TAPPING ASIA’S GROWTH: HARMONISING ARBITRAL PROCEDURE ACROSS THE ASIA REGION

The increase in economic activity in Asia has undoubtedly resulted in an increase in the number of arbitrations in the region. Given the diversity of legal systems within Asia, an issue that is becoming increasingly apparent is the difficulty of finding a suitable arbitral procedure that adopts an appropriate middle ground between the various cultural backgrounds of the parties involved. At the simplest level, the disparity in procedural expectations can be attributed to the cultural divide between civil law and common law jurisdictions. The Asia region contains a number of jurisdictions from both civil law and common law traditions, and as parties, practitioners and arbitrators from each of these traditions are forced to interact, tensions inevitably arise. While certain trends can be generalised from the common law/civil law divide, it is important to note that broad differences exist between jurisdictions within each legal tradition, and nearly all jurisdictions have adopted various aspects of both civil and common law traditions.

Common law jurisdictions are in the minority in the Asia region. However, due to the dominance of a handful of common law jurisdictions in the region (i.e., Singapore, Hong Kong, Malaysia and Australia), the civil law has not had the same level of cultural influence in relation to arbitration procedures as it has in Europe. This is despite a substantial number of arbitrations occurring in China, a civil law jurisdiction. There are a number of reasons why China’s influence in this respect has been relatively limited, but it is sufficient for present purposes to note that the large number of arbitrations in China are often quite different from those in other parts of Asia. Despite these differences, however, it is apparent that the experience of Chinese practitioners, parties and courts has not been as influential as it could have been in influencing arbitral practice in the Asia region.

Oct-Dec 2013 issue

Australian Centre for International Commercial Arbitration (ACICA)