INTERNATIONAL ARBITRATION 1/3LY
IN CONVERSATION WITH CHIANN BAO 07
PRIORITISING STRONG INFRASTRUCTURE, PROCESSES AND TRAINING KIM The Secretariat has a much greater and a more visible role than it used to. What is being done at the HKIAC to make sure that you can support the new rules? CHIANN We ensure that we have qualified staff at the Secretariat to administer these rules with efficiency, accuracy, and appropriate responsiveness. We’ve also established a Proceedings Committee to specifically handle rule interpretation, challenges and applications for consolidation and joinder. Where appropriate, we also draw on our International Advisory Board or from outside the relevant community to ensure proper neutrality of all decisions being made by HKIAC. KIM And how will emergency arbitration provisions work in practice? Do you have a pool of experienced arbitrators that you can turn to deal to with these sorts of applications when they arise (which will invariably be on a Friday afternoon, I would imagine)? CHIANN Our EA procedures apply prospectively, unless parties agree, so we don’t expect that many initially. So far, we have had one application but then parties decided not to go forward with it. However, we have the infrastructure in place to take appointments. We’ve identified a panel of Emergency Arbitrators who are experienced, generally independent practitioners or otherwise conflict free, and come from around the world so that we can have access to possible emergency arbitrators 24 hours a day. We are also holding emergency arbitrator training so that we can further expand the possible arbitrators on hand to appoint. Within the Secretariat, we’ve also established an internal system to administer EA applications. This requires staff to be on-call and to know how to deal with such applications immediately upon receipt.
KIM I noticed on your website that recently you appointed in-house lawyers onto the Council. What was the purpose of that? CHIANN The idea of bringing in-house people onto our Council has long been on the table. It was just a matter of finding the right people. We were lucky to identify those who have both law firm and arbitration experience and are now working in-house on arbitration. Having both perspectives is particularly useful for arbitration institutions because ultimately we need to listen to our end users – the in-house lawyers – who really have a stake in the process because they’re paying for it. Recently, I sat on a panel at an in-house conference where the in-house panellist kept referring to its management and how to communicate with management regarding the business implications of arbitration. That really resonated with me. No company wants to engage itself in arbitration and so you have to think about it from that perspective. Keeping that in mind helps HKIAC understand how to assist with making the process as painless it can be. KIM Again that’s something our clients will be very pleased to hear because disputes are loss making ventures for most companies. It’s good to know that the HKIAC is looking at it from a client’s perspective.
KIM From what you’ve said and from the institutional perspective, parties seem now to prefer administered arbitrations for commercial disputes? CHIANN Yes, I think institutional arbitration has received a big push in Asia generally. Having an institution involved gives users comfort. We’re starting to see more corporate disputes as well. KIM And what about the nationalities of the parties and the locations of the dispute where Hong Kong is chosen as the seat? How much diversity are you seeing in these areas? CHIANN China will always be a major player for obvious reasons. American parties are also a frequent user. East Asian parties are another often-seen party on one side of our disputes. We are now starting to see South Asian parties. And, with the investment from East Asian companies to Latin America and Africa, we have started to see more parties come from these jurisdictions as well. KIM And relating to that, what split do you see these days between domestic and international arbitration at HKIAC?
EVOLUTION IN THE HKIAC’S CASELOAD
KIM I’d like to turn now to the sorts of cases that HKIAC sees these days: Have you seen a big change in the types of cases being brought to the centre in the last four years? CHIANN I think what changed most is the shift from ad hoc arbitration to administered arbitration. There has been a reduction in the number of ad hoc cases, particularly construction cases. We’re still seeing them, but not in the same numbers as before. General commercial arbitrations are probably our bread and butter now and most of those are administered arbitrations.
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