INTERNATIONAL ARBITRATION 1/3LY
MI CHAEL Only confidentiality. The article on theModel Procedural Order on confidentiality followed an earlier article I hadwritten on confidentiality. Bothwere developed from public lectures that I had delivered in Hong Kong. In the first lecture, I attempt to outline the problemwith confidentiality; namely that, while it is not so difficult to define the boundaries of what information is actually covered by confidentiality, it is difficult to define all the potential exceptions to confidentiality that may arise in the future. Exceptions are recognised by courts and tribunals and so develop incrementally. They do not lend themselves to recognition by applying a formula or a one sentence test. The second lecture that I delivered in Hong Kong looked at finding a solution to the problem. Exceptions vary a great deal from jurisdiction to jurisdiction because they are typically founded in institutional rules, which in turn are very varied. So I suggested that parties should come together and decide on a code on confidentiality, whichwould be custom-made to the dispute in hand; hence aModel Procedural Order on Confidentiality. The law ismuch clearer now. Undoubtedly, Singapore and HK (as common law jurisdictions) will continue to follow the UK. However, even in England andWales there are a number of exceptions to the principle of confidentiality in arbitration. You will never be able to compile a complete list of exceptions to confidentiality because of the difficulty in finding an underlying principle that forms the juristic basis for allowing an exception.
competence of the ICC and SICC to provide some guidance on this. In fact, in Singaporemany years ago, when I started practice in the District Court in Singapore, our fees were based on a scale which calculated costs on the basis of the value of the claim. Therefore, a systemof scale fees (possibly subject to adjustment by the relevant institutions in exceptional cases) is possible. However, whether or not it would be successfully taken upwould be amatter for themarket. S APNA Yes, the way that some courts have done this, for example the English Court, is to decide the hourly rate which is recoverable for lawyers’ costs based on a range which is deemed acceptable according to a scale. I suppose your idea goes a step further by bringing in the concept of a scale based on claimvalue. The challenge with this approach is that not all clientsmay feel that the importance of a claim is reflected by its value. Secondly, counsel may have a number of points that they want to advance to support their case. Somemay be found to be good points, others not so good. I imagine that the benefits of having a fee scale would be that it encourages lawyers to rely on their best points rather than argue every point. On the other hand, it may be seen as limiting counsel’s ability to use all of their points in an arbitration, as the scale would put an upper boundary on the value of costs that could ultimately be recovered. MI CHAEL I don’t believe that the systemof arbitration owes it to the parties to give them full indemnity for legal costs incurred during the arbitration. Each party is at liberty to argue all the points that theywant to and to incur asmuch costs as theywant. Howmuch of these costsmight be recoverable is a question for themand should not necessarily be a deciding factor in the fee scale. For policy reasons, a scale should be fixed based onwhat is believed to be reasonable as a contribution from the losing party. It should not be designed for 100% recovery of all costs charged by awinning party’s lawyers. However, many counsel oftenmake arguments to the tribunal for 100% recovery and frequently get it (if the fees claimed seem low in relation to those claimed by the other side). S APNA It’s a very good idea. Whenworking on arbitrations, I have often experienced requests for full disclosure which are both time-consuming and costly, as well as clearly unnecessary. I think that people need to bemore proportionate
in how they run arbitrations. It is a frequent complaint but as of yet there have not been any solutions to it. MI CHAEL The ICC released a very useful document this year which is a guide for in-house counsel in effectively managing arbitrations. The recommendedmeasures are actually quite drastic. For example, they advise keeping down costs that are incurred by discovery, by contracting in the amount that can be spent on discovery from the start. It is a very practical document. It asks parties to come to an agreement not to have, for example, three rounds of submissions, but instead to have two or even one. The document reminds us that there are a number of ways that you can reduce your costs, but you have to decide on your priorities. S APNA Yes, I think that by publishing these guidelines the ICC are trying to encourage in-house counsel to take ownership over the process. If they find it too expensive, they can actually do something about it. S APNA I wanted to talk to you about your book whichwas published last year. I was very pleasantly surprisedwhen I discovered that you hadmade it free of charge, I think that was very kind of you. You described it as your 70th birthday present to yourself. Can you please tell us about it? MI CHAEL All of the essays in the volume had been previously published elsewhere. I found that I was having difficulty keeping track of these essays, so I decided to memorialise them in a book. I was fortunate enough to be able to get a couple of my associates to helpme to edit the book, as some of the articles were a little old and needed refreshing. S APNA I have heard you speak before about the “HwangModel Procedural Order”. In your book, you have an article regarding aModel Procedural Order you propose on confidentiality. Is the HwangModel Procedural Order therefore only intended to address confidentiality, and not other aspects of the arbitral process? T HE PROBL EM W I T H C ONF I DEN T I A L I T Y
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