Contributed by Nicole Chee and Jeremiah Gurusamy
The spotlight is on Asia as it makes its name by setting new standards worldwide in arbitration, an area that has seen tremendous growth these last few years. Even though an arbitration clause or option would be available in a dispute, parties back then would avoid that option due to the many procedural obstacles that stood in the way of a speedy and final resolution, especially when parties had to go to court to actually enforce the award after it has been awarded.
Moderator Sitpah Selvaratnam, Consultant at Tommy Thomas stated that it is now the golden age of arbitration as there is an exponential growth in economic opportunities and an increase in preference for arbitration to resolve disputes. She then went on to examine the factors that have contributed to this arbitration boom.
First up was Azimeer Manaf, Senior Assistant Director of the Kuala Lumpur Regional Centre for Arbitration (KLRCA). He credited the growth of arbitration in Malaysia to the support from the Government in the recent amendments to the Arbitration Act in 2011. The activism of the judiciary was also instrumental in enforcing arbitration awards. Manaf also highlighted the role of practitioners themselves as their competence provides assistance to the Arbitrator in reaching a decision. The role of the KLRCA itself in making arbitration so successful in recent years must not be under-evaluated as they were at the forefront back then in promoting international commercial arbitration, not just in Malaysia but also in the Asia-Pacific region. Established since 1978, the members of the KLRCA have been working hard to promote arbitration as a means of dispute resolution, maintaining the standards of arbitration as well as proposing faster, more cost-efficient ways to conduct arbitration proceedings, through the introduction of the KLRCA Fast Track Rules 2012. KLRCA is also responsible for making Malaysia the leading body in Syariah-compliant disputes, being one of the few worldwide to provide this service.
Rashda Rana, Barrister, Arbitrator and Mediator of Wentworth Chambers, inspired the room with a charismatic speech on Asia’s immense contribution to international commercial arbitration. She focused on arbitration from an Australian perspective, attributing the success of arbitration in recent years to the increase of economic growth and cross-border transactions leading to a higher demand for dispute resolution that caters to international parties. As arbitration is known to be a peaceful form of dispute resolution, where the parties are given control over the proceedings, it is now used even in large complicated disputes between international entities. That being the case, it would be of the outmost importance for arbitrators to have the highest standards of conduct and to preserve the integrity and fairness of proceedings. She then went on to explain amendments in law and procedure that have been made to promote arbitration as a method of dispute resolution in Australia as well as in the Asia-Pacific region. Australia has been very successful in improving the quality of Arbitrators and practitioners alike through courses and moots.
The third speaker, K Shanti Mogan, Partner of Shearn Delamore & Co, gave her views of Malaysia’s contribution to international commercial arbitration by going into the changes that took place recently in the area of Arbitration, namely the recent Arbitration (Amendment) Act 2011. She highlighted a particularly important amendment in Section 8 of the Arbitration Act 2005 (AA 2005) which now provides that “No court shall intervene in matters covered under this Act, except where so provided in this Act”. “The courts are now taking a non-interventionist approach to arbitration,” she said, looking pleased, having highlighted that it could previously use its inherent jurisdiction to intervene in arbitration proceedings. The current S10(1) AA 2005, provides a stay of proceedings only where the Court is satisfied that the arbitration agreement is null and void, inoperative or incapable of being performed and will also allow an arbitration award to settle the matter.
Lastly, John Tackaberry, QC and Member of 39 Essex Street Chambers and Arbitration Chambers provided an outsider’s view of Asia’s growth in arbitration. He praised the wisdom and innovation of the East for taking a wider approach to methods of dispute resolution. He was astonished by how dispute resolution grew in Asia and also by the speed in which Asian countries have taken efforts to put into place procedures to cater to a speedier and efficient arbitration compared to their Western counterparts. Tackaberry commends the openness and flexibility of Arbitration proceedings and the subsequent enforcement and acceptance of awards from other jurisdictions.
The growth of international commercial arbitration in Asia would certainly be closely monitored. In the near future, Asia will lead, and the rest of the world will follow.