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Arbitration of International Oil, Gas and Energy disputes in Asia: Problems and Prospects
ABSTRACT
Traditionally, international commercial arbitration and for that matter arbitration in the oil, gas and energy sectors in Asia has been beset with many problems. They are mainly cultural, legal, institutional, educational and legal infrastructural. Despite recent positive response to the global movement towards modernization and internationalization of arbitration in Asia, there still persist many difficulties in some countries, which merit special consideration. This article highlights those issues and recent legal developments and trends in that regard.
In many Asian countries, settlement of international oil, gas and energy disputes still poses various problems. Although in the wake of recent global movement towards modernization and internationalization of arbitration many Asian countries have not lagged behind, various difficulties in the context of arbitration still persist as ever. Such difficulties may be attributed to various factors which are mainly cultural, legal, institutional, educational and legal infrastructural. There is no denying that many Asian countries have adopted or followed the UNCITRAL Model Law in their legislative enactment, ratified the ICSID Convention (1965) and the New York Convention (1958), and above all there has been recently a proliferation of national and international arbitration centres with impressive case loads on the Asian horizon.[1] The problems facing international arbitration of oil, gas and energy disputes and for that matter international commercial arbitration, in general, are not going to go away overnight. Many of the problems are well ingrained in the Asian culture itself. Maybe such cultural problems can be avoided if international commercial arbitration can be tuned in the cultural needs and expectations. One may pose the question : what then is ‘culture’ ? There is, however, no single definition of ‘culture’. It is defined according to one’s understanding of the phenomenon. Two scholars have thus defined culture “as a set of shared and enduring meanings, values, and beliefs that characterize national, ethnic, and other groups and orient their behavior.”[2] Another scholar has offered yet another definition that culture is “the integrated system of learned behavior patterns which are characteristic of the members of a society and which are not the result of biological inheritance.”[3]
It has to be acknowledged especially in the context of Asia that certain cultural norms and values must be given due attention. With the adoption of the UNCITRAL Model Law and becoming parties to the New York and ICSID Conventions, the Asian countries seem to have gone a long step from their own traditional culture of informal dispute settlement process to embrace formal western norms and values in the field. However, it has to be appreciated that, in fact, many Asian countries still stick to their traditional values in the matter of dispute settlement.[4] The Asian way of settling disputes tends to be more ‘consensual’ rather than ‘confrontational’. The target of the consensual approach is to reach a ‘harmonious’ solution preserving the relationship of the parties, this is what the Asian culture prefers to the western confrontational approach which is legalese and formalistic and may adversely affect the relationship of the parties involved.[5] This Asian attitude has been reflected in other legal arrangements in the region. Thus, the ASEAN Free Trade Area (AFTA) provides in Article 7 that concerns dispute settlement that “differences between member countries are to be settled amicably between the parties concerned.”[6] It should also be mentioned that while considering the suggestion of creating a regional dispute settlement mechanism for international trade disputes in the Asia-Pacific to supplement the WTO mechanism, APEC seemed to prefer a mediatory body to the legal one as under WTO.[7]
In most Asian jurisdictions mediation / conciliation appears to the most preferred method of dispute settlement.[8] In the practice of many Asian countries such as China, Japan, Korea, Taiwan, Indonesia, Korea, Hong Kong and Singapore there can be a unique combination of mediation and arbitration in the same proceeding[9] as opposed to the western tradition that conciliation and arbitration are two different routes to be kept separate from each other.[10] This sheer Asian cultural influence even pervades the western dispute settlement mechanisms in the Asia-Pacific region.[11] As one scholar observed that “… it should not be surprising that the concept of the arbitrator / conciliator has been accepted most completely by western dispute resolution centres on the Pacific Rim.”[12] In the West the issue of suitability and effectiveness of the med/arb hybrid system has currently stirred debates amongst scholars and practitioners.[13] It is also interesting to note that mediation is not only the initial preference of the Asian culture, a look into the pages of history proves its universality in other cultures in the past as well. As Roebuck has concluded in his recent study on the basis of past practices in various famous civilisations and legal systems such as Mesopotamia, Ancient Greece, Rome, Medieval and Later Europe and the Common Law system that :
“All the evidence I have been able to accumulate tends to show that mediation before, in conjunction with or instead of arbitration, has been available and widely used, with satisfactory methods of enforcement, by communities of all kinds in the past.”[14]
On a happier note, it can be said that mediation is returning in vogue in many cultures – East and West – these days. [15] However, only time will tell if it will prove popular again to disputing parties across the cultural boundaries.
