28 May 2021, online

For this year’s Asia Conference, ICC capitalised on the advantages that come with virtual conferences by having a diversity of speakers and using a platform that offered unique technological features. The ICC platform allowed participants to comment on the panel discussions and engage in live discussions – thus allowing a new level of cross-audience interaction that is not possible at in-person conferences – and featured virtual ‘networking rooms’ – in which a limited number of participants could enter and interact by video – recreating the ‘coffee in the foyer’ experience at live conferences.

Alexander G. Fessas (Secretary General, ICC Court) opened the conference. He highlighted that the conference aimed to be an example of the ICC’s ability to innovate as well as its desire to connect with its users. He introduced the first session of the conference on the future of arbitration as aligning with this philosophy. He described it as a deep dive into what the pandemic, advances in technology, and shifting markets have taught us about the way forward for businesses.

Alexis Mourre (as the departing President of the ICC Court) shared what he has learned about the ICC over the past six years as President, namely, that the ICC is an organization of men and women, and one that is underpinned by ideals, values and human generosity. In his view, ICC has a vision for arbitration which stays true to the principles upon which it was formed. Mr Mourre said that he leaves the ICC as more transparent, more global, more efficient and more competitive organization than it was before, and expressed confidence that Ms Salomon will leave ICC in even better shape at the end of her term.

Yoshimi Ohara (Partner, Nagashima Ohno & Tsunematsu; Vice-President, ICC Court) introduced Claudia T. Salomon, incoming President of the ICC Court, who spoke about her vision. Ms Salomon explained that her goal is to ensure that ICC continues to bring a client mindset to international arbitration.1 To achieve this, she wishes to engage with in-house counsel and business representatives to allowing them to be more involved in the arbitration process. She explained that persuading in-house counsel to choose ICC over other institutions is a two-fold process. First, it implies understanding what is going to make in-house counsel choose ICC over other arbitral institutions at the time contracts are drafted. Second, it implies ensuring that every aspect of the services that ICC provides are second to none.

Ms Salomon explained that the ICC Court recognises that when a dispute arises, parties do not want an arbitration; rather, they want to resolve their dispute. As such, ICC plays an essential role by working with clients to think about dispute prevention strategies. One practical tip that Ms Salomon shared was for parties to consider whether to have pauses at different stages of a procedural timetable would allow space to engage in discussions about mediation. In terms of the ICC’s future development in Asia, Ms Salomon stressed that different countries have different needs which will be best served by different types of training and communication. One of her key priorities is to identify and connect with business communities across Asia, including in the smaller countries and emerging markets.

‘What is the future of arbitration?’

Professor Anselmo Reyes SC (International Judge, Singapore International Commercial Court) gave the keynote address on the topic: ‘What is the future of arbitration?’. Professor Reyes suggested that there is no difference in evaluating a witness face to face or remotely. He further highlighted that the accelerated use of technology has shown that a major cost component of international commercial arbitration can be reduced and that the carbon footprint of arbitration can be cut down drastically. He quoted Sir Geoffrey Vos as saying, ‘if all we do is to use PDF bundles and video conferencing facilities, we are not really changing the way we resolve disputes at all’. Professor Reyes stated that the future of international commercial arbitration in Asia Pacific should be online. He suggested that arbitral institutions and administering bodies need to partner with private sector entrepreneurs to develop online platforms for cost effective and time efficient dispute resolution. He suggested that one example of such a platform was for parties to commence and pursue an arbitration with filings using standardized on-line fields. Similarly, the tribunal would issue directions and decisions in on-line fields on the platform and witness evidence could be contained in attached videos. He also noted that this would also require the rethinking of the concept of an award as an electronic file. Professor Reyes closed his speech by suggesting that the nurturing, through a diversity of online platforms, of a culture of private commercial dispute resolution permeating all levels of society will lead to more, rather than less work for practitioners.

Following Professor Reyes’ keynote speech, Amanda Lees (Partner, King & Wood Mallesons), James Claxton (Independent Arbitrator and Mediator, Associate Professor of Law), Hop Deng (Independent Arbitrator) and Laurence Teh (Senior Partner, Dentons Rodyk & Davidson) engaged in a panel discussion on 'the future of arbitration’, moderated by Smitha Menon (Partner, Wong Partnership, Alternate Member, ICC Court).

Ms Lees started the discussion by agreeing with Professor Reyes on the need to look more deeply at how platforms and technology can be used to resolve disputes, and to cater for different needs and users. This could be a way for arbitral institutions to differentiate themselves, given that there is less scope now to reform procedural rules. She also stated that the different degrees of digital literacy in different jurisdictions need to be considered when designing dispute resolution platform. One example of a technological innovation suggested by Ms Lees was a system which can automatically extract the parties’ positions in respect of each issue and place them in order in a draft award, to which the arbitrators could add their deliberations and reasoning.

