Norton Rose Fulbright hosted a fascinating event last week focussing on the comparative risks and rewards of arbitrating in a number of jurisdictions, including Russia, Dubai, India, London, Singapore and Hong Kong. The panellists displayed a wealth of relevant expertise and the chair was an eminent retired Commercial Court judge, who offered valuable insight into:
- Why he considered that the Arbitration Act 1996 has struck the right balance between finality and appealability.
- The merits of non-institutional arbitration.
- Why London remains the dominant centre for shipping arbitrations.
When reviewing the good, the bad and the ugly of the arbitral jurisdictions, Dubai emerged as a strong contender for the last two epithets. This was almost exclusively due to the perceived risk of imprisonment of arbitrators against whom allegations of bias are made. The recent reform of the UAE Penal Code, permitting imprisonment of arbitrators who are alleged to have contravened their duty of neutrality, is undoubtedly a most concerning development which has and will continue to affect the desirability of Dubai as an arbitral jurisdiction until it is reformed. There is no issue with the principle that arbitrators must not contravene their duty of neutrality. The concern arises because of the risk that unscrupulous parties with a poor case may make unjustified allegations of bias against one or more members of the tribunal as a tactical ploy, coupled with the fact that there is now a power to detain and confiscate the passport of the alleged offending arbitrator pending investigation of the complaint. Although there is a strong lobby in favour of reform of the amendments, at the present time the risk of criminalisation of arbitrators presents a major problem and an unacceptable risk. It has already led to a number of arbitrators refusing to accept appointments in Dubai seated arbitrations, as well as resignations of those already appointed in such cases.
Singapore continues apace with improvements and innovations to its rules, as we have come to expect of this dynamic and efficient jurisdiction. Hong Kong has a close and friendly rivalry with Singapore and has rightly commanded considerable confidence as an arbitral jurisdiction.
Perhaps coming as a surprise to some, Indian seated arbitration definitely has the potential to blossom into an attractive jurisdiction for disputes with an India focus. This is due in part to the opening of the Mumbai International Arbitration Centre last summer and amendments to the India Arbitration Act in late 2015, which aims to reduce delays in the rendering of arbitral awards. India is also seeing the emergence of a specialist Arbitration Bar as testament to the changing scene in this jurisdiction.
Russia has a long history of arbitration. Reforms have recently taken place to eliminate “pocket” arbitration institutions in an attempt to promote transparency and impartiality. Russian arbitration awards are delivered on average within six months and there is an 85% chance of successful enforcement. All very encouraging.
What is clear is that there is a great deal of choice now facing clients. It is incumbent on internal and external counsel to be aware of the risks and rewards that each relevant jurisdiction presents. If London is to retain its pre-eminence it also needs to ensure that it responds to the demands of the market. There is no room for complacency. Greater diversity in the available arbitral pool can only increase the reputation for excellence that London currently enjoys.
