distilled the key difficulties surrounding ethics in international arbitration:4
“International Arbitration dwells in an ethical no-man’s land. Often by design, arbitration is set in a jurisdiction where neither party’s counsel is licensed. The extraterritorial effect of national ethical codes is usually murky … There is no supra-national authority to oversee attorney conduct in this setting, and local bar associations rarely if ever extend their reach so far… specialised ethical norms for attorneys in international arbitration are nowhere recorded. Where ethical regulations should be, there is only an abyss.”
Reconciliation of Conflicting Rules
8. Conflicting rules of ethics from different codes present this difficulty – one of reconciliation, which remains a challenge yet to be overcome.
9. The issue of reconciliation was raised by Jan Paulsson in his article last century. Paulsson questioned the possibility of an unlevel playing field skewing the result in favour of the party whose jurisdiction held a lower standard of ethics for its lawyers. The journey towards unification of a standard code of ethics for international arbitration has not progressed much since the time of his article.
Difficulty in Enforcement
10. Although associations around the world may formulate these guidelines out of good intentions, an additional concern relating to these rules and codes of ethics is none other than difficulty in enforcement.
11. The Code of Conduct for European Lawyers (“CCBE Code”),6 prepared by the Council of Bars and Law Societies of Europe, attempts to resolve the enforcement issue.
12. The CCBE Code similarly centres on notions of fair conduct of proceedings, respect of the tribunal, and focus on clients’ interest. However, the provisions in the CCBE Code do not provide any practical solutions for enforcement of non-compliance.
13. Despite stating that a lawyer is to observe the rules of the Tribunal, the generality of the CCBE Code results in much confusion over which rules of conduct are applicable for lawyers appearing before an international arbitration tribunal.
14. Furthermore, the CCBE Code is limited to guidance regarding lawyers’ conduct, with no additional mention relating to non-legal Party Representatives.
Differences in Cultural Perception
15. Further to Doak’s observations, there are inherent practical difficulties with formulating a substantive universal code of ethics to govern the conduct of Party Representatives, who clearly hail from different jurisdictions and diverse cultures. Guided by an individual’s moral compass, ethics can be assigned distinct nuances due to cultural perspectives. Accordingly, what constitutes “ethically acceptable conduct” in one jurisdiction may be viewed otherwise in another.
16. Existing codes of ethics have attempted to deliver a desirable course of conduct by lawyers engaged in international practice of law. The International Code of Ethics (1988) (“IBA Code”), which provides lawyers a framework to carry out their duties in an ethical manner, contains a rule which denies a universal yardstick for ethical conduct. This rule provides that a lawyer should both adhere to the professional ethics of the jurisdiction in which he has been admitted and to the jurisdiction where he is working. An issue arises when ethics codes from different jurisdictions contradict. This double deontology element enshrined in the IBA Code, recurs in most ethics codes for arbitration. This mechanism creates a conundrum for lawyers engaging in arbitration in a jurisdiction different from where they practise. This essentially hinders the enforcement and execution of a standard code of ethics. Civil and Common Law jurisdictions respectively impose contrasting standards of ethics on Party Representatives; this stems from differences in cultural perspective. The following paragraphs illustrate this issue in practice.
17. In formulating a coherent enforcement mechanism, two further complications arise:
(a) What is the legal basis for enforcement; and
(b) Which body or organisation is best placed for such enforcement.
Legal Basis for Enforcement
18. It is trite that arbitration proceedings are governed by an arbitration agreement, under which parties agree to submit existing disputes to arbitration.
19. The constitutionalising of a legal basis, where Party Representatives yield to a multitude of jurisdictions, is an uphill task which requires multilateral agreement amongst parties. Even before such an arrangement can be reached, there will be implications concerning the legality of arbitration proceedings, let alone the enforcement of ethical codes.
Association for International Enforcement
20. Even if the legal basis for enforcement were to be settled, there remains unease over the extent to which an international arbitration body is allowed to interfere in, and regulate the conduct of, Arbitrators and Party Representatives.
