The Association of Southeast Asian Nations (ASEAN) is a supranational entity that is made up of 10 countries in South-East Asia: Brunei Darussalam, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam. The member countries that founded this body on the 8 August 1967 were Indonesia, Malaysia, the Philippines, Singapore and Thailand.2
The ASEAN countries collectively comprise a population of over 636 million, a total area of 4.5 million km2 as of January 2018. ASEAN had a combined gross domestic product of around US$2.6 trillion3 as of January 2017.
In 2016, the ASEAN region accounted for nearly two-thirds of global growth and exceeded the GDP of India. There has been a continued flow of cross-border trade and investment in ASEAN. The ASEAN Economic Community, which was implemented on 31 December 2015, is hastening the economic integration of the region. The ASEAN Declaration sets out that the primary aims and purposes of ASEAN are to accelerate economic growth, social progress and cultural development in the region, and to promote regional peace and stability through an abiding respect for justice and the rule of law in the relationship among countries in the region, and adherence to the principles of the United Nations Charter.4
The ASEAN Secretariat reports to a standing committee in accordance with the terms of reference set out in the Declaration. The most important treaty that defines the spirit of ASEAN and the way in which the ASEAN Member States interact with one another is the Treaty of Amity and Cooperation in Southeast Asia (TAC). The six fundamental principles set out in the TAC are:
- mutual respect for the independence, sovereignty, equality, territorial integrity and national identity of all nations;
- the right of every state to lead its national existence free from external interference, subversion or coercion;
- non-interference in the internal affairs of one another;
- settlement of differences or disputes in a peaceful manner;
- renunciation of threat or use of force; and
- effective cooperation among the states themselves.
The heads of the ASEAN Member States came to a collective agreement in 2003 to form an ASEAN Community. The ASEAN Community comprises three separate pillars: the ASEAN Security Community (ASC), the ASEAN Economic Community (AEC) and the ASEAN Socio-Cultural Community.
i The ASC
The aims of the ASC are to ensure that ASEAN Member States enjoy peaceful and harmonious relations with each other in a just, democratic and harmonious environment.5 The Community itself is to be built on foundations laid down by earlier ASEAN treaties and political agreements entered into by the ASEAN Member States. These earlier key treaties and political agreements include:
- the ASEAN Declaration;6
- the Zone of Peace, Freedom and Neutrality Declaration;7
- the Declaration of ASEAN Concord;8
- the Treaty of Amity and Cooperation in Southeast Asia;9
- the ASEAN Declaration on the South China Sea;10
- the Treaty on the Southeast Asia Nuclear Weapon-Free Zone;11
- the ASEAN Vision 2020;12 and
- the Declaration of ASEAN Concord II.13
From a public international law point of view, ASEAN has never utilised its High Council offices to try to resolve international boundary disputes among its Member States. Indonesia and Malaysia resolved their Ligitan and Sipadan disputes via the International Court of Justice (ICJ) at The Hague. Likewise, Malaysia and Singapore resolved their Pedra Branca Islet dispute at the ICJ. However, the two countries have just re-engaged in a new round of arbitration before the ICJ.14
ii The AEC
At their meeting in Bali on 8 October 2003, the ASEAN leaders launched the next step toward the establishment of the AEC. The AEC was intended to be a single market and production base of the region, and was to be built on the idea of the free movement of goods, services, investment and capital by 2020. A roadmap for the integration of the financial sector was then laid out as part of the groundwork for the AEC process. These included issues such as financial services and capital account liberalisation, currency cooperation and capital markets development.15
The AEC is the end-goal of economic integration measures as outlined in the ASEAN Vision 2020. The AEC is to create a stable, prosperous and highly competitive ASEAN economic region in which there is a free flow of goods, services and investment, a freer flow of capital, equitable economic development, and reduced poverty and socio-economic disparities by 2020.
The AEC is the next step in the evolution of ASEAN economic integration, which began with the preferential trading arrangement to promote intra-regional trade. The elimination of tariff and non-tariff barriers among the member countries has enhanced economic efficiency, productivity and competitiveness in the region. The AEC is now progressing towards its aims to establish ASEAN as a single market and production base, and making the ASEAN Member States a more dynamic and stronger segment of the global supply chain.16 The AEC Blueprint 2025 was adopted at the 27th ASEAN Summit on 22 November 2015 in Malaysia. It provides broad directions through strategic measures for the AEC from 2016 to 2025. The AEC Blueprint 2025, together with the ASEAN Community Vision 2025, the ASEAN Political-Security Community Blueprint 2025 and the ASEAN Socio-Cultural Community Blueprint 2025, form part of ASEAN 2025: Forging Ahead Together. ASEAN 2025 has succeeded the AEC Blueprint (2008–2015), which was adopted earlier in 2007.
The aim of AEC Blueprint 2025 is to achieve the vision of having an AEC by 2025 that is highly integrated and has cohesive, competitive, innovative, extremely connected and sectoral cooperation. It aims to be more resilient, inclusive and people-oriented, and to be integrated with the global economy.
Under ASEAN’s ongoing strategy for the continued integration of ASEAN Member States and the enhancement of their economic competitiveness, the Member States have further collectively agreed on several measures, including strengthening the institutional mechanisms of ASEAN.17
iii The ASEAN Charter
On 15 December 2008, the ASEAN foreign ministers formally gathered at the ASEAN Secretariat in Jakarta to endorse the entry into force of the ASEAN Charter.18
The purpose of the creation of the ASEAN Charter was to give ASEAN a legal personality under international law.19 By creating a charter that turns ASEAN into a rules-based organisation, the responsibilities of major ASEAN bodies can be properly allocated and defined. It has made it much easier to delegate responsibility to those that are supposed to implement decisions and sets out a rules-based system for settling disputes. According to the ASEAN Secretariat’s official website, ‘With the entry into force of the ASEAN Charter, ASEAN will henceforth operate under a new legal framework and establish a number of new organs to boost its community-building process’.20
One can also look at the importance of the implementation of the Charter from another point of view. The ASEAN Charter had in effect become part of the sources of international law for each of the Member States of ASEAN. Once each Member State had ratified the ASEAN Charter, the Charter itself became a part of the national laws of that Member State.
The Charter requires ASEAN Member States to set down appropriate dispute settlement mechanisms (DSM) to resolve disputes that concerned the interpretation or application of the Charter. The DSM also covers other ASEAN instruments that do not have dispute settlement mechanisms and that were not covered by any other earlier DSM.21 Additionally, Section 25 of the ASEAN Charter provides that: ‘Where not otherwise specifically provided, appropriate dispute settlement mechanisms, including arbitration, shall be established for disputes which concern the interpretation or application of this Charter and other ASEAN instruments.’
iv Protocol to the ASEAN Charter on Dispute Settlement Mechanisms
The ASEAN leaders implemented the dispute resolution framework at the 16th ASEAN Summit in Hanoi on 9 April 2010. The signing of the Protocol to the ASEAN Charter on Dispute Settlement Mechanisms (the 2010 Protocol) was crucial in completing the dispute resolution framework that had been earlier envisaged and laid out in the ASEAN Charter.
