Arbitration in Asia

In recent years, there has been a concerted effort by jurisdictions in Asia to introduce and refine their arbitration frameworks. Not only have many court judgments continued to approach international commercial arbitration in a harmonised manner but some jurisdictions have also overhauled their arbitration laws to be more in keeping with international standards. For example:

• Myanmar, pursuant to its obligations under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), enacted the Arbitration Act on 5 January 2016; and
• India updated its arbitration framework by enacting the Arbitration and Conciliation (Amendment) Ordinance 2015.

Below we will look at the recent changes to the Myanmar and Indian arbitration laws and briefly comment on their impact. In addition, we will analyse various court judgments across the region and comment on the general willingness to approach international commercial arbitration in a harmonised manner.

Myanmar’s new Arbitration Act

Myanmar became a signatory to the New York Convention in April 2013 and this was generally seen as one of many welcome steps towards encouraging investment into the country. Since that time, the Myanmar government released a draft Arbitration Bill in 2014 which more or less mirrored the UNCITRAL Model Law on International Commercial Arbitration (the Model Law). However, the draft Arbitration Bill was subjected to further reviews by the Myanmar parliament which effectively delayed its enactment into domestic law. Nevertheless, after various changes were made to the original draft Arbitration Bill, the Myanmar parliament enacted the Arbitration Act on 5 January 2016.

Through its enactment, the AA replaced the antiquated Arbitration Act 1944 and the Arbitration (Protocol and Convention) Act 1937 (in relation to foreign awards). The AA aims to provide the overarching framework for all arbitrations concerning Myanmar and therefore governs both domestic and international arbitration as well as the recognition and enforcement of awards (both foreign and domestic).

Like the previous draft Arbitration Bill 2014, the AA is primarily based on the Model Law. Accordingly, among other things, the AA: requires an arbitration agreement to be ‘in writing’;¹ recognises the doctrine of severability of an arbitration agreement;² provides that the arbitral tribunal may rule on its own jurisdiction;³ permits the arbitral tribunal to make interim orders;⁴ and permits, in certain instances, for the court to assist with the taking of evidence.⁵

Nevertheless, there are still some slight differences between the AA and the Model Law. For example, the default number of arbitrators is one⁶ (three under the Model Law); and, unless otherwise agreed by the parties, the arbitral tribunal shall specify the party entitled to costs, the party who shall pay the costs, the amount of costs or the method of determining costs and the manner in which costs shall be paid.⁷

In line with arbitration frameworks in other Asian jurisdictions, the AA provides flexibility to parties when determining the procedural framework of the arbitration. Nevertheless, the AA does impose a few mandatory provisions which are primarily aimed at maintaining the integrity of the arbitration. Accordingly, the AA requires disclosure by arbitrators of any circumstances likely to give rise to justifiable doubts as to his impartiality or independence⁸ and all parties shall be treated with equality and provided a full opportunity to present his case.⁹

Consistent with the approach in other Model Law jurisdictions, the AA provides for different levels of court supervision depending on the nature of the arbitration. For international arbitrations seated overseas, the Myanmar courts may hear appeals on: a lower court’s decision not to refer parties to arbitration; whether a court ordered interim order (arising from the arbitration) should be granted; and whether the foreign award should be enforced in Myanmar.¹⁰

For domestic arbitrations, in addition to the above, the Myanmar courts may also hear appeals on, among other things, any legal issue arising out of the arbitral award¹¹ and on the arbitral tribunal’s decision on its jurisdiction.¹²

The AA recognises foreign awards rendered in other New York Convention jurisdictions¹³ and, provided such foreign award is enforced in Myanmar, it is deemed to be a decree of the Myanmar courts. In order to enforce a foreign award, the party must provide:

• the original award (or copy), duly authenticated in the manner required by the law of the country in which it was made;
• the original arbitration agreement (or a duly certified copy); and
• such evidence as may be necessary to prove that the award is a foreign award.¹⁴

A foreign award may only be refused to be enforced in Myanmar pursuant to one of the following grounds:

• The parties to agreement are under some incapacity under the law applicable to them.
• The arbitration agreement is not valid under the law to which the parties have subjected to it or failing any indication thereon under the law of Myanmar.
• The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings or was otherwise unable to present his case.
• The arbitral award is made by the arbitral tribunal without following the rules of the arbitration or the arbitral award is made in breach of the rules of the arbitration or the award contains decisions on matters that are not relevant to the arbitration. However, if the part of the award not within the scope of the arbitration can be separated from the rest of the award, the court may set aside only part of the award that is not relevant.
• The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place.
• The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.
• The subject matter of the dispute is not capable of settlement by arbitration under the law of the Republic of the Union of Myanmar.
• The enforcement of the award would be contrary to the national interests of Myanmar.

