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SELECTED ESSAYS on INTERNATIONAL ARBITRATION INTERNATIONAL on ESSAYS SELECTED Practitioners This book is a record of profound scholarship with insight into the important issues Hwang The Singapore International Arbitration Centre in international arbitration. Its collection of essays, written by Michael Hwang S.C. Selected Essays on (“SIAC”) was established in 1991 as an over the years, on a wide range of topics in international arbitration will undoubtedly independent, not-for-profit organisation to meet enjoy broad appeal to past, present and future generations of students and the demands of the international business SELECTED ESSAYS ON INTERNATIONAL ARBITRATION practitioners. community for a neutral, efficient and reliable International arbitral institution in Asia. The SIAC has seen “This book is a potpourri of important issues of arbitration law and procedure. tremendous growth in its caseload in the past It is written by one of the masters in the field. four years with a 25% increase from 2011 to 2012 when the Centre received a record 235 Michael Hwang is an institution in arbitration, but more than that, he is an Arbitration new case filings. The SIAC is today reputed accomplished lawyer, advocate, judge and diplomat as well as arbitrator.” as the fastest-growing and one of the leading international arbitral institutions in the world, Dr Michael Pryles, President, SIAC Court of Arbitration and is a crucial component in the growth of Singapore as a leading arbitration destination. “Michael’s work is always elegant, scholarly and marked by the thoroughness that is a sign of conviction. Yet his essays are also commendably down to The SIAC’s operations are overseen by a board of earth. They are full of innovative and ‘real life’ ideas and provocations. directors while its case management functions are supervised by a Court of Arbitration It has been my great privilege to have the opportunity to sit with Michael in consisting of luminaries in the international a number of cases over the years. Each encounter has been a masterclass arbitration arena from around the world. The in the practice of the arbitrator’s art. He is careful, polite, learned and SIAC’s case management Secretariat consists of principled. Once he has formed his views, having looked at the problem from Michael Hwang S.C. a multinational team of lawyers with specialised various vantage points, he is firm in his convictions but never dogmatic.” arbitration experience and knowledge who are multi-jurisdictionally qualified in Belgium, Dr Michael J Moser, Honorary Chairman, Hong Kong International Canada, China, India, Korea, Malaysia and Arbitration Centre Singapore. The SIAC is fully committed to serving all its users with a complete understanding of “My overwhelming impression of Michael is one of perseverance to the their needs. task before him and an abiding love of the law. Michael can ferret out legal points of which no one else has dreamed. He has become one of the leading The SIAC is renowned for its first-rate arbitration arbitrators of his generation, a prolific author, an inspiring teacher and a rules, innovative procedures, extensive panel frequent speaker. of arbitrators, effective cost structure, efficient timelines and dedicated administration process This collection of articles is, I suspect, just the tip of the iceberg. It covers which promotes transparency and provides a wide range of topics and is evidence of his love of the law which he is so parties and arbitrators with certainty of process generous in sharing.” and quality assurance. Neil Kaplan CBE, QC, SBS, International Arbitrator The SIAC has a proven track record of enforcement of awards in jurisdictions such as Australia, China, Hong Kong, India, Indonesia, Vietnam and the US, amongst other New York Convention countries. Made available on www.transnational-dispute-management.com with permission. SELECTED ESSAYS ON INTERNATIONAL ARBITRATION SELECTED ESSAYS ON INTERNATIONAL ARBITRATION Michael Hwang SC BCL, MA (Oxon); Sometime Gordon Warter Scholar, Pembroke College, Oxford; Sometime Visiting and Adjunct Professor, National University of Singapore; Senior Counsel, Supreme Court of Singapore; Chartered Arbitrator; Chief Justice, Dubai International Financial Centre Courts WITH THE ASSISTANCE OF Eunice Chan Elaine Lim LLB (cum laude), LLB (Hons), Singapore Management University; National University of Singapore; Advocate and Solicitor, Singapore Advocate and Solicitor, Singapore 2013 Academy Publishing is a division of the Singapore Academy of Law which is the umbrella membership body of the legal community in Singapore. The Academy’s activities are driven by three strategic priorities – enhancing legal knowledge, improving efficiency of legal practice through the use of technology and supporting the legal industry. The