Rimsky Yuen, GBM, SC, JP, arbitrator, mediator and barrister at Temple Chambers and former Secretary for Justice of Hong Kong, and David W. Rivkin, Co-Chair of Debevoise & Plimpton’s International Dispute Resolution Group and Past President of the International Bar Association (IBA) were appointed as Co-Chairs of Hong Kong International Arbitration Centre (HKIAC). They took over the reins from Matthew Gearing QC on 15 June 2020.*
Starting Out in Arbitration
Yuen was born and raised in Hong Kong, where he read law.** He became a barrister in 1988 and was appointed as Senior Counsel in 2003. From 2007 until 2009, Yuen was the Chairman of the Hong Kong Bar Association. From 2012 until 2018, he was the Secretary for Justice of the Government of the Hong Kong SAR, after which he resumed private practice. Yuen has connected with the world of arbitration at various points in time, first coming across the practice area when he studied international trade law, which was one of the electives he had opted for during his LL.B. studies. After Yuen started his practice as a barrister, he attended a course on arbitration organised by the Chartered Institute of Arbitrators (CIArb) and began practicing arbitration. During Yuen’s tenure as Secretary for Justice, he had the opportunity to promote Hong Kong as an international arbitration hub.
Rivkin, who is based at the other end of the globe, was born and raised in New York. His interests lie in global issues as his parents were very involved in international affairs. After graduating from Yale Law School, Rivkin clerked for Hon. Luther M. Swygert, a judge on the US Court of Appeals for the Seventh Circuit in Chicago in 1980-81 and then joined Debevoise & Plimpton, where he became a partner in 1988. The firm had already gained a reputation in international arbitration after it was instructed to represent in one of the Libyan oil expropriation arbitrations in the 1970s which were between States and foreign private parties, and won. On Rivkin’s first day at the firm, he was asked to work on a new arbitration matter the firm had just received that involved Indonesia, and he has been working on arbitration matters involving Asia ever since.
Yuen and Rivkin see it as part of their responsibility to work closely with the HKIAC Secretariat, Council members and of course with each other, with an aim to provide strategic guidance to ensure that (i) the HKIAC maintains its status as one of the leading international arbitration centres in the world and an ideal platform for domestic arbitration; (ii) the HKIAC continues to provide top quality services and improves where possible to accommodate the needs of the end-users of arbitration; and (iii) Hong Kong continues to be a highly regarded arbitral seat.
Where future plans for the arbitral institution are concerned, Yuen proposes inter alia to focus on (i) promoting the HKIAC in certain key jurisdictions such as Mainland China, ASEAN member states, as well as jurisdictions along the Belt and Road route; (ii) expanding HKIAC’s scope of service into new areas; (iii) nurturing young talent as well as from overseas to maintain and possibly improve the HKIAC’s panel of arbitrators in terms of sustainability and diversity; and (iv) exploring how technology can assist in further enhancing the HKIAC’s services. Rivkin suggests inter alia that the arbitral institutions that focus on catering to the needs of the users of international arbitration – the parties to the cases – for quick, efficient and well-considered resolution of disputes - will be the most successful in the future. “As the pace of international commerce has accelerated and economic pressures have grown, so has the demand to resolve disputes in a more effective and timely manner” says Rivkin. As such, the HKIAC can encourage arbitrators to adopt procedures that are most appropriate for that particular dispute rather than adopting a one-size-fits-all approach. Echoing Yuen, Rivkin points out that the HKIAC will need to explore ways to better incorporate technology including possible artificial intelligence. That said, the HKIAC is developing plans to create a virtual hearing centre.
Challenges to Come
When asked to describe what Yuen and Rivkin foresee to be the biggest challenge they will have to face as Co-Chairs of the HKIAC, their answers are framed in a positive light. “As an American, I have seen the concerns raised here and elsewhere about the new national security law. These concerns may impact the perception, though not the reality, of Hong Kong as a seat for international arbitrations, particularly those in which a Chinese party is involved. It will be important to demonstrate that Hong Kong’s excellent Arbitration Ordinance remains intact and unaffected and that the judges hearing any arbitration-related suits in Hong Kong courts remain independent and unaffected by political influence,” says Rivkin.