While the enactment of the AA is a welcome step, bringing Myanmar’s arbitration framework in step with other New York Convention jurisdictions, it remains to be seen how the Myanmar court will interpret the AA. No doubt, especially in the context of enforcing foreign awards, investors will be eager to see whether the Myanmar courts will adopt a more passive approach (akin to Singapore and Hong Kong) or whether they will adopt a more interventionist approach.

India’s recent amendments to the Arbitration and Conciliation Act

On 23 October 2015, the Indian parliament enacted the much awaited Arbitration and Conciliation (Amendment) Ordinance 2015 (the Amendment Ordinance), which amended the Arbitration and Conciliation Act 1996 (ACA). Among other things, the Amendment Ordinance effectively reversed a string of Indian case law and in doing so, brought India’s arbitration framework in line with international standards. Some of these changes will be discussed below.

The Amendment Ordinance expands the definition of an arbitration agreement to include communications through electronic means.¹⁵ On the other hand, the definition of an ‘international commercial arbitration’ was narrowed. Previously, if one of the parties was ‘a company or an association or a body of individuals whose central management and control is exercised in any country other than India’¹⁶ the arbitration would be considered an ‘international arbitration’. However, the Amendment Ordinance amended this definition¹⁷ such that this no longer applies to companies and only pertains to associations and bodies of individuals. Accordingly, if a party is a company and is managed or controlled offshore, this would not, in and of itself, lead to the arbitration being classified as an ‘international arbitration’.

In addition, the Amendment Ordinance provides that provisions relating to interim measures and assistance from the court in taking evidence shall apply even to arbitrations not seated in India, unless expressly excluded by the parties.¹⁸ This amendment possibly sought to reverse previous Indian judgments which may have confined the scope of the court’s powers to Indian seated arbitrations.

The Amendment Ordinance also expands on the provisions concerning the appointment of and grounds for challenging an arbitrator.¹⁹ While the general principle that an arbitrator should be independent and impartial remains, the Amendment Ordinance provides a list of 34 scenarios that may give rise to a justifiable doubt as to the independence and impartiality of an arbitrator.²⁰ In addition, the Amendment Ordinance also provides a list of 19 instances where a person must not be appointed as an arbitrator, notwithstanding any agreement made by the parties prior to the dispute. For example, a person must not act as an arbitrator if such person was an employee, consultant, adviser or has had any other past or present business relationship with a party. This falls into line with the IBA guidelines and should be viewed as a major step forward.

While the ACA provides that an award may be refused to be enforced if it is in conflict with the public policy of India,²¹ the Amendment Ordinance has now inserted ‘Explanation 1’ into the ACA, which has the effect of confining the application of a conflict of public policy to three grounds. More specifically, Explanation 1 relevantly provides that:

For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,-

(i)  the making of the award was induced or affected by fraud or corruption…; or

(ii)  it is in contravention with the fundamental policy of Indian law; or

(iii) it is in conflict with the most basic notions of morality or justice.²²

Moreover, the Amendment Ordinance makes it clear that in determining whether any of these three circumstances are met, the court shall not look into the merits of the dispute.²³ In addition, for domestic arbitrations, the award may be set aside if, on the face of the award, it is patently illegal (not being an erroneous application of the law or by re-appreciation of evidence).

Notwithstanding the general acceptance of most of amendments in the Amendment Ordinance, it is not bereft of controversy. Specifically, the Amendment Ordinance provides that arbitrations must be completed within 12 months from the date the arbitral tribunal enters upon the reference (ie, the date all arbitrators have received notice of appointment), extendable for a further six months by agreement of the parties.²⁴ If an award is not made within such time, the mandate of the arbitrator shall terminate unless the Indian court has extended the period of time to render an award. While the length of an international arbitration is highly dependent on the peculiarities of the matter, it is not uncommon for international arbitrations to require more than 12–18 months from the appointment of arbitrators to the rendering of an award. It therefore remains to be seen how this new amendment will play out in practice. More importantly, it will be interesting to see whether parties resolving their disputes through arbitration in India will view this requirement as a positive attempt to spur prompt resolutions of disputes or as a burden, necessitating numerous court applications for an extension of time.

