arbitration in asia...iv arbitration in asia (rel. 11-2019) part d people’s republic of china gu...

ARBITRATION IN ASIA

SECOND EDITION

Michael J. Moser Christopher To

General Editors

JURIS

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iii (Rel. 11-2019)

SUMMARY TABLE OF CONTENTS*

Foreword Philip L.Y. Yang,

Former President, Asia Pacific Regional Arbitration Group

vii

Contributors ix

Introduction Christopher To

Michael J. Moser xxiii

Part A JAPAN

Yasuhei Taniguchi Tatsuya Nakamura

Part B KOREA

Kap-You (Kevin) Kim

Part C MONGOLIA Yancy Cottrill

David C. Buxbaum

* For a more detailed contents list please see the table before each country’s chapter.

iv ARBITRATION IN ASIA

(Rel. 11-2019)

Part D

PEOPLE’S REPUBLIC OF CHINA Gu Weixia

Part E HONG KONG Christopher To

Michael J. Moser

Part F TAIWAN

Nigel N.T. Li David W. Su Angela Y. Lin

Part G PHILIPPINES

Custodio O. Parlade Cristina A. Montes

Part H VIETNAM

Nicholas Lingard Phong Nguyen

Viet Nguyen

Part I LAO PDR Rupert Haw

Kristy Newby Bounyasith Daopasith

SUMMARY TABLE OF CONTENTS v

(Rel. 11-2019)

Part J CAMBODIA Rupert Haw

Billie Jean Slott Mealy Khieu

Part K

THAILAND Amornwit Phesprasert

Emi Rowse Pralakorn Siwawej

Part L MYANMAR

Thida Aye James Finch

Part M SINGAPORE Michael Hwang Andrew Chan

Ramesh Selvaraj

Part N MALAYSIA

Thayananthan Baskaran

Part O

INDONESIA Karen Mills

vi ARBITRATION IN ASIA

(Rel. 11-2019)

Part P INDIA

Fali S. Nariman

Part Q AUSTRALIA Alex Baykitch Max Bonnell

Part R NEW ZEALAND Daniel Kalderimis

TABLE OF CASES TABLE OF STATUTES

TABLE OF CONVENTIONS TABLE OF TREATIES

INDEX Legislation Appendices (online)

See https://arbitrationlaw.com/books/arbitration-asia-second-edition.

The Appendix material is listed at the bottom of the Table of Contents and can be viewed and downloaded if you have registered an account

and are logged on.

(Rel. 10-2018)

PART A

Japan Yasuhei Taniguchi Tatsuya Nakamura ______________________________________________________ Contents [1] INTRODUCTION

[2] LEGISLATION [2.1] Arbitration law [2.2] Application [2.3] Arbitrability

[3] ARBITRATION AGREEMENTS [3.1] Contract clause and submission agreement [3.2] Requirement of writing [3.3] Parties to the arbitration agreement [3.4] Separability/autonomy of the arbitration agreement [3.5] Effect of arbitration agreement [3.6] Consumer arbitration and individual employment arbitration

[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL [4.1] Qualification [4.2] Number and selection of arbitrators [4.3] Challenging an arbitrator [4.4] Removal of arbitrators [4.5] Immunity of arbitrators [4.6] Corruption of arbitrators [4.7] Replacement of arbitrator [4.8] Remuneration of arbitrators

[5] ARBITRATION PROCEDURE [5.1] General [5.2] Commencement of arbitral proceedings [5.3] Place of arbitration [5.4] Hearings [5.5] Evidence and experts

(Rel. 10-2018)

[5.6] Representation [5.7] Applicable law [5.8] Interim measures of protection [5.9] Plea as to the jurisdiction of the arbitral tribunal [5.9.1] Settlement [5.9.2] Costs of arbitration [5.9.3] Default

[6] AWARDS [6.1] Types of award [6.2] Making of the award [6.3] Form of the award [6.4] Correction and interpretation [6.5] Additional award [6.6] Delivery of the award [6.7] Setting aside of awards

[7] JUDICIAL ASSISTANCE AND INTERVENTION [7.1] Taking of evidence [7.2] Service of written notice [7.3] No court intervention

[8] RECOGNITION AND ENFORCEMENT OF ARBITRAL AWARDS [8.1] Enforcement pursuant to domestic law [8.2] Enforcement pursuant to international agreements [8.3] Enforcement of awards abroad

[9] PRACTICAL INFORMATION [9.1] Arbitral institutions [9.2] Visa requirements [9.3] Taxation

[10] APPENDICES (ONLINE) [10.1] The JCAA Commercial Arbitration Rules as Amended and Effective on December 10, 2015

The JCAA Administrative Fee Regulations as Amended and Effective on February 1, 2014

The JCAA Regulations for Arbitrator’s Remuneration as Amended and Effective on February 1, 2014 [10.2] Arbitration Law (Law No. 138 of 2003)

(Rel. 7-2015)

PART B

Korea Kap-You (Kevin) Kim ______________________________________________________ Contents [1] INTRODUCTION

[2] LEGISLATION

[3] THE ARBITRATION AGREEMENT

[4] APPOINTMENT OF ARBITRATORS

[5] ARBITRAL PROCEDURE

[6] AWARDS

[7] JUDICIAL ASSISTANCE AND INTERVENTION

[8] RECOGNITION AND ENFORCEMENT OF ARBITRAL AWARDS

[9] INSTITUTIONAL ARBITRATION IN KOREA [9.1] Background [9.2] Request for arbitration [9.3] Appointment of arbitrators [9.4] Proceedings [9.5] Award

[10] PRACTICAL INFORMATION [10.1] Restrictions on foreign nationals [10.2] Visas [10.3] Korean Commercial Arbitration Board (KCAB)

[10.4] Seoul International Dispute Resolution Centre (Seoul IDRC)

[11] APPENDICES (on CD) [11.1] Arbitration Act [11.2] International Arbitration Rules of KCAB (2011)

