Arbitration in Asia - 2nd Edition

Front Cover
Michael J. Moser
Juris Publishing, Inc., Sep 1, 2008 - Law - 850 pages

Asia has witnessed an extraordinary growth in the use of international arbitration in the past two decades.  Arbitration in Asia is an ideal reference to guide practitioners and business people in the proper selection of a suitable arbitral seat or jurisdiction in Asia.  The book includes substantive chapters reflecting detailed commentary and analysis on 18 Asian jurisdictions from the area's leading arbitration practitioners and experts. The materials in this looseleaf volume provide a practical reference guide and resource tool for the law and practice of international commercial arbitration in Asia.


 

 

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Contents

Asia Pacific Regional Arbitration Group
xxi
Part
xxix
arbitration in the past two decades This coincides with an extraordinary
xxxiii
Part
lxi
Part C
lxxix
2 LEGISLATION
2
PEOPLES REPUBLIC OF CHINA
4
3 THE ARBITRATION AGREEMENT
15
Part L
127
Part M
173
Part
263
Part
285
Part
337
AUSTRALIA AND NEW ZEALAND
NN-1
covers the recognition or enforcement of arbitral awards rendered in jurisdictions other
NN-5
Michael Pryles is a well known international arbitrator He is President
33

Thida Aye is a former Adviser to Township Court under the Supreme
17
have to face the problem of selecting an advantageous or at least neutral
31
Baker McKenzie in Bangkok before leaving to establish Siam Premier
38
Part
HS-3
only where parties agreed expressly to submit the dispute to arbitration
HS-4
such lawsuit on grounds that a valid arbitration agreement exists Article 10 sets forth
HS-37
Part
HS-41
Part
HS-77
Part
35
LAO
57
CAMBODIA
79
Part
93
Brennan Coleman is a Senior Advisor and Managing Director
35
international trade claims investment claims and general commercial
94
TABLE OF CASES
TW-1
David W Su is the Director of Intellectual Property Division at Taiwan
2000
Hoang Thi Thanh Thuy is a Vietnamese Lawyer who obtained
2003
Tatsuya Nakamura obtained his B E in 1980 at the University
2005
TABLE OF STATUTES
TM-1
KapYou Kevin Kim is the Founder and Head of Bae Kim
TM-16
TABLE OF CONVENTIONS
TM-49
Asia Pacific Regional Arbitration Group
I-1
Copyright

Common terms and phrases

About the author (2008)

 Michael J Moser practices as Arbitrator, Mediator and Counsel in
international disputes, frequently involving Asian parties. He is currently
Chairman of the Hong Kong International Arbitration Centre and also
serves as Co-Chair of the China Arbitration Forum, Vice President of the
Asia Pacific Regional Arbitration Group and a Vice Chair of the
Arbitration Committee of the IBA. Mr. Moser is a Chartered Arbitrator
and has acted as Arbitrator or Counsel in both ad hoc proceedings under
the UNCITRAL Rules and in cases under the rules of the ICC, SIAC,
SCC, LCIA, JCAA, AAA and other institutions in Asia, Europe and North
America. He is also a member of the panel of arbitrators of CIETAC and
was the first foreigner to be appointed as an arbitrator in China. A resident
of China for more than 30 years, he speaks fluent Chinese. Mr. Moser has
written widely in the area of dispute settlement and is General Editor of
The Journal of International Arbitration. He holds a JD degree from the
Harvard Law School and a PhD degree from Columbia University. He is a
Partner with the firm of O’Melveny & Myers LLP and an Adjunct Professor
at the City University of Hong Kong and the University of Zurich. 