In addition to the above, ambiguities and unresolved issues still remain. These include:

• whether the number of times an arbitrator has appeared in arbitration proceedings before the same party may be a ground of challenging the appointment of such arbitrator;
• an emergency arbitration scheme has not been implemented;
• the absence of a distinction between the ‘seat’ and ‘venue’ of an arbitration;
• despite recommendations in the Indian Law Commission Report, the Amendment Ordinance did not amend the ACA to expressly state that issues of fraud are arbitrable – thereby leaving the issue of arbitrability of fraud open to the Indian courts; and
• despite recommendations in the Indian Law Commission Report, no time limits were imposed on Indian courts when deciding challenges to the enforcement of foreign arbitral awards.

Continuing harmonisation of international arbitration in Asia

From Australia to Singapore to Hong Kong, jurisdictions in Asia continue to harmonise their approach to international commercial arbitration. This continuing development is encouraging for the growth of international commercial arbitration and provides an element of certainty for parties doing business across Asia.

We now look at a few court decisions from Australia, Malaysia, New Zealand, Singapore and Hong Kong and how these jurisdictions continue to adopt an international approach to arbitration.

Australia

Robotunits Pty Ltd v Mennel²⁵ is an insightful case in which the Victorian Supreme Court expressly reaffirmed the principle of ‘international harmony’ in international commercial arbitration. This case concerned a ‘pathological’ arbitration agreement which referred to a non-existent set of arbitration rules. In determining whether the court proceedings should be stayed and the dispute referred to arbitration (notwithstanding the pathological arbitration agreement), the Victorian Supreme Court cited with approval the Federal Court Decision of TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd:²⁶

[I]t is not only appropriate, but essential, to pay due regard to the reasoned decisions of other countries where their laws are either based on, or take their content from, international conventions or instruments such as the New York Convention and the Model Law. It is of the first importance to attempt to create or maintain, as far as the language employed by parliament in the ... [Act] permits, a degree of international harmony and concordance of approach to international commercial arbitration. This is especially so by reference to the reasoned judgments of common law countries in the region, such as Singapore, Hong Kong and New Zealand.²⁷

The court then referred to the Singapore Court of Appeal’s decision in AKN v ALC²⁸ which relevantly affirmed the policy of ‘minimal curial intervention’ in arbitration. Ultimately, the court, applying the policy of minimal curial intervention, ordered a stay of the court proceedings and referred the elements of the dispute caught by the arbitration agreement to be referred to arbitration. With regard to the relevant seat and rules of the arbitration, the court ordered parties to come to an agreement on these matters within 28 days, failing which a party could apply to the court for a decision.

Malaysia

The case of The Government of India v Cairn Energy India Pty Ltd & Ors²⁹ concerned, among other things, the ambit of ‘public policy’ in determining whether the court should resist enforcement of an arbitral award on public policy grounds. The Malaysian court, after referring to a string of international judgments in New Zealand, Singapore and Hong Kong, specifically cited the Singapore Court of Appeal decision in PT Asuransi Jasa Indonesia (Persero) v Dexia Bank SA³⁰ that affirmed a narrow approach:

In discussing the term ‘public policy’, it was understood that it was not equivalent to the political stance or international policies of a State but comprised the fundamental notions and principles of justice.

After examining the approach in other jurisdictions, the Malaysian court concluded that the ‘same concepts of public policy prevail [in Malaysia]’.

New Zealand

Kyburn Investments Limited v Beca Corporate Holdings Limited³¹ concerned whether an arbitral award should be set aside on the grounds of a breach of natural justice. In this case, the appellant argued that there was a breach of natural justice as the arbitrator had inspected the premises in the presence of only the respondent.

