Jurisdiction - Hong Kong
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Asia Pacific – Find The Right Arbitrator For The Job.

19 December, 2013

 

Legal News & Analysis – Asia Pacific

 

Appointing an arbitrator is a serious business. Knowing what to do and what not to do can be invaluable in the first stage of arbitration.

 

Arbitration continues to grow as the principal method of alternative dispute resolution in commercial disputes, both in Hong Kong and internationally. It is therefore important that lawyers know the ins and outs of the appointment stage.

 

How to successfully conduct arbitration, whether in Hong Kong or further afield, was one of the topics of discussion on the first day of Hong Kong Arbitration Week, 21st October 2013, held at Clifford Chance’s offices at Jardine House. The first chronological stage in arbitration is the appointment of the arbitrator, and this subject was discussed by a panel of experts within the context of “Dos and Don’ts of Arbitration”.

 

Alexis Mourre, a Partner at Castaldi Mourre & Partners and Vice-President of the ICC International Court of Arbitration explained at the appointment stage the parties should set out guidelines on what Counsel may or may not do.

 

Some lawyers would be loathe to instructing Counsel for a preliminary opinion at the appointment stage of the arbitration, unlike in litigation where instructing Counsel from the outset is common and would never raise any professional ethical issues.

 

Mourre explained however, that whilst it is acceptable to instruct Counsel, any discussion of the case must take place in the proper context and topics of discussion at any meeting should be strictly limited, for example, it would be inappropriate to discuss the merits of the arbitration.

 

At the appointment stage, Teresa Cheng SC and Vice-President of the ICC International Court of Arbitration explained that it is important for the parties to ensure they are aware how many appointments the arbitrator has concurrently. Cheng, as an arbitrator herself would usually limit the number of arbitrations she is dealing with at any one time to five. But she acknowledged, when you have a mixed career as Counsel and as an Arbitrator, “it depends how organized you are!”

 

Neil Kaplan CBE, QC, SBS and Member of the ICC International Court of Arbitration, who was moderating the session, recognised that Hong Kong has a legal profession which is closely intertwined. He questioned whether there are different rules for running an arbitration in Hong Kong than for elsewhere.

 

Cheng answered, acknowledging that Hong Kong is a “close knit society”, that it is not uncommon to have two barristers from the same chambers appearing before her. She continued saying, “you have to take [this] into account and make a judgment as to when you need to talk about this more”.

 

Kaplan then went onto question the panel about the qualities of the chairperson in an arbitration.

 

Highly desirable qualities, as Mourre explained, would include the arbitrator having an established practice.

 

One of the well-known benefits of arbitration is also that an arbitrator can be chosen on the basis that they have previous experience of a particular industry, for example, construction, which they can use to the benefit of both parties within the proceedings. However, Fernando Mantilla Serrano, Partner at Shearman and Sterling and member of the ICC International Court of Arbitration said that normally he would not go so far as to ask the arbitrator whether the issues in the case are within their expertise and if they have previously dealt with such issues. Serrano also added that he considered at this point that it would be essential to have Counsel present at the interview with the arbitrator.

 

Cheng wholly agreed with Serrano’s point of view on this matter and added that at this point you should “set down all the ground rules – what will be discussed but no discussion of the case”.

 

Kaplan told delegates about a case he dealt with as an arbitrator when he had a terrible interview experience. One of the parties flew to Hong Kong from Taiwan, just for this interview. Kaplan was asked one question: “Do you speak Chinese?” Kaplan answered that he did not, and with that the interview was over. The moral of the tale – make a phone call or send an email for the basics before jumping on a plane! 

 

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