20 IN CONVERSATION WITH MICHAEL PRYLES
INTERNATIONAL ARBITRATION 1/3LY
CHALLENGES PRESENTED BY DIVERSITY
MICHAEL I hear that sentiment quite often. Lots of people want to sit as arbitrators; and it’s true many senior arbitrators get many appointments. My response is that, if you needed a cardiac operation then you’d select an experienced surgeon, not an inexperienced one. The same principle holds true in arbitration. I’m not suggesting that the top arbitrators should get all the big appointments, but it is an open market. Parties can choose whoever they want; but in big disputes, where the stakes are high, it’s natural to choose practitioners who are known and respected. It is important, however, that we create the opportunity for others to enter the market. That is why SIAC has a policy of looking for up-and-coming practitioners and appointing them to the smaller cases. EUGENE That’s certainly the way I’ve always approached appointments, I look for the hallmarks of a good arbitrator; one who’s demonstrated good sense, impartiality and an ability to deal with the issues and parties efficiently. Not only is it a comfort, it’s also the right decision! Another concern that I’ve encountered is the criteria that counsel use to nominate arbitrators – specifically that, in some instances, both counsel and arbitrators are adopting a quid pro quo approach. Do you think it’s a valid concern; and, if so, what would be the best way to address, or assuage, these concerns? MICHAEL Well, there’s a school of thought that parties shouldn’t be allowed to nominate arbitrators; a view advocated by some respected practitioners. However, I do believe in party nomination of co-arbitrators. Arbitration is designed to have universal appeal – for common law and civil law countries, first world and developing nations, and to make this work there has to be an element of comfort for the parties involved. For example, if parties from a country with a relatively rudimentary legal system are to agree to international arbitration, there’s a great deal of reassurance in being able to appoint one of the arbitrators; and I think the ability to do this enhances the acceptance of arbitration internationally. So I don’t necessarily view party nomination as a drawback. Arbitrator bias is sometimes encountered but it’s not commonplace. Besides, a fair arbitration generally depends on the chairperson.
I spent a lot of time speaking to members of the profession – both local and expat – to understand what they and their clients needed, and what we could do better at SIAC. And, because I’m an arbitrator, I could compare how we were administering arbitrations with the approach of other centres; we restructured, put a big emphasis on training and continually sought to improve. It was quite an effort but it’s paid off. One unexpected consequence is that our staff, particularly those involved in case administration, are much sought after by law firms and we lose many good people to them. It’s a nice problem to have though – I view it as a mark of our success!
EUGENE There are a wide range of cultures and varied legal systems across the Asia Pacific region. Sitting as an arbitrator, do you adopt different approaches for civil and common law lawyers appearing before you? And does the distinction influence or impact on the administration of an arbitration? MICHAEL Generally, international arbitration has developed a culture which seeks to bridge the legal systems. Organizations such as the IBA, ICCA and the Chartered Institute have developed international rules and guidelines. However, if both parties wish to have an arbitration conducted in a way which largely follows a particular tradition that is perfectly acceptable. From an arbitrator’s perspective, it can be challenging having participating lawyers from different legal systems so it’s important to listen carefully, and try to develop a a procedure that all counsel are comfortable with. Retaining a sense of understanding and perspective is also key: if a counsel does something that deviates from the mainstream, it’s imperative to avoid adopting a narrow perspective. Having a knowledge of different legal systems and cross-cultural sensitivities is really important. EUGENE Within Singapore, and more broadly across AsiaPac, I’ve noticed that parties are increasingly opting for arbitration rather than litigation. There’s a growing acceptance of arbitration within the region; and, more significantly, I think it’s becoming a preference. Is this because the internationalisation of arbitration, underpinned by the sympathetic approach to cultural nuance, is making it more attractive to users in the region? MICHAEL Indeed, the significance of arbitration in Asia has changed dramatically, and it’s easy to understand why: dispute resolution follows commercial activity, so it’s part and parcel of the region’s rapid economic and commercial development.
APPOINTMENTS, NOMINATIONS AND BIAS
EUGENE Apart from the rules and the administration, how important do you think the arbitrators of the panel are to the success of SIAC? And, indeed, any other arbitration institution? MICHAEL We take great care in compiling our panel of arbitrators. Selecting arbitrators for a case is one of the most important functions we carry out.. Although we primarily choose arbitrators from our own panel, there are occasions when we go beyond it. It is crucial to find an appropriate arbitrator for each dispute – as well as someone we know and have confidence in. We select on the basis of relevant nationality, expertise and experience. We also give younger practitioners an opportunity to develop their skills by appointing them to suitable smaller cases. But it’s worth clarifying that the success of an arbitration is not entirely dependent on the arbitrators. Any arbitration is dependent on both the arbitrator and counsel; and an award is as much a reflection of the counsel involved, as it is of the arbitrator. Administration of the arbitration is also important. Essentially, lots of factors come into play in determining whether an arbitration is run smoothly and efficiently. EUGENE And what do you make of the perception of arbitration as an old boys’ club?
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