Mr. Michael Hwang’s illustrious career in the law spans more than four decades. A former partner of leading law firm Allen & Gledhill, Mr. Hwang was a Judicial Commissioner of the Supreme Court of Singapore and was amongst the first 12 to be appointed to the rank of Senior Counsel. Mr. Hwang has also been cited as Asia’s top arbitrator by the Global Arbitration Review and has been listed by The International Who’s Who of Commercial Arbitration as Singapore’s leading lawyer for commercial arbitration expertise.

Q: What made you interested in arbitration?

When I was a Judicial Commissioner in 1991 – 92, of course that gave me the exposure to Judging and when I came back to practice in 1993, one of my partners suggested that it would be… One of my partners suggested that it would be good if I got involved in International Arbitration. Because you would remember at that time 1992… middle of 1992 the SIAC started, which was just following the International Arbitration Act. That was when everybody was just starting to get interested in Arbitration and with my Judicial experience, my partners thought that I might be suitable to get involved in that.

So I started to… First of all, I enrolled in the Chartered Institute of Arbitrators course. I took the exam and got my fellowship. So that was my basic academic grounding. Then after that I went abroad. There were courses offered by the International Chamber of Commerce in Paris and then one thing led to another and I got exposed to the world of International Arbitration and I took it up from there.

Q: You were one of the pioneer Arbitrators on SIAC’s panel?

Actually the SIAC panel at that time was not that meaningful because in the early days, being a fledgling organisation, the number of actual arbitrations that came through the SIAC or were lodged with the SIAC was not very great. So I was actually getting exposed to International Arbitration from either Ad Hoc Arbitrations – we can talk about what that means in a minute – or ICC arbitrations. I think the first truly international arbitration that I had was from an ICC arbitration. And that happened because the way that ICC works is that if they have a dispute between say a Western country and a country somewhere in Asia, they would very often try and look for an arbitrator from a neutral country who is familiar with the language of the arbitration. So since most international arbitrations are in English, people from Singapore are logical… high priority on the list to look for potential arbitrators. And so they asked me if I was interested in doing a case in India and so I said why not and that was the start of it.

Q: Numerous publications have cited you as a top arbitrator and arbitration specialist. Do you have any interesting cases or experiences that you would like to share with us?

Because in International Arbitration… You are very often dealing with people you don’t know. Never mind about the parties, because Judges also don’t know the parties. But arbitrators very often don’t know the counsel, the counsel don’t know each other so its not like when you come into the Singapore Courts where the players know each other and there is a certain expectation from each other and therefore you can get a lot of unexpected situations which may or may not be planned in advance but do happen in ways that they don’t happen in court hearings. So let’s take an example. We have a case between a Multinational company which has a building contract with a party in Country X and the seat of the arbitration, which means the place of arbitration, was Singapore. The multinational company appoints a British QC as its arbitrator. The party from Country X appoints a lawyer from Country X and then the two arbitrators appoint me as the chair. We were sitting in Singapore and on one side we have a QC from London. On the other side you’ve got a very senior lawyer from Country X. And halfway through the case the lawyer from Country X applies for an adjournment. So we say no, you are not going to have an adjournment and then he makes another application and then we deny that application again and I think he makes a third application and we deny that third application. And then he says that well you are obviously biased against me and I apply to remove all of you.

Q: Were there any particular reasons why you rejected the particular applications?

We decided that the applications were without merit. They were procedural applications. And at that point the counsel then said that since you are clearly biased we refuse to take part in this arbitration anymore and we are going home. And so we said you can go home but as far as we are concerned, this tribunal is properly constituted and we will carry on with the case. And the counsel from Country X then said that well you should not carry on the case when we are not present. But we said that’s the way arbitrations go. If you choose to walk out, you have to take the consequences. So he said that in that case I’m telling my arbitrator to go home with me. Because he had nominated this arbitrator you see. So we had a word with this arbitrator and said that your duty is to the process. You have undertaken to carry out this arbitration and the rules of arbitration say that if one party walks out, the other party carries on. And if they don’t like it, they can set aside our award, but the process must carry on. Unfortunately, we were not able to convince the Arbitrator from Country X who took a different view of things and said that if the party who appoints me doesn’t want me anymore, I don’t feel that I can stay on. So he had a completely different view of what his duty was. And I can tell you that the other party had actually reserved their right to sue him because there is an issue of an arbitrator who abandons an arbitration. There is a contractual obligation to see it through to the end. You walk away and it’s a breach of contract. So that’s a situation that you will very rarely see in court, if at all.