Cecil Abraham is a Senior Partner with Zul Rafique & Partners. (Advocates & Solicitors). He obtained his LL.B. Hons. from Queen Mary College, University of London in 1968 and is also a Barrister-At-Law of the Middle Temple. He was admitted as an Advocate & Solicitor of the High Court of Malaya in 1970. He is a Chartered Arbitrator and a Fellow of the Chartered Institute of Arbitrators UK, Malaysian Institute of Arbitrator, Singapore Institute of Arbitrators and the Australian Centre for International Commercial Arbitration Limited. He is also a Fellow of Queen Mary & Westfield College, University of London. Tan Sri Dato’ Cecil Abraham has an extensive arbitration practice and has been frequently appointed as Chairman, Sole Arbitrator and Co-Arbitrator in domestic and international arbitrations conducted under the UNCITRAL, ICC, SIAC, KLRCA and LCIA rules of arbitration. He also appears frequently as Counsel in domestic and international arbitrations. He is Counsel for the Government of Malaysia in an ICSID arbitration. He has been nominated to the ICSID panel by the Government of Malaysia. Tan Sri Dato’ Cecil Abraham is a Council Member of the International Council of Commercial Arbitration (ICCA) and the past Vice-President of the Asia-Pacific Regional Arbitration Group (APRAG). He is the Chairman of the Arbitration Committee of ICC Malaysia and an accredited mediator. Tan Sri Dato’ Cecil Abraham is also on the Advisory Council of the SIAC and the International Institute for Conflict Prevention & Resolution.

Thida Aye is a former Adviser to Township Court, under the Supreme Court of Myanmar. She is also a former Judge, Civil Township Court, Yangon Division, Union of Myanmar. She is now an Attorney at DFDL in Yangon, Myanmar. She is particularly interested in the law of projects relating to natural resources. Having written extensively about various aspects of the Myanmar legal system, she has recently published, with James Finch, an article on the law of hydropower in Myanmar.

Thaya Baskaran is a Partner in Zul Rafique & Partners, Kuala Lumpur. He read law at King’s College, London, was called to the Bar of England & Wales by Gray’s Inn and was admitted as an Advocate & Solicitor of the High Court of Malaya in 2000. Mr. Baskaran regularly appears as Counsel in arbitrations to resolve disputes arising from building and engineering contracts. He has appeared as Counsel in domestic and international arbitrations governed by the ICC, the Kuala Lumpur Regional Centre for Arbitration (KLRCA), the Malaysian Institute of Architects and the UNCITRAL rules as well as in several ad-hoc arbitrations. He is on the panel of arbitrators of the KLRCA and on the database of arbitrators and mediators of the LCIA. He is a Member of the Chartered Institute of Arbitrators and a member of the ICC Malaysia Arbitration Committee.

David C. Buxbaum is the Senior Counsel at Anderson & Anderson LLP. He has been active in China since 1972 and Mongolia since 1992. He was the first American lawyer invited to China to represent American business interests in 1972, after President Nixon’s historic visit. Mr. Buxbaum has been active in litigation and arbitration. He has served as counsel in numerous arbitration proceedings in Hong Kong, Sweden, Singapore, China, the United States of America, and Mongolia. He represented the successful respondents before the United States Supreme Court in the landmark case of Butz v Economou and successfully handled a leading IP case in China, namely Microsoft vs. Juren. Mr. Buxbaum has been very active in mining and energy projects and is Honorary Counsel to the Independent Power Producers Forum (IPPF) since 2000. He is a well-regarded expert on private international and Asian law, including Mongolian law, who, in addition to being an experienced and highly respected practitioner, has also published extensively in the field.

Andrew Chan is a Partner in Litigation & Dispute Resolution at Allen & Gledhill LLP. He is a specialist in dispute resolution (especially arbitration), trusts, and insolvency. In arbitration, he has acted as Counsel, Arbitrator and Expert on Singapore law. He is a Fellow of the Singapore Institute of Arbitrators (as well as being on its panel of tutors), a Fellow of the Chartered Institute of Arbitrators and a Director of the Singapore incorporated American Arbitration Association-ICDR Ltd. Mr. Chan is on several arbitration panels. He is an author and editor of several legal texts and has written over seventy articles covering many areas of the law and has contributed to various publications.

