28 SPECIAL REPORT
INTERNATIONAL ARBITRATION 1/3LY
CONCLUSION Dr Julian Lew – a leading commentator upon such matters – has stated that Asia has the highest concentration of countries in the world which have adopted the UNCITRAL Model Law. This underscores the changes that have occurred, but also the reality that, technically and procedurally, Asia’s arbitration centres are increasingly similar, and supportive of the arbitration process. This similarity runs from form of arbitration law to available facilities: following Singapore’s example, Hong Kong, Seoul and now Kuala Lumpur are establishing state-of-the art hearing venues. Increasingly, therefore, it is what distinguishes one Asian arbitral centre from another which makes it most appealing. As more and more governments appreciate the benefits that can accrue from arbitration services, competition between arbitral centres is fierce. The one difference which is difficult to overcome is familiarity with national and cultural identity. In an increasingly homogenous market, the statistics still show that Chinese parties feel comfortable arbitrating in Hong Kong; both Indian and Chinese parties feel a cultural familiarity with Singapore; and Japanese parties prefer to arbitrate in Japan. Those with looser cultural ties – or more choice – may decide on the basis of their preferred – or more familiar – type of legal system. Seoul and Tokyo have the appeal of civil law jurisdictions, whereas parties more comfortable with the common law regime (for example, because it dovetails with the proper law of the contract) may opt for Singapore or Hong Kong as a seat. Innovation is vital in growing or retaining a position as a regional centre. For example, in recent years, both HKIAC and SIAC have introduced emergency arbitrator provisions in their arbitration rules, with corresponding legislative changes passed in Singapore and Hong Kong providing for the enforceability of emergency arbitrator awards. But innovations soon catch on; existing centres face threats from new entrants, such as Malaysia, who learn fast and effectively.
Institutions and jurisdictions must constantly evolve and adapt to the needs of users (and government support, for example with legislative change or consultation, can assist). This can only be good for arbitration’s consumers. As a further example, HKIAC has recently announced that it will offer a tribunal secretary service for arbitrations administered by HKIAC and ad hoc arbitrations, and has issued an accompanying set of guidelines on the use of tribunal secretaries. SIAC has recently launched a ‘training video’, with workshops taking place throughout Asia. It seems clear from the example of Singapore that the extent to which a jurisdiction promotes its arbitration services (preferably with government support), will have an impact on its success as a centre for arbitration. Further, a strong institution based in the jurisdiction with an active business development strategy can be immensely influential in the growth of the centre. Governmental initiatives such as support for establishing modern hearing facilities, or the provision of tax incentives, can also greatly assist. Whilst diversity between Asia’s arbitration centres is important in enabling consumers to choose between them, it is the case that, as with all consumer products, the advertising and marketing strategy applied to each centre may ultimately dictate its success.
INCREASINGLY, IT IS WHAT DISTINGUISHES ONE ASIAN ARBITRAL CENTRE FROM ANOTHER WHICH MAKES IT MOST APPEALING. AS MORE AND MORE GOVERNMENTS APPRECIATE THE BENEFITS THAT CAN ACCRUE FROM ARBITRATION SERVICES, COMPETITION BETWEEN ARBITRAL CENTRES IS FIERCE.
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