21. In a hypothetical scenario, Johnny Veeder concisely summed up the difficulty in determining applicable rules:
“An Indian lawyer in a Hong Kong arbitration between a Bahraini claimant and a Japanese defendant represented by NY lawyers. What are the professional rules applicable? The answer is no more obvious than it would be in London, Paris, Geneva and Stockholm. There is no clear answer.”7
22. Governance of ethics and conduct, by convention, stems from the home Tribunal. Different arbitration forums contain their own unique set of ethical rules, which only makes it savvy for parties to arbitrate in a forum favourable to them.
23. Parties have the choice of their preferred arbitration forum. However, the double deontology element of the current codes of ethics permeates the ethical assessment of Party Representatives’ conduct in international arbitration. With Party Representatives originating from different jurisdictions, different codes of ethics govern their conduct. This predicament is best illustrated in the areas of witness preparation and discovery.
24. Different jurisdictions have their own subjective perception of ethical conduct in general.
25. Contrasting ethical perspectives on witness preparation is evident from a juxtaposition of the US and UK rules.
26. It is an acceptable practice in the US for Party Representatives to prepare witnesses for cross-examination in detail, albeit to the extent that improper influence shall not taint such testimonies.
27. On the contrary, witness preparation in the UK is impermissible, save for a minimal level of contact with witnesses for the purpose of discussing evidence or enabling witness statements or affidavits to be prepared.
28. The US adopts a liberal approach, giving Party Representatives more freedom to influence their case. This might pose a danger to the truth of the witness’ statement, but safeguards are in place to restrict the extent of influence.
29. Instead of assessing the Party Representative’s conduct based on the lower standard of the two, the Guidelines propose a middle ground towards witness preparation, notwithstanding the lack of consensus in this area. The standard set by the Guidelines permits witness preparation to the extent that perjury will not be committed knowingly. The proposal extracts the intrinsic principles in both ethics rules to set this standard, to which jurisdictions can potentially agree.
30. The Civil and Common Law systems hold polarized views on document production.
31. Disclosure of documents is not an obligation in the Civil Law system, as lawyers have no duty to ensure that relevant documents required to be disclosed are searched for and, to the extent found, produced.
32. In contrast, Common Law systems place a two-fold duty on lawyers to inform clients of the necessity of making full disclosure and to assist clients in fulfilling their discovery obligations. For instance, the US system places a duty on lawyers to make reasonable inquiry and certify that disclosure is complete and correct.
33. The Guidelines suggest that “Parties and their Representatives should not deliberately destroy evidence or assist in the beach of any direction by the Tribunal on document production8”. Setting a low standard in this regard, jurisdictions can be agreeable that Party Representatives’ conduct is held to this bare minimum.
34. An arbitral body will only be appropriate on condition that it harmonises diverging perspectives of ethical conduct to formulate a mechanism to legally enforce a code of ethics that meets the standards of participating jurisdictions.
IV. CASE STUDIES
35. An examination of two cases conducted at the International Centre for Settlement of Investment Disputes (“ICSID”) highlights the issues of counsel’s conduct and how the Tribunal dealt with such matters.
Hrvatska v Slovenia9
36. This case deals with issues of tribunal integrity and illustrates how it was addressed.
37. Respondent’s Party Representative and the Tribunal’s President were members of the same Chambers. The Party Representative joined the ‘legal team’ after commencement of the case and the relationship was only disclosed prior to the final hearing.10
38. At the outset, it must be said that the arbitration was conducted on the principle that parties are at liberty to engage Party Representatives of their choice. However, due to the relationship between the Respondent’s Party Representative and the President of the Tribunal, the Tribunal disqualified the Respondent’s Party Representative “so as to not imperil the Tribunal’s status or legitimacy”.11
Rompetrol v Romania12
39. This case similarly concerns itself with the integrity of the Tribunal. The Tribunal was asked to disqualify Claimant’s Party Representative who involved himself in the case after commencement. The Arbitrator appointed by the Claimant and the Claimant’s Party Representative were practitioners from the same law firm.
