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3RD SOUTH PACIFIC INTERNATIONAL ARBITRATION CONFERENCE • 17 March 2021 Plenary Sessions Session Time by Location: 10:15 A.M.–12:00 P.M

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3RD SOUTH PACIFIC INTERNATIONAL ARBITRATION CONFERENCE • 17 March 2021 Plenary Sessions Session Time by Location: 10:15 A.M.–12:00 P.M 3rd South Pacific International Arbitration Conference De-Risking Investment in the South Pacific Through a World Class International Arbitration Disputes Regime 17 March 2021 POST-CONFERENCE BOOKLET This post-conference booklet was prepared by Maria Cecilia T. Sicangco Senior Legal Officer, Lawand Policy Reform Program and Francesse Joy J. Cordon-Navarro Resource Person, Promotion of International Arbitration Reform for Better Investment Climate in the South Pacific Technical Assistance. Layout and typesetting services were done by Judy T. Yñiguez. CONTENTS 1 Conference Agenda 1 2 Background Paper 11 3 Inaugural Speeches 17 4 Presentation Summaries 31 5 Inaugural Session Speakers 77 6 Keynote Speaker 80 7 Moderators 82 8 Speakers 91 9 Facilitators 115 10 Conference Secretariat 119 11 Conference Rapporteurs 125 12 Conference on the Ground: Photos from the Sydney Opera House 128 13 Accompanying Materials 133 A. Presentation Slides 134 B. Presentation Speeches 195 C. Other Resource Materials 200 Fisherfolk in Tuvalu rely on their local fish stocks for nutrition and livelihood 14 List of Delegates 213 (photo by Eric Sales/ADB). 6 Es of International Arbitration—Efficient,E xpeditious, Expert, Even-handed, Electronic and Enforceable Why is it that parties agree to arbitrate? There are several reasons why arbitration has become the preferred means of settling international disputes all around the world. First, arbitration is efficient and expeditious. The process is quicker and cheaper as compared to the alternatives, usually litigation before national courts. Second, arbitration is expert. One of the critical features of arbitration is that parties are able to choose their arbitrators, who may have particular commercial experience or specialized experience in specific industries, for example construction or commodities or international law. Third, arbitrators are also particularly expert in terms of procedures, and can manage the process to ensure the arbitration proceedings proceed both expeditiously and fairly. Fourth, arbitration is even-handed and perceived as neutral, meaning that the arbitrators are independent of the parties and will hear the dispute impartially. Fifth, beginning in the COVID-19 era, arbitration moved on-line and became more electronic than most court proceedings. Finally, arbitration is enforceable. Arbitral awards have an enforceability premium, particularly under the New York Convention, which I will discuss in greater detail later, which allows the enforcement of arbitral awards in over 165 different countries. This makes arbitration superior to the available alternatives, being national court litigation, because judgments are not as easily enforced. There is no real equivalent to the New York Convention for court judgments. These are what I call the 6 Es. Source: Gary Born, International Arbitration Practice Group, Wilmer Cutler Pickering Hale and Dorr LLP / President, SIAC Court of Arbitration / ADB International Arbitration Expert The Aiwo boat harbor in Nauru is set to be transformed into the country’s first fully functioning international port (photo by Eric Sales/ADB). CONFERENCE 1 AGENDA Welcome to Country —A Traditional Opening Ceremony Session time by location: 9:20 a.m.