According to a press release, before the signing of the 2010 Protocol by the then Deputy Prime Minister of Vietnam, Pham Gia Khiem, he explained that:
Foreign Ministers approved the principle for the draft protocol on the mechanism to solve disputes in ASEAN to put in place Article 25 of the ASEAN Charter where we look forward to building a common mechanism for solving disputes for ASEAN. Notably, ASEAN has built arbitration regulations to solve conflicts, which are suitable to the ASEAN Charter.22
The 2010 Protocol will now be automatically applicable to disputes concerning the interpretation or application of the ASEAN Charter and ASEAN instruments that expressly provide that the 2010 Protocol is to apply. It will also apply to other ASEAN instruments unless other means of settling such disputes have already been provided for to those instruments.
In line with the spirit of ASEAN, Article 5 of the 2010 Protocol dictates that a complaining party is first asked to file a request for consultations. Article 6(1) allows that the disputing parties may also resort to the use of good offices, mediation or conciliation at any time if they are likely to help in resolving the dispute.23
In the event that the responding party does not reply within 30 days from the date of receipt of the request for consultation, the responding party does not enter into consultation within 60 days from the date of receipt of the request for consultation, or the consultation fails to settle the dispute within 90 days or within any other period mutually agreed by the parties to the dispute from the date of receipt of the request for consultation, Article 8(1) of the 2010 Protocol will be operative. The complaining party may then by notice in writing address to the responding party a request for the establishment of an arbitral tribunal to resolve the dispute.
Article 10 of the 2010 Protocol provides that the arbitration is to be conducted in accordance with the terms of the Protocol and the Rules of Arbitration annexed to the Protocol. The procedures of the arbitration are to be in accordance with the Rules of Arbitration annexed to the Protocol but subject to any modifications as the parties to the dispute may themselves agree upon.
Article 11 states that the number of arbitrators and the manner in which they are appointed or replaced shall be prescribed in the Rules of Arbitration annexed to the Protocol.24 Article 15(1) of the 2010 Protocol provides that the award of an arbitral tribunal will be final and binding on the parties to the dispute and must be fully complied with by the parties. Similarly, Article 16 obliges the disputing parties to also comply with any settlement agreements resulting from good offices, mediation and conciliation.25 It may perhaps also be worth bearing in mind that under the Rules of Arbitration, unless otherwise agreed by the parties, Jakarta has been expressly stipulated as the default place of arbitration26 in any ASEAN arbitration matter.
II OVERVIEW OF COMMERCIAL ARBITRATION LAWS WITHIN THE ASEAN MEMBER STATES
The state and stages of development of commercial arbitration are quite varied in the 10 Member States of the ASEAN. The state of both domestic and international arbitration is perhaps in part dictated by the state of economic development in each of the member countries. Other factors, such as the experience of the judiciary and local lawyers with the arbitration process, the independence of appointing bodies from state governments, and the official language in the state courts, are also likely to have an influence in determining why certain seats of arbitration are more popular than others.
Generally, most of the ASEAN Member States, with the exception of Myanmar and to a more limited extent Indonesia, have adopted the UNCITRAL Model Law as the basis or part of their arbitration statutes.
The Brunei civil courts are generally administered by UK-qualified judges. The majority of the leading private legal practitioners were also educated and generally obtained their professional qualifications in the UK.27 The Judicial Committee of the Privy Council sitting in the UK is the court of final appeal for civil cases emanating from Brunei. Parties to a civil dispute can mutually agree before the commencement of the trial or the Court of Appeal hearing to have the Judicial Committee of the Privy Council as the court of final appeal. Brunei, Singapore and the Philippines are the only countries in ASEAN to have English as the official language of the civil law courts.
In 2004, Brunei Darussalam amended its national Constitution to provide for complete immunity for the Brunei government from being sued before the Brunei law courts. This means that the government and all of its subsidiary companies now insert an arbitration agreement into all contracts to say that any disputes must be referred to arbitration.
As the government is the biggest employer in Brunei, this change in the Constitution has indirectly benefited from arbitration as a dispute resolution mechanism. The insertion of arbitration agreements into all government contracts has in turn had an impact on sub-contractors who contract with main contractors for the government.
The Arbitration Association Brunei Darussalam (AABD) and the Attorney General’s Chambers had jointly worked together to update the repealed arbitration legislation of Brunei to meet the requirements of foreign and local investors. In February 2010, Brunei passed the Arbitration Order 2009 and the International Arbitration Order 2009.28 These two pieces of legislation take into account the amendments made to Article 17 of the Model Law in 2006 and came into force in February 2010, making Brunei the first country in the Asia-Pacific to adopt the 2006 Model Law amendments.
Both new arbitration statutes are based on the UNCITRAL Model Law on International Commercial Arbitration, and follow the international practice and principle that the national courts may only support and not interfere with the arbitration process.29 Under the two arbitration legislations, the AABD was statutorily designated as the default appointing body in the event of default or failure by the parties to appoint. The AABD is completely independent from the Brunei government; it does not include any members of the government; nor does it obtain any form of financial remuneration from the government. As less than a handful of Brunei practising lawyers have international arbitration experience, over 90 per cent of all arbitrators on the AABD Panel of Arbitrators are non-Brunei nationals who are all renowned and very experienced international arbitrators. The Brunei government formed a new wholly owned company under the Prime Minister’s Office called the Brunei Darussalam Arbitration Centre (BDAC) in 2016. The board of directors of the BDAC is completely selected by the government and 75 per cent are all senior members of the government. The Chairman of the BDAC board who has been designated appointing authority of the BDAC was at the time concurrently holding 3 other key government positions including, Permanent Secretary of the Prime Minister’s Office; Solicitor-General; and Director of Anti-Corruption Bureau. The government is promoting all new agreements between the government and foreign and local counterparties to consider adopting an arbitration clause stipulating for the BDAC to appoint the arbitral tribunal. As the BDAC is keen to look and grow domestically, the overwhelming majority of all arbitrators on the BDAC Panel of Arbitrators are Brunei nationals hoping for their first arbitral appointment.
As in other Model Law countries, the arbitration statutes do not provide a complete code for the conduct of arbitrations, but are intended to provide a framework within which all kinds of ad hoc and institutional arbitrations may be carried out in Brunei.
A single arbitration statute governing both domestic and international arbitration was thought not to be fully suitable to domestic arbitrations taking place in Brunei. This was because domestic arbitrations generally involve smaller businesses, and considerations were for situations where the arbitrations may be arbitrated by non-lawyers who may have difficulty accessing international journals and materials on the Model Law.30 The AABD continues to appoint arbitrators but also focuses on building up expertise in handling domestic arbitration matters and assists in education, dissemination and providing guidance to members of the public on how the arbitration process works.