(Rel. 4-2012)

PART C

Mongolia Yancy Cottrill David C. Buxbaum ______________________________________________________

Contents

[1] INTRODUCTION

[2] LEGISLATION

[3] ARBITRATION AGREEMENTS

[3.1] Basic requirement of a writing [3.2] Incorporation by reference of an arbitration clause [3.3] Option to arbitrate [3.4] Arbitrability [3.5] Independent existence of an arbitration clause [3.6] Confidentiality [3.7] Law of arbitration [3.8] Seat of arbitration [3.9] Language of the arbitration [3.10] Division of costs

[4] ARBITRATOR AND THE ARBITRATION PANEL [4.1] Number of arbitrators [4.2] Appointment of arbitrators [4.3] Qualifications [4.4] Challenge of arbitrators [4.5] Arbitrators’ refusal, failure or inability to arbitrate [4.6] Liabilities of arbitrators and arbitral institutions [4.7] Replacement of arbitrators [4.8] Nationality of arbitrators [4.9] Limits on arbitrator fees

[5] ARBITRATION PROCEDURE [5.1] Freedom to Choose Procedure − Ad hoc and institutional rules

[5.2] Choice of substantive law [5.3] Evidence [5.4] Kompetenz-kompetenz [5.5] Representation by foreign counsel

(Rel. 4-2012)

[6] AWARDS

[6.1] Types of awards [6.2] Form and content of the award [6.3] Award by consent [6.4] Correction and interpretation of award [6.5] Authentication of awards [6.6] Amount of awards made in Mongolia [6.7] Setting aside awards made in Mongolia [6.8] Enforcement of arbitral awards made in Mongolia


[7.1] Type of Law − Civil or Common [7.2] Powers of the court to grant ancillary relief

[7.3] Basis for intervening [7.4] Stay of proceedings and referral to arbitration [7.5] Enforcement of arbitration agreements

[8] RECOGNITION AND ENFORCEMENT OF FOREIGN AWARDS

[8.1] New York Convention [8.2] Enforcement of non-New York Convention Awards [8.3] Reciprocity [8.4] Setting aside foreign awards

[9] PRACTICAL INFORMATION

[9.1] Mongolian National Arbitration Center (MNAC) [9.2] Nationality of claimants and respondents in

MNAC Arbitration [9.3] Taxation [9.4] Visa requirements

[10] APPENDICES (on CD)

[10.1] Law on Arbitration [10.2] The Arbitration Rule

Appendix to Decree No. 2 of the Council of the MNCCI, June 16, 2003

(Rel. 6-2014)

PART D

People’s Republic of China Gu Weixia ______________________________________________________ Contents [1] INTRODUCTION

[2] LEGISLATION [2.1] Arbitration law [2.2] State Council regulations [2.3] Judicial interpretations [2.4] Arbitration commissions and their rules [2.5] International agreements

[3] SPECIAL FEATURES OF ARBITRATIONS IN CHINA [3.1] Institutional arbitration only [3.2] Dual-track arbitration [3.3] Harmonious arbitration (Combining arbitration with mediation)

[4] ARBITRATION AGREEMENTS [4.1] Requirements and types [4.2] Applicable law

[5] ARBITRATORS AND THE ARBITRAL TRIBUNAL [5.1] Qualifications [5.2] Selection of arbitrators [5.3] Challenges to and replacement of arbitrators

[6] ARBITRATION PROCEDURE [6.1] Competence-competence and arbitral jurisdiction [6.2] Interim relief [6.3] Fact-finding, evidence and hearings [6.4] Seat (place) and language of arbitration

[7] AWARDS [7.1] Types of awards [7.2] Form and content of the award [7.3] Revision of awards: Re-arbitration

(Rel. 6-2014)


[9] RECOGNITION AND ENFORCEMENT OF AWARDS [9.1] Types of awards for seeking enforcement [9.2] Enforcement of domestic awards [9.3] Enforcement of foreign-related awards [9.4] Enforcement of foreign awards [9.5] Special enforcement arrangements with Hong Kong, Macau, and Taiwan

[10] APPENDICES (LEGISLATION ON CD) [10.1] Arbitration Law of the People’s Republic of China (1994) [10.2] Civil Procedure Law of the People’s Republic of China (amended in 2012) [10.3] China International Economic and Trade Arbitration Commission (CIETAC) Arbitration Rules (amended in 2012)

(Rel. 11-2019)

PART E

Hong Kong

Christopher To Michael Moser ______________________________________________________

Contents

[1] INTRODUCTION

[2] LEGISLATION [2.1] General [2.2] Application of the UNCITRAL Model Law


[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL [4.1] Number of arbitrators [4.2] Appointment of arbitrators [4.3] Qualifications [4.4] Challenge of arbitrators [4.5] Liabilities of arbitrators and arbitral institutions [4.6] Mediators

[5] ARBITRATION PROCEDURE [5.1] Commencement of the arbitration [5.2] Language [5.3] Pleadings and submissions [5.4] Evidence [5.5] Hearings and written proceedings

[6] AWARDS [6.1] Interest [6.2] Costs

[7] JUDICIAL ASSISTANCE AND INTERVENTION [7.1] Powers of court to grant interim measures of protection in relation to foreign arbitral proceedings [7.2] Stay of Court of First Instance proceedings and referral to arbitration

[8] RECOGNITION AND ENFORCEMENT OF ARBITRAL AWARDS [8.1] Setting aside awards made in Hong Kong [8.1.1] Arbitration awards

(Rel. 11-2019)

[8.2] Enforcement of arbitral awards whether made in or outside Hong Kong [8.3] New York Convention [8.4] Enforcement of China awards in Hong Kong [8.5] Enforcement of non-New York Convention Awards [8.6] Enforcement of a foreign arbitral award by bringing fresh proceedings in the Hong Kong courts [8.7] Enforcement of Macao awards in Hong Kong

