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 annual conference (the 26th) was this year in Kuala Lumpur between 13 and 16 April. The conference is well attended by lawyers and others with an interest in legal developments and issues in the Asia-Pacific region, although not only lawyers from that region attend. 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. Sessions I attended which were of particular interest were as follows:
Bribery & corruption in arbitration
The obligations (if any) of an arbitral tribunal to investigate and report on potential bribery were considered. Further, the panel discussed whether an award involving a positive finding of fraud or bribery would be clothed with the usual confidentiality or would be liable to be disclosed to relevant regulatory / criminal authorities.
You finally got your award: what now?
Small round table groups considered particular concerns relating to enforcement of awards in various jurisdictions. It was fascinating to see that notwithstanding the (almost) universal application of the New York Convention to recognition and enforcement of foreign arbitral awards, different jurisdictions had often very different approaches towards the relief that could be granted in aid of enforcement proceedings. A trend was identified in relation to potential forum shopping for favourable enforcement jurisdictions, and there followed further interesting discussions about what link to a particular jurisdiction is required before that jurisdiction will assist an award creditor in enforcing an award.
The use of illegally obtained evidence in arbitration
Delegates considered which law should govern the question of admissibility of evidence, against the background of a mock arbitration, which concerned procedural issues arising out of the obtaining of evidence by questionable methods and in the face of opposition from the other party. Consideration was also given to the potential consequences for recognition and enforcement in a foreign enforcing court which has strict laws relating to privacy, data protection and bribery. Further attention was given as to whether such a foreign enforcing court might uphold a public defence to recognition and enforcement under the New York Convention based on its own domestic norms without there being a corresponding international standard or norm.
Working with witnesses in cross-border disputes
The panel discussed the differing levels of protection conferred on documents produced in the course of interviewing clients with the view to producing witness statements or affidavits (such as internal notes). Also, the extent to which different jurisdictions permit witness preparation for oral testimony was discussed (if any such testimony is to be permitted, which is not universal).
The recalcitrant respondent
Two different schools of thought were put forward in this session: one was that parties have the right to take advantage of whatever procedural step is available to them if they consider that taking such a step, and any resulting delay, will be in their interest. Further, arbitrators should be careful of elevating themselves to the level of private state court judges punishing parties for perceived disobedience in circumstances where their own jurisdiction was a function of the consent of the parties.
The other school of thought was that extreme behaviour which is increasingly being seen in many jurisdictions (for instance repeatedly failing to pay deposits in institutional arbitration thereby forcing the other party to pay for both parties) should not be tolerated. Further, it was suggested that arbitral institutions need to be more proactive in lending assistance (particularly to less experienced arbitrators) in the face of serious recalcitrance by respondents.
Comment
What struck me in particular in attending these sessions was that the same issues which we see arising in all forms of dispute resolution in England are being played out across the world in other jurisdictions in a similar way.
It has perhaps not been a coincidence that as we see global power and money gradually shifting eastwards in the 21st century, the IPBA has in recent years seen a steady increase in membership year on year and a steady increase in the number of attendees at each conference. Next year’s annual conference will take place in Auckland between 6 and 9 April. For anyone with a general interest in the Asia-Pacific region 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.