Cambodia is a civil law country that has adopted French laws and a communist ideology. Cambodia became a signatory of the New York Convention in 1960. The Law on the Recognition and Enforcement of Foreign Arbitral Awards was passed in 2007. There are ongoing legal developments to implement Sub-Decree 124 on the Organisation and Functioning of the National Arbitration Centre 2009. Cambodian courts do not follow the stare decisis principle, and lower courts are not bound to adopt rulings made by higher courts. Generally, Cambodian courts also do not tend to publish their decisions or judgments. Arbitral tribunals seated in Cambodia do have powers to grant interim relief.31 An arbitral award can only be set aside by the Appeal Court32 or the Cambodian Supreme Court in limited circumstances where the subject matter is against public policy, and where the subject matter of the dispute is not arbitrable and could not be settled by way of arbitration under Cambodian laws. An award may also be set aside if the agreement was proven to be invalid, or if there was a lack of notice of the appointment of the arbitral tribunal or the hearing proceedings. Finally, an award may also be set aside in Cambodia if it deals with a dispute that did not fall within the terms of the arbitration agreement, or where the composition of the arbitral panel or its procedure was not in accordance with the agreement of the parties. The Cambodian National Commercial Arbitration Centre (NCAC) was officially opened on March 2013. The seven members of the executive board of the NCAC were all elected openly and fairly by 11 independent representative consultants from the private sector, and a panel of 43 independent arbitrators. The NAC is independent from the government. It has since completed work on the drafting of its Arbitration Rules and code of ethics. It is expected that foreign investors who are planning to have the seat of arbitration in Cambodia will continue to insist on ICC arbitration until the NCAC has proven to be effective and independent.
Due to the colonial occupation by the Dutch, the legal system of Indonesia is derived from Dutch law. As a result, Indonesia has a civil law system based on old written Dutch legal codes. There is no principle of stare decisis or case precedent, and lower courts are not bound by the decisions of higher courts.
The majority of important Indonesian statute law is based on old Dutch statutes. The official text of the Indonesian Civil Codes is written in Dutch. As with many traditional civil law systems, Indonesian law relies on comments of influential academic authors and jurists in the relevant field for the interpretation of statutory provisions. It is deemed to be proper to cite opinions stated in leading text books and other publications as the authority for the interpretation of any particular statute. The academic opinions of legal experts, including commentators of the Codes, are treated as an important source of Indonesian law.
The main source of arbitration law in Indonesia is Law No. 30 of 1999.33 It replaced all prior arbitration-related statutory provisions at the RV34 and Article 377 HIR.35 The Arbitration Law is not based on the UNCITRAL Model Law but has adopted important elements of the Model Law.36 The Law is applicable to all arbitrations conducted in Indonesia, and does not distinguish between domestic arbitration and international arbitration even regarding the nationality of the parties or the location of their project dispute. Similarly, the Law does not discriminate between the recognition and enforcement of domestic and international arbitral awards. A domestic arbitration is one that has been conducted in Indonesia while an international arbitration is one that is conducted outside Indonesia. The difference lies in the procedure for recognition and enforcement of a domestic award and an international award.
There are strict provisions that govern the appointment of arbitrators and any challenges that are made to their appointment. There are also very strict mandatory provisions that deal with the format and delivery of arbitral awards. The majority of arbitrations taking place in Indonesia adopt the Rules of Arbitration of Badan Arbitrase Nasional Indonesia37 (BANI Rules). Most Indonesian state-owned enterprises insist that their procurement and contractual agreements are to go to arbitration in Indonesia under the BANI Rules. Other important arbitration institutions in Indonesia include the Indonesian Capital Market Arbitration Board and the International Chamber of Commerce (ICC).
Of equal significance is the fact that the procurement rules set by the Indonesian Upstream Oil and Gas Supervisory Agency stipulate that all disputes are to be settled by way of arbitration in Indonesia under the BANI Rules. One of the key practical advantages of arbitrating under the BANI Rules, as opposed to other international rules of arbitration, is the fact that Indonesian courts tend to quickly recognise and enforce BANI awards with little difficulty.38
It is also comparatively easier to seek the assistance of courts in supporting BANI arbitrations rather than non-BANI arbitrations. BANI is a fully independent entity from the government and does not obtain any form of financial remuneration from the government. International parties tend to stipulate ICC arbitration clauses, and a significant number of Indonesian-related cases are also heard outside the country. There is also a trend for Indonesia parties to look towards seats in Hong Kong and Singapore while maintaining Indonesian law as the governing law. There is also a preference to arbitrate before established arbitral institutions like the ICC (Singapore) and HKIAC (Hong Kong), as these two institutions are believed to have a better understanding about appointing presiding arbitrators or sole arbitrators from civil law backgrounds than other foreign-seated institutions that have a general preference for common law arbitrators from outside Asia who have no understanding of Indonesian law or civil law concepts.
While Indonesian law does not clearly set out that the concepts of Kompetenz-Kompetenz and separability are available, in practice, arbitrators, practitioners and Indonesian courts have deemed that these two principles do exist under Article 10 of the Arbitration Law.
The Arbitration Law and the Civil Code allow the parties to select the substantive law of the contract. Where parties have not made a clear choice or are unable to agree, Indonesian law will be implied as the substantive governing law. There are current proposals from BANI and other end users of arbitration to amend and update the current Arbitration Law of Indonesia, and it is expected to be brought more in line with the UNCITRAL Model Law. BANI has recently amended its rules of arbitration and they came into force on 1 January 2018.
While Laos is a civil law country, its current legal system and laws have been deeply influenced by French law, socialist ideology and the Chinese communist system. The applicable arbitration law in Laos is Law No. 02/NA on Resolution of Economic Arbitration.39 This statute lays down the statutory provisions and regulations relating to the resolution of commercial disputes by arbitrators. An amendment to the Dispute Resolution Law was made in late 2010 and came into force on 28 February 2011.
Laotian arbitration law does not recognise the concepts of separability or Kompetenz-Kompetenz. The Law on Civil Procedure does provide for the recognition of foreign court judgments under certain conditions, namely where:
- there is a relevant treaty requiring such enforcement in place;
- there is an official Lao translation of the judgment;
- the foreign judgment does not conflict with Laotian law; and
- the foreign judgment does not adversely impact on the sovereignty of Laos.
However, the Law on Judgment Enforcement states the foreign judgments require endorsement by a Laotian court and are enforceable only by proper order of such court.
Laos has been a signatory to the New York Convention since 15 September 1998 but has to date not yet ratified the Convention. It is not too clear under Laotian law whether ratification is required for the New York Convention to take effect, but the majority of lawyers believe that ratification is not required to enforce foreign awards. The development of arbitration is still at a rudimentary stage as compared with some of its neighbouring countries within ASEAN.
The Malaysian Constitution sets out the legal framework and rights of its citizens and dependants. The Constitution allows for a dual justice system where the secular laws based on English common law40 coexist alongside Islamic shariah laws.41 Federal laws that are promulgated by the Malaysian parliament are applicable in each of the states throughout Malaysia. Each state is also entitled to enact state laws through its state legislative assembly. Executive power is vested in the Cabinet of Ministers, which is led by the Prime Minister.
The Federal Court of Malaysia is the final court of appeal and the highest judicial authority in Malaysia. The principle of stare decisis applies in Malaysian law, which means that decisions by higher courts will be binding upon the lower courts in the hierarchy.
The Malaysian Arbitration Act 2005,42 which repealed the Arbitration Act 1952 and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 1985, came into force on 15 March 2006. There were several criticisms of the Act over the first five years of its existence. This led to eight sections of the Act being amended at the parliamentary stage before the Act was enacted as the Arbitration (Amendment) Act 2011.
