SIAF 2015 Conference outline
ASIA: LOOKING BEYOND THE HORIZON
Many conferences focus on the important question of what to expect next in international arbitration in Asia. In the 4th Singapore International Arbitration Forum, we propose to go beyond that question. We propose to go beyond Asia, to go beyond arbitration, to look beyond the horizon. We propose to explore what the winds of international dispute resolution are bringing our way and, despite oft-repeated predictions, might well not be bringing our way.
Leading practitioners and academics will use both their intellect and experience to look beyond the standard conversations about investment treaty arbitration, “Asian international” commercial arbitration, and mediation of cross-border disputes.
Turning first to investor-state dispute resolution, why is the common assumption that ISDS is bearing down on Asia like a storm? Do the much-feared investor-state arbitration mechanisms in Asian FTAs and BITs even matter in practice? Will disputes, and arbitration of those disputes, be different with or without treaty ISDS mechanisms in place? Can and will Asia, as a “late mover”, benefit from the last two decades of investment treaty arbitration “jurisprudence”– will Asian parties follow the leader, avoid the pitfalls, ignore the outliers? Is there real cross-pollination between the anticipated practice of investor-state arbitration and the established practice of international commercial arbitration?
And just how established is “international” commercial arbitration in Asia? To be blunt, is Asia part of “international” or is it not? As foreign investment increases in Asia, there is much talk about how Asia needs increasing expertise in international commercial arbitration. The talk tends to ignore underlying questions, some of them inconvenient. How and when will Asian law societies, bars and courts be really open to international expertise? How and when will the “international arbitration community” be really open to Asian arbitrators and advocates, for non-Asian disputes? In the context of reciprocity, are leading international arbitrators and practitioners overlooking the growing reality that they need Asia as much as (they think) Asia needs them? In pushing against this horizon, how do we walk the fine line between cultural differences, cultural sensitivities and political correctness?
Finally, can we see beyond the fixed horizon of arbitration-litigation to successful mediation of international disputes? With the launch of the Singapore International Mediation Center, can Singapore make progress toward the so-far elusive goal of early mediation of complex international commercial and investor-state disputes? Thinking more ambitiously, could Singapore be an “early mover” and leader here? What legal and practical infrastructure is necessary? Who and what might work to change defeatist and negative attitudes, especially involving investor-state mediation? Is there hope of breathing life into the “cooling off” negotiation period before investors can initiate ISDS cases?
There are risks in looking beyond the horizon – in challenging the conventional answers to conventional questions, in asking newer and harder questions. Come join us.