The firm was the media partner for Asia ADR Week 2019 on 27-29 June 2019, organised by the Asian International Arbitration Centre (“AIAC”).
This year’s theme – the Kintsukuroi Perspective, inspired by the Japanese art of mending broken pottery, focuses on the role of alternative dispute resolution (ADR) as the gold-dusted lacquer mending the imperfections and challenges of commercial disputes in the global economy.
Through the keynote speeches and the panel discussions, it was evident that ADR mechanisms have brought significant impact to new dimensions of the law, specifically towards the development of international arbitration in these recent years.
Here are some of the key takeaways we’ve gathered from the Asia ADR Week 2019:
Mediation & The Singapore Convention
The panelists discussed the key purposes of the Singapore Convention which is to facilitate international trade and promote the use of mediation for the resolution of cross-border commercial disputes. The Singapore Convention would also implement the Sustainable Development Goals 16 set by United Nations General Assembly, which aims to contribute to the development of a mature, rule-based global commercial system.
Role & Impact of the Judiciary in Asia’s ADR Landscape
On the topic of the competitiveness and success of ADR and the impact on Hong Kong’s judiciary, Hon. Justice Robert C. Tang opined that Hong Kong’s judiciary is arbitration friendly in which they strive to uphold arbitration awards and only set aside awards in exceptional cases. The importance of diverse backgrounds of arbitrators was stressed as diversity would provide an advantage to dispute resolution where specialised areas of law are required.
Shifting the perspective back to Malaysia, the YA Dato Mary Lim spoke of the significant role of the judiciary in developing ADR, particularly the amendments to the Arbitration Act 2005. YA Dato Mary Lim asserts that the judiciary of Malaysia is supportive of arbitration and the power to set aside arbitration awards would only be used sparingly, even if it involves matters on public policy. At the end of her discussion, YA Dato Mary Lim also called for more openness and transparency of arbitration awards given the impact that they would have on the development of the law.
Summary & Expedited Procedures in Arbitration
Summary Procedure in Arbitration is equivalent to a summary judgment and striking-out procedure found in litigation. The idea of Summary Procedure was first introduced by The International Centre for Settlement of Investment Disputes (ICSID) in 2006.
The various panelists discussed the statistics and effectiveness relating to the use of Summary and Expedited Procedures in Arbitration and though it may be commended for its efforts to expedite arbitration process, the panelists remarked that it may also be counter-productive as it ‘manifestly’ adds a threshold which has to be met before an arbitration can proceed.
Construction Industry Payment and Adjudication Act 2012 (“CIPAA”): Some Trends and Updates
In the opening remarks of Mr. Vinayak Pradhan, Director of the AIAC, he expressed that as matters involving CIPAA are increasing, stricter rules for adjudication are necessary to maintain quality and consistency. The same was also echoed in the keynote speech of YA Dato’ Lee Swee Seng who remarked that adjudications under the CIPAA are at risk of delays as there has been an increasing number of stay and setting aside applications.
YA Dato’ Lee Swee Seng went on to discuss landmark cases relating to the CIPAA, some of which are pending the Federal Court’s decision. He further provided insights on the recent Cubics Electronics case, which changed the way the Courts viewed liquidated damages clauses. In the Cubics Electronic case, a party seeking to rely on the liquidated damages clause only needs to prove that parties agreed to the clause; the burden then shifts to the other party to prove that such clause is unreasonable. This is different from the previous test whereby a party seeking to enforce the liquidated damages clause still had to prove actual damage suffered.
In the subsequent panel discussions and breakout workshops, panelists engaged the audience in sessions by discussing the different problems encountered in adjudication proceedings and the fundamentals of filing an adjudication claim.
Furthermore, we were also given a bird’s eye view of the construction adjudication landscape across countries like Singapore, United Kingdom and Australia. As Malaysia enters into its fifth year of enforcement of CIPAA, it would certainly be interesting to watch how we adopt and learn from the different approaches taken in different jurisdictions.
About the author: This article was written by Zi-Han Lim with assistance from Natalie Ng (pupil in chambers). Zi-Han is an associate in the dispute resolution practice group at Donovan & Ho. He is experienced in dispute resolution, focusing on employment and industrial relations, administrative law and commercial litigation.
Donovan & Ho is a law firm in Malaysia. Our practice areas include employment law, dispute resolution, tax advisory and corporate advisory. Have a question? Please contact us.