Section 38(1) of the Act was one of the significant sections of the Act that was amended.43 The words ‘a domestic arbitration’ were substituted with the words ‘an arbitration where the seat of arbitration is in Malaysia’ in the Amendment Act. This was because the original wording gave the impression that it was not possible to enforce international arbitration awards made in Malaysia.
The vast majority of arbitrations taking place in Malaysia are domestic arbitrations involving construction disputes that are governed and administered the Malaysian Institute of Architects. The remaining arbitrations are shared by other arbitration bodies including the International Chambers of Commerce (ICC), the Institute of Engineers Malaysia, the Institution of Surveyors Malaysia, the Malaysian Institute of Arbitrators and the Chartered Institute of Arbitrators (Malaysia branch). There are also arbitrations taking place at the Palm Oil Refiners Association of Malaysia, the Malaysian Rubber Board and the Kuala Lumpur Chambers of Commerce. Similarly to other developing arbitration countries in the region such as the Philippines, Thailand and Vietnam, there is hardly any international arbitration taking place in Malaysia. Traditionally, foreign investors and sophisticated Malaysian commercial parties alike have tended to opt to arbitrate outside Malaysia. Malaysia’s state-owned sovereign wealth fund 1MDB was meant to boost the country’s economy investment fund and to attract foreign investment. There has been an ongoing political scandal occurring in Malaysia which has spurred criminal and regulatory investigations around the world. Unfortunately, the recent upheavals in Malaysian politics and allegations of corruption made against the recently ousted ruling party and Malaysian Prime Minister in May 201844 and allegations of Malaysia being ranked as the second most corrupt country in the World does not assist in trying to convince arbitration end-users that Malaysia is a safe seat of arbitration.45
Under the Malaysian Arbitration Act, the Kuala Lumpur Regional Centre for Arbitration which has recently been renamed as the Asian International Arbitration Centre (AIAC), is the statutory default appointing body in the event of default or failure by the parties to appoint. The Arbitration (Amendment) Act 2018 was passed and gazetted on 10 January 2018 to enable the change of name to AIAC. The AIAC is fully dependent on the Malaysian government for financial assistance and receives substantial funds annually to finance its operations. The director and staff of the AIAC are directly appointed and paid by the government. It is provided a large annual budget by the government to market itself as an arbitration centre. It has been relatively successful in its publicity campaign and has a huge success with domestic construction adjudication cases. As it counts adjudication cases together with arbitrations as its annual statistics for arbitration, it is not very clear whether it has achieved the number of cases achieved by national centres of neighbouring countries including the Vietnam International Arbitration Centre (VIAC) and the Thai Arbitration Institute (TAI). The KLRCA/AIAC had stated in its promotional brochures that there is also no withholding tax on KLRCA/AIAC arbitrations, which appears to rely upon a government cabinet directive that has not been disclosed to the public. The official language used in the Malaysian courts is Bahasa Malaysia.46
The Bill for the Legal Profession (Amendment) Act 2012 was passed on the 13 June 2012, and the Amendment Act was gazetted on 20 September 2012. The law originally stated that all foreign lawyers, without exception, are not entitled to practise, unless they have been registered with the local bar council under the Legal Profession Act as a foreign lawyer. Failure to do so shall render the foreign lawyer guilty of an offence and, if convicted, liable to a fine of 100,000 ringgit. Due to pressures from the arbitral community, the Legal Profession Act was amended again on 24 September 2013 with a new Section 37A that now allows foreign lawyers and foreign arbitrators to enter into Malaysia to take part in arbitration proceedings.
International and local parties who are forced to designate Malaysia as a seat of arbitration tend to insist upon an ICC arbitration agreement. This is to ensure complete independence from the KLRCA/AIAC and the government, as it allows the ICC Secretariat to nominate a neutral national or foreign arbitrator. In 2013, an arbitrator from the KLRCA/AIAC was caught for allegedly taking a bribe, and was convicted by the Malaysian courts. Unfortunately, the recent upheavals in Malaysian politics and allegations of corruption made against the highest level of the recently ousted Malaysian Prime Minister in May 201847 and allegations of Malaysia being ranked as the second most corrupt country in the world do not assist in trying to convince arbitration end users that Malaysia is a safe seat of arbitration.48
The Sabah High Court in Mohamed Azahari Bin Matiasin v. Undefined held that foreign lawyers (including West Malaysian lawyers) who were not advocates within the meaning of the Advocates Ordinance 1953 (Sabah, Chapter 2) are prohibited from representing parties in arbitration proceedings in Sabah. The Malaysian High Court held that the phrase ‘exclusive right to practise in Sabah’, which appears in Section 8 of the Ordinance, means that only lawyers admitted to the Sabah Bar have exclusive rights to legal practise both ‘in and outside’ courts. This means that a lawyer who is not a member of the Sabah Bar should apply for ad hoc admission to the Sabah Bar if he or she wishes to represent a party in arbitration.49 While the case was overturned on appeal by the Court of Appeal. The Federal Court Decision revered the Court of Appeal and has put to rest any speculation on the definition of an advocate’s ‘exclusive right to practise’ as stated in Section 8(1) of the Advocates Ordinance 1953. Malaysia’s apex court has therefore ruled that the right to practise arbitration in Sabah is also within the exclusivity of the advocates of Sabah. It remains to be seen what impact this Malaysian Apex court decision will have on the rest of Malaysia.
The Myanmar legal system is heavily influenced by English law as Burma was a former British colony. The revised 2008 Constitution of Myanmar reset the court system, and the highest appellate court in Myanmar is the Supreme Court of the Union. Other courts include the high courts of the regions, the high courts of the states and the courts of the self-administered divisions. After five decades of relative political and economic isolation, Myanmar has opened up and seen an increase in foreign investment and economic activity. President U Thein Sein put in place a series of reforms that allowed Aung San Suu Kyi and members of her opposition party, the National League for Democracy, to win seats in Myanmar’s parliament. This in turn has led to many foreign governments taking steps to normalise relations with Myanmar, including the relaxation of stifling economic sanctions.
Arbitration is not at all popular or a widely known dispute resolution process among local parties in the country. Myanmar enacted its new Arbitration Law (Union Law No. 5/2016) on 5 January 2016 to make its arbitration law more in line with the Model Law.50 The recently repealed Myanmar Arbitration Act 1944 was based on the English Arbitration Act of 1934. Myanmar is a signatory to the 1958 New York Convention but is not a signatory of the ICSID Convention.51 While it has the Arbitration (Protocol and Convention) Act 1937, which implemented the 1923 Geneva Protocol on Arbitration Clauses and the 1927 Geneva Convention on the Execution of Foreign Arbitral Awards, the Arbitration (Protocol and Convention) Act only applies to very few foreign countries that still adopt the Geneva Protocol and the Geneva Convention. There are no functioning arbitration centres in Myanmar, and foreign parties are forced to resolve their disputes in other neighbouring countries in ASEAN. Hong Kong and Singapore are the most popular places of arbitration, although arbitrations involving Myanmar parties have also been held in other ASEAN countries.52 Where the arbitration is seated in Myanmar, parties have to adopt the laws of Myanmar as the applicable substantive law. Section 25(b) of the Law grants the arbitral tribunal the power to decide the language to be used in the arbitral proceedings if the parties cannot agree to the same.
