01 November 2018

Reasons to be cheerful in arbitration

Asia arbitration week sees law prof offering three reasons why arbitration is succeeding and lawyer urging HK to 'utlilise its uniqueness.'

Professor George Bermann of the Columbia University School of Law in a keynote speech asked: why, when faced with recent scrutiny and an assortment of challenges, should the international arbitration community look to the future of arbitration with considerable equanimity?  

Promising future

The keynote was part of Hong Kong Arbitration Week and was presented at the ADR in Asia conference, entitled “The Vision in Revision,” Professor Bermann argued three reasons for arbitration. First, he noted that the promised features of international arbitration had not receded in value. Confidentiality, party autonomy in constituting tribunals, finality of awards, ease of enforceability, and above all, the promise of neutrality, remain elementary advantages for arbitration that have not diminished over time. Second, in his view, international arbitration has delivered further benefits that were not part of the ‘original promise.’ These include an aptitude for procedural reform and adaptation that cannot be matched by national systems of litigation, the embrace of new technology, and the development of a dynamic and vibrant community of international arbitration practitioners.
Lastly, he noted that international arbitration has been able, relatively speaking, to avert anticipated risks, including arbitrators cutting procedural corners and not faithfully applying the law chosen by the parties. Professor Bermann said that whilst these might be occasional problems, they are not chronic.

Hong Kong potential

Meanwhile, at the International Maritime Law Conference in Shanghai, the argument for Hong Kong as an attractive international hub for arbitration in the Far East was made. The jurisdiction could become more successful if it develops a more global strategy and embraces foreign investment, according to Edward Yang Liu, Hill Dickinson counsel in Hong Kong. He explained Hong Kong benefits from being the only Chinese jurisdiction which practices common law and adopts a common law system familiar to the international business sector, and possesses a strong professional legal community. Mr Liu urged Hong Kong to ‘utilise its uniqueness’ and make full use of the Belt and Road initiative in order to expand is arbitration sector. He acknowledged that Hong Kong’s popularity seems to have dwindled a little in recent years, explaining ‘Hong Kong should address any technical and commercial problems under its existing arbitration regime and utilise opportunities under the Belt and Road Initiative and the Guangdong-Hong Kong-Macau Greater Bay Area Plan in order to expand its arbitration sector.’