As the New Zealand Court of Appeal agreed that the arbitrator had breached of the rules of natural justice, it went on to address the question of ‘whether there is an onus on a party complaining of a breach of natural justice to make out that its consequences are sufficiently material to warrant setting aside an award’.³²

After analysing the case law in other jurisdictions (including Australia and Hong Kong), the New Zealand Court of Appeal held that:

Cases in jurisdictions applying the Model Law do not support the existence of an onus. Instead the materiality of the breach and possible effect on the outcome are treated as relevant factors.³³

The New Zealand Court of Appeal ultimately followed this approach and found that, ‘while the arbitrator’s breach of the rules of natural justice was significant, the risk that something was said by [the respondent during the inspection] to the arbitrator did not…. have any material effect on the outcome of the rent review arbitration.’³⁴ In support of its conclusion that the inspection had no material effect, the New Zealand Court of Appeal provided the following bases:

• the award correctly recorded the well-established legal principles the arbitrator intended to follow;
• the award was principally based on the arbitrator’s evaluation of the expert valuation evidence;
• the award made no reference to the inspection in question or any information provided by the respondent during the inspection;
• the award contained an accurate physical description of the premises; and
• the award contained no error and was otherwise an unexceptional rent review award.

Hong Kong

The Hong Kong case of S Co v B Co³⁵ concerned the setting aside of an arbitral award on the grounds that, among other things, the tribunal did not have jurisdiction. Prior to being able to determine this point, the Hong Kong High Court needed to determine the standard of review for a jurisdictional challenge, specifically whether the review could be heard de novo (ie, a fresh review of the case). In deciding this point, the court reviewed commentaries and case law from other New York Convention countries including Singapore, Canada and the United Kingdom. In particular, the court cited, with approval,³⁶ the following passage from the Singapore case of PT Tugu Pratama Indonesia v Magma Nusantara Ltd:³⁷

Accordingly, the court makes an independent determination on the issue of jurisdiction and is not constrained in any way by the findings or the reasoning of the tribunal. In the same way, parties are not limited to rehearsing before the court the contentions put before the tribunal but are entitled to put forward new arguments on the issue and the court is entitled to consider these.³⁸

Ultimately, the Hong Court High Court ruled that it was permitted to hear the plaintiff’s jurisdictional challenge de novo, including on points not previously raised before the tribunal.

Singapore

Firstlink Investments Corp Ltd v GT Payment Pte Ltd and others³⁹ concerned a dispute over the payment of money into an online payment account. The plaintiff commenced proceedings in the Singapore High Court and the defendant argued that the court proceedings should be stayed and referred to arbitration pursuant to an arbitration agreement between the plaintiff and defendant. In response, the plaintiff argued that the arbitration agreement was invalid on the grounds that it was null and void, inoperative or incapable of being performed.

In order to decide whether to stay proceedings, the Singapore High Court had to determine the applicable standard in determining the validity of an international arbitration agreement. Ultimately, the court reaffirmed the prevailing policy that an applicant for a stay of court proceedings only needed to show, on a prima facie basis, that an arbitration agreement existed. In coming to this conclusion, the Singapore High Court referred to a number of common law and Model Law jurisdictions, including Hong Kong, all of which supported a ‘pro-arbitration’ approach. Given the low threshold requirements needed to show an existence of an arbitration agreement, the Singapore High Court ordered a stay of proceedings and referred the dispute to arbitration.

Another important case was the Singapore Court of Appeal’s judgment in AKN and another v ALC and other and other appeals (AKN).⁴⁰ AKN concerned the consequences arising from the partial setting aside of an arbitral award,⁴¹ including whether the original tribunal retained jurisdiction to make a fresh determination or award in respect of the matters that had been set aside.

Firstly, the Singapore Court of Appeal held that under the Singapore International Arbitration Act (IAA) the power to remit an award back to the original tribunal operates as an alternative to setting aside an award. As such, if a court decides to set aside an award, the court will not have the power to then remit matters arising from the award (which had been set aside) back to the original tribunal.