Myanmar courts have a historical tendency to intervene in arbitration proceedings, and do so from the outset of the arbitration process all the way to the enforcement stage.53 The new Law takes a pro-arbitration stance. Section 7 of the new Law adopts similar provisions to Article 5 of the Model Law and makes it clear that there shall be no court intervention in arbitrations, except as provided for in the Arbitration Law. Section 2(b) of the new Arbitration Law sets out provisions that apply to arbitrations seated outside Myanmar. The wording of the new Law is ambiguous in parts, and it appears possible for local courts to interpret that all provisions of the Arbitration Law are applicable to foreign arbitrations and awards. It remains to be seen how the local courts will interpret the new Law.
vii The Philippines
The Philippines has an interesting common law legal system that has its roots in both Spanish and American law. Its Civil Code is based on Spanish law, but most of its other commercial laws come from United States’ law. The Philippines signed and ratified the New York Convention in 1966, subject to the reservation that it would only recognise and enforce an award made in the territory of another contracting state that reciprocates and enforces Philippine arbitral awards.
The ADR Act has adopted most of the provisions of the UNCITRAL Model Law. This has meant that there are very limited grounds under the Act to set aside awards or to resist the enforcement of awards. Arbitral awards may be set aside only for serious breach of due process or a lack of jurisdiction, or on narrow public policy grounds.
In accordance with the Model Law, Section 33 of the ADR Act obliges the state courts to stay actions that have been brought by one party disregarding the arbitration agreement. Section 28 of the ADR Act allows a party to apply to the arbitral tribunal for an interim measure of protections. It also allows such party to seek the assistance of a Philippine court to enforce an interim measure that has been granted by the arbitral tribunal.56
Prior to the enactment of the Republic Act No. 9285, there were no laws that outlined how to conduct an international arbitration in the Philippines.57 That meant that it was practically unworkable to conduct arbitration in the Philippines, and most disputes involving international parties had to be settled outside the Philippines in other seats of arbitration such as Singapore.58
In addition to the ADR Act, Articles 2028 to 2046 of the Philippine Civil Code are also applicable to international arbitrations, and American jurisprudence on arbitration is also persuasive.
The most popular local arbitration centre in the Philippines is the Philippine Dispute Resolution Center, Inc (PDRCI), while international parties prefer ICC arbitration. The PDRCI was established in 1996 to promote the use of arbitration in the Philippines. Unlike arbitration centres in some other ASEAN member countries, the PDRCI is completely independent of the government and does not receive money from it.
English is one of the official languages in the Philippines, and the language of court proceedings is usually English. The ADR Act has further cemented this position by providing that while the parties are free to agree on the language to be used in the arbitral proceedings, any failure to reach an agreement would result in the English language being used in international arbitration matters, and English or Filipino Tagalog for domestic arbitrations.59 The Philippines has been involved in a maritime boundary dispute with China over islands and reefs in the South China Sea. It unilaterally submitted the matter to an ad hoc arbitration in January 2013 under Annex VII of the 1982 United Nations Convention on the Law of the Sea, and seeks to challenge the validity of China’s ‘nine-dash line’ claim over the sea. The Philippines is a signatory to both the New York Convention and the ICSID Convention, and has had a string of recent successes, most recently its case against Fraport AG Frankfurt Airport Services.60
Singapore enjoys the status of being the dominant legal and arbitration hub in the ASEAN region, and this may be due to a combination of factors. The judiciary is the most advanced in the region and among the best in the world, and is very arbitration-friendly in the sense that they take a very limited role in international arbitrations. Singapore courts tend to strictly maintain the principle that they only intervene in very limited circumstances where such intervention would support arbitration. Foreign parties can be assured of a very sophisticated Singapore judiciary that has a good understanding of the commercial arbitration process.
Having English as the official language of the courts has also given Singapore an advantage as a seat for international arbitration. Foreign lawyers are given limited rights of practice in Singapore and are accorded more freedom to provide advice on arbitration matters. There is no withholding tax on foreign arbitrators’ fees in Singapore.
Both of the Singapore arbitration statutes (the Arbitration Act and the International Arbitration Act) are based on the UNCITRAL Model Law. Singapore law has sensibly adopted a rather broad view of which disputes are arbitrable. Generally, any dispute that affects the civil rights and interests of parties is deemed to be arbitrable. This will include claims for breach of contract, tort, breach of trust and restitution claims so long as the requirements for an arbitration agreement are present. Singapore statutes expressly provide that there is no withholding tax implemented on foreign arbitrators sitting in Singapore.
An illustrative case that shows the general approach taken by the Singapore courts can be found in the Court of Appeal decision of NCC International AB v. Alliance Concrete Singapore Pte Ltd  2 SLR 565. The Court of Appeal concluded that the Singapore courts have ‘[...] a conspicuously circumscribed role in relation to all arbitration proceedings, whether pending or ongoing’.61
The Court of Appeal clarified that in the case of domestic arbitration, the Singapore courts have a larger role to play and that the rationale for this is founded on public policy. The main reason for a slightly more interventionist role in domestic arbitrations was ‘[...] namely, for the development of domestic commercial and legal practice, and for a closer supervision of decisions which may affect weaker domestic parties’.62
It is extremely difficult to set aside an arbitral award in Singapore, and parties generally do not succeed. There have been several other important court decisions that have been welcomed by the arbitral community. In AKN v. ALC,63 Chief Justice Menon, writing on behalf of the Court of Appeal, partly confirmed the High Court’s decision to set aside an award for breach of natural justice and excess of jurisdiction. Chief Justice Menon confirmed the limited scope available for curial intervention in arbitration and confirmed that Singapore courts should apply a de novo standard of review when dealing with an award that is being challenged on jurisdictional grounds. The Court of Appeal held that a court must restrict its inquiry to whether the tribunal had committed a breach of natural justice in its resolution of these matters. It would be ‘impermissible’ for a court to engage itself with the merits of the underlying dispute. However, the Court of Appeal agreed with the judge that the tribunal had acted in breach of natural justice by raising a ‘loss of opportunity’ point ‘at the eleventh hour without hearing arguments and submissions’ from the parties, especially the respondents. It also disagreed with the High Court that the effect of a finding of a breach of natural justice on this single point in itself could warrant the setting aside the whole of the award. It held that a court could only confine itself to invalidating that part of the award that was directly related to or infected by the breach.
In the case of In R1 International Pte Ltd v. Lonstroff AG,64 the High Court had to deal with the issue of whether Singapore courts could issue a permanent anti-suit injunction in aid of domestic and foreign international arbitrations. The Court concluded that it did have the power to grant a permanent anti-suit injunction in support of a domestic international arbitration seated in Singapore, but did not express any conclusion as to whether it could do so in support of a foreign international arbitration that had its seat outside Singapore. The Court of Appeal in Sim Chay Koon v. NTUC Income Insurance65 held that the existence of the Kompetenz-Kompetenz doctrine under Singapore law means that there is a general rule, where a party seeks to avoid its obligation to arbitrate its dispute, the court should undertake a restrained review of the facts and circumstances before it in order to determine whether it appears on a prima facie basis that there is an arbitration clause and whether the dispute is caught by that clause.