For the combination of conciliation and arbitration in the same proceeding the concerned parties’ agreement or consent seems to be the common requirement in some institutional rules in the Asia-Pacific. Thus Article 45 of the CIETAC Arbitration Rules (as revised and adopted on September 5, 2000 and effective from October 1, 2000)[16] provides that “If both parties have a desire for conciliation or one party so desires and the other party agrees to it when consulted by the arbitration tribunal, the arbitration tribunal may conciliate the case under its cognizance in the process of arbitration.” The CIETAC Arbitration Rules allow the arbitral tribunal to render the settlement reached through conciliation in the course of arbitral proceedings as an arbitral award.[17] Similar provisions are also found in the Hong Kong Arbitration Ordinance of 1996[18], Singapore International Arbitration Act of 1995[19],
the Indian Arbitration and Conciliation Act of 1996[20] and the Bangladesh Arbitration Act of 2001. Thus section 22 (1) of the latter provides that : “It shall not be incompatible with an arbitration agreement for an arbitral tribunal to encourage settlement of the dispute otherwise than by arbitration and, with the agreement of all the parties, the arbitral tribunal may use mediation, conciliation or any other procedures at any time during the arbitral proceedings to encourage settlement.”[21] It is noteworthy that in all the aforementioned laws of the various countries the same approach applies to both domestic and international arbitration. It is also characteristic in many countries’ arbitration laws that the precise role of the arbitrator and the limit of his authority as a mediator in the same proceeding are not well defined, which may give rise, more often than not, issues concerning natural justice and so on.
It has to be appreciated that in many Asian countries dispute settlement and enforcement of arbitral awards still remain a grave cause for concern for foreign investors as ever. This may be attributed to various factors such as non-cooperation tendency and anti-arbitration bias of local courts, inaptitude of local courts to appreciate the ethos of international private dispute settlement and sometimes their inefficiency in handling the matters, and serious lack of understanding of international arbitration rules and conventions including the New York Convention, local protectionism, and sometimes corruption and local disputing party’s manipulation of the system. Especially, in the context of the enforcement of an arbitral award these problems are found to be acute.[22] Not long ago two arbitration practitioners observed of the Chinese scenario, which, to say the least, is not unlike that in most Asian countries, that :
“Enforcement remains one of the most difficult and uncertain aspects of arbitration in China. In some instances, arbitral awards are denied enforcement because local courts come under significant pressure from local government authorities. Other times, even if enforcement is not expressly denied, the practical effect is the same because the People’s Court fails to actively enforce the award. Even when People’s Courts issue orders requiring enforcement of arbitral awards, such orders are only pieces of paper that are dependent for execution on the often-elusive co-operation of local officials. Enforcement at this point in the process is impaired because Chinese courts, especially their enforcement divisions, are critically underfunded.”[23]
One scholar has provided some insight into the Chinese context as follows :
“There are many causes of China’s arbitral award enforcement problem, some of which apply, to one degree or another, to enforcement difficulties in other areas of law as well. Culture and tradition play a role, as evidenced in an enduring emphasis on settlement, the lack of respect for law, and the continued reliance on relationships often to subvert the legal process.”[24]
In view of this state of affairs, a Chinese international arbitration practitioner has deplored that “To much judicial or governmental interference will adversely affect the healthy development of international arbitration. It does no good to the healthy development of the economy either.”[25] It is hoped that the things will change for a better future of international arbitration in China and elsewhere.