Secondly, once a tribunal has rendered its award, it generally has no further mandate or jurisdiction. However, the tribunal may be conferred fresh or further jurisdiction but only pursuant to an order of the court. In coming to this conclusion, the Singapore Court of Appeal referred to the following extract from the Australian case of Mark Blake Builders Pty Ltd v Davis:⁴²

Thus in the end the extent of the arbitrator’s jurisdiction turns upon the Court’s order – to what extent was the arbitrator’s jurisdiction expressly or impliedly revived? … Depending on the terms of the order, it may be necessary to look to the court’s reasons in order to decide the extent of revival … But the arbitrator does not have jurisdiction going beyond what is necessary to give effect to the order of the court.

In the present case, as the award had been partially set aside, the Singapore Court of Appeal did not have the power, and therefore could not make an order, to remit the matters set aside back to the original tribunal (see the first point above).

Thirdly, where a matter arising from an award has been set aside, a party may commence fresh proceedings before a new tribunal for such matter, subject to the principle of res judicata.⁴³ In the present case, as the tribunal had rejected the appellant’s case for loss of profits, the appellant could not start fresh proceedings on the issue of damages. However, as the tribunal did not consider the appellant’s ‘lost land’ claim, the appellant was permitted, if it wished, to commence fresh proceedings under a new tribunal for its lost land claim.

Conclusion

The recent updates to Myanmar and India’s arbitration laws and the continued push by jurisdictions in Asia to harmonise their approach to international arbitration will no doubt increase the attractiveness of arbitration in Asia. With the continued growth of arbitration in Asia, it is envisaged that the Asia-Pacific jurisdictions will continue to play a leading role in the growth and harmonisation of arbitration law and practice.

Notes

1. Section 9 Arbitration Act 2016.
2. Section 18 Arbitration Act 2016.
3. Section 18 Arbitration Act 2016.
4. Section 19 Arbitration Act 2016.
5. Section 30 Arbitration Act 2016.
6. Section 12 Arbitration Act 2016.
7. Section 35(f)(2) Arbitration Act 2016.
8. Section 14 Arbitration Act 2016.
9. Section 21 Arbitration Act 2016.
10. Section 47 Arbitration Act 2016.
11. Section 42 Arbitration Act 2016.
12. Section 43(d) Arbitration Act 2016.
13. Section 3(k) and section 46 Arbitration Act 2016.
14. Section 45 Arbitration Act 2016.
15. Section 3 Arbitration and Conciliation (Amendment) Ordinance 2015, amending section 7 Arbitration and Conciliation Act 1996.
16. Section 2(1)(f)(iii) Arbitration and Conciliation Act 1996.
17. Section 2 Arbitration and Conciliation (Amendment) Ordinance 2015.
18. Section 2 Arbitration and Conciliation (Amendment) Ordinance 2015, amending section 2 Arbitration and Conciliation Act 1996.
19. Section 8 Arbitration and Conciliation (Amendment) Ordinance 2015, amending section 12 Arbitration and Conciliation Act 1996.
20. Fifth Schedule Arbitration and Conciliation (Amendment) Ordinance 2015.
21. Section 34 and 48 Arbitration and Conciliation Act 1996.
22. Section 18 Arbitration and Conciliation (Amendment) Ordinance 2015.
23. Section 18 and 22 Arbitration and Conciliation (Amendment) Ordinance 2015.
24. Section 15 Arbitration and Conciliation (Amendment) Ordinance 2015, inserting section 29A Arbitration and Conciliation Act 1996.
25. [2015] VSC 268.
26. [2014] FCAFC 83.
27. Robotunits Pty Ltd v Mennel [2015] VSC 268, [13].
28. [2015] SGCA 18.
29. [2014] 9 MLJ.
30. [2007] 1 SLR 597.
31. The Government of India v Cairn Energy India Pty Ltd & Ors [2014] 9 MLJ, [145].
32. Ibid [151].
33. [2015] NZCA 290.
34. Ibid [45].
35. Ibid [46].
36. Ibid [48].
37. [2014] HKCFI 1436.
38. Ibid [35].
39. [2004] 4 SLR (R) 257.
40. S Co v B Co [2014] HKCFI 1436, [26].
41. [2014] SGHCR 12.
42. [2015 1 SLR 966.
43. The partial setting aside of the award was made in a prior Singapore Court of Appeal decision. See: AKN and another v ALC and other and other appeals [2015] 3 SLR 488.
44. (NSW BC9403294).
45. Generally this principle entails that if a matter has already been determined it should not be pursued by the same parties (ie, the matter should not be re-heard).