The 10th anniversary APRAG Conference, March 2014, Melbourne

APRAG recently hosted its 10th anniversary conference in Melbourne, at which key issues concerning arbitration in the Asia-Pacific region were discussed.

Article by Robert Williams and Eugenia Levine

Between 26 and 28 March 2014, Melbourne hosted many of the leading arbitration judges, arbitrators and arbitration practitioners from the Asia-Pacific Region at the 10th anniversary conference of the Asia-Pacific Regional Arbitration Group (APRAG).

APRAG’s members comprise the main arbitral bodies within the Asia-Pacific region, including the Australian Centre for International Commercial Arbitration (ACICA), the China International Economic and Trade Arbitration Commission (CIETAC), the Hong Kong International Arbitration Centre (HKIAC), the Kuala Lumpur Regional Centre for Arbitration (KLRCA) and the Singapore International Arbitration Centre (SIAC).  Its aims include seeking to improve standards and knowledge of international arbitration throughout the region.

The conference opened with a well-attended and successful reception at the Supreme Court library.  Chief Justice Warren’s particularly warm and welcoming opening remarks were well received.

The conference was preceded by the opening of the new Melbourne Commercial Arbitration and Mediation Centre, and conference participants had the opportunity to visit and inspect that facility.  Many positive comments were made about the new centre, including the benefits it should have for everyone involved in international and domestic arbitration in Victoria.

The conference sessions covered a wide range of topics relevant to international arbitration in the region including:

  • a review of APRAG’s activities over the last 10 years; and
  • the role of the various regional arbitration institutions (such as ACICA, CIETAC, HKIAC, KLRCA and SIAC); and
  • judicial support for arbitration; the role of the arbitrator/mediator; and
  • recent trends in the enforcement of arbitral awards by domestic courts within the region; and
  • the role of public policy in enforcing international arbitral awards in domestic courts; and
  • the future of investment arbitration in the region; and the challenges facing international arbitration in the region over the next ten years.

A recurring theme of the conference was the importance of arbitration being supported by independent and arbitration-friendly domestic courts.  Those jurisdictions in which courts were most prepared to enforce the parties’ arbitration agreements and arbitral awards, with minimum intervention, were the strongest and most popular arbitral seats.

Singapore, in particular, has positioned itself as a regional leader on account of, among other things, the strong support its courts provide to arbitrations.  Conversely, those states whose courts adopt an interventionist approach with respect to arbitral proceedings and refuse to enforce awards (usually upon the grounds of public policy, where public policy is construed broadly to encompass parochial concerns), are ones that arbitration users tend to avoid.

The general perception was that Australia is becoming more and more an arbitration-friendly jurisdiction (as attested to by the presentations given by Chief Justice Allsop and Justice Croft).  In particular, Australian courts are becoming increasingly supportive of arbitrations, and are now less likely to refuse to enforce arbitral awards.  This is particularly evident from a number of recent Australian court decisions refusing various challenges to arbitral awards and favouring enforcement.   This pro-arbitration trend has been facilitated by the modernisation and updating of the international and domestic arbitration acts (now based on the widely-adopted UNCITRAL Model Law on International Commercial Arbitration), as well as initiatives such as the introduction of specialised Arbitration Lists in Australian superior courts.  These factors are likely to increase Australia’s attractiveness as a seat for international arbitrations.

Another significant issue addressed at the APRAG conference was the need to promote the resolution of regional disputes within the region.  This remains a significant issue, as disputes involving Asian parties and regional subject matter are routinely heard in jurisdictions outside the region.  For example, despite Asia being the centre of the global shipbuilding industry, the vast majority of shipping disputes are still determined by arbitrations held in London.  The need for Asia-Pacific to continue developing the resources and the expertise to handle, as well as the tradition of hosting these arbitrations, will be crucial for the continued expansion of international arbitration in the region.

One particularly thought-provoking issue to come from the conference was the threat to international arbitration arising from international litigation.  That is, rather than arbitrating, parties may in future choose to litigate their disputes in specifically designed national courts.  The growth in international litigation has, for example, already been apparent for a number of years in the UK, where the English Commercial Court has developed a reputation for accepting jurisdiction in and resolving all kinds of international commercial disputes, often involving only foreign parties.

In the Asia-Pacific region, Singapore is, again, leading the way with the planned introduction later this year of the Singapore International Commercial Court (SICC).  The SICC will not require parties to have any substantial connection to Singapore, nor for disputes to be governed by Singapore law, in order for it to assume jurisdiction.  Of course, issues about forum allocation (including anti-suit injunctions), as well as judgment enforcement (there is presently no litigation equivalent of the New York Convention) may well arise.  It will be interesting to see how this develops over the coming years.

Finally, the future role of APRAG itself was discussed.  In addition to bringing together regional organisations and practitioners, it was suggested that it could have more of a hands-on role in relation to facilitating international investment arbitrations (i.e. arbitrations between a host State and a foreign investor under a bilateral investment treaty).  With the increasing number of bilateral and multilateral investment treaties being implemented across the region, and the possibility of the implementation of the Trans Pacific Partnership (or TPP) free trade agreement in the future, this may prove to be a major growth-area for arbitration in the coming years.

Overall, and notwithstanding Melbourne providing all four seasons over the three days, the APRAG conference was a great success.

Robert Williams – CommBar profile; Eugenia Levine – CommBar profile

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