Arbitration often faces stumbling blocks in some Asian countries on various implausible grounds such as a particular New York-Convention-signatory State’s failure to ratify the Convention by way of an enabling legislation[26], the absence of mechanism or guidance for courts for implementation of foreign arbitral awards coupled with adverse judicial attitude to such implementation[27], judicial interference with arbitration on public policy grounds[28], Court’s misinterpretation of the New York Convention[29], or even sometimes some ambiguous state of arbitration legal regime in a country.[30] These are, however, not unsurmountable problems.[31] It is hoped that with the already new arbitration legislation and relevant specific measures in the concerned countries and their positive change in attitude, many of these problems can be overcome.[32]
Another pertinent issue that will haunt the dispute resolution scene in the region is that, despite the recent moves towards the modernization of arbitration law in many Asian countries, there is still available very little arbitration expertise in either the bar or the bench compared to that in other developed partners of the Asia-Pacific region such as the United States of America, Australia, Hong Kong and Canada. The legal education in many Asian countries is not geared to this particular specialism, nor sufficient efforts are found in place to educate and train the professionals in the field towards the goal of creating a viable and thriving atmosphere for international commercial arbitration. This problem will remain as a pain in the neck for international commercial arbitration unless effective measures to overcome it are undertaken sooner. The issue is better realised, in part at least, in the context of the problems of enforcement of arbitral awards in many Asian countries as mentioned above. In order to realise the expectations of foreign investors from the arbitration movement, or ‘arbitration craze’[33], so to speak, and to create confidence in the dispute settlement in the Asia-Pacific, it is not enough to modernise international arbitration laws alone in the region rather there should be developed proper infrastructure in terms of educated, trained and experienced professionals, specialist judges and judicial officials in the field. There is also a need to establish more professional arbitration centres and to make arrangements for regular training programmes to update professionals and judges with the knowledge of recent developments in the field. Unfortunately, many Asian countries are still lagging behind in these respects.[34]
Furthermore, despite the recent tendency towards delocalization of international arbitration and thereby endorsement of freedom of choice of parties in that context, there still exist in some countries some constraints on such freedom that relate to matters such as immigration issues (i.e. requirement of work permits and / or visa), and local practice rules, etc. Thus, for example, until recently in Thailand foreign nationals were prohibited from representing clients in arbitration or acting as arbitrators.[35] Though the Thai Royal Decree of 15 November 2000 allows foreign nationals to act as lawyers in arbitrations in Thailand, this is not the case, however, when the law governing the dispute is Thai law, or the enforcement of the arbitration award would be requested in Thailand.[36] Obviously, the Thai Royal decree is supportive of delocalized international arbitration so far as it applies a non-Thai law to the merits of dispute concerned, and the enforcement of the award will be requested outside of Thailand. Mr. Chang, the Vice Chairman of CIETAC, has lately expressed some disappointment concerning the People’s Republic of China’s (PRC) Ministry of Justice’s imposed restrictions on the activities of foreign lawyer in international arbitration conducted in Minland China. He notes, “Article 32(4) of the Rules of the Ministry of Justice for the Implementation of the Administrative Regulations on Representative Offices of Foreign Law Firms in China stipulates that lawyers from representative offices of foreign law firms should not be permitted to practise law relating to “PRC legal matters” if the foreign lawyers act “in the capacity as agent in arbitration proceedings, issuing opinions or comments on the application of PRC law and facts involving PRC law.””[37] Recently, in various other countries of the region such as Singapore, Malaysia, Hong Kong, Japan, and Australia various restrictions on representation by foreign nationals, or on their acting as arbitrators have been relaxed towards delocalization of international commercial arbitration. [38] This is certainly a welcome development for the international business community as well as for international arbitration lawyers.