Lasonexay Chanthavong received his Bachelor of Laws (LL.B.) from the National University of Laos and Master of Laws (LL.M.) from Yokohama National University, Japan. He is a member of the Lao Bar Association and has worked for DFDL as a Senior Legal and Tax Adviser since 2003. Prior to this he was a consultant in the Tax and Legal Service Division of KPMG’s Lao PDR, Vientiane Office. He speaks Lao, English and Thai.

Brennan Coleman is a Senior Advisor and Managing Director of DFDL’s office in Lao PDR. He has practiced as a corporate and commercial lawyer for over 12 years in Australia, the United Kingdom, Cambodia and Lao PDR. He has extensive experience in all areas of corporate and commercial practice with an emphasis on mergers and acquisitions, joint ventures, financings, private equity, public company listings and capital raisings, manufacturing agreements, licensing and distribution agreements, corporate advisory work and the provision of employment advice to employers. Mr. Brennan holds Bachelor of Arts (Mass Communications) and Bachelor of Laws Degrees from Macquarie University, Sydney, Australia, a Diploma of Legal Practice from the College of Law, Sydney, and is a solicitor admitted to practice law in the Supreme Court of New South Wales, Australia.

Yancy Cottrill is an attorney in the Ulaanbaatar office of Anderson & Anderson LLP. He is admitted to New York Bar, graduated from Central European University in Budapest with an LL.M in International Business Law, and earned his Juris Doctorate from the David A Clarke School of Law at the University of the District of Columbia. He has published articles on the applicability of UCC Article 6 in the emerging markets of post-communist countries, mining capital markets in Mongolia, and human rights abuses. Mr. Cottrill has legal experience in the post-communist emerging markets working and studying in Russia and Hungary before joining Anderson & Anderson LLP. He served as a Peace Corp volunteer in Ukraine before attending law school. Additionally, he has traveled extensively in the post-communist countries of Eastern Europe.

James Finch was raised in the United States and Asia, educated in the United States and served in the U.S. foreign service, where he was posted to various locations in Latin America. Early in his law career he practiced in Tehran, New York, and Santo Domingo. Later he returned to Asia, first to practice in Vietnam, then as the Resident Partner of Myanmar Thanlwin Legal Services, Ltd. in Myanmar, now DFDL, where he has lived for over fifteen years. His practice encompasses financial transactions, infrastructure projects, mining, oil and gas, and a wide variety of other civil and commercial matters.

Rupert Haw obtained his Baccalaureus Procurationis from the University of Natal in 1994 and was admitted as an Attorney of the High Court of South Africa in 1997. He obtained a Certificate in Arbitration from the Arbitration Foundation of South Africa in 2000. Mr. Haw frequently appeared before the Commission for Conciliation Mediation and Arbitration, a body established under the Labour Relations Act of 1995. In 2001, Mr. Haw joined Deloitte Forensic and Dispute Services where he was involved in financial crimes investigations and the mediation of disputes relating to financial crime in various jurisdictions throughout Africa and the Middle East. He is presently a Senior Counsel to the Lao PDR office of DFDL.

Alastair Henderson is Head of Herbert Smith Freehills’s arbitration practice in Southeast Asia. He graduated in law from Oxford University in 1986, qualified as a Lawyer in London in 1990 and moved to Asia in 1993. He has lived and worked with Herbert Smith Freehills in Hong Kong and Bangkok but is now based in Singapore from where he conducts arbitrations and other commercial disputes in all countries of the region. Mr. Henderson is internationally recognised as one of Asia’s foremost practitioners in this field. A wide-ranging case load includes energy disputes, construction and infrastructure disputes, domestic and international trade claims, investment claims and general commercial and financial cases.

Michael Hwang S.C. practises as a Barrister and International Arbitrator based in Singapore. He is or has been: a Vice Chairman of the ICC International Court of Arbitration, a Member of the International Council for Commercial Arbitration, a Court Member of the London Court of International Arbitration, a Trustee of the Dubai International Arbitration Centre and a Council Member of the International Council of Arbitration for Sports. He has served as a United Nations Compensation Commissioner, a Judicial Commissioner of the Supreme Court of Singapore and the President of the Law Society of Singapore. He is currently the Chief Justice of the Dubai International Financial Centre. He is on the panel of many arbitration centres, and is involved both in international commercial arbitration as well as public international arbitration. He has also served as Singapore’s Non-Resident Ambassador to Switzerland.