Adds Yuen: “Hong Kong’s fundamentals remain strong. We remain a truly international city with an effective legal infrastructure and independent Judiciary. Hence, objectively, there is no doubt that Hong Kong remains an ideal arbitration venue and the HKIAC remains one of the best arbitration institutions in the region. However, I have to admit that Hong Kong has undergone an eventful period since last summer. Besides, the political situation in Hong Kong as well as geopolitics may have (to varying degree) affected overseas end-users’ perception on Hong Kong and thus may affect their choice when they decide whether to choose Hong Kong as the seat of arbitration. In order to ensure that the international community (especially the international commercial community) and end-users of arbitration services properly understand the situation in Hong Kong so that they will continue to choose Hong Kong as a seat of arbitration as well as to choose the HKIAC as the administering body, we certainly need to do more explanation and promotion. In particular, we need to stress (as is the fact) that:
- The Hong Kong Judiciary remains truly independent and pro-arbitration. This can be seen from the decisions made by the Hong Kong Judiciary regarding enforcement of arbitral awards and related matters.
- Recent events in Hong Kong (including national security legislation) do not in any way affect the aforesaid and hence should not affect Hong Kong’s strength as an arbitration centre.
Further, it is also important to explain to end-users the relative strength of the HKIAC. For instance, the HKIAC is one of the few arbitral institutions that can provide assistance to parties in respect of interim measures with Mainland China.”
In arbitration, ordinarily an uneven number of arbitrators may be needed (one or three arbitrators), to prevent any deadlocks. While the UNCITRAL Working Group had suggested that an umpire be appointed in the case of a deadlock when it comes to an even number of arbitrators, most arbitration laws and rules prescribe one or three arbitrators. In the case of the two Co-Chairs of the HKIAC, whilst Yuen and Rivkin acknowledge that different people may have different views on the same subject-matter, they are both confident that they can have constructive discussions leading to consensual decisions on how they should deal with the affairs of the HKIAC as they arise.
Hong Kong and the HKIAC’s Standing
The Co-Chairs believe Hong Kong and the HKIAC to be respectively regarded as among the best seats and arbitral institutions in the world. “Parties know that if they choose Hong Kong as their seat, the arbitration can proceed without judicial interference and that awards will be enforced. Similarly, users know that the HKIAC will efficiently administer arbitrations and appoint strong arbitrators,” says Rivkin.
Yuen adds: “Both the HKIAC and the Department of Justice continuously keep an eye on international development with a view to ensuring that our arbitration law (which is based on the UNCITRAL Model Law) can meet the everchanging needs of the international commercial and arbitration communities. Second, we have a pro-arbitration and independent Judiciary. The decisions by the Hong Kong Judiciary is a good testimony of this feature. Besides, our Court of Final Appeal enjoys the participation of prominent overseas judges from the UK, Australia, New Zealand and Canada. Those overseas judges enhance cross-fertilisation when developing our arbitration jurisprudence.”
Impact of the COVID-19 Outbreak on International Arbitration Seated in Hong Kong Thus Far
Hong Kong’s response to the outbreak and handling of the situation has been commended although the pandemic is far from over. The HKIAC has continued to provide effective services despite the outbreak of COVID-19. While some hearings were temporarily postponed when COVID-19 first impacted Hong Kong in early February, that soon changed when it became apparent that global travel restrictions would not be lifted in the near future. Parties and tribunals looked instead at virtual hearing options (notwithstanding that traditionally, parties and tribunals prefer for witnesses to present in person) and the HKIAC pivoted its services swiftly to accommodate. Due to the relatively low COVID-19 numbers in Hong Kong, HKIAC’s premises have remained open for physical hearings the entire time with precautionary measures in place.
To date in 2020, the HKIAC has held a total of 55 hearings, 34 (62 percent) of which have been partially or fully virtual. For the remainder of 2020, 91 hearings are currently booked at the HKIAC’s premises (this will increase with time), 48 (53 percent) of which require virtual hearing services. “As a result, I don’t think the pandemic has had any meaningful impact on arbitrations seated in Hong Kong other than to show the useful role of technology. We have all learned to use technology much better and to work virtually and from a distance. I expect that arbitrations will use that technology to conduct hearings more efficiently well after the pandemic has passed. We can reduce travel – and our carbon footprint – and save time and money by conducting more hearings virtually,” notes Rivkin.
“Such a change will likely have the positive impact of time-saving (especially from the perspective of witnesses) and also overall costs-saving (such as saving of air ticket and hotel expenses), which in turn will make arbitration even more attractive than before,” adds Yuen.
Drawing from its experience of administering so many virtual hearings this year, the HKIAC in early May issued Guidelines for Virtual Hearings for users’ benefit. Arbitration users still need to be wary as nothing is fool proof - there is always a possibility of cyberattacks resulting in leakage of sensitive and confidential information. That said, various protocols have been issued to protect against cyberattacks.