Let us not be disheartened by the problems now facing international arbitration in Asia. These are just some of the teething problems of international Arbitration in Asia, which could be overcome as time rolls on. No doubt, Asia is gradually emerging out of its past with the vision for its future co-existence in the global market place in the day and age of globalization.
[1] See A.F.M. Maniruzzaman, “International Commercial Arbitration in the Asia Pacific : Asian Values, Culture and Context”, 30 International Business Lawyer (issue no.11, 2002), p.508.
[2] As quoted in Jeswald W. Salacuse, “The Top Ten Ways Culture Affects Negotiating Style : Some Survey Results”: http://fletcher.tufts.edu/salacuse/topten.html, p.1; Guy-Olivier Faure and Gunnar Sjostedt, “Culture and Negotiation : An Introduction”, in Culture and Negotiation (Faure and Rubin, eds., 1993) (Newbury Park : Sage Publications), p.3.
[3] As quoted in Jeswald W. Salacuse, “The Top Ten Ways Culture Affects Negotiating Style : Some Survey Results” : http://fletcher.tufts.edu/salacuse/topten.html, p.1.
[4] See generally, Charles R. Regan, “Emerging Dispute Resolution Techniques in the Pacific Basin”, 9 Arb. Int’l (1993), p.131; V. Taylor and M. Pryles, “The Cultures of Dispute Resolution in Asia”, in Dispute Resolution in Asia (ed., M. Pryles) Kluwer Law International, The Hague (1997), pp.1-24; Y. Taniguchi, “The Changing Attitude to International Commercial Dispute Settlement in Asia and the Far East” [1997] A.D.R.L.J. p.67; L.Y. Lim, “Impact of Cultural Differences on Dispute Resolution” 7 Australian Dispute Resolution Journal (1996), p.197.
[5] See Pearlie M.C. Koh, “Enhancing Economic Co-operation : A Regional Arbitration Centre for ASEAN ?”, 49 ICLQ (April 2000), p.390, at pp. 393-397; M. Scott Donahey, “The Asian Concept of Conciliator / Arbitrator : Is it Translatable to the Western World ?”, 10 ICSID Review (no.1, Spring, 1995), p.120.
[6] Emphasis added. See at http://www.aseansec.org
[7] See APEC Secretariat, Selected APEC Documents 1989-1994 (1995), APEC Ministerial Meetings 1994; Leaders Meetings 1994, Bogor; Leaders Declaration of Common Resolve, Jakarta Joint Statement, 1994.
[8] See at http://www.aseansec.org.
See also for studies of dispute resolution in pre-modern Buddhist South East Asia, including Thailand, Laos, Burma and Southern China, in Andrew Huxley (ed.), Thai Law : Buddhist Law – Essays on the Legal History of Thailand, Laos and Burma (White Orchid Press, Bangkok, 1996), p.15; Low Sui Pheng, “The Influence of Chinese Philosophies on Mediation and Conciliation in the Far East”, 62 Arbitration (no.1, February 1996), p.16.
[9] Donahey, op.cit. pp. 121-128; Takao Tateishi, “The Role of the Two-tier “Med/Arb” Scheme in Japanese Dispute Resolution”, [2000] Asian DR (no.1, September 2000), p.24.
[10] See the reflection of the western tradtion in Article 19 of the United Nations Commission on International Trade Law (UNCITRAL) Rules of Conciliation, 20 I.L.M. 301 (1981); Anthony Connerty, “A Foreign Arbitration Held in China”, 65 Arbitration (no.3, August 1999), p.203.
See generally, Christian Bühring-Uhle, Arbitration and Mediation in International Business (Graham & Trotman / Martinus Nijhoff, 1996).