Hoang Thi Thanh Thuy is a Vietnamese Lawyer who obtained a Bachelor of Law degree from the Ho Chi Minh City Law University in 2003. She has experience in, among other areas, arbitration, and other corporate issues.

Kap-You (Kevin) Kim is the Founder and Head of Bae, Kim & Lee LLC’s International Arbitration & Litigation Practice Group, Asia’s most active and experienced international arbitration team, now consisting of 16 full-time arbitration practitioners from multiple jurisdictions. In addition to serving as the first Secretary General of the ICCA to be appointed out of Asia, Kevin is a Court Member at the ICC Court and the LCIA Court—the first to be appointed from East Asia—a Board Member of the AAA, a member of the Panel of Arbitrators of ICSID, and an Editorial Board Member of Global Arbitration Review. He is also a senior advisor and arbitrator of the Korea Commercial Arbitration Board (KCAB), a Vice President of the Korean Council for International Arbitration (KOCIA) and a Vice Chair of the International Arbitration Committee of ICC Korea. Kevin has also served as Chair of the International Committee of the Korean Bar Association and Vice Chair of the IBA Arbitration Committee. He has acted as Counsel or Arbitrator in over 180 commercial arbitral proceedings in Asia, Europe and the United States, and has extensive experience practicing under the rules of all major international arbitral institutions, particularly in the fields of construction, distributorship, post-M&A, intellectual property and information technology. He received his legal education at Seoul National University Law School (LL.B.) and Harvard Law School (LL.M.), and is author or editor of numerous publications on international arbitration. In 2011, Kevin led his team, as general editor, in the production of the first book-length treatise on arbitration in Korea: ARBITRATION LAW OF KOREA: PRACTICE AND PROCEDURE (Juris Publishing, 2011). Kevin is a member of the Korean and Seoul Bar Associations, and is also admitted to practice in New York. He speaks Korean (native), English (fluent) and Japanese (conversational).

Milton Lawson graduated from the University of Lancaster in the UK, where he obtained a Masters Degree in Philosophy. Mr. Lawson is the Managing Lawyer of Freshfields Bruckhaus Deringer’s Ho Chi Minh City office and is one of the longest serving foreign lawyers working in Vietnam. Mr. Lawson was trained as a litigation lawyer in a major London litigation practice and has experience in a wide range of commercial litigation and arbitration matters. He is one of the few lawyers in Vietnam to have a wide experience and specialization in litigation, having advised on over 30 disputes, in the Vietnamese courts as well as arbitration in the Vietnamese International Arbitration Centre. Mr. Lawson also advised both Vietnamese and foreign parties that were involved in numerous contentious matters.

Nigel N.T. Li and Angela Y. Lin are Partners in the international law firm Lee & Li, Taipei, Taiwan.

Karen Mills has practiced in Indonesia for almost 30 years and is one of the Founders of the KarimSyah Law Firm in Jakarta. Ms. Mills is a Chartered Arbitrator, Fellow of the Chartered Institute of Arbitrators (“CIArb”) and of the Singapore and Hong Kong Institutes, and Founder and Co-chair of the Indonesian Chapter of CIArb. Ms. Mills is on the panel of arbitrators of most arbitral institutions in the region, including those of China, Malaysia, Singapore, Hong Kong, Korea, New Zealand and the Philippines, as well as Indonesia; She also serves as a Domain Name Panelist under ADNDRC, Hong Kong, Beijing and Seoul. Ms. Mills sits on the First Appointing Authority of the Chinese-European Arbitration Centre, the Board of Directors of Arbitral Women and the Editorial Board of the Journal of World Energy Law and Business, among others, and is Co-Chair of the IBA Mediation Committee Section on investor-state Mediation. She sits as arbitrator throughout Asia and the Pacific, as well as in the US, and has acted as lead counsel for the Indonesian Government in several Investor-State arbitrations. A graduate of New York University School of Law and a Member of the New York bar, Ms. Mills commenced her legal career with Haight, Gardner Poor and Havens specialising in maritime and aviation financing. Her primary fields of expertise include banking, financing and restructuring, oil, gas and energy matters, insurance, information technology and general cross-border transactions. An approved Tutor for all levels of CIArb training, she teaches, speaks and writes extensively on arbitration and other matters around the world, and has published almost 125 papers in international professional books and journals.