work in each of these areas is directed towards raising the standards and quality of legal practice and building a strong legal community. For more information, visit www.sal.org.sg. DISCLAIMER Views expressed by the author are not necessarily those of Academy Publishing nor the Academy. Whilst every effort has been made to ensure that the information contained in this work is correct, the author, Academy Publishing and the Academy disclaim all liability and responsibility for any error or omission in this publication, and in respect of anything, or the consequences of anything, done or omitted to be done by any person in reliance, whether wholly or partially, upon the whole or any part of the contents of this publication. COPYRIGHT © 2013 Michael Hwang SC. Published by Academy Publishing. All rights reserved. No part of this publication may be reproduced, stored in any retrieval system, or transmitted, in any form or by any means, whether electronic or mechanical, including photocopying and recording, without the written permission of the copyright holder. All written requests for copyright permission may be sent to [email protected]. ISBN 978-981-07-7902-3 This book is dedicated to my wife and sons for their love and support and the MH Alumni for their enduring friendship. FOREWORD BY DR MICHAEL PRYLES* The Singapore International Arbitration Centre is delighted to publish this volume of essays written by Michael Hwang to celebrate his 70th birthday. It brings together in one convenient format a number of the significant articles and chapters of books he has previously published on aspects of international arbitration. Michael Hwang is an institution in arbitration, but, more than that, he is an accomplished lawyer, advocate, judge and diplomat as well as arbitrator. He has had a most distinguished career. It may not be widely known, but Michael was born in Sydney, Australia. To me this perhaps accounts for his enormous energy and success. His family had fled to Australia during the Second World War as the Japanese approached Singapore. After completing school Michael read law at Oxford University and then returned to Sydney where he taught at the Law Faculty in the University of Sydney. However, the pull of Singapore was strong and in due course he returned to his family roots. Throughout his career Michael has always been strongly supported by his charming wife, Laura, who has been a pillar of strength. In Singapore, Michael joined the firm of Allen & Gledhill, becoming Head of the Litigation Department. In 1997, he was appointed one of the first 12 Senior Counsel of the Supreme Court of Singapore. He retired from the firm at the end of 2002 to establish an independent practice as a Barrister and Chartered Arbitrator. Michael has also held judicial office, having been appointed a Judicial Commissioner of the Supreme Court of Singapore in 1991 and, more recently, Chief Justice of the Dubai International Financial Centre Courts. His other appointments have included Vice Chairman of the International Chamber of Commerce International Court of Arbitration and President of the Law Society of Singapore. * President, Singapore International Arbitration Centre Court of Arbitration. vii viii Foreword by Michael Pryles The focus of Michael’s activities in recent years has been arbitration. He has acted as counsel and arbitrator but has also explored many interesting issues in published papers. A number of these are found in this book. Overall there is a heavy emphasis on practice and procedural matters. This underscores Michael’s very considerable expertise as a litigator and advocate as well as an arbitrator. The sixth essay examines the broad and important question of the recognition and enforcement of arbitral awards. Others deal with discrete technical issues of importance including confidentiality, the definition of an “investment”, the true seat of an arbitration, egregious errors and issue conflict. Procedural matters and advocacy are apparent in “Ten Questions Not to Ask in Cross-examination in International Arbitration” (Essay 9), an essay which deserves to be studied by all aspiring advocates. Advocacy is an art and many arbitrators can attest to the sometimes dearth of skill shown by counsel in conducting in cross-examination. Other matters covered include “Trial by Issues” (Essay 10), a procedure gaining great popularity in arbitrations today. “Witness Conferencing and Party Autonomy” (Essay 11) explores another important aspect of arbitral procedure. One of the undoubted advantages of arbitration is the flexible procedure which it permits. Witness conferencing has developed as a common and, many would say, superior procedure for elucidating the opinions of expert witnesses and, indeed, also witnesses of fact. Ethics in international arbitration
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