[11] See, e.g. Hong Kong, Canada and Australia. Hong Kong Arbitration Ordinance, chapter 341, sec.2A, 2B, as amended by Arbitration (Amendment) Ordinance 1991, 2 Int’l Handbook on Com.Arb., Hong Kong : annex 1-1 (1993); British Columbia International Commercial Arbitration Act, B.C. Rev. Stat. (1986), ch.14, sec.30(1), 1 Int’l Handbook on Comm.Arb., Canada : annex V-1 (1993); Australia, Commercial Arbitration Act (section 27), N.S.W. 1984 Act, No. 160. Amended by the Commercial Arbitration (Amendment) Act 1990, N.S.W., 1990, Act No.100.
[12] Donahey, op.cit. at p.121.
[13] Haig Oghigian, “Making Mediation / Arbitration Hybrid Work : A Personal Experience”, [2001] Asian DR (January 2001), p.82; Haig Oghigian, “On Arbitrators Acting as Mediators”, 68 Arbitration (no.1, February, 2002), p.42; David C. Elliott, “Med/Arb : Fraught with Danger or Ripe with Opportunity ?”, Arbitration (The Journal of the Chartered Institute of Arbitrators), vol.62 (no.3, August 1996), p.175; Peter Talbot, “Should an Arbitrator Act as a Mediator in the Same Dispute ?”, Arbitration (The Journal of the Chartered Institute of Arbitrators), vo.67 (no.3, August 2001), p.228; L. Randolph Lowry, “Mediation : Fulfilling Its Promise for Effective Dispute Resolution (Part 1)”, [2001] Asian DR (June 2001), p.24; L. Randolph Lowry, “Mediation : Fulfilling Its Promise for Effective Dispute Resolution (Part 2)”, [2001] Asian DR (September 2001), p.67; Captain Fook Choon Lee, “Case History on Transnational Mediation”, [2001] Asian DR, p.28; “The Med-Arb Debate Continued” (The Hon. Editor, 61 Arbitration (no.2, May 1995), p.111.
[14]Derek Roebuck, “Cultural Differences and Mediation : An Introduction” [2002] Asian Dispute Review (May), p.135, at p.136. See also Derek Roebuck, Ancient Greek Arbitration (Holo Books : The Arbitration Press, Oxford, 2001); Derek Roebuck, The Charitable Arbitrator : How to Mediate and Arbitrate in Louis XIV’s France (Holo Books : The Arbitration Press, Oxford, 2002); Derek Roebuck, “Best to Reconcile : Mediation and Arbitration in the Ancient Greek World” 66 Arbitration (2002), p.275; Traianos Gagos and Peter van Minnen, Settling a Dispute : Toward a Legal Anthropology of Late Antique Egypt (Ann Arbor, University of Michigan Press, 1994); J. Dawson, “The Privy Council and Private Law in the Tudor and Stuart Periods I”, 48 Michigan Law Review (1950), p.393.
[15] See also Bronwyn Lincoln, “Court-ordered Mediation in Australia” [2002] Asian Dispute Review (May), p.138; Michael Silver, “Ontario’s Experiment with Mandatory Mediation : The Agony and the Ecstasy,”[2000] Asian DR, vol.1 (April 2000), p.13; Stephen Lancken, “Could “mandatory” Mediation be Successful in Asia ?”, [2001] Asian DR (September 2001), p.69; Michael Hartmann, “East Greets West – New Opportunities for Dispute Resolution”, [2002] Asian Dispute Review (May), p.116; Andrew Jeffries, “Reform of Civil Court Procedure in Hong Kong : What will be the Impact on Arbitration and Mediation”, [2002] Asian Dispute Review (May), p.114; Peter Fenn and Greg Hunt, “The United Kingdom Government’s Pledge to ADR and the Chartered Institute of Arbitrator’s Mediation Panel”, 68 Arbitration (no.2, May 2002), p.144; Jerome Alan Cohen, “Chinese Mediation on the Eve of Modernization”, 54 Cal.L.Rev. (1966), p.1201; P. Brooker and A. Lavers, “Commercial and Construction ADR : Lawyers’ Attitudes and Experience”, 20 C.J.Q. (2001), p.327, at p.327 : “Data …suggests lawyers’ experience is growing in the commercial and construction fields and that mediation is developing as the core technique; few other ADR experiences were reported.”
