Q1

In international arbitration, there are relative merits of a sole arbitrator and a three-person tribunal. The most striking merits of a sole arbitrator are the speed and cost of arbitration. In a sole arbitration, the arbitrator has himself or herself to consult. There is no wastage of time in consultations or deliberations on certain points. As such, the arbitrator is able to make swift decisions, and draft the award more quickly as opposed to when he or she could be working with co-arbitrators. Further to this, a sole arbitrator is free from dissenting opinions or the need for deliberating for long hours to work out a compromise. It is also obvious that it is cheaper to pay a sole arbitrator than paying a three-member tribunal. This is more important particularly to the objective of arbitration which is to arrive at a quick solutions to disputes at the minimum reasonable cost.

There are merits for a three-member tribunal too. In a three-member tribunal, the disputing parties have the opportunity of appointing one member each who is also likely to influence the appointment of the chair. This provision raises confidence when a party is assured that it has a person advancing its interest in the arbitration. As such each party is more likely to have confidence and assurance that the outcome of the arbitration would be fair. In addition, the provision that a party appoint a person among the three means that the party has the opportunity to bring in the person whom it considers to possess the relevant experience and grasp of the important law. This will automatically add to the credibility of the process. More importantly, a three-person tribunal is able to share the responsibility of drafting the award and reduce the chance of reaching an extreme or “rogue’ outcome. However, it is important to point out that the merits of appointing a sole arbitrator or a three-person tribunal depend with the nature and the fact of the dispute. Disputes that involve a small amount of claim are more likely to go for a sole arbitrator.

Q2

There are important factors to consider when selecting a person to act as a party-appointed arbitrator. The most important of them all is the qualification. A party must certify that the selected person has the necessary legal and professional expertise on the matter before the tribunal. If it is a dispute involving technology, construction, or pharmaceuticals, the party should go for a person with the right expertise and experience. This will be necessary for adequate representation. Other factors to take into account include the person communicative proficiency and the ability to express the party point of view before the tribunal. A party should also go for the person who is at least familiar. The relation between the person and the party will be so important when sharing the information.

The language and the nationality of the person to be selected are also important. The language barrier, either between the appointing party or with the tribunal should come into play. If the language of the arbitration is English, for example, it is advisable to appoint an English speaking arbitrator. Nationality may also come to play. Some countries may operate under common law while others may operate under civil law. If the seat of arbitration is in a common-law country, it is advisable to appoint a person coming from a common law country. Thus, the background, both in nationality and the legal training are crucial considerations.

Q3

When the dispute before a tribunal is of technical nature, the tribunal has the power to appoint an expert witness. According to the UNICITRAL Notes on Organizing Arbitral Proceedings of 1996 Section 69, a tribunal has the power to “appoint an expert to report on issues determined by the tribunal; in addition, the parties may be permitted to present an expert witness on points at issue”.  In Section 37 of the Arbitration Act 1996, the tribunal has the power to (i) appoint an expert or legal advisers to report to it and the parties, or (ii) appoint assessors to assist it on technical matters. On the basis of such rules, such a tribunal should, with the consultation with parties appoint one or more experts to report on the specific technical issues set out by the tribunal.  Upon receipt of a report from such an expert, the tribunal should deliver a copy to the parties and give the parties room to respond to the expert submission. As a matter of exercising fairness and ensuring that the arbitration proceedings is impartial, a tribunal to give the parties, upon request, an opportunity to cross-examine any expert appointed by the tribunal at a hearing.

It is important to point out that experts appointed by a tribunal must remain impartial. Similarly, an expert witness appointed by a party must remain independent of the party which has appointed the expert to give such evidence. As Art 4 of the Chartered Institute of Arbitrators protocols states, “an expert opinion shall be impartial, objective, unbiased and uninfluenced by the pressures of the dispute resolution process or by any Party”. This should be the most prudent measure to instil technical expertise in the arbitration proceedings.

Q4

a)      1. Enforcement of the award: the fear that a foreign award cannot be enforced in local courts is unfounded. A foreign award can be enforced in any state that is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards commonly known as the “New York Arbitration Convention”. Both the United Arab Emirates (UAE) and China are parties to this convention. This means that the party can enforce the award in any of these countries.

2. Seat of Arbitration: The position that the parties do not want to take place in any of their local countries means that the seat of arbitration has to be in any other country other than China and UAE. Further, as the parties want a less costly arbitration, the seat of arbitration has to be in a cheap country close to the parties. This probably should be anywhere in Asia. According to 2010 International Arbitration Survey, leading arbitration seats in Asia are Hong Kong and Singapore. Given the proximity of Macau to Hong Kong and the parties’ wishes for a neutral arbitrator, Singapore ought to be the most favourable option.

3. The proper law to govern the arbitration contract. Since the parties have chosen English law the law of the substantive contract, it is most likely that the parties wish their arbitration agreement to be governed by English law. As Mustill J, in Black Clawson v PapierWerke noted that “where the laws diverge at all, one will find in most instances that the law governing the arbitration the agreement is the same as the substantive law of the contract in which it is embodied and that the law of the reference is the same as the lex fori”[1]

4. Appointment of arbitrators; as per the client wishes, he can have a say in the appointment of an arbitrator. As Section 16 of the Arbitration Act, 1996 states, “the parties are free to agree on the procedure for appointing the arbitrator or arbitrators, including the procedure for appointing any chairman or umpire”

5. In regard to the cost of arbitration, the parties may settle on a sole arbitrator. The merits of a sole arbitrator are that the costs are lower and the arbitration swift.

Arbitration clause

 In the event, a dispute shall arise between the parties to this contract, it is hereby agreed that the dispute shall be referred to Singapore International Arbitration Centre in accordance with the SIAC arbitration rules[2]. The arbitrator’s decision shall be final and binding and judgement may be entered in any court having jurisdiction thereof. The seat and place of arbitration shall be Singapore and the proper law governing the contract shall be English Law. We further agree that we the parties signed hereunder shall jointly appoint a sole arbitrator to hear the dispute. English shall be the language of the proceedings.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Bibliography

M Macllwrath and J Savage, ‘International Arbitration and Mediation: A Practical Guide’(Kluwer Law International, 2010) 69

Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 598 12

Dermajaya properties Sdn Bhd v Premium Properties Sdn Bhd [2002] 2 SLR 164

 

 



[1] Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 598 12

 

[2] Dermajaya properties Sdn Bhd v Premium Properties Sdn Bhd [2002] 2 SLR 164

 

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