The Inter-Pacific Bar Association (IPBA) is an organisation with some similarities to the International Bar Association (IBA), with a regional focus on Asia-Pacific. Its 27th annual conference took place in Auckland between 6 and 9 April this year. The conference is well attended by lawyers and others with an interest in legal developments and issues in the Asia-Pacific region, although attendance is not limited to lawyers from that region alone. In recent years there has been a notable increase in the number of attendees from Europe and other areas outside Asia-Pacific.
Not unlike the IBA, the IPBA annual conference has some initial plenary sessions followed by parallel sessions organised by the various committees, and attendees may pick and choose which sessions interest them. I attended the following sessions:
Hot topics on investment treaty arbitration
This session included some interesting presentations on:
- Sovereign immunity.
- The Mauritius Convention relating to matters of transparency.
- The EU Investment Court.
- Tactical challenges to arbitrators based on issue conflicts.
- The steadily increasing quantum of damages in investor state arbitration.
Impact of ethical standards on international arbitration
The contributors provided updates from their jurisdictions in relation to issues about the potential for transnational standards of behaviour in international arbitration and how any such standards might be enforced.
Emergency arbitrator: a useful tool or useless phenomenon
This session began with a 30 minute mock emergency arbitration under the Singapore International Arbitration Centre (SIAC) Rules to give participants a flavour of how emergency arbitration is used in practice. After the mock arbitration, the remainder of the session was a roundtable discussion on a number of points of interest arising in relation to emergency arbitration. These included:
- The interface between such a remedy and recourse to national courts.
- Difficulties surrounding the enforcement of emergency awards.
- The position of third parties who might have some interest or control in relation to the subject matter of emergency relief.
The panel also debated differences of approach between institutions and users, which were very marked, considering the similarity of the rules. For instance, the SIAC has already administered 57 requests for emergency arbitration, whereas in a similar timescale the London Court of International Arbitration (LCIA) has only been approached once for a request for an emergency arbitrator to be appointed, and the LCIA Court had declined to appoint an emergency arbitrator in that case. That led to the well-known decision in Gerald Metals SA v Timis. The session concluded by noting that under most institutional rules, it is possible to opt out of emergency arbitration regimes, and by considering the pros and cons of opting out in terms of not cutting down on the ability to approach a national court for assistance.
Privilege and its impact on discovery/document production
Delegates split into six small roundtables for this session. This was in order to consider the possibilities of regulation of matters of privilege by soft law similar to the IBA Guidelines for the Taking of Evidence in International Arbitration. This was generally welcomed as an idea that could work in practice and ensure uniformity in international arbitration across jurisdictions, with different national approaches to privilege. Issues were identified in relation to privilege arguably being substantive in nature, rather than procedural, and how that might affect attempts to harmonise by soft law.
National interference in arbitration: is the idea of “free & fair” international arbitration under threat
In this session, the panel debated a number of challenges to the system of international arbitration. These included:
- Guerrilla tactics ranging from uncooperative approaches to document production to kidnap of arbitrators.
- The use and misuse of institutional rules to try to combat improper behaviour.
- The potential use by states of tax assessments to wipe out arbitral awards made against them in favour of the party whose tax liability is being assessed.
- The innovative approach of the courts in Hong Kong in awarding indemnity costs as the rule where frivolous challenges to arbitral awards are dismissed.
- The well-known development in the UAE of Law 257 which could in theory lead to the imprisonment of arbitrators for failing to act fairly.
Efficient arbitration: techniques to minimise delay and expense in international cross-border disputes
The panel in this session debated a number of practical issues including dichotomies in approach between pleading and memorial styles for submissions in international arbitration, bifurcation of issues to increase efficiency, and the potential for summary awards in suitable cases.
Insurance disputes: successful strategies for both insureds and insurers
This was a lively joint session between the Dispute Resolution and Arbitration Committee and the Insurance Committee. Various practical issues were debated from the perspectives of both insureds and insurers.
Comment
What struck me in attending these sessions was that the same issues, which we see arising in all forms of dispute resolution, and in particular arbitration, in England, are being played out across the world in other jurisdictions in a similar way.
In recent years, the IPBA has seen a steady increase in membership and in the number of attendees at each conference. It is a significant achievement for the Auckland organising committee to have achieved almost 800 registrations for a conference in such a far flung place. Next year’s annual conference will take place in Manila between 14 and 16 March. For anyone with a general interest in the Asia-Pacific region and who is keen to learn first-hand about the latest legal issues arising and being debated there, this might be an ideal opportunity for some genuinely interesting conferencing.
