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SIAC - CIArb Debate Report

Thursday 13 July 2017

The SIAC -CIArb Debate was held on 8 June 2017 in a packed ballroom of 256 delegates at The Westin Singapore.

Opening remarks were delivered by Mr Gary Born (President, SIAC Court of Arbitration) and Mr Chou Sean Yu (Chairman, Board of CIArb Singapore), and the Debate featured Mr Toby Landau QC, Mr Darius J Khambata SC, Mr Emmanuel Gaillard and Ms Judith Gill QC, titans of international arbitration.

The Debate motion was “This House Believes that the Practice of Party-Appointed Arbitrators is a Moral Hazard in International Arbitration and Should Be Abolished”.

Arguing for the proposition, Mr Khambata SC observed that the “veil of secrecy shadowing the confabulations of arbitrators” could make it difficult to draw the “fine line between a doctrinally and culturally sensitive arbitrator and a committed or partial one”, while Mr Landau QC cautioned against the “danger of dysfunctional deliberations” that could arise where party-appointed wing arbitrators “jockey” for the attention of the tribunal president in polarised deliberations.

The motion was met with an equally-spirited opposition by Ms Gill QC and Mr Gaillard. Mr Gill QC argued that the motion was flawed for contemplating an “extreme and excessive response” to perceived issues which have not been fully explored or evidenced, and in circumstances where checks and balances already exist in the arbitral process to guard against the risk of arbitrator bias.

Mr Gaillard rounded up the opposition’s case by highlighting that “what makes arbitration great” is the ability of parties to make choices (including the right to choose their arbitrators), and that this gives parties a sense of ownership in the process that in turn feeds into a willingness to satisfy the outcome of the arbitration.

 The arguments on both sides were so compelling that the Judges (Mr Born, Professor Lucy Reed and Ms Ariel Ye) did not reach a clear verdict.

The votes by the audience (103 in favour of the proposition, and 118 in favour of the opposition) which were announced by the moderator, Mr Francis Xavier SC, would however suggest that the opposition carried the motion for the day!

Author: Ms Monica Chong Wan Yee, Senior Associate, WongPartnership LLP.