40. Notwithstanding the conflict of interest, the Claimant’s Party Representative was not disqualified. The Tribunal was disinclined to accept that Tribunals possess the inherent power to disqualify counsel. The Tribunal further averred that even if it had such an inherent power, it was only to be exercised in exceptional circumstances where the integrity of the Tribunal is in danger of violation.
41. The inherent power to exclude counsel is not explicitly provided for in the ICSID Convention or Arbitration Rules, and as such, the Tribunal can only justify such an action to safeguard the integrity of the arbitral process13.
42. From the case studies, without any enforceable rule regarding the appointment of Party Representatives that have a conflict of interest or even a perceived conflict of interest, the fate of Party Representatives in an arbitration rests with the discretion of the Tribunal, which may then turn out to be arbitrary. Such a lack of rules also leaves open the question on the parameters and circumstances in which the Tribunal can override a litigant’s prerogative to appoint a Party Representative of his or her choice and exclude his or her Party Representatives.
V. FUTURE OF INTERNATIONAL ARBITRATION
43. The Tribunals in the above ICSID cases reached different verdicts to the best of their ability. This unsatisfactory state of affairs is unsustainable in the long run, and does not coincide with the vision to creating a uniform and universally-applicable code of ethics.
44. Existing Tribunals will have their reservations on setting an undesirable precedent with regard to actions against unethical conduct; furthermore, such actions may be called into question because of their constitutionality. Hence, issues on ethics in international arbitration must be addressed delicately; arbitrariness of the Tribunal may displace confidence for Arbitration as a forum for dispute resolution.
45. Achieving a unified standard of ethics is an arduous task. The salient principles and elements have been identified but the execution requires close multilateral efforts. A deep understanding of the fundamental nature and differences in law, culture and custom of every jurisdiction is required to address and enforce uniform rules of ethics, if at all possible. The Guidelines appear to be a step in the right direction.
 Available at https://www.siarb.org.sg/images/SIArb-Guidelines.pdf; see page 2
 Available at https://www.siarb.org.sg/images/SIArb-Guidelines.pdf; see page 3
 Available at https://www.siarb.org.sg/images/SIArb-Guidelines.pdf; see page 5
 Doak, B., Ethics in International Arbitration, Arbitration Advocacy in Changing Times, 2
 Standards of Conduct for Counsel in International Arbitration - ARIA - Vol. 3, Nos. 1-4, 1992
 Code of Conduct for European Lawyers
 Doak, B., Ethics in International Arbitration, Arbitration Advocacy in Changing Times, 11
 Singapore Institute of Arbitrators, Guidelines on Party-Representative Ethics, Consultation paper, 5
 Hrvatska Elektroprivreda d.d. v. Republic of Slovenia, ICSID Case No. ARB/05/24
 Doak, B., Ethics in International Arbitration, Arbitration Advocacy in Changing Times, 4
 Doak, B., Ethics in International Arbitration, Arbitration Advocacy in Changing Times, 4
 The Rompetrol Group N.V. v. Romania, ICSID Case No. ARB/06/3
By Albert Monichino Q.C.1
Let me first outline some key concepts that are found in Article 16 of the UNCITRAL Model Law on International Commercial Arbitration (Model Law).
Article 16(1) enshrines the concept of Kompetenz-Kompetenz. That is, arbitrators have power to determine whether they do, or do not, have jurisdiction to determine all (or part of) the matters referred to arbitration. In other words, arbitrators are competent to determine their own competence.
The corollary, sometimes referred to as “the negative effect of Kompetenz-Kompetenz”, is that courts (at the seat or otherwise) should not pre-empt arbitral rulings on jurisdiction. That is, the scheme of the Model Law assumes that the arbitral tribunal shall have the “first bite” of the jurisdiction cherry.2
Article 16(1) of the Model Law also enshrines the concept of separability. That is, the arbitration agreement is separate from the contract in which it is contained (assuming that the arbitration agreement is comprised of an arbitration clause in a contract).3
Chief Justice Allsop of the Federal Court of Australia recently observed in Hancock Prospecting Pty Ltd v Rinehart  FCAFC 170, at  that: “The separability principle is a rule, reached and laid down pragmatically, rather than logically …”
According to this principle, an arbitrator has jurisdiction to determine that the contract (in which the arbitration agreement is contained) is invalid.