Tatsuya Nakamura obtained his B.E. in 1980 at the University of Osaka Prefecture, LL.B. in 1993 at the Keio University in Tokyo and LL.M. in 1996 at the University of Tsukuba in Tokyo. He is Professor of Law at Kokushikan University in Tokyo and General Manager at JCAA.

Fali S. Nariman is a Senior Advocate for the Supreme Court of India; President of the Bar Association of India, Honorary President of the ICCA (International Council of Commercial Arbitration); and Vice-Chairman of the ICC International Court of Arbitration in Paris from 1989 till December 2005.

Custodio L. Parlade is the former Managing Partner of the Benitez Parlade Africa Herrera Parlade & Panga in Makati City, former Chair of the Committee on Arbitration of the Philippine Chamber of Commerce and Industry, Founding Member and former Vice Chairman of the International Chamber of Commerce ( Philippines ), Inc. and Co-founder and first President of the Philippine Dispute Resolution Center, Inc. He has served as Chairman or Member of arbitration panels in international commercial arbitration, including ICC arbitration. He has written articles on arbitration for domestic and foreign journals. He helped draft the Implementing Rules and Regulations of the ADR Act. He was Vice Chairman of the Supreme Court Subcommittee that drafted the Special Rules of Court for ADR. He has written books on arbitration in the Philippines and has contributed a chapter on arbitration in the Philippines in “Arbitration in Asia” published by Butterworths and its updated version published by Juris Publishing. He is a Member of the International Court of Arbitration of the International Chamber of Commerce. He is a Lecturer on arbitration in various Mandatory Continuing Legal Education [MCLE] programs conducted by the University of the Philippines and other established institutions regularly and by the Ateneo de Manila University occasionally.

Michael Pryles is a well known international arbitrator. He is President of the Australian Centre for International Commercial Arbitration, a Court Member of the London Court of International Arbitration and is Co-chair of the ICC Asia Arbitration Commission. Mr. Pryles was the Foundation President of the Asia Pacific Regional Arbitration Group, an association of some 27 arbitral centres and organisations. He was formerly a Commissioner of the United Nations Compensation Commission where he served for over eight years on two panels, chairing one of them. He is currently a Consultant at the law firm Clayton Utz and was a Partner in another leading firm. Before then he was Henry Bournes Higgins Professor of Law at Monash University in Australia. Mr. Pryles is a prolific writer and speaker on international arbitration.

Ramesh Selvaraj is a Partner in the Litigation and Dispute Resolution department of Allen & Gledhill LLP. He has experience in a wide range of commercial disputes and has a keen interest in international arbitration. He is a member of the Singapore Institute of Arbitrators as well as an accredited mediator with the Singapore Mediation Centre.

Billie Jean Slott is Of Counsel for the firm of Sciaroni and Associates, located in Phnom Penh, Cambodia. Her areas of practice are litigation, arbitration, and exploration and mining. She was appointed by the Minister of Commerce to serve as a Commissioner on the Selection and Inception Commission of the National Arbitration Center, Cambodia. She was Lead Onshore Counsel for the Royal Government of Cambodia and Electricité du Cambodge in relation to a multi-million dollar international ICSID arbitration conducted at The Hague. She is a Founding Member of the Cambodian Association of Mining and Exploration Companies and a Member of the California bar. She has been practicing law in Southeast Asia for over ten years.