[9] PRACTICAL INFORMATION [9.1] Facilities in Hong Kong [9.2] The Hong Kong International Arbitration Centre [9.3] Chartered Institute of Arbitrators [9.4] The Hong Kong Institute of Arbitrators [9.5] Foreign counsel [9.6] Visa requirements [9.7] Tax

[10] APPENDICES (ONLINE) [10.1] Chapter 609 Arbitration Ordinance [10.2] Order 73 of the Rules of the High Court [10.3] UNCITRAL Arbitration Rules (2013) [10.4] HKIAC Administered Arbitration Rules 2015

[10.5(a)] Practice Note for the Challenge of an Arbitrator (effective 31 October 2014)

[10.5(b)] Practice Note on Consolidation of Arbitration (effective 1 January 2016)

[10.5(c)] Practice Note on Arbitral Tribunal’s Fees, Expenses, Terms and Conditions Based on Schedule 3 and the Sum in Dispute (effective 1 November 2013) [10.5(d)] Practice Note on Consolidation of Arbitrations (effective

1 January 2016) [10.5(e)] Practice Note on Costs of Arbitration, Based on Schedule

2 and Hourly Rates [10.5(f)] Practice Note on Costs of Arbitration, Based on Schedule

3 and the Sum in Dispute [10.6] HKIAC Domestic Arbitration Rules (2014)

[10.7] Arbitration (Appointment of Arbitrators and Mediators and Decision on Number of Arbitrators) Rules 2013 [10.8] Mediation Ordinance Chapter 620 [10.9] Apologies Ordinance Chapter 631

(Rel. 11-2019)

PART F

Taiwan

Nigel N.T. Li David W. Su and Angela Y. Lin ______________________________________________________

Contents

[1] INTRODUCTION

[2] LEGISLATION [2.1] Arbitration Act

[2.1.1] Taiwan’s legal and dispute resolution traditions [2.1.2] The 1998 Arbitration Act

[2.2] Arbitrability [2.2.1] Validity of intellectual property rights [2.2.2] Antitrust and unfair competition [2.2.3] Consumer protection [2.2.4] Securities regulation [2.2.5] Employment claims

[2.3] Arbitration organisations [2.3.1] Introduction [2.3.2] Costs [2.3.3] Logistics [2.3.4] Neutrality

[3] THE ARBITRATION AGREEMENTS [3.1] Requirements [3.2] Types of arbitration agreements [3.3] Separability/autonomy of the arbitration agreement [3.4] Effect of arbitration agreement

[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL [4.1] Qualifications [4.2] Selection [4.3] Number of arbitrators [4.4] Challenging an arbitrator [4.5] Formation of tribunal

(Rel. 11-2019)

[5] ARBITRATION PROCEDURE [5.1] Choice of law in arbitration proceedings [5.2] Amiable composition [5.3] Interim relief [5.4] Fact-finding [5.5] Hearing

[5.5.1] Necessity of a hearing [5.5.2] Hearing date [5.5.3] Location of the hearing [5.5.4] Records of the hearing [5.5.5] Fast track [5.5.6] Concluding the arbitration process

[6] AWARDS [6.1] Settlement agreements [6.2] Types of awards

[6.2.1] Interim or interlocutory awards [6.2.2] Default award [6.2.3] Final awards

[6.3] Form of the award [6.4] Revision of awards [6.5] Setting aside of awards

[6.5.1] Domestic awards [6.5.2] Foreign-related awards [6.5.3] Time limits [6.5.4] Effect of setting aside


[8] RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS [8.1] Definition of a “foreign arbitral award” [8.2] Recognition and enforcement of a foreign arbitral award [8.3] Enforcement of awards abroad

[9] PRACTICAL INFORMATION [9.1] Foreign counsel – rights of appearance [9.2] Future trends

[10] APPENDICES (ON CD) [10.1] The Arbitration Act of ROC

(Rel. 11-2019)

PART G

Philippines Custodio O. Parlade Cristina A. Montes ________________________________________________________________

Contents

[1] INTRODUCTION [1.1] Brief history

[2] LEGISLATION [2.1] Arbitration law

[2.1.1] The Civil Code of the Philippines [2.1.2] The Arbitration Law, Republic Act No. 876 [2.1.3] Republic Act No. 9285, The Alternative Dispute Resolution Act of 2004 [2.1.4] The Implementing Rules and Regulations (IRR) of the ADR Act of 2004 [2.1.5] The Special ADR Rules of Court (Special ADR Rules) [2.1.6] Executive Order 1008, Series of 1985 [2.1.7] CIAC Revised Rules of Procedure Governing Construction Arbitration [2.1.8] Judicial precedents

[2.2] Application [2.2.1] International commercial arbitration [2.2.2] Domestic arbitration [2.2.3] Construction arbitration

[2.2.3.1] The jurisdiction of the CIAC [2.2.3.2] Parties to construction disputes [2.2.3.3] What construction disputes are

[2.3] Arbitrability [2.4] Arbitration organizations

[2.4.1] CIAC [2.4.2] Private and semi-private institutions for arbitration

[2.4.2.1] The Philippine Dispute Resolution Center, Inc. (PDRCI)

[2.4.2.2] IPO-PDRCI

(Rel. 11-2019)

[2.4.2.3] WESM (Wholesale Electricity Spot Market) [2.4.3] The Office for Alternative Dispute Resolution (OADR)

[3] ARBITRATION AGREEMENTS [3.1] Requirements

[3.1.1] International commercial arbitration [3.1.1.1] Relief on the issue of existence, validity,

enforceability, and scope of arbitration agreement and referral to ADR

[3.1.2] Domestic arbitration [3.1.3] Construction arbitration

[3.1.3.1] Application of “incorporation by reference” provision

[3.1.3.2] Application and interpretation of “original and exclusive” jurisdiction

[3.1.3.3] Application of competence-competence principle

[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL [4.1] Qualifications

[4.1.1] International commercial arbitration [4.1.2] Domestic arbitration [4.1.3] Construction arbitration

