Session 6: This section explores the supporting factors for international arbitration in England, Singapore, Malaysia, India and Thailand.
The legislations to support the arbitration in Singapore and to support Singapore as a seat of arbitration are in the followings;
- Taxes are exempt in Singapore from income derived from working as arbitrator,
- Work Pass is exempt for foreign lawyers or arbitrators for 90 days a year. Foreign lawyer who is not Singapore lawyer can practice as arbitrator without Work Pass,
- Apart from the strong infrastructure in Singapore, Singapore substantive law also supports Singapore as a seat of arbitration. Under model law the client can challenge positive and negative jurisdiction. Singapore enacted the law for the party to challenge the negative jurisdiction to the court. Singapore law is open to challenge both the positive and negative jurisdiction. Other jurisdictions which provide the challenge in negative jurisdiction are England, France, New Zealand, India and Switzerland but interestingly Hong Kong does not allow to challenge the negative jurisdiction,
- The subpoena to produce the document of arbitration, the court issued the subpoena to order the third party to submit the document. Singapore court are pro-arbitration so the court always find the measures to facilitate the international arbitration,
- The propose to amend International Arbitration Act to allow the party to appeal to the High Court with the consent from the other party on the question of law arising out of the award . It follows English Arbitration Act 1996. The right to appeal on the question of law will promote the development of commercial law and also promote the certainty in the development of law,
- The PRC court could grant interim measures against Chinese party in 8 arbitral proceedings which were seated in Hong Kong. Normally, only the final award will be enforced in other countries while the emergency arbitral award could not be internationally enforced. If you want to enforce the interim measures against Chinese party, you choose Hong Kong as a seat of arbitration. If you are a lawyer of Chinese party, you have to advice that do not seat in Hong Kong because the risk would increase from interim measure enforcement. Consequently, Singapore has more chance to be a seat.
England has a long history in arbitration. The first English Arbitration Act was enacted in 1689 320 years ago. The most interesting thing is it was written by the great philosopher John Locke who hates lawyers. During the first arbitration act, the disputes arose from quality of goods. People asked the expert to decide the quality of goods. The current Arbitration Act is 1996 is very supportive to International Arbitration as it provides very limited scope of appeal in section 69 so there is very few number of appeals under section 69. The development of common law affected construction and maritime and common law still moves fast. Challenge of the awards is rarely successful.
Halliburton Case 2018 is the remark case it concerns the BP oil spill in the Gulf of Mexico. BP was ordered to pay for damages by the arbitrators. The party appealed to the English Commercial Court and the Court of Appeal concerning the impartiality of the arbitrator as he failed to disclose some information. The case is currently in the Supreme Court and we wait the Supreme Court judgement to lay down the rules about the disclosure of information by the arbitrators.
The Law Commission’s Consultation propose to reform the Arbitration Act to provide the explicit provisions for summary judgement or strike out; to introduce streamline procedures to reduce length of arbitration and to reduce cost of arbitration.
Brexit will not affect because the other competitive advantages of London still exists.
Malaysia promotes international arbitration. Three amendment of Arbitration Act 2005 have been made in order to promote arbitration such as the court has power to order the interim measure, challenging the arbitration award and enforcement is more difficult. The Legal Profession Act offers an opportunity for foreign lawyers to be arbitrator in Malaysia.
The amendment of Arbitration Act in 1996 makes India more friendly for international arbitration. Section 9 was enacted for international arbitration but it still applies to domestic arbitration. Under section 9, the interim measures could be awarded. Section 2 was enacted to restrict any challenges on the awards only to the High Court. Section 34 defines the public policy narrowly.
The Advocate Act has not been amended but the Supreme Court rendered the landmark case in 2018 by interpreting the practice of law of the arbitrators come to arbitrate or counsels come to assist the party in foreign law cannot be held as the practice of law unless it is so continuous that it is held to be practice of law. The Supreme Court left to the Bar Council and Government to make more defining rule but it has not been put in place yet. The foreign arbitrators and counsels can come to India with business visa not employment visa.
The basic thing to promote international arbitration is to use very simple English language in the contract because most of the party do not speak English as a first language. They should not suffer from the complicated legal English.
Thai Arbitration Act bases on UNCITRAL Model Law. Although the work permit and visa are required for foreign arbitrators, the great positive change has been made to facilitate the foreign arbitrators. Currently, it is easier to obtain work permit as THAC will within 2 days issue a certificate for the arbitrator to obtain the work permit. Such certificate allows arbitrators to temporarily practice once it has been issued. THAC will assist you to receive work permit after issuing the certificate.
The new measure from Thai government to promote arbitration is Smart Visa, a new type of visa issued by the Board of Investment, which will be issued for arbitrator. The work permit is not required anymore in case of arbitrator receive Smart Visa. With longer period than work permit and traditional visa, Smart Visa lasts for 4 years and your spouse and your children can work in Thailand. Unlike work permit which you need to report every 90 days, for Smart Visa the report to the government is not mandatory.
Thai Supreme Administrative Court rendered the judgement against Thai government in the recent landmark case concerning concession contract in which the award was challenged. The court interpreted “public policy” narrowly which is very good sign in Thai arbitration industry.