Former High Court of Australia Chief Justice, Robert French, has likened the logical challenges involved in this idea to the plot of the first Terminator film, where Arnold Schwarzenegger is sent back in time by robots warring with humanity to eliminate the mother of the leader of the human resistance movement before she can give birth to the future leader.4
Article 16(2) of the Model Law provides that jurisdictional objections should be raised not later than the submission of the statement of defence. Therefore, a respondent must make any jurisdictional objection on a timely basis.5 Otherwise, it will be deemed to have waived its right to object.
Article 16(3) of the Model Law provides the arbitral tribunal with discretion as to the timing of resolution of any objection to jurisdiction. The tribunal may deal with the issue as a preliminary question. Alternatively, it may defer the issue and deal with it in the final award on the merits.
C. To bifurcate or not
I shall now turn to elaborate on my first topic – how arbitral tribunals deal with jurisdictional objections in practice.
The principal question is whether to bifurcate or not.6
In sum, Gotanda contends that if the expected costs of both phases of the bifurcated proceedings9 exceed the expected costs of unitary proceedings, the arbitral tribunal should decide against bifurcation.
In reality, arbitrators are hamstrung in meaningfully assessing the integers in Gotanda’s equation. Nevertheless, the equation does have the salutary effect of concentrating the mind on efficiency and cost savings.
It should be borne in mind that the decision is not necessarily whether to bifurcate or not. There is also a possible hybrid solution, whereby the jurisdictional challenge may be set down for preliminary determination together with one or more overlapping merits issues.10
If, of course, the parties agree on the manner of resolution – whether a preliminary or deferred determination, the tribunal is bound to follow that course.12
D. Court review of jurisdictional rulings
Let me move to the Court’s power to review an arbitrator’s ruling on jurisdiction.
Court control over jurisdictional challenges
As well, an enforcement court (whether the court of the seat or otherwise) may consider jurisdictional issues on an application to enforce the award under Article 36 of the Model Law or Article V of the New York Convention.
Article 16(3) review
Any application for a court review of a preliminary ruling on jurisdiction must be made within 30 days of the ruling: Article 16(3).
It is noteworthy that under Article 16(3), only positive rulings on jurisdiction may be challenged in court. Singapore has modified the Model Law (as implemented in Singapore) to provide court review of both positive and negative rulings on jurisdiction.13
The absence in most jurisdictions of a means of recourse from negative jurisdictional rulings is considered by some commentators to be “unfortunate and frustrating"14. A negative ruling on jurisdiction by an arbitral tribunal will leave the parties free to litigate the dispute in court.15 But in which court? Forum shopping will then become an issue.
While the court review is pending the tribunal may continue with the arbitration proceedings: Article 16(3).
The nature of the court’s review of jurisdiction (whether pre or post award) is now reasonably settled. It involves a “de novo” review, not an appellate-type review involving finding fault in the arbitrator’s approach in his or her ruling on jurisdiction. The courts have held that the tribunal’s view of its jurisdiction has little or no evidentiary or legal value on a court challenge to the tribunal’s determination on jurisdiction. This is so, however eminent the tribunal.17 Nevertheless, the court will read the tribunal’s reasons with interest,18 and they “will carry as much persuasive weight as their cogency gives them”.19
On a court challenge to jurisdiction, it is even possible to adduce fresh evidence that was not adduced before the arbitrator.20
Article 16(3) of the Model Law provides that while an application for court review is pending, the arbitral tribunal may continue the arbitral proceedings and make an award (on the merits). In other words, an application for court review cannot be used as an instrument of delay.