See generally, Henry Brown and Arthur Marriott, ADR : Principles and Practice (Sweet & Maxwell, 1999); Russell Caller et al (eds.), ADR and Commercial Disputes (Sweet & Maxwell, 2001); Conferences and Seminars : Mediation Post-Woolf : Can the American Experience Assist ?” 67 Arbitration (no.1, February 2001), pp. 35-114; Christopher Newmark, “Agree to Mediate … or Face the Consequences – A Review of the English Courts’ Approach to Mediation”, SchiedsVZ (German Arbitration Journal) Januar / Februar 2003, p.23; Gil Crocker, “The Treatment of Mediation by the UK Courts”, [2003] Asian DR (January, 2003), p.205.
[17] See Article 49.
[18] See Section 2A(2)and Section 2B.
[19] See Section 16 and Section 17.
[20] See Section 30(1).
[21] [Emphasis added].
[22] See Randall Peerenboom, “Seek Truth From Facts : An Empirical Study of Enforcement of Arbitral Awards in the PRC”, 49 A.J.C.L. (2001), p.249; Randall Peerenboom, “The Evolving Regulatory Framework for Enforcement of Arbitral Awards in the People’s Republic of China”, 1 Asian-Pac.L. & Pol’y J. 12 (2000); Andre G. Gigon, “China : Enter at Your Own Risk”, Bus. Week, October 20, 1997, at p.5; Michael Moser, “China and the Enforcement of Arbitral Awards” (1995) 61(1) JCIarb 46; Michael Moser, “China and the Enforcement of Arbitral Awards (Part 2)” (1995) 61(2) JCIArb 132; Greg Rushford, “Chenese Arbitration : Can It Be Trusted?” Asian Wall Street Journal, Nov. 29, 1999; Mathew Bersani, “Enforcement of Arbitration Awards in China : Foreigners Find the System Sorely Lacking”, 19 China Bus. Rev. 10 (1992); Frederick Brown and Catherine A. Rogers, “The Role of Arbitration in Resolving Transnational Disputes : A Survey of Trends in the People’s Republic of China”, 15 Berkeley J.Int’l.L (1997), p.329; Alberto Mora, “The Revpower Dispute : China’s Breach of the New York Convention ?” in Dispute Resolution in the PRC, A Practical Guide to Litigation and Arbitration in China, 151-158 (1995); Charles K. Harer, “Arbitration Fails to Reduce Foreign Investor’s Risk in China”, 8 Pac.Rim. L. and Pol’y J. 393 (1999); R. Peerenboom, “The Evolving Framework for Enforcement of Arbitral Awards in the People’s Republic of China”, Asian Pac.L. & Pol’y J. 13 (2000); M. Moser, “The Recognition and Enforcement of Foreign Arbitral Awards : A Survey of the Asia-Pacific Region”, 5 ICC Int’l Court Arb. Bull., No.2, at 20-29 (1994); M. Moser, “CIETAC Arbitration : A Success Story ?”, 15 J.Int’l.Arb. (no.1, March 1998), p.27, at pp. 33-34; Koh, op.cit. (2000), p. 406 et seq; Derek Roebuck, “Rapid Change and Traditional Morality : The Enforcement of Arbitral Awards in the People’s Republic of China”, 8 Australian Journal of Corporate Law (1995), p.342.
[23] Frederick Brown and Catherine A. Rogers, “The Role of Arbitration in Resolving Transnational Disputes : A Survey of Trends in the People’s Republic of China”, 15 Berkeley J.Int’l.L (1997), p.329, at p.342. See also Mark Lin, “Enforcing a Foreign Arbitral Award in Mainland China – Some Recent Experience”, [2001] Asian DR (January 2002), p.79.
