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Highlights

NYU-SIAC Event Report


21 February 2019
Seminar on “How international should international arbitration be? International standards v. domestic law in international commercial arbitration”
By Mathias Goh, Associate, Norton Rose Fulbright


On Thursday 21 February 2019, the seminar on “How international should international arbitration be? International standards v. domestic law in international commercial arbitration”, hosted by Norton Rose Fulbright in its new offices at Marina One, and jointly organised by SIAC and NYU’s Centre for Transnational Litigation, Arbitration and Commercial Law, attracted more than 100 attendees comprising a number of arbitration and litigation practitioners.

Mr KC Lye (Partner, Norton Rose Fulbright) opened the evening by embarking on a short historical discourse and explaining how the concept of the nation state which first came about some five hundred years ago is a relatively young one when considered against the lineage of ancient civilisations. He explained how globalisation brought about pressures to conform to international standards and trends, resulting in an increasing tendency for nation states to insist on retreating into their respective microcosms. How would the pressures of greater internationalisation play out on the legal plane, specifically in the context of international arbitration? The stage for the ensuing discussions was set.

The panellists included: Prof Lawrence Boo (Member, SIAC Court of Arbitration; Independent Arbitrator, The Arbitration Chambers), Ms Elodie Dulac (Partner, King & Spalding), Prof Franco Ferrari (Professor of Law, NYU; Director, Center for Transnational Litigation, Arbitration and Commercial Law, NYU), Dr Michael Hwang, SC (Chartered Arbitrator, Michael Hwang Chambers LLC) and Dr Friedrich Rosenfeld (Partner, Hanefeld Rechtsanwälte). The seminar took the form of a panel discussion moderated by Mr Kevin Nash (Deputy Registrar & Centre Director, SIAC).

After a short introduction of the profile of speakers by Mr Nash, Professor Ferrari started by putting forward his proposition that while international arbitration processes should aspire to be as international as possible, they are fundamentally subject to the confines and limits of domestic rules (which in turn may themselves be subject to international instruments). He brought the house on a brief tour of how certain international arbitration instruments could be interpreted from this perspective, and cited a number of examples to buttress his point.

The next speaker Ms Dulac sought to address the debate through a special lens: the practice of nation states using national laws (in domestic litigation proceedings) to either support anti-arbitration injunctions or grant orders which would have the effect of frustrating arbitration proceedings. Drawing from her own experience, Ms Dulac queried the effect of such attempts on the practice of international arbitration, and whether they eroded the "international" in "international arbitration".

Taking over from Ms Dulac, Dr Rosenfeld shifted the discussion to the law and practice of legal privilege in international arbitrations and considered the debate from the point of view of what substantive law applies to privilege issues.

He explained that there were at present two dominant approaches to legal privilege: the law of the seat of the arbitration, or the law of one the parties’ ‘home’ jurisdictions (e.g. nationality of that party). Dr Rosenfeld set out briefly his arguments in favour of an approach where amongst these possible contenders, it would be the law which is most in favour of protecting communications between a party and its lawyers from being disclosed. He also demonstrated how the divergence between common law and civilian law approaches on the law of legal privilege made this issue a complex and multi-faceted one. As the subsequent question and answer session would demonstrate, this was an issue which piqued the interest of a number of attendees.

1111-(00000003) audience
Left to Right: Prof Franco Ferrari, Dr Michael Hwang, SC, Elodie Dulac, Dr Friedrich Rosenfeld, Prof Lawrence Boo and Kevin Nash

Members of the audience

This was followed by Dr Hwang, who sought to approach the debate from a unique vantage point: that of an emergency arbitrator. More specifically, he focussed on the granting of interim relief by arbitrators in emergency arbitrations and drew upon his experience in an emergency arbitrator application filed about two months ago. This writer suspects it was probably not an experience many of the attendees could directly relate to. To the amusement of the audience, Dr Hwang recounted the somewhat exasperating experience of having to look up decisions cited in the footnotes in a leading arbitration text (a certain "Chapter 17") and questioning the progeny of some of the decisions cited. Dr Hwang advocated a view where these issues should be determined largely by reference to the law of the seat of the arbitration, and gave reasons in support of this view.

Coming up as last speaker, Professor Boo advanced the view that arbitral tribunals could afford to take more guidance from international instruments and norms on issues where the relevant national rules were either silent on or stopped short of providing an adequate answer. For example, he queried whether emergency awards could comfortably fit within the regime of the UNCITRAL Model Law bearing in mind that the concept of emergency awards may not conceivably have been in the mind of the drafters of that instrument at the material time. In the process of his presentation, Professor Boo also responded to some of the views Professor Ferrari and Dr Hwang propounded earlier in their presentations. From this writer's viewpoint, an eight minute discussion frankly could not have done justice to the complexity of those issues. Perhaps a follow-up seminar would be in order, SIAC?

As with every well-executed seminar, the "Question & Answer" segment came up last. Questions were posed to all of the speakers, including questions on how issues of limitations and legal privilege might be considered against this international / national divergence. The topic of legal privilege, in particular, proved to be a lightning rod for questions and Dr Rosenfeld was asked for his views on how he thought tribunals should respond when faced with two different standards of legal privilege. Which standard should trump? Needless to say, there were forceful submissions which could be advocated for either side.

This writer suspects many attendees walked away from the seminar that night with more questions than answers (some with much redder faces than when they showed up). If anything, that evening suggested that the issues canvassed were far from straightforward and are likely to remain ripe for future debate and discussions.

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