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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

1

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.



2

ASEAN – TRADE & FDI



ARBITRATION INSTITUTION WITHIN ASEAN

3

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




4

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.




5

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 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




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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




STATUS OF ADOPTING LAWS/CONVENTIONS

8

UNCITRAL

Model Law

New York

Convention

ICSID

Convention

BRUNEI ✓ ✓ -

CAMBODIA ✓ ✓ ✓

INDONESIA - ✓ ✓

LAO PDR - ✓ -

MALAYSIA ✓ ✓ ✓

MYANMAR ✓ ✓ -

PHILIPPINES ✓ ✓ ✓

SINGAPORE ✓ ✓ ✓

THAILAND ✓ ✓ ✓

VIETNAM - ✓ -

Source: ICSID website, UNCITRAL website



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.

9



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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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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June 2016 ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTER FOR ADR

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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

tel:+ 65 6814 0244

mailto:[email protected]

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