Surapol Srangsomwong is a litigation and arbitration specialist with over 30 years of experience in dispute resolution. He is acknowledged locally and internationally as one of Thailand’s leading lawyers in this field, and is recognised for his extensive experience in contentious labour and employment matters. He handles commercial disputes in the Thai courts and arbitration for local and international clients. He also has a substantial practice advising in relation to complex and often high-profile criminal and regulatory investigations. Mr. Srangsomwong worked with Baker & McKenzie in Bangkok before leaving to establish Siam Premier International Law Office, where he served as Managing Partner and Head of litigation. He is now a Managing Partner in Herbert Smith Freehills’s Bangkok office, where he heads the firm’s Thai litigation and arbitration practice on behalf of well-known Thai and international clients.

David W. Su is the Director of Intellectual Property Division at Taiwan Semiconductor Manufacturing Company, Ltd.

Yasuhei Taniguchi obtained LL.B., 1957, Kyoto University, LL.M., 1963, University of California, Berkeley, J.S.D., 1964, Cornell University, was Professor of Law at Kyoto Univ. till 1998; Teikyo Univ. till 2000; Tokyo Keizai Univ. till 2006 and Senshu University Law School in Tokyo till 2009. He was President of Japan Arbitrators Association till 2013; Council Member of ICCA 1990-2011 (now Advisory Member); Council Member of ICC Institute of World Business Law till 2006, Member of the Appellate Body of the WTO (2000-2007, Chairman 2004-2005). Currently he serves as Chairman of the Special Advisory Committee of JCAA, Chairman of Investment Transactions Overseeing Committee of the Bank of Japan and Of Counsel with the law firm Matsuo & Kosugi in Tokyo.

Danyel Thomson is a Senior Legal Adviser with DFDL and a member of the Bar Associations of New Jersey and North Carolina in the United States. She holds a Juris Doctor from the University of North Carolina at Chapel Hill School of Law. She practiced litigation in the United States before joining DFDL’s Laos office in 2007. Her practice areas cover investment regulatory compliance, investment and project coordination, contracts, and labor issues with experience in an array of sectors including mining, commercial banking, and hotels. Danyel Thomson has also worked closely with stakeholders on various projects for diplomatic missions and non-government organizations.

Christopher To holds qualifications in computing, engineering and law. He is a recognized authority on alternative dispute resolution techniques and has over twenty years of extensive experience in arbitration and alternative dispute resolution (“ADR”) including adjudication and mediation. He has acted as arbitrator, mediator and adjudicator in a variety of international business disputes ranging from insurance, finance, aircraft maintenance, mining and energy transactions, investment, information technology, intellectual property, technology licensing, manufacturing of integrated circuit technology, and mergers and acquisitions and was previously the Secretary-General of the Hong Kong International Arbitration Centre. He is a chartered arbitrator and an accredited mediator of a number of leading ADR bodies. Professor To currently teaches at leading universities on the subjects of Alternative Dispute Resolution, International Construction Law, International Arbitration, Commercial Contracts and Mediation and has written extensively on the subject and is the author of the leading textbook on arbitration in Hong Kong “Butterworths Hong Kong Arbitration Law Handbook.”

Wang Wenying began to serve in the Department of Law of the China Council for the Promotion of International Trade (CCPIT) upon graduation from Beijing University in 1989. She held the position of Deputy Representative and Representative of CCPIT & CCOIC Hong Kong Representative Office from 1997 to 2000. She has been a Research Fellow in the Arbitration Research Institute of the China Chamber of International Commerce (CCOIC) since 2001 after she got her doctoral degree of legal science (SJD) from Hong Kong University. She is currently the Director of the Arbitration Research Institute. Dr. Wang has also served as Chair, Sole Arbitrator, or as a Member of international and domestic arbitration panels. She has also been appointed as an expert dealing with domain name dispute cases by CIETAC Domain Name Dispute Resolution Center. Dr. Wang is the Editor of Arbitration and Law, a famous Chinese journal on arbitration with a history spanning more than 20 years.

 


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