Over 50 participants attended the "Tylney Hall-styled" dialogue session between two heavyweights in the arbitration scene, Dr Michael Hwang S.C. and Professor Lawrence Boo. The speakers shared their views and experiences on a wide range of current arbitration issues, from the role of interrogatories in the discovery process in arbitration, settlement agreements in arbitrations and even to conflict of laws issues in the enforcement of arbitral awards.
One key area of interest was raised by Dr Hwang, as he referred to Chief Justice Menon's recent speech at the Singapore Management University proposing a system to discipline errant arbitration counsel by reference to the Chartered Institute of Arbitrators. Both speakers discussed the difficulty in invoking such disciplinary proceedings, given the need to maintain neutrality between counsel and tribunal. A tribunal seeking disciplinary measures against unruly counsel is likely to have their award challenged on the grounds of bias or breach of natural justice.
Both speakers also shared their experiences with party-appointed arbitrators who disclose tribunal discussions and documents to parties and considered the need for a disciplinary process to penalise such arbitrators, possibly through arbitral institutions like the SIAC.
Another interesting issue was whether a cost order could be properly made after a ruling that the tribunal lacks jurisdiction. Professor Boo contended that the tribunal clearly has the power to do so on two grounds, the doctrine of 'Kompetenz-Kompetenz' and the existence of a putative arbitration agreement. Mr Chan Leng Sun S.C., President of the Singapore Institute of Arbitrators was invited to share his view on this point. He agreed with Professor Boo's stance and ventured that submission to the tribunal on the point of jurisdiction should constitute an agreement to award costs. He also recommended further statutory clarification that tribunals should have the power to make a cost order even if no jurisdiction was found.
To end off the evening, the speakers and participants were invited to partake in a generous buffet dinner, during which many participants took the opportunity to mingle and pose further questions to both Dr Hwang and Professor Boo.
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Weiyi Tan - Principal, Baker & Mckenzie.Wong & Leow