–9:30 a.m. (Sydney) 10:20 a.m.–10:30 a.m. (Fiji) 8:20 a.m.–8:30 a.m. (PNG) 6:20 a.m.–6:30 a.m. (SG/HKG) 3:50 a.m.–4:00 a.m. (India) 6:20 p.m.–6:30 p.m. (US Eastern, -1 day) An aerial view of Kiribati (photo by Eric Sales/ADB). Conference Agenda Conference Inaugural Session Session time by location: 9:30 a.m.–10:15 a.m. (Sydney) 8:30 a.m.–9:15 a.m. (PNG) 4:00 a.m.–4:45 a.m. (India) 10:30 a.m.–11:15 a.m. (Fiji) 6:30 a.m.–7:15 a.m. (SG/HKG) 6:30 p.m.–7:15 p.m. (US Eastern, -1 day) OPENING REMARKS 9:30 a.m.–9:40 a.m. (Sydney time) THOMAS M. CLARK General Counsel, Asian Development Bank (ADB) ATHITA KOMINDR Head, Regional Centre for Asia and the Pacific, United Nations Commission on International Trade Law (UNCITRAL) KEYNOTE ADDRESS 9:40 a.m.–10:00 a.m. (Sydney time) JOHN W.H. DENTON AO Secretary General, International Chamber of Commerce (ICC) Break 10:00 a.m.–10:15 a.m. (Sydney time) 4 3RD SOUTH PACIFIC INTERNATIONAL ARBITRATION CONFERENCE • 17 March 2021 Plenary Sessions Session time by location: 10:15 a.m.–12:00 p.m. (Sydney) 9:15 a.m.–11:00 a.m. (PNG) 4:45 a.m.–6:30 a.m. (India) 11:15 a.m.–1:00 p.m. (Fiji) 7:15 a.m.–9:00 a.m. (SG/HKG) 7:15 p.m.–9:00 p.m. (US Eastern, -1 day) SESSION 1 INVESTING IN THE PACIFIC: PROMOTING CONFIDENCE IN INTERNATIONAL BUSINESS Agenda Conference THROUGH A STABLE DISPUTES REGIME—A ROUNDTABLE WITH THE INTERNATIONAL BUSINESS AND DEVELOPMENT COMMUNITY 10:15 a.m.–11:00 a.m. (Sydney time) • GLOBAL AND REGIONAL FOREIGN DIRECT INVESTMENT IN THE PACIFIC • MITIGATING INVESTMENT DISPUTES RISK MODERATOR: Damien J. Eastman, Deputy General Counsel, ADB SPEAKERS: Lotte Schou-Zibell, Regional Director, Pacific Liaison and Coordination Office, ADB Prof. Dr. Jordi Paniagua, Professor of Economics, University of Valencia Mark Russell, Senior Commercial Officer for Australia and New Zealand, U.S. Department of Commerce Craig Strong, Chief Executive Officer, Investment Fiji Ram Bajekal, Managing Director, FMF Foods Limited Changwan Han, Director, International Dispute Settlement Division, Ministry of Justice, Republic of Korea Break 11:00 a.m.–11:15 a.m. (Sydney time) De-Risking Investment in the South Pacific Through a World Class International Arbitration Conference Disputes Regime 5 Conference Agenda Conference SESSION 2 THE PACIFIC COUNTRIES AND INTERNATIONAL ARBITRATION REFORM 11:15 a.m.–12:00 p.m. (Sydney time) • THE NEW YORK CONVENTION AND THE PACIFIC COUNTRIES • UPDATE ON INTERNATIONAL ARBITRATION REFORM IN THE PACIFIC MODERATOR: Gary Born, International Arbitration Practice Group, Wilmer Cutler Pickering Hale and Dorr LLP/ President, SIAC Court of Arbitration/ADB International Arbitration Expert SPEAKERS: Hon. Tatafu Toma Moeaki, Minister of Trade and Economic Development, Tonga Hon. Kaleb Udui, Jr., Minister of Finance, Palau Dr. Eric Kwa, Attorney General, Department of Justice and Attorney General, Papua New Guinea H.E. Dr. Manuel Cãrceres da Costa, Minister of Justice, Timor-Leste Christina Pak, Principal Counsel/Team Leader, Law and Policy Reform Program, ADB Daniel Meltz, Barrister, 12 Wentworth Selborne Chambers/ADB International Arbitration Expert Lunch Break 12:00 p.m.