[4.1.3.1.] Appointment of foreign arbitrator [4.2] Selection


[4.3] Number of arbitrators [4.3.1] International commercial arbitration [4.3.2] Domestic arbitration [4.3.3] Construction arbitration

[4.4] Challenging an arbitrator [4.4.1] International commercial arbitration [4.4.2] Domestic arbitration [4.4.3] Construction arbitration

[4.5] Replacement of arbitrators [4.5.1] International commercial arbitration [4.5.2] Domestic arbitration [4.5.3] Construction arbitration

(Rel. 11-2019)

[5] ARBITRATION PROCEDURE [5.1] Interim relief


[5.2] Fact-finding [5.2.1] International commercial arbitration [5.2.2] Domestic arbitration

[5.2.2.1] Ocular inspection [5.2.2.2] Court assistance in taking evidence

[5.2.3] Construction arbitration [5.3] Conduct of arbitral proceedings

[5.3.1] International commercial arbitration [5.3.1.1] Arbitration rules [5.3.1.2] Place of arbitration; venue of proceedings [5.3.1.3] Form and contents of pleadings [5.3.1.4] Confidentiality of arbitration proceedings

[5.3.2] Domestic arbitration [5.3.2.1] Confidentiality of arbitration proceedings

[5.3.3] Construction arbitration

[6] AWARDS [6.1] Settlement agreements


[6.2] Form and content of the award [6.2.1] International commercial arbitration [6.2.2] Domestic arbitration [6.2.3] Construction arbitration

[6.3] Revision and interpretation of awards [6.3.1] International commercial arbitration [6.3.2] Domestic arbitration [6.3.3] Construction arbitration

[6.4] Recognition or setting aside of awards [6.4.1] International commercial arbitration [6.4.2] Domestic arbitration [6.4.3] Construction arbitration

(Rel. 11-2019)


[8] RECOGNITION AND ENFORCEMENT OF AWARDS

[9] PRACTICAL INFORMATION [9.1] Visa requirements [9.2] Foreign counsel [9.3] Taxation

[10] APPENDICES (ONLINE) [10.1] The Alternative Dispute Resolution Act of 2004 (Republic Act.

No. 9285) [10.2] The Arbitration Law (Republic Act No. 876) [10.3] The Construction Industry Arbitration Law, (Executive Order

No. 1008 (1985)) [10.4] CIAC Revised Rules of Procedure Governing Construction

Arbitration [10.5] Arbitration Rules of the Philippine Dispute Resolution Center,

Inc. [10.6] Administrative Guidelines of the Philippine Dispute Reolution

Center, Inc. [10.7] The Special Rules of Court for Alternative Dispute Resolution [--] The UNCITRAL Model Law (see online appendix on arbitrationlaw.com for this volume) [--] The New York Convention (see online appendix on

arbitrationlaw.com for this volume.)

(Rel. 9-2017)

PART H

Vietnam Nicholas Lingard Phong Nguyen Viet Nguyen ______________________________________________________ Contents

[1] INTRODUCTION

[2] LEGISLATION [2.1] Arbitration Law [2.2] Application [2.3] Arbitration fees

[3] ARBITRATION AGREEMENTS [3.1] Requirements [3.2] Types of arbitration agreement [3.2.1] Contract clause or separate agreement [3.2.2] Parties to the arbitration agreement [3.2.3] Separability/autonomy of the arbitration agreement [3.2.4] Effect of arbitration agreement

[4] ARBITRATORS AND THE ARBITRATION TRIBUNAL [4.1] Qualifications [4.2] Number of arbitrators [4.3] Selection [4.3.1] Resolution of disputes by an arbitration centre [4.3.2] Resolution of disputes by an ad-hoc arbitration tribunal [4.4] Challenging and replacement of arbitrators

[5] ARBITRATION PROCEDURE [5.1] Points of claim [5.2] Establishment of an arbitration tribunal [5.3] Defence [5.4] Counter-claim [5.5] Interim relief [5.5.1] Measures for interim relief [5.5.2] Application for interim relief [5.5.3] Alteration or rescission of interim relief [5.6] Fact-finding

(Rel. 9-2017)

[5.7] Hearing [5.7.1] Hearing date [5.7.2] Location of the hearing [5.7.3] Required forms [5.7.4] Records of the hearing

[6] AWARDS [6.1] Settlement agreements [6.2] Form of the award [6.3] Issuance and revisions of awards [6.3.1] Issuance of awards [6.3.2] Correction of awards [6.4] Registration of ad-hoc arbitral awards [6.5] Setting aside of awards

[7] JUDICIAL ASSISTANCE AND INTERVENTION [7.1] Court assistance and intervention [7.2] Enforcement of arbitral award

[8] RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS [8.1] Scope of application of the Civil Procedures Code [8.2] The enforcement process [8.2.1] Application to the Ministry of Justice [8.2.2] Consideration of the application [8.2.3] Hearing of the application [8.2.4] Grounds for refusal of recognition and enforcement [8.2.5] Enforcement


[10] APPENDICES (on CD) [10.1] Civil Procedures Code 2015 (in English) [10.2] Civil Procedures Code 2015 (in Vietnamese) [10.3] Law on Enforcement of Civil Judgments (in English) [10.4] Law on Enforcement of Civil Judgments (in Vietnamese) [10.5] Amendment to Law on Enforcement of Civil Judgments (in English)

[10.6] Amendment to Law on Enforcement of Civil Judgments (in Vietnamese) [10.7] Arbitration Law 2010 (in English)

[10.8] Arbitration Law 2010 (in Vietnamese)

(Rel. 11-2019)

PART I

Lao PDR

Rupert Haw Kristy Newby Bounyasith Daopasith ______________________________________________________

Contents

[1] INTRODUCTION [1.1] Domestic arbitration [1.2] International arbitration

[2] LEGISLATION [2.1] Arbitration law [2.2] Application [2.3] Scope of arbitration [2.4] Arbitration organization [2.5] Requirements for arbitration commissions [2.6] Foreign-related arbitration commissions