One point that is often overlooked is that Article 16(3) allows any party to the arbitration to apply to the court for a review of a tribunal’s preliminary ruling on jurisdiction. It is not only the unsuccessful respondent that may apply. That said, in practice it would be unusual for a successful claimant to apply to the court at the seat to confirm the tribunal’s ruling on jurisdiction.
It is also to be noted that, unlike Article 34, no appeal lies from a court’s decision on a review of jurisdiction under Article 16. It is thus more advantageous for the respondent to review jurisdictional rulings post award (if it is possible).
“Active” and “passive” remedies
In PT First Media TBK v Astro  SCGA 47, the Singapore Court of Appeal underlined the existence of “active” and “passive” remedies available to an award debtor under the scheme of the Model Law.
The Singapore Court of Appeal held that the fact that the award debtor had not applied under Article 16(3) to review a preliminary ruling on jurisdiction did not prevent it from resisting enforcement of the award under Article 3622. In other words, the fact that the award debtor had not availed itself of an active remedy did not deny it of a passive remedy.
The Singapore Court of Appeal opined (without deciding) that a failure by an award debtor to avail itself of the remedy in Article 16 (assuming a preliminary ruling on jurisdiction) would preclude it from raising a jurisdictional objection at the setting-aside stage under Article 34 (post award)23 . Subsequently, the Singapore High Court has decided that an award debtor cannot reserve its jurisdictional objection to the setting-aside stage, if it has not objected to an arbitrators’ preliminary ruling on jurisdiction. According to Quentin Loh J, to allow a respondent to reserve its objection to the setting-aside stage (post award) may allow it to “indulge in tactics which result in immense delays and cost”.24
Professor Doug Jones has criticised the active – passive remedy dichotomy on the grounds that it promotes inefficiency in the arbitral process.25 This is particularly so if the respondent continues to participate in the arbitration following a ruling on jurisdiction against it, thus drawing out the process and escalating costs.
There is a Bill currently before the New Zealand Parliament which seeks to modify Article 16 of the Model Law as implemented in New Zealand. The Arbitration Amendment Bill (introduced 9 March 2017) inserts a new Article 16(4), which provides that the consequence of failing to apply for court review under Article 16(3) is that the right to later challenge jurisdiction (post award) is deemed to be waived.
In particular, the new proposed Article 16(4) provides as follows:
For the avoidance of doubt, it is declared that the failure to submit a timely request to the High Court under paragraph (3) to decide the jurisdictional matter must operate as a waiver26 of any right later to challenge or call into question the ruling of an arbitral tribunal as to its jurisdiction.27
Clearly the New Zealand amendment is aimed primarily at the first strategy. But it is not entirely clear why a respondent who withdraws from the arbitration following an adverse preliminary ruling on jurisdiction should (as a matter of policy) be shut out from resisting enforcement of the award under Article 36 (ie relying on a passive remedy).
Indeed, the New Zealand amendment would also appear to apply to the situation (admittedly rare) where the respondent does not participate in the arbitration at all, the tribunal investigates jurisdiction of its own accord and makes a preliminary positive ruling on jurisdiction. In those circumstances, the respondent is arguably shut out from challenging any award against it under Article 34 or resisting enforcement of the award under Article 36.
Whether the Australian International Arbitration Act and/or the Singaporean International Arbitration Act should be amended along the lines proposed in New Zealand, in order to promote the efficiency of the arbitration process, is a question worthy of serious debate.
 LLM (Cambridge). Chartered Arbitrator, Barrister and Mediator, FSIArb. This paper was originally presented at a Jurisdictional Challenges seminar forming part of the Federal Court of Australia’s International Arbitration seminar series, held in conjunction with the Chartered Institute of Arbitrators, Australian Branch, on 27 February 2018.
 William W. Park, “The Arbitrator’s Jurisdiction to Determine Jurisdiction” (2006) 13 ICCA Congress Series 55, at pp. 23-24.
 William W. Park, “The Arbitrator’s Jurisdiction to Determine Jurisdiction” (2006) 13 ICCA Congress Series 55, at p. 30.