–1:30 p.m. (Sydney time) 6 3RD SOUTH PACIFIC INTERNATIONAL ARBITRATION CONFERENCE • 17 March 2021 Concurrent Breakout Sessions Session time by location: 1:30 p.m.–3:00 p.m. (Sydney) 12:30 p.m.–2:00 p.m. (PNG) 08:00 a.m.–9:30 a.m. (India) 2:30 p.m.–4:00 p.m. (Fiji) 10:30 a.m.–12:00 p.m. (SG/HKG) 10:30 p.m.–12:00 a.m. (US Eastern, -1 day) SESSION 3A FOR LAWYERS: Agenda Conference DRAFTING INTERNATIONAL ARBITRATION AGREEMENTS • HOW TO DRAFT A BINDING ARBITRATION AGREEMENT • SURVEY OF INSTITUTIONAL AND AD HOC ARBITRATION MODERATOR: Jo Delaney, Partner, Baker McKenzie, Sydney SPEAKERS: Koh Swee Yen, Partner, WongPartnership LLP May Tai, Partner, Herbert Smith Freehills Daniel Kalderimis, Barrister, Twenty Essex Abhinav Bhushan, Regional Director for South Asia, ICC Arbitration and Alternative Dispute Resolution (ADR), ICC International Court of Arbitration * Participants: Open to lawyers/legal practitioners from the Asia Pacific region De-Risking Investment in the South Pacific Through a World Class International Arbitration Conference Disputes Regime 7 Conference Agenda Conference SESSION 3B FOR THE PRIVATE SECTOR: CONTRACTING WITH FOREIGN PARTIES AND CROSS-BORDER DISPUTE RESOLUTION • ARBITRATION V. LITIGATION • ADVANTAGES OF ARBITRATION: SPEED, EXPERTISE, NEUTRALITY AND ENFORCEMENT • ARBITRATION COSTS AND DURATION • USING INTERNATIONAL ARBITRATION CLAUSES FOR DISPUTE RESOLUTION IN A CONTRACT MODERATOR: Jon Apted, Partner, Munro Leys SPEAKERS: Kevin Nash, Deputy Registrar and Centre Director, Singapore International Arbitration Centre Fedelma Smith, Senior Legal Counsel, Permanent Court of Arbitration Jonathan Lim, Counsel, Wilmer Cutler Pickering Hale and Dorr LLP Brenda Horrigan, President, Australian Centre for International Commercial Arbitration (ACICA) and Partner/Head of International Arbitration in Australia, Herbert Smith Freehills * Participants: Open to the private sector/business community from the Asia Pacific region 8 3RD SOUTH PACIFIC INTERNATIONAL ARBITRATION CONFERENCE • 17 March 2021 SESSION 3C FOR JUDGES: IMPLEMENTATION OF THE NEW YORK CONVENTION – JUDICIAL PERSPECTIVE MODERATOR: Hon. Deputy Chief Justice Ambeng Kandakasi, Supreme and National Courts of Justice of Papua New Guinea SPEAKERS: Agenda Conference Hon. Chief Justice James Leslie Bain Allsop, Federal Court of Australia Hon. Justice Anselmo Reyes, Singapore International Commercial Court Hon. Acting Chief Justice Kamal Kumar, Supreme Court of Fiji Lord Chief Justice Michael Whitten QC, Supreme Court of Tonga Hon. Justice Jeffery Shepherd, Supreme and National Courts of Justice of Papua New Guinea FACILITATORS: Christina Pak, Principal Counsel/Team Leader, Law and Policy Reform Program, ADB Daniel Meltz, Barrister, 12 Wentworth Selborne Chambers/ADB International Arbitration Expert José Augusto Fernandes Teixeira, Partner, Da Silva Teixeira & Associados Julian Cohen, Barrister and Arbitrator, Gilt Chambers * Participants: Open to judges from the Asia Pacific region and beyond Break 3:00 p.m.–3:15 p.m. (Sydney time) De-Risking Investment in the South Pacific Through a World Class International Arbitration Conference Disputes Regime 9 Conference
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