There was a rare split decision in the Singapore Court of Appeal case of PT Perusahaan Gas Negara v. CRW.66 The majority, which included the Chief Justice, held that the 2013 FIDIC guidance memorandum could be used to interpret the FIDIC Form based contract that had been entered into by the parties in 2006. It came to the conclusion that only provisional awards are prohibited by Section 19B of the IAA. The majority held that an award enforcing a dispute adjudication board’s decision was not provisional in respect of the issue it determined; and that Section 19B of the International Arbitration Act rendered the interim award final and binding on that particular issue. The minority judgment by the former Chief Justice disagreed and held that the FIDIC guidance memorandum is a clear and unambiguous acknowledgement by FIDIC that Clause 20.6, without the recommended amendment to Clause 20.7, is not applicable to any dispute relating to a failure to comply with a binding but non-final DAB decision, nor to any dispute as to whether or not such a DAB decision is enforceable by an interim award.
At the opening of the legal year in Singapore on 5 January 2015, Chief Justice Menon officially launched the Singapore International Commercial Court (SICC). In his speech, the Chief Justice explained that the aim of the SICC is to ‘build upon and complement the success of the vibrant arbitration sector’ and to make Singapore’s ‘judicial institutions and legal profession available to serve the regional and the global community.’ The SICC is a game changer for the region, as it aims to take on high-value, complex, cross-border commercial cases, and it operates as a division of the Singapore High Court. In addition to the existing panel of High Court judges, the SICC has also appointed eminent international jurists. At the time of writing, there are 21 Singapore judges and 15 international judges (11 from common law and three from civil law backgrounds) on the bench of the SICC. In view of the international nature of the SICC, parties are entitled to be represented by foreign lawyers in cases that have no substantial connection to Singapore, as well as in disputes involving foreign law. Singapore is well known throughout the world for having an extremely efficient, competent and honest judiciary. This has greatly benefited Singapore as a hub for dispute resolution. Singapore wisely ratified the Hague Convention on Choice of Court Agreements on the 2 June 2016 and the Hague Convention came into force in Singapore on 1 October 2016.
As arbitral institutions in the ASEAN region continue to improve their game and achieve higher standards, it is only a matter of time before most of the regional institutions catch up with the SIAC. The SIAC is perceived to some end users to have a very high preference for appointing arbitrators from Australia and the United Kingdom. This has greatly enhanced its appeal with end users from common law countries from the surrounding ASEAN region such as Brunei, Malaysia and from as far field as the United Kingdom. The overwhelmingly majority of arbitrators on its panel are from the common law jurisdictions and from countries outside the ASEAN. While there has been a massive number of end users from India and Malaysian who prefer the SIAC, there has also been an increasing preference for end users from Civil law countries from the ASEAN region to favour ICC Arbitration in Singapore or HKIAC arbitration in Hong Kong. The SICC will therefore be an increasingly important alternative to arbitration, and will appeal to parties that would have non-arbitrable disputes or to those that would like the availability of an appeal. The SICC is expected to grow from strength to strength and increase in popularity with end users.
Thailand is a civil law country with a set of legal codes that is relatively modern in comparison with other civil law countries. Unlike pure civil law systems, Thai laws have been influenced by some common law elements. The main source of commercial law is the Civil and Commercial Code (CCC). The CCC has been influenced by both English and civil law, and sets out the codified principles of contract law, tort law and other commercial laws that have to be applied in all cases that fall within its spirit.
Similar to the laws of other civil law countries, Thai law does not recognise the principle of stare decisis or case law precedent. Lower courts are not bound by the decisions of higher courts and each decision is determined on its own facts without regard to trends in previous cases. Thailand signed and ratified the New York Convention in 1959 without making any reservations.
The Thai Arbitration Act 2002,67 which is based on the UNCITRAL Model Law, ad has been relatively successful for domestic arbitrations.68 Much of the arbitration taking place in Thailand falls under the rules of the TAI. The TAI was established by the Ministry of Justice in 1990 and is located within the Criminal Court Building. In addition to appointing arbitrators and maintaining a panel of arbitrators, the TAI provides arbitration training programmes to raise the level of knowledge and expertise of those engaged as arbitrators or counsel for arbitration disputes. The main alternative system to the TAI is ICC arbitration, which is favoured by foreign parties who contract with Thai parties. A more recent body that has been set up under the Arbitration Institution Act BE 2550 is the Thailand Arbitration Centre (THAC). It is a non-governmental organisation and came into operation by 2016. THAC aims to provide arbitration services in the field of civil and commercial disputes.
The Thai Arbitration Act applies equally to both domestic and international cases, and also in dealings with awards. The Act gives parties the right to select their rules of arbitration and to determine arbitral hearing procedures. In line with the Model Law, the only mandatory section of the Act is Section 25, which stipulates that parties must be treated equally, and must be given a full opportunity to present their respective cases in accordance with the facts and circumstances of the dispute.
In line with the spirit of the Model Law, Section 24 of the Arbitration Act allows for the doctrine of separability as well as the doctrine of Kompetenz-Kompetenz. The tribunal is competent to rule on its own jurisdiction, including regarding the existence or validity of an arbitration agreement, and even where the main contract may be held to be void, it would not affect the validity of an arbitration agreement.
The Thai Arbitration Act allows parties to select the language to be used for the arbitration proceedings, and English can be used even in a domestic Thai arbitration matter. Where applications are to be made to the Thai courts for recognition and enforcement of an award, it is notable that Section 41 of the Thai Arbitration Act treats awards made in Thailand and awards made outside Thailand equally.69 Similar to Malaysia and Myanmar, many local Thai companies and foreign companies entering into joint venture agreements in Thailand tend to enter into arbitration agreements designating the seat of arbitration in either Hong Kong or Singapore. However, the newly established Thailand Arbitration Center (THAC), is situated in a new modern building with state-of-the-art hearing rooms and facilities. There has been a concerted effort by the government to encourage the use of commercial arbitration in Thailand and an effort to allow the THAC to have neutral foreign arbitration experts assist in the appointment of neutral national arbitrators. The majority of commercial arbitrators on the THAC panel are now foreign nationals who are renowned international arbitration experts and mainly from the ASEAN countries.
Vietnam belongs to the civil law system as a result of being colonised by France for several years. There are also Chinese law influences, as well as communist doctrinal rules. In addition to a written Constitution, the laws of Vietnam are made up of various ordinances, decrees, directives and resolutions. Legal instruments that have been promulgated by higher authorities will take precedence over legal instruments that have been issued by authorities ranked lower in the hierarchy.
The Supreme Court is entitled by law to issue practice directions in the form of resolutions to amplify and further explain the law. Lower state courts are bound to adopt such practice directions. There is, however, no doctrine of stare decisis, and the lower courts are not bound by the judgments of the higher courts.