[3] ARBITRATION AGREEMENT [3.1] Requirements [3.2] Types of arbitration agreements

[3.2.1] Contract clause [3.2.2] Submission agreement [3.2.3] Incorporation by reference [3.2.4] Parties to the arbitration agreement [3.2.5] Defective arbitration agreements [3.2.6] Separability/autonomy of the arbitration agreement [3.2.7] Effect of arbitration agreement

[4] ARBITRATION AND THE ARBITRAL TRIBUNAL [4.1] Qualifications [4.2] Selection [4.3] Number of arbitrators [4.4] Replacement of arbitrators

[5] ARBITRATION PROCEDURE [5.1] Preliminary meetings [5.2] Interim relief [5.3] Fact-finding

[5.3.1] Written submissions [5.3.2] Site visits and experts

(Rel. 11-2019)

[5.4] Hearing [5.4.1] Necessity of a hearing [5.4.2] Hearing date [5.4.3] Location of the hearing [5.4.4] Required forms [5.4.5] Records of the hearing [5.4.6] Fast track [5.4.7] Concluding the arbitration process

[6] AWARDS [6.1] Settlement agreement [6.2] Types of awards

[6.2.1] Consent awards [6.2.2] Interim or interlocutory awards [6.2.3] Partial awards [6.2.4] Final awards

[6.3] Form of the award [6.3.1] Content of the awards

[6.4] Issuance and revision of awards [6.4.1] Scrutiny of awards [6.4.2] Correction of awards [6.4.3] Additional awards

[6.5] Setting aside of awards [6.5.1] Domestic awards [6.5.2] Foreign-related awards [6.5.3] Time limits [6.5.4] Effect of setting aside [6.5.5] Re-arbitration


[8] RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS [8.1] Enforcement pursuant to domestic law [8.2] Enforcement pursuant to international agreements [8.3] Enforcement of awards abroad

[9] PRACTICAL INFORMATION [9.1] Visa requirements [9.2] Foreign counsel

[10] APPENDICES (ONLINE) [10.1] Law on Resolution of Economic Disputes (in English) [10.1] Law on Resolution of Economic Disputes (in Lao)

(Rel. 11-2019)

PART J

Cambodia

Rupert Haw Billie Jean Slott Mealy Khieu ______________________________________________________

Contents

[1] INTRODUCTION

[2] LEGISLATION


[4] ARBITRATORS AND THE ARBITRATION TRIBUNAL

[5] ARBITRAL PROCEDURES

[6] AWARDS




[10] APPENDICES (ON CD)

[10.1] The Commercial Arbitration Law of the Kingdom of Cambodia, 2006

[10.2] NCAC Arbitration Rules (Adopted July 2014) [10.3] NCAC Internal Rules

(Rel. 9-2017)

PART K

Thailand Amornwit Phesprasert Emi Rowse Pralakorn Siwawej ______________________________________________________ Contents

[1] INTRODUCTION

[2] LEGAL AND INSTITUTIONAL FRAMEWORK [2.1] Arbitration law [2.1.1] Civil Procedure Code [2.1.2] Arbitration Act 2002 [2.2] Arbitrability

[2.2.1] Arbitration Act 2002 [2.2.2] Administration contracts [2.2.3] Cabinet resolution, Public sector contracts

[2.3] Arbitration organisations [2.3.1] Thai Arbitration Institute, Alternative Dispute Resolution Office, Office of the Judiciary [2.3.2] The Board of Trade of Thailand [2.3.3] The Arbitration Committee, Department of Insurance [2.3.4] Other arbitration organisations [2.4] Requirements for arbitration commissions [2.5] Foreign and international arbitration commissions/ institutions

[3] ARBITRATION AGREEMENTS [3.1] Requirements [3.2] Types of arbitration agreements [3.2.1] Contract clause [3.2.2] Submission agreement [3.2.3] Incorporation by reference [3.3] Parties to the arbitration agreement [3.4] Defective arbitration agreements [3.5] Separability/autonomy of the arbitration agreement [3.6] Effect and enforcement of the arbitration agreement

(Rel. 9-2017)

[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL [4.1] Qualifications [4.2] Number and selection of arbitrators [4.3] Challenging an arbitrator [4.4] Removal and replacement of arbitrators

[5] ARBITRATION PROCEDURE [5.1] Commencement of arbitration proceedings [5.1.1] General [5.1.2] Preliminary mediation meetings [5.1.3] Time limitation/prescription [5.2] Preliminary meeting with tribunal [5.2.1] Further statements of claim and defence [5.3] Challenges to tribunal’s jurisdiction [5.4] Interim relief [5.5] Fact-finding [5.5.1] Documentary evidence [5.5.2] Witnesses [5.5.3] Experts [5.5.4] Site visits [5.6] Trial hearing [5.6.1] Necessity for a hearing [5.6.2] Location and seat [5.6.3] Hearing date [5.6.4] Opening statements [5.6.5] Records of the hearing [5.7] Default of a party [5.8] Concluding the arbitration process [5.8.1] Time limits [5.8.2] Closing procedures

[6] AWARDS [6.1] Types of Awards [6.1.1] Consent awards [6.1.2] Interim, interlocutory and partial awards [6.1.3] Final awards [6.2] Form of the award [6.3] Content of the award [6.4] Interest and costs [6.5] Issuance and revision of awards [6.6] Additional awards

(Rel. 9-2017)

[6.7] Challenge and setting aside of awards [6.7.1] Grounds for setting aside [6.7.2] Time limits

[7] JUDICIAL ASSISTANCE AND INTERVENTION [7.1] Obtaining evidence [7.2] Provisional measures/interim relief

[8] ENFORCEMENT OF AWARDS [8.1] Procedures for enforcement [8.2] Requirements for enforceable foreign awards [8.3] Appeal [8.4] Enforcement against state entities

