Joe Liu, Managing Counsel at the Hong Kong International Arbitration Centre, speaks about transparency, education and trends in Asia’s dispute resolution market.
What is your current role in dispute resolution?
The Hong Kong International arbitration Centre (HKIAC) is a service provider. We provide a wide range of dispute resolution services – arbitration, mediation, adjudication and domain name dispute resolution. I was previously in private practice and throughout my career I have specialised in international commercial and treaty arbitrations.
How is the market currently addressing parties’ needs?
The market has been evolving quickly to address parties’ needs. The dispute resolution community is very conscious in taking steps to facilitate reforms and the main arbitration institutions have been very proactive in this regard. A broad range of dispute resolution mechanisms have already been made available to users, and there are more to come. Many users may have heard of those mechanisms, but may not fully appreciate the differences.
Major institutions, such as the HKIAC, have been working towards enabling users to make an informed choice. We have been working a lot in emerging markets, visiting China, Russia, India, Mongolia, the Philippines and other countries to promote various dispute resolution mechanisms to local governments, commercial entities, lawyers and the judiciary. It is particularly vital to educate local judges about their role in international arbitration.
Which processes do you see being used most frequently?
In my experience, international arbitration has been the process used most frequently, although I have increasingly seen the use of other types of dispute resolution processes, such as domain name dispute resolution and mediation. As the leading domain name dispute resolution service provider in Asia-Pacific, HKIAC has experienced a strong growth in its domain name caseload over the past few years.
Hybrid dispute resolution methods, such as arb-med, can work if used properly. There are pros and cons of such methods. They have been commonly used in countries such as China, Japan and Germany, but have met with criticism in places like Hong Kong and the US.
The main concerns about the process are the appointment of the same individual as mediator and arbitrator, and his/her use of confidential and privileged information obtained from mediation when deciding a dispute in arbitration. Such concerns could be addressed to some extent by appointing different individuals to act as mediator and arbitrator. This has been done in some of HKIAC’s cases.
Why do you think the East Asian institutions have become so popular?
There are many reasons for the growing popularity of Asian dispute resolution centres. Both Hong Kong and Singapore have a developed legal framework, an independent judiciary, and a vibrant arbitration community, including arbitral institutions which actively lobby government to update arbitration legislation.
For example, the Hong Kong government has been very active in developing the legal infrastructure to make sure the offering of the city stays at the forefront of international arbitration development. In addition, Hong Kong has an independent and pro-arbitration judiciary.
Between 2010 and 2014 the Hong Kong courts did not refuse to enforce any arbitration awards, and along with a solid body of case law they have demonstrated that the Hong Kong courts will not interfere in arbitration except where so provided in the arbitration legislation. Hong Kong also has a specialist judge who deals primarily with arbitration matters.
Another factor leading to the success of arbitration institutions in the region is that Hong Kong and Singapore are actively promoting themselves globally. Both cities are very well positioned and connected. The fact that the English language is used in both cities makes them very popular on an international level.
In addition, Asian parties have stronger and stronger bargaining power, increasingly allowing them to arbitrate in their own region. For example, Chinese investors are now often able to insist in having their arbitration proceedings closer to home, and this often results in the choice of Hong Kong and HKIAC as the venue for such proceedings.
How do you think the dispute resolution processes are likely to change in the future?
I see it moving towards greater range of options for parties to choose from. If you look at dispute resolution in Asia 10 years ago, it was dominated by court litigation. Now we are seeing an increased demand for arbitration, mediation and online dispute resolution. The trend in Asia is that there is an increasing variety of choices available to parties, while these processes are also getting more transparent.
From an institutional perspective, what would you like to see improved?
I would like to see more transparency and efficiency.
There is a greater demand for transparency especially regarding the publishing of arbitration decisions driven mainly by states, public interest groups and industry groups. For example, shipping or construction groups sometimes find it desirable for decisions to be published in order to set binding precedents. However, this has been met with considerable resistance in the commercial sector where private parties generally prefer to keep their disputes confidential.
Nevertheless, the dispute resolution community is trying to find a suitable way to ease these tensions. For example, HKIAC has published detailed statistics and practice notes to promote transparency and certainty of HKIAC proceedings. We are also going to publish information or commentary about HKIAC’s decisions on challenges to arbitrators and consolidation of arbitrations.
HKIAC is constantly looking to explore new ways to improve efficiency and save costs for users. We were the first Asian institution to introduce consolidation and joinder provisions to deal with multi-party or multi-contract disputes. We also have emergency arbitrator procedures that allow a party to apply for emergency relief before the arbitral tribunal is constituted. Such relief is enforceable as court order under the Hong Kong Arbitration Ordinance.
I think there is a need for greater education of dispute resolution methods, particularly in developing jurisdictions. Governments and institutions should be the key drivers in this. As mentioned above, HKIAC has put a lot of effort into training and educating practitioners, arbitrators, in-house counsel, government officials and judges in emerging markets.
Could an improved cross-cultural dialogue promote different forms of dispute resolution?
I think a cross-cultural dialogue is a very useful means of engaging local and international stakeholders in discussing ways to improve dispute resolution. This can take various forms including conferences, training workshops, lectures and publication of articles. The key is to identify the right people and topics for the dialogue. Governments, arbitral institutions, judges, industry groups and major corporations are among those who are able to facilitate and impact local DR reforms.
The GPC is an excellent forum to host such dialogue. It is very important to have this dialogue in emerging markets in particular. These markets need capacity building, awareness, and receive training so they can properly engage in order to manage disputes in an international forum.
Interviewed by Natasha Mellersh.
Joe Liu will be speaking at the next GPC event in Hong Kong. He currently heads HKIAC’s arbitration team to develop the dispute resolution services provided by the institution, he was also a member of the HKIAC Rules Revision Committee and was instrumental in drafting the 2013 HKIAC Administered Arbitration Rules. Aside from spending a number of years in private practice before joining HKIAC, Joe previously worked as Assistant Counsel at the Singapore International Arbitration Centre and did a short stint at the Permanent Court of Arbitration in The Hague and the High Court of Hong Kong.