[24]Randall Peerenboom, “The Evolving Regulatory Framework for Enforcement of Arbitral Awards in the People’s Republic of China”, 1 Asian-Pac.L. & Pol’y J. 12 (2000), p.45. See also Philip J. McConnaughy, “Rethinking the Role of Law and Contracts in East-West Commercial Relationships"” 41 Virginia Journal of International Law (no.2, 2001), p.427, at pp. 441-445.
[25] Wang Sheng Chang, “The Globalization of Economy and China’s International Arbitration”, [2003] Asian DR, p.187, at p.188.
[26] See the decision of the Supreme Court of Bangladesh (Appellate Division ) 8 May 1997 in the case of Bangladesh Air Service (Pvt.) Ltd (UK) [Appellant) v. British Airways PLC (Bangladesh) [Respondent], 49 Dhaka Law Reports (Appellate Division) (1997), pp.187-200; also reprinted in Yearbook Comm.Arb’n. XXIII (1998), p.624, at p.625 : “… it was pointed out that though Bangladesh had acceded to the New York Convention, it had not passed implementing legislation. Thus the New York Convention could not be relied upon to enforce a foreign award in Bangladesh.” See also Haji Azam v. Singleton Binda and Co. Ltd., 27 DLR, p.583.
[27] See Karen Mills, “Judicial Attitudes to Enforcement of Arbitral Awards and Other Judicial Involvement in Arbitration in Indonesia” (2002) 68 Arbitration 2, p. 106.
[28] See the decision of the Supreme Court of Pakistan in the case of Hubco v.WAPDA (Civil Appeal No. 1398 & 1399 of 1999, reprinted in 16 Arbitration International (no.4, 2000), p.439 – The Supreme Court refused to enforce an arbitration agreement providing for ICC arbitration in London and upheld the jurisdiction of the Pakistan courts to determine a major dispute. The central issue was whether the allegations of fraud, illegality and corruption raised by one party (governmental entity) against the other (project company / foreign investors), precluded resolution of disputes by arbitration as a matter of public policy and as such rendered disputes non-arbitrable.
See the Commentary on the Hubco Judgment by Nudrat B. Majeed, in 16 Arbitration International (no.1, 2000), p.431.
Further see Saipem S.P.A. v. Bangladesh Oil Gas and Mineral Corporation (Petrobangla) 5 MLR (2000) (AD) 245, also in Five Years MLR Civil Reference (1996-2000), The Mainstream Law Reports, 2001, p.14, also extracted at pp. 821-29, Issue no. 4 of ASA Bulletin, December 2000. The High Court Division of the Supreme Court of Bangladesh under Section 5 of the Arbitration Act, 1940 revoked the authority of an ICC arbitral tribunal constituted under the ICC Rules (ICC Arbitation case no. 7934/C.K.) at the request of one of the parties, contending that it had conducted the arbitration proceedings improperly by refusing to determine the question of admissibility of evidence and the exclusion of certain documents from the record. Accordingly, there was manifest disregard of law and the arbitral proceedings were likely to cause miscarrige of justice. The Appellate Division of the Supreme Court of Bangladesh, also declined to interfere with the said order in the interest of justice. The decision caused some clamour in the international community. For example, The ASA Bulletin Editor described it as “in stark contrast with a number of principles of international arbitration” such as Kompetenz-Kompetenz. There was nothing improper in the conduct of the arbitral tribunal. The conduct was “completely in line with public policy as well as with standard arbitration practice. The facts reported do not show that the Arbitral Tribunal has overstepped its discretion to freely access and weigh the evidence …” (issue no.4 of ASA Bulletin, December 2000, p.828).
[29] See Jan Paulsson, “The New York Convention’s Misadventures in India”, 7 International Arbitration Report (1992), p.18; Ricardo Almeida, “Problems of Jurisdiction and of Recognition and Enforcement of Foreign Judgements and Arbitral Awards in India,” in Current Legal Issues in International Commercial Litigation (Chan W. Cheong, et al, eds.), (Butterworths, Singapore, 1997), p.438.
