Why engage in arbitration?

 Melbourne, Australia as the seat of International Commercial Arbitration

Melbourne, Australia as the seat of International Commercial Arbitration

My experience

I was a sessional member of the Football Federation of Victoria Tribunal and Appeals Board from 2012 to 2017 where I gained much experience in conducting hearings with a panel of two other members of the Tribunal or Appeals Board, sometimes as the Chair and other times as a member.

It taught me about the decision-making process, and the importance of conducting a fair hearing; how to maintain a neutral and impartial approach; how to control the proceedings and be firm yet fair and just; how to listen to witnesses and evaluate the evidence presented; how to respectfully debate the evidence and the legal consequences with fellow members in order to arrive at a decision.

I am familiar with the UNCITRAL Model Law on International Commercial Arbitration. I have a working knowledge of the rules of the various arbitral institutions like ICCA, SIAC, KLRCA, BAC, CIETAC, SHIAC, ACICA, and the Resolution Institute.

I am associated with The Association for International Arbitration, and work closely with a group of independent arbitrators in South East Asia and the People's Republic of China engaged in ad-hoc domestic arbitration and international commercial arbitrations.

I am also an appointed arbitrator on the list of Foreign Arbitrators for the Shanghai International Arbitration Center.  See p. 107 here.

My focus

The areas that I am available to act as Arbitrator include:

  • Trade and Investment disputes, including disputes involving construction of contractual terms, termination clauses, and breach of essential contractual terms.  I can also handle matters involving all aspects of intellectual property rights disputes. My experience extends to acting for clients who have commercial and intellectual property rights disputes in Malaysia, Singapore, and China. 
  • Infrastructure and investment disputes along the OBOR corridor. Many lawyers are new to this area.  I am no exception.  My advantage is that I well informed and connected through my involvement with the World Chinese Economic Summit where the OBOR dialogue started in 2013. I am one of the panel speakers at the 9th World Chinese Economic Summit to be held in Hong Kong between 13 to 14 November 2017 on the topic of Law and the Investment on One Belt One Road and China's Outward Investment Strategy: Implications and Issues for Belt and Road Countries.
  • Internet, Computer, and Technology disputes, including technology licensing and manufacturing/distributorship agreement disputes. I have been a non-executive director of two publicly listed companies on the ASX, which includes manufacturing of thermistor technology in the USA.  From a business perspective, I understand the drivers of any dispute involving technology rights. My experience extends to assisting clients in their start-up ventures in Silicon Valley, and provided legal advice regarding angel investment, seed capital, private equity, and venture capital raising. 
  • Domain Name Disputes.  I am a Demand Member of auDA, the policy authority and industry self-regulatory body for the .au domain space in Australia.  I hold a Bachelor of Science degree majoring in Computer Science from Monash University, and gained valuable experience in the computer and technology sector from a business (having owned and run a computer hardware/software business), and legal perspective (having acted for technology start-up companies).  I have a working knowledge of the Uniform Domain-Name Dispute-Resolution Policy (UDRP), and an understanding of the workings of ICANN. 

My three Culture one Panel Model

I believe that commercial arbitrations can be much more effective when there is a diverse panel of gender, age, sexuality, and cultural background that can bring their expertise and cultural intelligence to their deliberations prior to rendering the Award.  I am also familiar with the rare commercial arbitration, especially in South East Asia, conducted in two different languages (e.g. Mandarin and English) assisted by a common interpreter (e.g. Mandarin).  

For example, it is not unusual for one party's lawyer to speak in the English language, and the other party's lawyers to speak in the Chinese language. Most arbitrators prefer a single language for the arbitration and the award to be rendered.

Given the increased number of commercial disputes in Australia between parties with Asian background (e.g. mainland Chinese), an arbitration panel with diverse background comprising of an Asian (e.g. Mainland Chinese) as the Chair of the panel, who could also speak and write in the English language, an Australian (by whom I refer to English or European), and an Asian Australian, could be a fresh approach to promote, for example, Melbourne, Australia as the seat of international commercial arbitration.  

This is a Three Culture One Panel Model approach. This model recognises the need for a strategic form of cultural diversity but maintains the egalitarian Australian culture. 

The recent Census 2016 data reveals that Australia is becoming more Asian than European.  More than a quarter of Australian residents are now born overseas, and for the first time in our history, the majority of people born overseas are from Asia, not Europe.

I believe the time is ripe for positive disruption in the way arbitrators are being appointed to hear international commercial arbitration matters.

The old model of having English as the sole language of the arbitration in Australia, and appointing a panel of arbitrators with the same background (i.e. English or European) is likely to be no longer attractive for the parties. 

A new and fresh paradigm is needed to cater for the changing demographics of the parties involved in commercial disputes in Australia. Lawyers putting forward arbitrators often chose a person they are familiar with, while Institutional Arbitration bodies could put forward a member from their list of qualified arbitrators who would complement the party's choice of arbitrators by balancing the diversity quotient. 

The Three Culture One Panel Model could encourage parties in Australia or overseas to use more of the commercial arbitration process as the vehicle to resolve their commercial disputes against parties of similar or diverse background. The arbitration could be conducted by at least by one person who is fluent in an Asian language.  

For example, the language of the arbitration could be in the Chinese language, but the award to be rendered could be in the English language (for enforcement purposes in an Australian court) with appropriate translation of the Award into the Chinese language.

Accredited Interpreters could be engaged to interpret from the Chinese language to the English language, and vice-versa.  The Three Culture One Panel Model could easily apply to parties from Indonesia, Thailand, Japan, South Korea, India, Sri Lanka where there are predominantly two languages, i.e. English and the 'Asian' language. 

Arbitration is not a cheaper process compared to litigation.  The Three Culture One Panel Model could be, however, quicker because the parties are comfortable with the ability to use their own language yet recognising that the English language would still prevail in an Australian context.  

As with all Awards, they would remain private to the parties thereby allowing them to save face. The parties, however, would have the comfort to know that they could rely on a stable and consistent arbitral jurisprudence in Australia, and seek the intervention of an Australian court should there be an appeal or enforcement of the Award in Australia.

The Three Culture One Panel Model is easily applied to ad-hoc arbitrations but could also work under an Institutional Arbitration regime. It remains, however, a work-in-progress for lawyers, parties, and Institutional Arbitration bodies to adopt a fresh and new paradigm.  

I am currently working closely with a group of independent arbitrators in South East Asia and the People's Republic of China to develop and promote the Three Culture One Panel Model.  I am also working with my associate in Malaysia to develop an international commercial arbitration course program in conjunction with an Australian University so that we could align the Three Culture One Panel model with an Institutional Arbitration body to gain greater recognition.