Mr Deng then highlighted the ability of technology to make arbitrations more inclusive by breaking down language barriers. His suggestion was that technology may translate in real time so that people who may otherwise be reluctant to participate in arbitration due to language barriers can be included. Mr Claxton said that there is significant potential for greater use of technology, going beyond remote hearings. He reminded the audience that artificial intelligence (AI) is already a feature of the legal profession, particularly in document review and quantum expert work. He suggested that AI will become a regular part of risk analysis and that predictive analytics will become an essential part of the decision-making.

In terms of what can be done to improve arbitration and reduce its costs in the immediate-term, Mr Teh proposed a cap on the length of submissions. He also submitted that integrating mediation and arbitration is immensely helpful, as mediation during arbitration has been shown to yield higher rates of settlement. Mr Claxton pointed to the preference of in-house counsel for combining arbitration with mediation shown in the 2021 International Arbitration Survey.2

Ms Lees noted that the above-mentioned Survey highlighted a shift of the centre of the arbitration eco-system towards Asia, given the equal preference for Singapore as a seat, the number of respondents from the Asia Pacific and presence of recognized arbitral institutions in Asia. Mr Teh acknowledged the often-expressed concern that Western institutions do not always understand Asian business and social culture. With the shift towards Asia, there could be a corresponding change in arbitral norms and a greater consideration for cultural specificities. The panellists also discussed the opportunity for countries that have looser travel restrictions to market themselves as hearing venues. They hoped that the shift of arbitration to Asia would also create new regional pools of arbitrators in the future.

The changing landscape of expert evidence in international arbitration

The second panel consisted of Jiang Hong (Partner, Hui Zhong Law Firm, China), Vivienne Li (Manager, Secretariat, Singapore), VK Rajah SC (Independent Arbitrator, Duxton Hill Chambers, Singapore) and Arpinder Singh (India and Global Markets Leader, E&Y). Loretta Malintoppi (Independent Arbitrator, 39 Essex Chambers, UK), who moderated the panel, started off the discussion by soliciting views from each speaker on how issues relating to expert evidence have been evolving in their respective jurisdiction.

Ms Li stated that with the increasing sophistication of tribunals and legal teams, the traditional mindset of proffering internal teams’ analysis on issues is shifting to a more Western approach of engaging independent third-party experts early on. Ms Jiang then offered her view from the perspective of a Chinese counsel. She stated that industry groups have a vital role at educating parties about different experts, as many international experts are not yet well known in China. Further, she explained that there continues to be a mindset in China that experts should only make findings in favour of the appointing party. Instead, it is harmful to the case if the expert appears too partial during cross-examination thus damaging the expert’s credibility. Mr Singh highlighted changes that have occurred in India, including shorter timetables for the presentation of expert evidence, which has significantly increased the efficiency of arbitration in India. There is now a greater degree of sophistication, specialisation and expertise in India.

In terms of what is expected from experts, Mr Rajah pointed to the duty of an expert to the court as set out in the Ikarian Reefer3 as a guide to what is expected by tribunals in international arbitration. In this respect, an expert needs to be neutral, clear, direct, and open-minded. One of the problems he often sees is that opposing experts do not give evidence based on the same set of facts. There needs to be a process to make sure that experts are giving views on same set of facts and documents. Another approach to minimise partisan expert reports is to get the experts to meet before the reports are prepared.

Mr Rajah suggested that there needs to be a mindset shift from experts being adversarial to being collaborative. He also said that tribunals need to be proactive in understanding the differences between expert reports and help experts articulate those differences for a more efficient proceeding.

Despite the virtual nature of the conference, the thought-provoking speakers and smart technological innovations allowed it to be immensely engaging and a worthy substitute to in-person conferences.

The 6th ICC Asia Conference on International Arbitration was kindly sponsored by Dentons Rodyk & Davidson LLP, Diales, Jones Day, Tanner De Witt, Villaraza & Angangco, ChangAroth Chambers LLC, CMS Hasche Sigle, Kim & Chang, King & Wood Mallesons, Zhong Lun Law Firm. For sponsorship opportunities, please contact sponsorship@iccwbo.org.


1
National Justice Compania Naviera SA v Prudential Assurance Company Ltd (‘The Ikarian Reefer’) [1993] (No.1) 2 Lloyd’s Rep 68.

2
‘2021 International Arbitration Survey: Adapting Arbitration to a Changing World’ published by the School of International Arbitration, Queen Mary University of London and White & Case.

3
National Justice Compania Naviera SA v Prudential Assurance Company Ltd (‘The Ikarian Reefer’) [1993] (No.1) 2 Lloyd’s Rep 68.