[30] For example, see the Singapore cases : John Holland Pty Limited v. Toyo Engineering Corporation, [2001] 2 SLR 262; Dermajaya Properties Sdn Bhd v. Premium Properties Sdn & Anor, [2002] 2 SLR 164.
[31] See generally, Albert Jan van den Berg (ed.), International Arbitration and National Courts : The Never Ending Story (Kluwer Law International, 2000).
[32] See Andrew Chan and Alison Woodward, “Singapore as a Place for Arbitration : Recent Developments”, 69 Arbitration (no.1, February 2003), p.10; Tham Yuet-Ming, “Changes to Singapore’s Arbitral Laws and the Pitfalls of Choosing Singapore as the Seat of Arbitration”, [2003] Asian DR (January 2003), p.193; Robin Peard, “Reforming Hong Kong’s Arbitration Law”, [2003] Asian DR, p.179; Michael Hwang and Rajesh C. Muttath, “The Role of Courts in the Course of Arbitral Proceedings : Singapore and Other Asian Perspectives”, 68 Arbitration (no.3, August 2002), p.223; Li Zhang, “The Enforcement of CIETAC Arbitration Awards”, [2002] Asian DR (September 2002), p.157; Grant L. Kim & Eun-Young Park, “Enforcement of Arbitral Awards in Korea”, [2002] Asian DR (September 2002), p.161; Michael J. Moser, “Hong Kong And Mainland China Sign Agreement For Reciprocal Enforcement of Arbitral Awards”, 14 International Arbitration Report (no.9, September 1999).
[33] Y. Taniguchi, “The Changing Attitude to International Commercial Dispute Settlement in Asia and the Far East”, [1997] A.D.R.L.J., p. 67, at p.70.
[34] See Jan K. Schaefer, “Leaving the Colonial Arbitration Laws Behind : Southeast Asia’s Move into the International Arbitration Arena”, 16 Arb.Int’l. (no.3, 2000), p.207, at pp. 327-332; Arthur Marriott, “India and International Arbitration”, 68 Arbitration (no.3, August 2002), p.262.
[35] The Working of Aliens Act B.E. 2521 (1978), the Kingdom of Thailand. See the presentation of Prof. Mochtar Kusuma-Atmadja : Seminar on Legal Aspects of Regional Cooperation – see at http://www.adb.org/Work/Law_Devt/Seminar_Proceedings/mochtar.asp
[36] See Michael A. Polkinghorne, “Participation of Foreign Lawyers in Arbitral Proceedings in Asia : An Update”, 62 [2001] Asian DR., p.62, at p.63.
[37] Wang Sheng Chang, “The Globalization of Economy and China’s International Arbitration”, [2003] Asian DR, p.187, at p.188.
[38] Polkinghorne, op.cit. See also at www.adb.org/Work/Law_Devt/Seminar_Proceedings/mochtar.asp
Prior to the 1992 Legal Profession Amendment Act in Singapore, the Singapore High Court in Turner (East Asia) Pte Ltd. V. Builders Federal (Hong Kong) Ltd & Another [No.90 of 1987, 30 March 1988] disallowed a firm of U.S. attorneys from representing a party to a pending arbitration in Singapore. The 1992 Act allows foreign lawyers to appear in all arbitrations in Singapore with the proviso that in cases where Singapore law is involved, the foreign lawyer must appear with a practising Singapore lawyer. – ibid, also 2 Malaysian Law Journal 280 [1988].
For a brief survey on restrictions on the practice of foreign lawyers in various jurisdiction in the Asia-Pacific such as Hong Kong, China, Thailand and Vietnam, see Simon Ip, “International Stragies Adopted by Firms in the Asia Pacific Region”, 23 International Business Lawyer (no.11, December 1995), pp. 541-543.
