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Don't Shoot the Sheriff: The Threat of Legal Claims Against Arbitrators and Arbitral Institutions
While arbitrators and arbitral institutions should be held accountable if they act unlawfully or in bad faith, increasingly they also face serious legal attacks by parties dissatisfied with awards. These attacks may allege lack of arbitrator independence and impartiality, and arbitrators may also be accused of violations of due process or unequal treatment of the parties.
Surprisingly, these claims are not limited to jurisdictions less familiar with international arbitration. They are also emerging in venues where international arbitration has a long tradition, such as France and the United Kingdom.
These claims raise important issues concerning institutional and arbitrator immunity. In prolonging the dispute through collateral attacks, they can also undermine the finality and efficiency of arbitration as a dispute resolution process. Moreover, as parties’ conduct becomes more aggressive, such accusations may exacerbate ‘due process paranoia’. Finally, there is an obvious practical impact for arbitrators – particularly full-time arbitrators – who must be mindful of the risks and consider professional indemnity insurance, and for institutions who should address their own and their arbitrators' insurance position and generally be more transparent about the coverage that they provide.
The lecture will review some of the most recent claims against arbitrators and institutions alike to draw some lessons and propose concrete solutions to address the problem in future.
For more details, please visit the website.
SPEAKER / PANELLIST
Ms Loretta Malintoppi
Loretta Malintoppi is an independent arbitrator with 39 Essex Chambers, based in Singapore.
Loretta is dually qualified (Paris and Rome Bars) and specializes in international commercial arbitration, investment arbitration and public international law. She sits as arbitrator in proceedings under a variety of arbitration rules, including ICSID, ICC, UNCITRAL, SCC, SIAC, LCIA and DIAC.
Loretta also appears as counsel and advocate in State-to-State disputes before the International Court of Justice and in ad hoc arbitrations. She is a past member and a Vice-President of the ICC International Court of Arbitration. She currently is a member of the Governing Board of ICCA and was appointed to the ICSID Panel of Arbitrators by the Chairman of the World Bank.
Loretta is one of the co-authors of The ICSID Convention – A Commentary published by Cambridge University Press in 2009. She is also a member of the Editorial Board of The Law and Practice of International Courts and Tribunals, editor of the International Litigation in Practice Series, and a member of the editorial advisory board of the Journal of World Investment and Trade.
PANELLISTS
Mr Kevin Nash
As Deputy Registrar & Centre Director of the Singapore International Arbitration Centre (SIAC), Kevin assists with the administration of all cases filed with SIAC and the supervision of SIAC’s multinational Secretariat.
Since joining SIAC in 2012, Kevin has overseen the administration of thousands of international cases under all versions of the SIAC Rules and the UNCITRAL Arbitration Rules, among others, and has significant experience in SIAC cases involving Expedited Procedure, Emergency Arbitration and the Early Dismissal of Claims and Defences. He worked closely on the revisions to the SIAC Rules 2013, the SIAC Rules 2016, the SIAC Investment Arbitration Rules 2017, and will lead the SIAC Secretariat Sub-Committee on the drafting of the seventh edition of the SIAC Rules with an expected release in the third quarter of 2021.
Kevin is a frequent speaker on contemporary issues in arbitration and conducts training sessions for arbitration stakeholders around the world. He is a Member of the Singapore delegation at UNCITRAL Working Group II (Dispute Settlement) and represents SIAC as an observer at UNCITRAL Working Group III (ISDS).
Kevin holds a B.A. from Mount Allison University and a J.D. from Osgoode Hall Law School. Kevin worked at one of Canada’s prominent ‘Seven Sister’ law firms and then went on to study an LL.M. in International Commercial Arbitration at Stockholm University. He is qualified as a Barrister and Solicitor with the Law Society of Upper Canada.
Ms Foo Yuet Min
Yuet Min is a Director in the Dispute Resolution department of Drew & Napier LLC. She regularly appears before the Singapore courts for a variety of commercial matters, including complex banking and finance disputes as well as arbitration-related court proceedings to enforce or set aside arbitral awards and to obtain interim relief. She has also successfully handled high-value matters ranging from offshore drilling contracts and construction matters to disputes relating to commercial rights to major sports events and private equity disputes, among others. Much of her work also involves SIAC and ICC arbitrations, both as counsel and as arbitrator.
Yuet Min has particular experience and interest in dealing with multilingual proceedings, and has conducted a bilingual international arbitration under the UNCITRAL Arbitration Rules. Yuet Min speaks English, Mandarin, Malay and the Hokkien dialect.
Before joining Drew & Napier in 2008, Yuet Min was a Justices’ Law Clerk at the Supreme Court of Singapore. Yuet Min is recommended by the Legal 500 Asia-Pacific, the India Business Law Journal and Who’s Who Legal: Arbitration – Future Leaders. In 2016, she was also identified by Asian Legal Business as one of 40 bright legal minds in the region under the age of 40.
MODERATOR
Mr Alastair Henderson
Alastair is the South East Asia Manging Partner of Herbert Smith Freehills. An Arbitration specialist, Alastair has more than 20 years' experience handling major disputes across many sectors and industries, concerning a wide variety of trade, commercial and financial activities, with particular experience of oil, gas and power, construction and engineering, infrastructure and projects, and major foreign investment. He is very familiar with disputes in or concerning the countries of Southeast Asia, as well as international cases outside the region. His clients include governments and public bodies, state-owned and independent companies, international banks, and other multinational and leading regional companies.
Alastair has served as sole arbitrator, co-arbitrator and presiding arbitrator and has handled many cases as counsel under the rules of the ICC, LCIA, SIAC, HKIAC, KLRCA, SIArb, CIETAC, Thai Arbitration Institute and Indonesian National Arbitration Institute (BANI), UNCITRAL rules and pure ad hoc cases. He is a Fellow of the Singapore Institute of Arbitrators; a national committee member of the Chartered Institute of Arbitrators.
Alastair is consistently ranked as a leading international arbitration expert in Asia by legal directories.
SILE Attendance Policy
This programme is an Accredited CPD Activity under the SILE’s CPD Scheme. Participants who wish to obtain CPD Points are reminded that they must comply strictly with the Attendance Policy set out in the CPD Guidelines. For this activity, this includes logging in at the start of the webinar and logging out at the conclusion of the webinar in the manner required by the organiser, and not being away from the entire activity for more than 15 minutes. Participants who do not comply with the Attendance Policy will not be able to obtain CPD Points for attending the activity. Please refer to http://www.sileCPDcentre.sg for more information.
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