The Arbitration Ordinance came into effect on 1 July 2003 and regulated the law and rules applicable to arbitrations seated in Vietnam. This was superseded on 1 January 2011 by the entry into force of the current Arbitration Law, which is based on the UNCITRAL Model Law.70 While ad hoc arbitration is comparatively unpopular in Vietnam, institutional arbitrations, including ICC and VIAC arbitrations, are gaining popularity.
Foreign parties who enter into contracts in Vietnam have a tendency to refer disputes to foreign seats of arbitration rather than to domestic arbitration. In addition to wanting to get away from the domestic courts in the event of a problem with the arbitration, there is a perception that it would be hard for foreign lawyers to get visa entry permits to participate in the hearing.
The Arbitration Law was actually already approved by the National Assembly of Vietnam on 17 June 2010 and came into effect on 1 January 2011. The National Assembly of Vietnam approved the 2015 Civil Procedure Code. It came into force on 1 July 2016 and devotes a chapter to the procedure for recognition and enforcement of foreign arbitral awards. The civil procedural code now brings the implementation of the Arbitration Law closer to the New York Convention. In general practice for domestic arbitrations, parties tend to still refer to the provisions of Decree 25 for guidance so long as the provisions do not conflict with the provisions of the Arbitration Law.
Generally, the new Arbitration Law adopts the guidelines set down by the Model Law. While the Arbitration Law is equally applicable to both domestic and international arbitrations and does not draw differences between the two, the Arbitration Law71 does refer to a ‘dispute with foreign elements’.72
The VIAC, which is headquartered in Hanoi with regional branches, is the main domestic arbitration centre. ICC arbitration is the main alternative to that of the VIAC and is preferred by foreign parties. The number of foreign-related and international arbitration cases at the VIAC is higher than that of the national arbitration centres of other neighbouring ASEAN countries such as Cambodia, Laos, Malaysia and Thailand, but much smaller numbers than those from the main arbitration centres in Indonesia and Singapore.73 Singapore remains the most popular seat for international arbitration for Vietnamese parties. Arbitral tribunals in Vietnam may request expert evidence for the purposes of proving foreign law. Article 14 of the Arbitration Law may be interpreted so as to allow the arbitration tribunal to determine the most suitable applicable law for the arbitration agreement in settling foreign-related disputes.
Party autonomy and choice of arbitration rules that have been selected by the parties may prevail over certain provisions of the Arbitration Law. These may include procedural schedules, payment of fees to arbitrators, and ways of filing and serving documents.
It is important to note that while the Arbitration Law had adopted many of the familiar provisions laid down by the UNCITRAL Model Law, there are a few differences to be found in the Arbitration Law. This has caused UNCITRAL itself not to recognise the Vietnam Arbitration Law as being in compliance with the Model Law. The Arbitration Law provides that all disputes without any foreign element involved will be strictly subjected to Vietnamese law and that the language of the arbitration proceedings has to be Vietnamese.74 There is no distinction between procedural law and substantive law under the Arbitration Law. The Law also allows for anyone to establish arbitration institutions in Vietnam or to establish and operate a foreign arbitration institution in Vietnam.
In the event that any signatory to the arbitration agreement does not have authority to enter into the arbitration agreement or if the subject matter of the dispute happens to fall in an area deemed outside the competence of arbitration, the arbitration agreement is be deemed to be inoperative and unenforceable.
Article 6 of the Arbitration Law obliges the Vietnamese courts to stay and not to accept jurisdiction over any dispute that has arisen out of a contract where there is an arbitration agreement. Article 4 of the Arbitration Law requires the arbitral tribunal to be independent of the parties, and to act fairly and impartially towards the parties.
The Arbitration Law has defined that a foreign arbitration is one that applies foreign rules on arbitration proceedings that have been selected by the parties to carry out the dispute settlement outside or within Vietnam territory.75 Any award emanating from foreign rules will be considered as a foreign arbitration award regardless of whether it was awarded within or outside Vietnam.76 The Civil Proceedings Code of 2004 provides that a foreign arbitral award may not be recognised if recognition of the award would be against the ‘fundamental principles of Vietnamese law’. While there is no legislation that defines this woolly principle and how it is to be applied, Article 128 of the Vietnamese Civil Code of 2005 has a provision that sets out what would constitute prohibitory principles of law and social ethics. The definition of ‘social ethics’ appears to be equally uncertain, and is simply defined as standards of conduct among persons in social life that are recognised and respected by the community.
1 Colin Ong QC is the senior partner at Dr Colin Ong Legal Services; Counsel at Eldan Law LLP (Singapore) and Queen’s Counsel at St Philips Stone Chambers.
2 Brunei Darussalam joined ASEAN on 8 January 1984, Vietnam on 28 July 1995, Laos and Myanmar on 23 July 1997, and Cambodia on 30 April 1999.
4 The Agreement on the establishment of the ASEAN Secretariat was signed by the ASEAN Foreign Ministers in Bali, Indonesia on 24 February 1976.
5 For a fuller background on ASEAN and its various earlier dispute settlement mechanisms, see Colin Ong, ‘Association of Southeast Asian Nations (1967-2004)’; Vol. 4 of World Arbitration Reporter, Mistelis and Shore (eds), Juris (2nd edition, 2011).
6 Signed in Bangkok, Thailand on 8 August 1967.
7 Signed in Kuala Lumpur, Malaysia on 27 November 1971.
8 Signed in Bali, Indonesia on 24 February 1976.
9 Signed in Bali, Indonesia on 24 February 1976.
10 Signed in Manila, Philippines on 22 July 1992.
11 Signed in Bangkok, Thailand on 15 December 1997.
12 Signed in Kuala Lumpur, Malaysia on 15 December 1997.
13 Signed in Bali, Indonesia on 7 October 2003.
15 The AEC marked the beginning of the change of mindset toward the widening and deepening of the liberalisation of trade in goods, services and finances as well as the structured liberalisation of skilled labour and other persons.
16 See the ASEAN Economic Community Blueprint (2007): www.asean.org/wp-content/uploads/archive/5187-10.pdf.
17 This included the improvement of the 2004 ASEAN Enhanced DSM (EDSM) to ensure the expeditious and legally binding resolution of any economic disputes. The EDSM is applicable to disputes relating to all economic commitments in ASEAN taking place after its entry into force and is also applicable on a retroactive basis to earlier key economic agreements.
18 The ASEAN Charter had already been signed by the leaders of ASEAN Member States at the 13th ASEAN Summit in Singapore on 20 November 2007. This coincided with the 40th anniversary of the founding of ASEAN.
19 For a historical perspective that shows the gradual development of the ASEAN Charter, see Rodolfo Severino, Framing the ASEAN Charter: An ISEAS Perspective (2005).
21 Section 24 of the ASEAN Charter provides that:
(1) Disputes relating to specific ASEAN instruments shall be settled through the mechanisms and procedures provided for in such instruments.
(2) Disputes which do not concern the interpretation or application of any ASEAN instrument shall be resolved peacefully in accordance with the Treaty of Amity and Cooperation in Southeast Asia and its rules of procedure.