[9] PRACTICAL INFORMATION [9.1] Foreign arbitrators [9.2] Foreign counsel

[10] APPENDICES [10.1] Arbitration Act B.E. 2545 [10.2] Arbitration Rules (2017), Thai Arbitration Institute, Office of the Judiciary [10.3] Civil Procedure Code of Thailand (Sections 210 – 222) [10.4] Thai Arbitration Institute, Code of Ethics for Arbitrators, 1 March 2003 [10.5] TAI Arbitrator's Fees, Cost and Expenses

(Rel. 8-2016)

PART L

Myanmar

Thida Aye

James Finch

______________________________________________________

Contents

[1] INTRODUCTION

[2] LEGISLATION

[2.1] Arbitration law and application

[2.2] Arbitrability

[2.3] International and Domestic Arbitration


[3.1] Requirements

[3.2] Parties to the arbitration agreement

[3.3] Effect of arbitration agreement

[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL

[4.1] Qualifications

[4.2] Selection

[4.3] Number of arbitrators

[4.4] Challenging an arbitrator

[4.5] Replacement of arbitrators

[4.6] Jurisdiction of the arbitral tribunal

[5] ARBITRATION PROCEDURE

[5.1] Place of the arbitration

[5.2] Commencement of the arbitration

[5.3] Language

[5.4] Submission of statements

[5.5] Hearings and written proceedings

[6] AWARDS

[6.1] Making of the award

[6.2] Effect of an award

[6.3] Types of awards

[6.4] Correction and interpretation of awards


[7.1] Interim orders

[7.2] Setting aside of domestic awards

(Rel. 8-2016)

[7.3] Enforcement of domestic awards

[7.4] Appeal against domestic arbitral awards

[8] RECOGNITION AND ENFORCEMENT OF FOREIGN

ARBITRAL AWARDS

[8.1] Right to appeal


[9.1] Visa requirements

[9.2] Foreign counsel

[9.3] Arbitrators fees and taxation

[10] APPENDICES (ON CD)

[10.1] Part XXV-Arbitration–

The Arbitration (Protocol and Convention) Act,

v(19th

January, 1939)

(Rel. 11-2019)

PART M

Singapore Michael Hwang Andrew Chan Ramesh Selvaraj ______________________________________________________

Contents

[1] INTRODUCTION [1.1] A brief history of arbitration in Singapore [1.2] Overview of the Singapore legal system and laws

[2] LEGISLATION [2.1] Principal legislation underlying the dual track system for

arbitrations held in Singapore [2.2] Territorial scope of the Model Law part of the International

Arbitration Act [2.3] Domestic legislation giving effect to the international conventions

[3] ARBITRATION AGREEMENTS [3.1] Basic requirement of writing [3.2] Incorporation by reference of an arbitration clause [3.3] Option to arbitrate [3.4] Arbitrability [3.5] Third parties [3.6] Independent existence of an arbitration clause [3.7] Confidentiality

[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL [4.1] Overview [4.2] Appointment of arbitrator

[4.2.1] Position under the International Arbitration Act [4.2.2] Position under the Arbitration Act

[4.3] Qualifications of arbitrators [4.4] Impartiality and independence of the arbitrator

[5] ARBITRAL PROCEDURE [5.1] Freedom to choose procedure – Ad hoc and institutional rules [5.2] Evidence [5.3] Procedures for the conduct of arbitration [5.4] Kompetenz-kompetenz

(Rel. 11-2019)

[6] AWARDS [6.1] Types of awards [6.2] Partial awards [6.3] Form of award [6.4] Contents of award [6.5] Award by consent [6.6] Correction and interpretation of award [6.7] Authentication of awards made in Singapore [6.8] Recourse against awards made in Singapore

[6.8.1] Awards made in Singapore under the International Arbitration Act

[6.8.2] Awards made in Singapore under the Arbitration Act [6.9] Enforcement of awards made in Singapore

[6.9.1] Awards made in Singapore under the International Arbitration Act

[6.9.2] Awards made in Singapore under the Arbitration Act

[7] JUDICIAL ASSISTANCE AND INTERVENTION [7.1] A pro-arbitration approach [7.2] Enforcement of arbitration agreements

[7.2.1] Arbitration under the International Arbitration Act [7.2.2] Arbitration under the Arbitration Act

[7.3] Curial support in the conduct of arbitration [7.3.1] Position under the International Arbitration Act [7.3.2] Position under the Arbitration Act


[9] PRACTICAL INFORMATION [9.1] Visa requirements [9.2] Foreign counsel [9.3] Taxation [9.4] Singapore International Arbitration Centre (SIAC) [9.5] Maxwell Chambers

[10] APPENDICES (ONLINE) [10.1] Arbitration Act [10.2] International Arbitration Act [10.3] Arbitration Rules of the Singapore International Arbitration

Centre (SIAC), 2016, 2013 and 2010

(Rel. 11-2019)

PART N

Malaysia

Thayananthan Baskaran ______________________________________________________

Contents

[1] INTRODUCTION [1.1] Brief legislative history of arbitration in Malaysia [1.2] Overview of the Malaysian legal system and laws

[2] LEGISLATION [2.1] Principal legislation

[3] TERRITORIAL SCOPE OF THE 2005 ACT

[4] DOMESTIC LEGISLATION GIVING EFFECT TO INTERNATIONAL CONVENTIONS

[5] ARBITRATION AGREEMENTS [5.1] Basic requirement of writing

[6] INDEPENDENT EXISTENCE OF AN ARBITRATION CLAUSE

[7] ARBITRATORS AND ARBITRAL TRIBUNALS [7.1] Introduction

[8] APPOINTMENT OF ARBITRATOR

[9] QUALIFICATIONS OF ARBITRATORS

[10] IMPARTIALITY AND INDEPENDENCE OF THE ARBITRATOR

[11] CHALLENGES

[12] ARBITRAL PROCEDURE

[13] AIAC AND OTHER ARBITRAL INSTITUTIONS

[14] EVIDENCE

[15] PROCEDURE FOR CONDUCT OF ARBITRATION

[16] JURISDICTION

(Rel. 11-2019)

