20 IN CONVERSATION WITH MICHAEL PRYLES
INTERNATIONAL ARBITRATION 1/3LY
CH A L L ENGE S PRE SEN T ED BY D I V ER S I T Y
MI CHAEL I hear that sentiment quite often. Lots of people want to sit as arbitrators; and it’s truemany 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’mnot suggesting that the top arbitrators should get all the big appointments, but it is an openmarket. Parties can choose whoever theywant; 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 themarket. 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? MI CHAEL Well, there’s a school of thought that parties shouldn’t be allowed to nominate arbitrators; a viewadvocated by some respected practitioners. However, I do believe in party nomination of co-arbitrators. Arbitration is designed to have universal appeal – for common lawand civil law countries, first world and developing nations, and tomake this work there has to be an element of comfort for the parties involved. For example, if parties froma country with a relatively rudimentary legal systemare 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 viewparty 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 tomembers of the profession – both local and expat – to understandwhat they and their clients needed, andwhat we could do better at SIAC. And, because I’man arbitrator, I could compare howwe 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, aremuch sought after by law firms andwe losemany good people to them. It’s a nice problem to have though – I view it as amark of our success!
EUGENE There are awide 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? MI CHAEL 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 away which largely follows a particular tradition that is perfectly acceptable. Froman arbitrator’s perspective, it can be challenging having participating lawyers fromdifferent 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 themainstream, it’s imperative to avoid adopting a narrowperspective. Having a knowledge of different legal systems and cross-cultural sensitivities is really important. EUGENE Within Singapore, andmore broadly across AsiaPac, I’ve noticed that parties are increasingly opting for arbitration rather than litigation. There’s a growing acceptance of arbitrationwithin 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, ismaking it more attractive to users in the region? MI CHAEL Indeed, the significance of arbitration in Asia has changed dramatically, and it’s easy to understandwhy: dispute resolution follows commercial activity, so it’s part and parcel of the region’s rapid economic and commercial development.
A P P O IN TMEN T S , NOMIN AT I ONS A ND B I A S
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? MI CHAEL We take great care in compiling our panel of arbitrators. Selecting arbitrators for a case is one of themost important functions we carry out.. Althoughwe primarily choose arbitrators fromour own panel, there are occasions whenwe 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 asmuch 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 Andwhat do youmake of the perception of arbitration as an old boys’ club?
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