 Robert French, ‘Old but not Obsolete’, (Speech delivered at The Chartered Institute of Arbitrators (Australia) Ltd Centenary Gala Dinner, Sydney, 24 November 2015, pp 5-6).
 Indeed, an arbitral tribunal may investigate its own jurisdiction even in the absence of an objection by a respondent: see Article 4 of the CIArb Guidelines on jurisdictional challenges. Available HERE
 See Article 4 of the CIArb Guidelines on jurisdictional challenges.
 Lucy Greenwood, ‘Does Bifurcation Really Promote Efficiency?’ (2011) 28(2) Journal of International Arbitration.
 John Yukio Gotanda, ‘An Efficient Method for Determining Jurisdiction in International Arbitrations’ (2001) 40(11) Columbia Journal of International Law.
 More precisely, the costs of [Phase 1] plus [the costs of Phase 2 multiplied by the probability (expressed as a decimal) of the jurisdictional challenge being unsuccessful and hence Phase 2 becoming necessary].
 BCY v BCZ  SGHC 249 at .
 For example, if a hearing on jurisdiction is going to take six months while a hearing on all issues is going to take nine months, that will embolden a tribunal to lean towards a unitary proceeding.
 BCY v BCZ  SGHC 249 at .
 See Singapore International Arbitration Act (Chapter 143A), section 10.
 Simon Greenberg, Christopher Kee and J. Romesh Weeramantry, “International Commercial Arbitration – An Asia-Pacific Perspective” (Cambridge University Press, 2011), p.240.
 See Greenberg p.239.
 Insigma Technology Co Ltd v Alstom Technology Ltd  SGHC 134 [21–22], upheld on appeal in Insigma Technology Co Ltd v Alstom Technology  SGCA 24; AQZ v ARA  SGHC 49.
 Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan  UKSC 46,  AC 763, [20, 30, 160]; IMC Aviation Solutions Pty Ltd v Altain Khuder LLC (2011) 253 FLR 9, [266-270]; PT First Media TBK formerly known as PT Broadbank Multimedia TBK) v Astro Nusantara International BV and others and another appeal  SGCA 57, [63, 162-164].
 Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan  UKSC 46,  AC 763 at  per Lord Saville.
 Dallah Real Estate and Tourism Holding Company v Ministry of Religious Affairs of the Government of Pakistan  1 All ER (Comm) 917, 927  per Lord Justice Moore-Bick.
 X v Y and Z  EWHC 395 (Comm); cf AQZ v ARA  SGHC 49 at [37-60] per Justice Prakash
 The challenge under Articles 34 and 36 is invariably on the ground that there is no valid arbitration agreement between the award debtor and the award creditor (equivalent to Article V(1) (a) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (the “New York Convention”).
 At .
 At .
 Rakna Arakshaka Lanka Ltd v Avante Garde Maritime Services (Pte) Ltd  SGHC 78, at  (Quentin Loh J).
 Doug Jones, ‘What Now for Article 16(3)?’ (2014) 2(2) European International Arbitration Review.
 Article 4 of the Model Law recognizes the concept of waiver.
 Paul Foster-Bell, Arbitration Amendment Bill 2017, Members Bill 245-1 [Part 6], Available HERE
The Singapore Institute of Arbitrators is an independent professional body established in 1981. We are a truly neutral professional body with no link or affiliation to any particular industry but bonded together with a common interest in arbitration & other alternative dispute resolution procedures. Presently, we have almost 900 members geographically represented throughout the world, many are practising professionals from a wide spectrum of diversified backgrounds who are also directly and indirectly involved in the dispute resolution procedures as Arbitrators, Mediators, Expert Witnesses and Consultants. Our main focus is in the aspect of professional training & development. Besides being a centre for promoting knowledge of arbitration & other ADRs, we also act as an appointing authority for the appointment of arbitrators upon requests. We work closely with the Singapore International Arbitration Centre. READ MORE
|20 Sep 2018|
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Interlocutory Applications in International Arbitration (20 September 2018)
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Quantifying Damages – A Framework for Analysis (03 October 2018)
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