[17] REPRESENTATION BY FOREIGN COUNSEL

[18] AWARDS

[19] FORM OF THE AWARD

[20] CONTENTS OF THE AWARD

[21] AWARD BY CONSENT

[22] CORRECTION AND INTERPRETATION OF AWARD

[23] RECOURSE AGAINST AWARDS MADE IN MALAYSIA

[24] ENFORCEMENT OF AWARDS MADE IN MALAYSIA

[25] ENFORCEMENT OF ARBITRATION AGREEMENTS

[26] CURIAL SUPPORT IN THE CONDUCT OF ARBITRATION


[28] TAX

[29] APPENDICES (ON CD) [29.1] Arbitration Act 2005 [29.2] AIAC Arbitration Rules [29.3] AIAC i-Arbitration Rules [29.4] AIAC Fast Track Arbitration Rules

(Rel. 10-2018)

PART O

Indonesia

Karen Mills ______________________________________________________

Contents

[1] INTRODUCTION

[2] LEGISLATION [2.1] Arbitration law [2.2] Application [2.3] Arbitrability [2.4] Arbitration organisations [2.5] Requirements for arbitration commissions [2.6] Foreign-related arbitration commissions

[3] ARBITRATION AGREEMENT [3.1] Requirements [3.2] The contract [3.3] Type of arbitration agreements

[3.3.1] Contract clause [3.3.2] Submission agreement [3.3.3] Incorporation by reference [3.3.4] Parties to the arbitration agreement [3.3.5] Defective arbitration agreements [3.3.6] Separability/autonomy of the arbitration agreement [3.3.7] Effect of the arbitration agreement

[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL [4.1] Qualifications [4.2] Selection [4.3] Number of arbitrators [4.4] Challenging an arbitrator [4.5] Replacement of arbitrators

[5] ARBITRATION PROCEDURE [5.1] Preliminary meetings [5.2] Interim relief [5.3] Fact-finding

[5.3.1] Written submissions [5.3.2] Site visits and experts

[5.4] Hearings [5.4.1] Necessity of a hearing

(Rel. 10-2018)

[5.4.2] Hearing date [5.4.3] Location of the hearing [5.4.4] Required forms [5.4.5] Records of the hearing [5.4.6] Fast track [5.4.7] Consolidation of Arbitrations [5.4.8 Concluding the arbitration process

[6] AWARDS [6.1] Settlement agreement [6.2] Types of award

[6.2.1] Consent award [6.2.2] Interim or interlocutory awards [6.2.3] Partial awards [6.2.4] Final awards

[6.3] Form of the award [6.3.1] Content of the award

[6.4] Issuance and revision of awards [6.4.1] Scrutiny of the award [6.4.2] Correction of awards [6.4.3] Additional awards

[6.5] Setting aside of awards [6.5.1] Domestic awards [6.5.2] Foreign-related awards [6.5.3] Time limits [6.5.4] Effect of setting aside [6.5.5] Re-arbitration


[8] RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS [8.1] Enforcement pursuant to domestic law [8.2] Enforcement pursuant to international agreements [8.3] Enforcement of awards abroad [8.4] Enforcement against the State


[10] APPENDICES (ONLINE) [10.1] Law No. 30 of 1999 concerning Arbitration and Alternative

Dispute Resolution [10.2] Elucidation on Law No. 30/1999 concerning Arbitration and

Dispute Settlement Alternative

(Rel. 5-2013)

PART P

India Fali S. Nariman ______________________________________________________ Contents

[1] INTRODUCTION

[2] LEGISLATION

[2.1] General

[2.2] Underlying objective of the 1996 Act


[3.1] Form and contents of the agreement

[3.2] Parties to the agreement

[3.3] Effect of the agreement


[4.1] Qualifications

[4.2] Number of arbitrators

[4.3] Appointment of arbitrators

[4.4] Challenge of arbitrators

[4.5] Termination of the mandate of the arbitral tribunal

[4.6] Pleas as to the arbitral tribunal’s jurisdiction

[4.7] Court assistance to the arbitral tribunal in taking evidence

[5] ARBITRATION PROCEDURE

[5.1] Place of arbitration

[5.2] Time limit for arbitration proceedings

[5.3] Arbitral proceedings in general

[5.4] Evidence

[5.5] Requiring deposits in connection with costs of the arbitration

[6] AWARDS

[6.1] Types of awards

[6.2] Making of the award

[6.3] Form of the award

(Rel. 5-2013)

[6.4] Correction and interpretation of the award and making of additional award


[7.1] Assistance of courts–before or during arbitral proceedings

[7.2] Power of courts to refer parties to arbitration where there is an arbitration agreement [7.3] Power of courts before or during arbitral proceedings to grant interim measures of protection

[8] RECOGNITION AND ENFORCEMENT OF AWARDS

[8.1] General

[8.2] Appeals (on the merits) from an arbitral award

[8.3] Setting aside of arbitral award

[8.3.1] Grounds for setting aside

[8.3.2] Procedure

[8.3.3] Waivers

[8.3.4] Appeals and limitation

[8.3.4.1] From order of court setting aside or refusing to set aside arbitral awards [8.3.4.2] Appeals from other orders

[8.3.4.3] Power of the court to extend time with respect to future disputes provided in the arbitration agreement which might become time-barred

[9] RECOGNITION AND ENFORCEMENT OF AWARDS: CURRENT DECISIONS AND PRACTICE [9.1] Procedure for enforcement of foreign awards

[9.2] Extent of court control of foreign awards

[9.3] Rules of public policy


[10.1] Arbitration agreements

[10.1.1] Capacity, mode and manner of entering into arbitration agreements: this is not provided for in the 1996 Act, but in the general law [10.1.2] Recommended arbitration clauses

