The recent completed CIArb Convention started with the opening address by the Hon Chief Justice stressing on the current amended Arbitration Act 2018, with particular to sec 42, on the removal of opt-in/out of UNCITRAL provision, that may posed new challenges to the bench, as more judges needed to be informed on these aspects of the Arbitration Act and the role of AIAC to see to it as a refreshing call. The recent case of View Esteem and Leap Modulation had to be given a new perspective that the bench needed to be given more role with emphasis on Court Assisted Arbitration, in one way, to curb the widening cartel of arbitrations and to deliver justice to the masses in an affordable way as arbitration has in these days an expensive affair.
In contrary, the Director of the AIAC spoke at length on the roles that the centre has paved to speed up the arbitral process such as document only arbitration, Islamic arbitration, fast track arbitration and the sort at affordable costs and categorically denied the cartel role of the AIAC as reflected in the Appeal Court decision of Leap Modulation, citing contempt of court to anyone who would dare to cite such archaic decision that was soon to be expunged in the Federal Court.
Further discussions centralized on the 3rd Party Funding TPF in arbitration that has taken root in other arbitral jurisdictions liked in Singapore and Hong Kong and may see the light in Malaysia in the near future. The forum seek to impart the mechanism of TPF:
1. TPF as a party in arbitration;
2. to the statutory disclosure of the funders;
3. funding through insurance;
4. the amendment to the legal profession to allow lawyers to be involved in such funding;
5. mitigation of such funding;
6. the funding agreement as opposed to insurance policy agreement;
7. risk in funding as in 3 times the return of investment;
8. Multi-tier due diligent processes and so forth…
The objective of TPF is to allow access to the arbitral process to everyone making it financially manageable, in the rise of escalating commercial disputes in the road and belt initiatives and the opening of emerging markets where every arbitral regimes would want to have a lion shares on this. The Director of the AIAC is fast to ask if indeed such initiative liked the TPF would only opened more avenues for money launderings and what are the mechanism installed to manage such risk, the forum, was surprisingly, has very little answer to it but to cite for statutory disclosure of the funder and the source of the funding.
Sharing the Hong Kong Arbitral regime’s experience, aside from the TPF, the process of mediation has taken a centre stage. Managed by the HK Mediation Council, the current Civil Justice Reform 2013 has brought about mediation as a compulsory pathway before litigation, very much liked the Court assisted Mediation and as the matter of fact, Arbitrators are allowed to be the mediator. Alongside with this mediation initiative, the special administrative region has also introduced the Apology Ordinance as to promote apology, notwithstanding rights of the party to remedy, to prevent dispute. Singapore has picked up such mediation processes in their Mediation Act 2017, allowing foreign lawyers as mediators and party’s representatives. The Singapore Government has also taken up mediation as in the recent SIDP – Singapore Infrastructure Management of Dispute Protocol allowing the setting up of Dispute Board DB as a proactive dispute avoidance initiative, comprises of the 3 neutrals of Architects, Engineers, QS and Lawyers, and sits regularly in meetings and at site, dishing out options for dispute managements. The floor however, has view such initiative as adding another layers into the ever complex route for dispute resolutions with escalating costs.
In matter of the Trans-Pacific Partnership Agreement (TPPA), article 9.6 and the role of the arbitral regime post US led initiative, focused on the notion of overly biased support of trade versus the interest of the state. In any case, the state may be sued by the trading parties on matter of treatment standards that may be seen fair and equitable to the trading party but may not be the same to the state. In other words, there may be no protection to the state, unless otherwise the “umbrella clause” has been cast-in.
The last order of the day, brought the question of dependency of expert witness into the centre stage where one speaker spoke with whim and fancy on the notion of “dirty” versus “clean” experts that eventually throw the pendulum off tangent. The apex of the discussion was a suggestion to eventually “hot tubbing” these experts, until an equitable decision could be narrowed down, with emphasis on the following notable conundrums;
1. “ships passing in the night”;
2. Address different question;
3. Assuming different facts;
4. Following different facts;
5. Inadequate explanations;
6. Unintelligent explanations, among others…
As the closure, the discussions were centralized between tribunal appointed experts versus parties appointed experts and the needs for the conclave of experts with or without the presence of the lawyers that may risked making things even more complicated, before the expert report has been exchanged.