Artificial Intelligence (AI)
“The value of artificial intelligence depends entirely on the quality of the available input. Because so many arbitration awards are confidential, the body of available data may not yet be sufficient for the output to be useful. That may certainly change over time, and the HKIAC will need to consider how and whether AI may help its users,” says Rivkin.
“Artificial intelligence is unavoidable and should be embraced in international arbitration. However, much depends on the progress of technology - the use of AI in arbitration thus far remains limited (when compared to other contexts). AI can assist lawyers and advocates in preparing cases (eg disclosure of documents and research). However, at this moment, it remains difficult to imagine that AI can entirely replace the role of arbitrators in deciding disputes (even though I am aware that much research has been conducted in such areas). Nevertheless, the development of AI and its impact is an important topic that stakeholders of legal and dispute resolution services cannot avoid. Insofar as the HKIAC is concerned, we will certainly keep this topic in mind all the time so as to ensure that our services and future development will not be regarded as outdated,” notes Yuen.
Hong Kong’s Hosting of the Biennial International Council for Commercial Arbitration (ICCA) Congress
Originally, Hong Kong was scheduled to host the ICCA Congress in 2022. However, because the 2020 ICCA conference was postponed to early 2021 as a result of the pandemic, the Hong Kong ICCA Congress has been rescheduled to 7-11 May 2023. The HKIAC has organised several committees whose work will focus on different areas, and it has mapped out a schedule and tentative venues for events. The Co-Chairs will be assisting in its preparation and will do whatever possible to make it a successful event.
The Singapore Convention on Mediation: A Friend or a Foe to International Arbitration?
Litigation, arbitration, mediation, expert determination and so on are different forms of dispute resolution. Different forms may be more suitable in different circumstances, bearing in mind the nature of the disputes. Parties should always work to resolve their disputes as quickly and effectively as possible. Rivkin suggests that “in many cases, mediation may be more effective, and the Singapore Convention may give some assurance to the parties that any agreement reached in mediation can be enforced. The HKIAC also provides mediation services.”
According to Yuen, “mediation and arbitration are not mutually exclusive (and should never be). Instead, one should always assist parties to explore how best to achieve a synergy between arbitration and mediation (such as the use of Med-Arb or Arb-Med in different circumstances). Our Arbitration Ordinance actually envisages the harmonious marriage between arbitration and mediation. Besides, we have the Hong Kong Mediation Council (set up as early as in 1994) to promote the development and use of mediation. Therefore, we would not regard the Singapore Convention as a ‘foe’. Instead, with an enforcement regime similar to the New York Convention, we can see that the Singapore Convention may possibly have the effect of encouraging more and more people to use mediation to resolve international commercial disputes.”
Dos and Don’ts for Parties Presently Wanting to Choose Arbitration to Resolve Their Dispute
For the “dos”, Rivkin says that choosing the right arbitrator for the parties’ case is crucial: “The parties should be sure to consider a broad and diverse range of possible arbitrators suitable for their case. They should also ensure that the arbitrators have sufficient availability to handle the case and to issue the award in a timely manner, and the arbitrators should confirm that they will also not subsequently take on other matters that will have a material impact on their availability as the case proceeds.”
And as for the “don’ts”, Yuen suggests that the dispute resolution clause in the contract should be well considered and should not be a decision left to the last minute of the contract negotiation stage: “choice of law clause as well as dispute resolution clause are as important as other contractual clauses for the protection of a parties’ legal right. We have seen far too many cases where parties or their legal advisers fail to pay sufficient attention to dispute resolution clause until after disputes have arisen and then regret for not having considered the matter earlier.”
Anyone Thinking of Pursuing a Career in International Arbitration
Arbitration is a platform where participants (arbitrators, parties, witnesses and others) from different jurisdictions with different legal systems and cultures meet which Rivkin describes as fun and challenging. “Therefore, understanding how different legal systems operate and the expectations of parties and arbitrators from those systems will help you develop in international arbitration” he adds.
Getting exposure to different jurisdictions is also helpful. “I would very much encourage people to attend overseas conferences etc on international arbitration, as they are good opportunities to find out what is happening in other jurisdictions, to learn from others and to share experience” suggests Yuen. “Further, I think it is important to always remind ourselves why people choose arbitration instead of court litigation or other forms of dispute resolution.”
* See Cover Story, June 2018 – “Face to Face with Matthew Gearing QC, Chairperson, Hong Kong International Arbitration Centre”
** See Cover Story, January 2013 – “Face to Face With... Secretary for Justice Mr. Rimsky Yuen SC”