[10.1.3] Governments and state agencies: practice

[10.1.4] Multi party arbitrations

[10.2] Arbitrators and arbitral tribunals

[10.2.1] Powers of arbitrators – where place of arbitration is in India or where the applicable law is Indian law

(Rel. 5-2013)

[10.2.2] Appointment of arbitrators in institutional arbitration

[10.2.3] Costs in arbitration proceedings

[10.2.4] Fees of arbitrators

[10.3] Awards

[10.3.1] Internal appeals from arbitral awards

[10.3.2] Awards in foreign currency

[10.3.3] Foreign arbitral awards – conventions and treaties

[10.3.4.] Post-award interest (Section 37(7)(b))

[10.4] Judicial assistance and intervention

[10.5] Conciliation

[10.5.1] The statutory provisions

[10.5.2] Corresponding amendments in other laws

[11] APPENDICES (on CD)

[11.1] The Arbitration and Conciliation Act, 1996

[11.2] Rules of Arbitration of the Indian Council of Arbitration (as amended on May 8, 2012) [11.3] The ICADR (The International Centre for Alternative Dispute Resolution) Arbitration Rules, 1996

(Rel. 6-2014)

PART Q

Australia

Alex Baykitch Max Bonnell ______________________________________________________

Contents

[1] INTRODUCTION [1.1] Background

[2] LEGISLATION

[3] ARBITRATION AGREEMENTS [3.1] Domain of arbitration [3.2] Severability of the arbitral clause [3.3] Enforcement of the arbitration agreement


[5] ARBITRATION PROCEDURE [5.1] Place of arbitration [5.2] Law governing the arbitral proceedings [5.3] Procedure

[5.3.1] Evidence [5.3.2] Representation in proceedings [5.3.3] Experts [5.3.4] Confidentiality [5.3.5] Consolidation of arbitral proceedings [5.3.6] Law applicable to the substance of the dispute

[5.3.6.1] Common law [5.3.6.2] Under the Model Law [5.3.6.3] Transnational rules (lex mercatoria)

[5.3.7] Amiable composition

[6] AWARDS [6.1] Form and content of award [6.2] Making of the award [6.3] Decision by a majority of arbitral members [6.4] Default awards [6.5] Settlement [6.6] Correction and interpretation of the award

(Rel. 6-2014)

[6.7] Additional awards [6.8] Fees and costs

[7] JUDICIAL ASSISTANCE AND INTERVENTION [7.1] Interim measures of protection [7.2] Courts

[8] RECOGNITION AND ENFORCEMENT OF FOREIGN AWARDS [8.1] Recognition and enforcement [8.2] Defences to the enforcement of an award

[8.2.1] Incapacity [8.2.2] Invalidity of the arbitration agreement [8.2.3] Lack of notice or inability to present a case [8.2.4] Award outside submission [8.2.5] Improper composition of the arbitral authority or improper

arbitral procedure [8.2.6] Award set aside or not yet binding [8.2.7] Subject matter not arbitrable under the lex fori [8.2.8] Enforcement contrary to public policy [8.2.9] Adjournment where there is an application to set aside the

award at the seat [8.3] Interim awards

[9] PRACTICAL INFORMATION [9.1] Arbitral institutions [9.2] Tax Issues for foreign arbitrators [9.3] Visa requirements for arbitrators working in Australia

[10] APPENDICES [10.1] International Arbitration Act 1974

(Rel. 11- 2019)

PART R

New Zealand

Daniel Kalderimis ______________________________________________________

Contents

[1] INTRODUCTION

[2] LEGISLATION

[3] ARBITRATION AGREEMENTS [3.1] Domain of arbitration [3.2] Severability of the arbitral clause [3.3] Jurisdiction of the arbitral tribunal [3.4] Enforcement of the arbitration agreement

[3.4.1]“Not in fact any dispute” element: retention of summary judgment jurisdiction

[3.4.2] Procedures for a stay application [3.4.3] Residual discretion to grant stay

[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL [4.1] Arbitrators’ qualifications and accreditation requirements [4.2] Appointment of arbitrators [4.3] Challenge the arbitrator’s appointment [4.4] Arbitrator liability and immunity

[5] ARBITRATION PROCEDURE [5.1] Powers of the arbitral tribunal [5.2] Place of arbitration [5.3] Procedure

[5.3.1] Evidence [5.3.1.1] Arbitral tribunal’s powers [5.3.1.2] Court assistance with obtaining evidence

[5.3.2] Legal representation in proceedings [5.3.3] Experts [5.3.4] Witnesses [5.3.5] Confidentiality [5.3.6] Consolidation of arbitral proceedings [5.3.7] Law and rules of law applicable to the substance of the

dispute

(Rel. 11- 2019)

[6] AWARDS [6.1] Types of awards [6.2] Form and content of award [6.3] Making of the award [6.4] Decision by a majority of arbitral members [6.5] Settlement [6.6] Correction, supplement, and amendment of the award [6.7] Costs [6.8] Remedial powers and interests

[7] JUDICIAL ASSISTANCE AND INTERVENTION [7.1] Interim measures of protection [7.2] Preliminary orders [7.3] Courts’ assistance

[8] RECOGNITION AND ENFORCEMENT OF FOREIGN AWARDS [8.1] Recognition and enforcement [8.2] Defences to the enforcement of an award [8.3] Setting aside an award

[8.3.1] Grounds for setting aside an award [8.3.2] Application procedure [8.3.3] Result of a successful challenge [8.3.4] Parties’ ability to vary actions for setting aside [8.3.5] Merits Appeal

[8.4] Enforcement Procedure [8.4.1] Enforcement procedure in the High Court [8.4.2] Appeal against the decision entering, or not entering, award

as judgment [8.4.3] Enforcement procedure of the judgment

[9] PRACTICAL INFORMATION [9.1] Arbitral institutions

[10] APPENDICES (ON CD) [10.1] (New Zealand) Arbitration Act 1996 (includes Geneva and New

York Conventions)

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