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Hong Kong – HKIAC 3rd Annual ADR In Asia Conference: Wrap Up.

27 October, 2014 

 

Legal News & Analysis – Asia Pacific – Hong Kong – Dispute Resolution

 

October 16, 2014 – With notable speakers, appealing panel discussions, and a lively cocktail reception to round out the day, it was no surprise that HKIAC’s 3rd Annual ADR in Asia Conference hosted at the posh Four Seasons Hotel was a success by all measures.

 

 

A key ingredient to a successful conference is captivating speakers, and this year HKIAC delivered with powerful presenters ranging from leading lady Zia Mody, Partner, AZB & Partners, to leading authority Gary Born, Partner, Wilmer Cutler Pickering Hale and Dorr, to legal royalty Lord David Hope of Arbitration Chambers Hong Kong, to name a few. Mody, who was listed in Forbes India (2013) as one of ‘India’s 10 Most Powerful Women’ and in Forbes Asia (2012) as one of ‘Asia’s 50 Power Businesswomen,’ generously shared her stories relevant to attorney misconduct during session one. While Born, who is considered the preeminent authority on international commercial arbitration and international litigation delivered the keynote remarks. Lord Hope, who was formerly Lord President of the Court of Session, Lord Justice General of Scotland, and Deputy President of the Supreme Court of the United Kingdom, to name a few of his appointments, contributed his approaches on how to best avoid troublesome pathological clauses. It should be noted that this is just a sampling of the diversity and quality of the speakers that served as panelists. In fact, there were four sessions amassed with expert presenters from top international law firms and chambers, HKIAC and HKSAR.

 

In addition to quality speakers, another key component to a successful conference is having interesting topics. This year’s panel discussions centered around the current issues of pathological clauses, identifying and managing counsel misconduct, investor-state arbitration, and retooling one’s practice to cast a wider net on alternative dispute resolution offerings. In addition to the topics themselves, the use of varying presentation formats was effective to keep the audience engaged with moderated panels, a classic debate, and a one-on-one session offered in an arrangement akin to a living room setting. In addition, the use of interactive technology by way of clickers (audience response devices) gave the conference a bit of a “cool factor,” despite the lack of time during the sessions preventing the full enjoyment of them.  

 

On the issue of pathological clauses, which was the focus of the plenary session, Lord Hope summed it up best when he said, “Pathological clauses – fairly new term, centuries old problem.” The panel, moderated by Teresa Cheng GBS SC JP of HKIAC, provided real world examples of problematic clauses, covered a survey of how various courts and institutions have ruled on them, and discussed approaches on how to avoid them altogether. Among the many reasons cited for possible causes included the lack of expertise and consequently foresight among the contract negotiators. The view was that often times they are not arbitration practitioners but rather in-house or external commercial counsel. Despite the differing opinions among the presenters and the cases discussed, there was one conclusion that they all seemed to agree upon– clauses should be simple, the more detailed the clause, the more ambiguity and problems that will likely occur.

 

Another interesting topic that was moderated in session one by Dr. Michael Moser, HKIAC Honorary Chairman and international arbitrator with 20 Essex Street Chambers, was how to decipher between whether an attorney’s actions during arbitration proceedings are part of a legitimate strategy or abusive conduct. It is easy for an attorney whose practice is wholly domestic to assume that most conduct can be easily categorized as one or the other, especially when practicing in a jurisdiction with well-defined professional ethical standards.  However, when one steps into the international arena, there may be different cultural and ethical standards that can reshape the boundaries between appropriate tactics and conduct that exceeds the bounds of professional responsibility principles. To exemplify this point, Mody explained that in India many lawyers are of the mindset to leave no stone left unturned, and this state of mind can lead to behavior that could be perceived as abusive conduct when in fact to them it is just part of what they consider to be an acceptable approach to the case.   

 

Further to the issue of the difficulty in identifying improper conduct, Moser noted that “guerilla tactics don’t always have to be seen to have a big impact on the arbitration proceedings…sometimes they are guised as legitimate strategy.” In making his point he alluded to a simple health certificate as a way for an attorney to delay proceedings. On how to best deal with this overall issue, Dr. Günther Horvath, Partner, Freshfields Bruckhaus Deringer, noted that one approach would be to see if there is an equal level of understanding of the parties’ backgrounds and expectations. As a second option, he further commented, would be to have counsel behave in a way that is deemed ethical within the respective venue. While much can be said to this issue, it is one that arbitration attorneys often face as evidenced by the audience’s responses when asked about their own experiences.

 

In the second half of the day, session two started off with an informative presentation on a state’s liability for the actions of its courts and concluded with a healthy debate on whether protections within investment treaties are adequate. The debate was led by Keith Brandt, Partner, Dentons, and Robert Pé, Partner, Orrick. The debate is very relevant in Asia. Whether investment treaties go far enough to protect investors is at the forefront of investors’ minds as Asia’s emerging markets want to grow and need both inward and outbound investments to do so.     

 

While this was a mock debate and neither party was expressing their personal views, it highlighted a thought-provoking question, and that is whether the worry over whether a state has an investment treaty that provides the appropriate level of protection, is a worry misplaced or rather raised at the wrong time. In other words, as Pé put it, is a country “putting the cart before the horse?” Most are in agreement that investment treaties come with great benefits for both the state and the investor, but what good will it do if the state has an immature judicial system, uneducated judges, and law that is still being developed.  

 

Thereafter, session three addressed whether lawyers should be retooling their practice to be more inclusive of other alternative dispute resolution methods. When asked what all methods attorneys use for cross-border commercial disputes, the audience, using their interactive clicker devices, responded with 26.35% court litigation, 37.72% arbitration, 15.57% mediation, 6.59% mediation-arbitration or arbitration-mediation, 3.59% adjudication, 6.59% expert determination, and 3.59% other. Although a small sampling, the numbers do tend to show that arbitration practitioners might want to consider specializing in more than just arbitration, especially with the growing demand of these other avenues of dispute resolution. 

 

After the sessions had concluded, Rimsky Yuen SC JP, who was appointed Secretary for Justice of HKSAR in 2012, was present to provide the closing remarks. Thereafter, in an opportunity to celebrate the day’s conference and mix and mingle, guests were invited to attend a spirited cocktail reception at the Glasshouse. While there guests were treated to sumptuous appetizers and libations.

 

 

In sum, twenty-five established speakers, four well planned sessions, a variety of presentation formats, a little bit of interactive technology, and one festive cocktail reception made for a good recipe for a dynamic conference, and a successful one at that.

 

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For further information, please contact:

 

Tara Shah, Reporter, Conventus Law

tara.shah@conventuslaw.com

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