(3) Where not otherwise specifically provided, disputes which concern the interpretation or application of ASEAN economic agreements shall be settled in accordance with the ASEAN Protocol on Enhanced Dispute Settlement Mechanism.
22 See speech by Deputy Prime Minister Pham Gia Khiem, ‘ASEAN sets up arbitration mechanism for disputes’ on 15 January 2010, which can be found at en.baomoi.com/Home/society/english.vietnamnet.vn/ASEAN-sets-up-arbitration-mechanism-for-disputes/35298.epi.
23 Article 6(2) of the 2010 Protocol allows yet another form of mediation; it provides that: ‘The Parties to the dispute may request the Chairman of ASEAN or the Secretary-General of ASEAN, acting in an ex officio capacity, to provide good offices, mediation or conciliation.’
24 As with international arbitration, neutrality of the chair is important. Article 11(3) provides that ‘The Chair of the arbitral tribunal shall not be a national of any Party to the dispute, and shall preferably be a national of a Member State’.
25 In this context, Article 16(2) of the 2010 Protocol stipulates that: ‘Any Party to the dispute required to comply with an arbitral award or settlement agreement shall provide the Secretary-General of ASEAN with a status report in writing stating the extent of its compliance with the arbitral award or settlement agreement.’
26 Rule 12(1) provides that: ‘Unless the Parties to the dispute agree otherwise, the place of arbitration shall be the ASEAN Secretariat, Jakarta, the Republic of Indonesia.’
27 Presently, the Brunei Court of Appeal is presided over by visiting retired judges from Australia and the Hong Kong Court of Final Appeal, while the High Court consists of local Bruneian judges, as well as former Hong Kong and English High Court judges.
28 The Arbitration Order, 2009 regulates domestic arbitrations and the International Arbitration Order, 2009 regulates international arbitration.
29 The Brunei arbitration statutes retain the original spirit, intent and approach of the Model Law.
30 As a result, the Arbitration Order, 2009 contains more modifications that depart from the default position under the Model Law.
31 Article 25 of the Cambodian Arbitration Law allows arbitral tribunals with the power to order interim measures of protection.
32 Article 42 of the Cambodian Arbitration Law gives the Appeal Court the exclusive right to set aside an arbitral award and Article 43 allows the parties to appeal such a decision to the Cambodian Supreme Court.
33 Law No. 30 concerns all types of arbitration and alternative dispute resolution, and came into force on 12 August 1999.
34 The Rules on Procedure of 1847.
35 The Revised Indonesian Regulation of 1848.
36 Indonesia became a signatory member to the New York Convention in 1981.
38 As can be seen in most arbitration case law books, it is generally much more difficult to enforce foreign arbitral awards in Indonesia.
39 This was promulgated by the Laos National Assembly on 19 May 2005.
40 Sections 3 and 5 of the Civil Law Act allow for the application of English common law, rules of equity and statutes in civil cases where no specific laws have been implemented in Malaysia.
41 Shariah laws are only applicable to Muslims, and the shariah courts have jurisdiction in matters such as inheritance, succession and matrimonial matters.
42 Act 646.
43 Section 38 (1) of the original Arbitration Act 2005 provided that: ‘On an application in writing to the High Court, an award made in respect of a domestic arbitration or an award from a foreign State, shall subject to this section and section 39 be recognised as binding and be enforced by entry as a judgment in terms of the award or by action.’
46 English is sometimes allowed in the higher courts with the consent of all counsel and the court.
49 This decision sets back the earlier decision of another Malaysian High Court, which allowed foreign lawyers to represent a party in arbitration. See the decision of Zublin Muhibbah Joint Ventures v. Government of Malaysia  3 MLJ 125.
50 In 2014, Myanmar’s parliament published an arbitration bill that went through many debates in parliament and underwent many different drafts, and that led to the current Arbitration Law.
51 The UNCITRAL Rules 1976 remain popular together in local arbitrations seated in Myanmar.
52 For example, the proceedings for the first ASEAN Investment Treaty Arbitration (Yaung Chi Oo Trading v. Government of the Union of Myanmar) took place in Brunei in 2003.
53 Where Myanmar state courts exercise their powers, they tend to apply the Code of Civil Procedure 1882.
54 Republic Act No. 9285.
55 Republic Act No. 9285 replaced the repealed Republic Act No. 876.
56 The granting of interim relief by an arbitral tribunal or a state court is usually subject to the requirement that the party seeking the relief posting a bond to cover any damages that may be suffered by the party against whom relief has been sought should it later be found that the relief was unwarranted and should not have been pursued.
57 Section 2 of the Republic Act No. 9285 has declared Philippine policy: ‘to actively promote party autonomy in the resolution of disputes’ and to ‘encourage and actively promote the use of Alternative Dispute Resolution (ADR) as an important means to achieve speedy and impartial justice and declog court dockets.’
58 See Francisco Lim, ‘Commercial Arbitration in the Philippines’, 46 Ateneo Law Journal 394 (2001), for a general historical background on arbitration in the Philippines.
59 Section 22 of the ADR Act allows foreign lawyers and non-lawyers alike to represent parties in an international arbitration that is conducted in the Philippines.
60 ICSID Case No. ARB/11/12.
61 NCC International AB v. Alliance Concrete Singapore Pte Ltd  2 SLR 565 at .
62 Ibid.  at .
63  SGCA 18.
64  SGHC 69.
65 Sim Chay Koon v. NTUC Income Insurance  SGCA 46.
66 PT Perusahaan Gas Negara v. CRW  SGCA 30.
67 The Arbitration Act 2002 is officially referred to as Arbitration Act BE 2545. It replaced the repealed Arbitration Act 1987 and came into force on 30 April 2002.
68 The Arbitration Act does not allow tribunals any right to order interim measures. In fact, Section 16 of the Act provides that the parties to the arbitration must seek such interim relief from the Thai courts.
69 Section 42 of the Arbitration Law only requires that any application to the courts will have to be accompanied by both the original award as well as the original arbitration agreement, or, failing which, certified copies of the same. There will also have to be translations made into Thai if either of those documents is not written in the Thai language.
70 Vietnam became a signatory to the New York Convention in 1995 with the reservation that Vietnam would only recognise and enforce an award made in the territory of another contracting state that reciprocates and enforces awards made in Vietnam.
71 See Article 2.4 of the Arbitration Law.
72 Article 758 of the Vietnamese Civil Code broadly defines a civil relationship with foreign elements to include situations where at least one of the participating parties is a foreign body or individual, or where the establishment of the civil relationship involved the law of a foreign country, or where such relationship arose in a foreign country, or where the assets involved in the relationship are located in a foreign country.
74 Article 14(2) of the Arbitration Law allows the arbitral tribunal to determine the most suitable applicable law in settling foreign-related disputes.
75 Article 3(11) of Law 2010 provides that foreign arbitration means arbitration established in accordance with foreign arbitration law, which the parties agree to select to conduct the dispute resolution, either inside or outside the territory of Vietnam.
76 Article 3(4) of Law 2010 provides that a dispute with a foreign element means a dispute arising in commercial relations involving a foreign element, or in some other legal relationship involving a foreign element as prescribed in the Civil Code.