2018 KCAB International Seminar in Hong Kong – Being “International” in International Arbitration: Tackling Disputes in Multi-cultural settings
Reporter: Tze Siong Ang (Allen & Overy, Hong Kong)
The cross-border nature of international arbitration necessarily entails dealing with a wide variety of cultures and legal traditions. The management of the differences between such cultures and traditions has been, and still is, a pertinent issue to consider in any international arbitration. On 29 October 2018, KCAB International, the international division of the KCAB established at the beginning of this year to cater to the growing needs of the KCAB’s international users, hosted a seminar aptly titled “Being ‘International’ in International Arbitration: Tackling Disputes in Multi-cultural settings”.
The seminar involved a panel discussion between Ms. Sue Hyun Lim (Secretary-General of KCAB) and Mr. Matthew Gearing QC (Chairperson of the HKIAC), moderated by Mr. Matthew Hodgson (Allen & Overy). The seminar focused on four issues that commonly arise in cross-cultural arbitrations: (1) relevant considerations in selecting tribunal members in multi-cultural / multi-jurisdictional disputes; (2) differing approaches to procedure and legal privilege in different jurisdictions; (3) ethical differences between counsel from different jurisdictions; and (4) efficient ways of handling multi-language disputes (including bilingual arbitrations).
On the first issue of appointing arbitrators, Mr. Gearing identified three types of pre-dispositions (or understandings) that an arbitrator may have which the parties should consider – cultural pre-disposition, pre-disposition to the type of arguments, and pre-disposition to the cause. In deciding who to appoint as an arbitrator, Mr. Gearing emphasised the importance of considering in advance the likely eventual composition of the tribunal so as to ensure that the arbitrator appointed is not isolated by the other members of the tribunal due to, amongst other reasons, differences in culture and legal practices.
Regarding the second issue of procedure and legal privilege, Ms. Lim highlighted that companies, which are from civil law tradition and therefore accustomed to the fact that there is no duty to disclose documents, approach document retention and preparation very differently. Such companies may find themselves in a positional asymmetry when involved in an international arbitration adopting common law disclosure processes.
There was a comment from the audience on the third issue of ethics that tribunals do not normally take any action against counsel for bad behaviour out of concern that it may open them up to a challenge. In response, Ms. Lim suggested that how a particular arbitrator addresses such issues will influence a party’s subsequent decision in appointing that arbitrator, and this may, in the long run, impact how tribunals generally approach counsel misbehaviour. Mr. Gearing pointed out that tribunals are careful not to act as quasi-bar associations, and would often deal with ethical issues only insofar as they impeach on the fairness of the arbitral process.
Lastly, on multi-language disputes, both Ms. Lim and Mr. Gearing stressed the importance and difficulty of finding well-trained interpreters. Mr. Hodgson suggested that interviewing interpreters beforehand may be a sensible course of action in certain cases.