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PROSPECTS FOR HARMONIZATION OF COMMERCIAL AND INVESTMENT ARBITRATION WITHIN THE NEW ASEAN ECONOMIC COMMUNITY
Abhinav Bhushan Director, South Asia, ICC Arbitration & ADR 7 October 2016
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
ASEAN OVERVIEW
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Member States: Brunei, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, the Philippines,
Singapore, Thailand, and Vietnam.
Purpose: To promote intergovernmental cooperation and facilitates economic integration
amongst its members.
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
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ASEAN – TRADE & FDI
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
ARBITRATION INSTITUTION WITHIN ASEAN
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Singapore International Arbitration Center (SIAC):
Source: SIAC Annual Report 2015
Established in 1991
In 2015:
• 271 new cases
• Total sum of dispute SGD$6.23
billion
• Average value SGD$23 million
• From 55 countries and
jurisdictions
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
ARBITRATION INSTITUTION WITHIN ASEAN
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The Kuala Lumpur Regional Centre for Arbitration (KLRCA):
Source: KLRCA website
- Established in 1978 under the auspices of the Asian-African Legal
Consultative Organisation (AALCO).
- First regional centre established by AALCO in Asia to provide institutional
support as a neutral and independent venue for the conduct of domestic
and international arbitration proceedings in Asia.
- First centre to adopt the UNCITRAL Rules for Arbitration as revised in 2010.
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
ARBITRATION INSTITUTION WITHIN ASEAN
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801
0
100
200
300
400
500
600
700
800
900
Cases registered 2005-2015
ICC International Court of Arbitration: Since 1923:
• Over 21,900 arbitrations
In 2015:
• 801 new arbitrations
• 10 applications for emergency
measures
• 2,283 parties from 133 countries
and jurisdictions, of which 13.1%
are States or State-controlled
parties
• Average value US$84 million
• Arbitrations based in 56
countries and 97 cities worldwide
• Even spread among > 20
economic sectors, with emphasis
on construction & engineering
and energy disputes
Source: 2015 ICC Dispute Resolution Statistics
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
ICC DATA RELATED TO ASEAN COUNTRIES
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10 Years
(Total 2006-2015)
5 Years
(Total 2011-2015)
2015
(1 year)
BRUNEI 2 1 1
CAMBODIA 4 3 -
INDONESIA 101 63 8
LAO PDR 4 2 -
MALAYSIA 121 66 10
MYANMAR - - -
PHILIPPINES 104 70 6
SINGAPORE 213 123 30
THAILAND 94 51 8
VIETNAM 48 25 1
Origin of the Parties
Source: 2015 ICC Dispute Resolution Statistics
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
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Place of Arbitration
10 Years
(Total 2006-2015)
5 Years
(Total 2011-2015)
2015
(1 year)
BRUNEI - - -
CAMBODIA - - -
INDONESIA 4 2 -
LAO PDR - - -
MALAYSIA 20 10 -
MYANMAR - - -
PHILIPPINES 19 12 3
SINGAPORE 274 152 35
THAILAND 17 8 2
VIETNAM 4 4 -
ICC DATA RELATED TO ASEAN COUNTRIES
Source: 2015 ICC Dispute Resolution Statistics
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
STATUS OF ADOPTING LAWS/CONVENTIONS
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UNCITRAL
Model Law
New York
Convention
ICSID
Convention
BRUNEI ✓ ✓ -
CAMBODIA ✓ ✓ ✓
INDONESIA - ✓ ✓
LAO PDR - ✓ -
MALAYSIA ✓ ✓ ✓
MYANMAR ✓ ✓ -
PHILIPPINES ✓ ✓ ✓
SINGAPORE ✓ ✓ ✓
THAILAND ✓ ✓ ✓
VIETNAM - ✓ -
Source: ICSID website, UNCITRAL website
ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
WHAT IS “HARMONISATION”
• The process of standardizing laws, regulations and practices to facilitate the expansion ,
fairness and efficiency.
– In EU, harmonisation aims to:
• create consistency of laws, regulations, standards and practices, so that the
same rules will apply to businesses that operate in more than one member
State, and so that the businesses of one State do not obtain an economic
advantage over those in another as a result of different rules.
• reduced compliance and regulatory burdens for businesses operating nationally
or trans-nationally.
– In ASEAN, ASEAN has identified harmonization of national standards with
international standards, practices and guides. The ASEAN Economic Community
seeks to create ASEAN as a single market and production base and an economic
region by 2020.
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ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
HARMONISATION OF ARBITRATION RULE?
• Harmonised national laws bring effectiveness and efficiency in international arbitration
and prevent an arbitration clause from being considered as valid in one state but void in
another, or the recognition and enforcement of an arbitral award in one state but its
refusal elsewhere
• However, harmonisation does not mean uniformity: it promotes similarity and
correspondence but a certain measure of disunity still remains. The core spirit of
arbitration is parties’ autonomy and the arbitration proceedings are usually not
exclusively regulated by the lex arbitri
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ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
INVESTMENT COURT SYSTEM?
• Example: Proposal for New Investment Court System in TTIP (a court
system to deal with investment dispute related to EU & US)
– Hearings open to the public (for maximum transparency)
– All documents available online (more transparent then domestic courts)
– The right to an appeal (increases fairness of the system)
– No choosing of the judges (judges are randomly assigned)
– Qualified judges (highly qualified appointed by EU & US)
– No double hats (judges cannot also be ISDS lawyers)
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ICC INTERNATIONAL COURT OF ARBITRATION ®
ICC INTERNATIONAL CENTRE FOR ADR
June 2016 ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTER FOR ADR
12
Thank you!
Abhinav Bhushan
Director, South Asia
ICC Arbitration & ADR
International Court of Arbitration, ICC
Tel: + 65 6814 0244
Email: [email protected]
32 Maxwell Road #02-11, Maxwell Chambers, Singapore 069115