Q: So do you think that this is a drawback of arbitration. The parties can just say that look I want to go home.

Put it this way, this is just one of the occupational hazards of arbitration. International arbitration in particular. Like I said it comes from the fact that people don’t know each other and so sometimes people think that they can get away with liberties if you want to look at it one way. Another way of looking at it is to say that people have come with very different expectations of what the process means and they don’t necessarily want to play the game by the rules which they think that somebody else has made, which they are not used to. So for example the counsel from Country X said that I cannot understand a tribunal that still wants to hang on to a case when one of the parties does not want them anymore. That may be a point of view. That is not the law of arbitration as I understand it but that was a point of view that he expressed.

Q: You were a Judicial Commissioner before becoming an arbitrator. What is the difference between the role of a Judge and an arbitrator?

Following on with what I have just said to you, when you are a Judge, you have the advantage of the authority of the state. So on the one hand you are entitled to a certain amount of respect from the parties by virtue of your office. You also have power over the counsel who appear before you because they are officers of your court. So if they misbehave, there are sanctions against those officers of the court. Which is why you don’t get situations like the one I described with the counsel from Country X happening. Or very rarely. It has been known to happen, especially in the sub courts. Sometimes some counsel get a little over-excited and walk out. But generally speaking that is quite rare and if they do, they are subject to the disciplinary process. From the other point of view, parties who come before a Judge also expect that because a Judge is a public officer he is unlikely to have a bias towards either of the parties. And therefore he will be… we presume his independence and his impartiality. For an arbitrator, there isn’t that same in built presumption that the arbitrator is impartial and independent. And that’s the first thing that every arbitrator needs to declare and sometimes prove. Because the parties don’t know him. Or the counsel don’t know him. And the parties will not know whether or not this particular arbitrator may in some indirect way have a connection with one of the parties because arbitrators tend to be lawyers in private practice and if you are in private practice, you have clients. And somewhere along the line, one of your clients may actually be related to the parties which are in the dispute. Of course sometimes arbitrators are civil servants. There is another problem because sometimes civil servants are nominated as arbitrators by government agencies and then there is an issue of whether they are independent of the government that has appointed them. Because they are civil servants and possibly presumed to have some kind of dependency on the government. So maybe the safest are University professors!

So that’s a fairly basic difference between arbitrators and Judges. Judges can command authority and respect for their independence. Whereas arbitrators probably have to earn both the respect as well as the acceptance of their independence. Because very often you have challenges. You have challenges to arbitrators much more than you have to Judges. It is very rare that anybody says that I want to remove a Judge because he is biased or has the appearance of bias. But it is not uncommon for challenges to be made to arbitrators because somebody knows something in his or her background that leads them to question whether or not they are biased or have the appearance of bias. Actual bias is quite rare. For actual bias you can only tell after he has actually demonstrated it in the course of the hearing. What is more common is to say that we know Mr. X has a connection with one of the parties in some way. Therefore he should step down. Then either he agrees or he doesn’t agree and many arbitrators take the view that if there is any question about they’re independence and there is an unhappy party, they would rather just step down without argument simply because they don’t think that it is good for the process or good for the institution that they carry on as an arbitrator against somebody who is questioning their independence or neutrality. There’s another school of thought which says that: No, you should not always give way to challenges which are without merit. If (a) you do think that you can be independent and impartial and (b) you can demonstrate that to any reasonable third party then you are failing in your duty if you step down. Because you are depriving the other party of his choice of arbitrator. So there are these issues that arise that don’t arise in court cases.

And that’s one aspect of it. There’s a lot of difference between running a court case and running an arbitration and we can discuss that separately If you want.

Q: What are the advantages of arbitration over litigation?

You can cut through a lot of the rules of court which may not be the best way of resolving a particular dispute. In practice, one of the most important differences is the extent of what in court we call the discovery of documents and what in arbitration tends to be called now document production or disclosure of documents. The criteria for discovery in court proceedings is relevance. Either directly relevant to the issues or if not immediately relevant then relevant in the sense that it can lead you to a chain of inquiry which will lead you to something that is directly relevant. A classic example would be minutes of a meeting of certain people who are involved in the case. You don’t know what happened in the meeting. You have a suspicion that something relevant to the case was discussed. So you say that if you show me those minutes, even though I don’t know whether they are relevant or not, but if you show me, that might lead me…. If I look at those minutes and I see something that they discuss, that would enable me to follow a trail. And courts are supposed to accommodate that kind of request. So discovery can take quite a long time. And can be very extensive if you use that kind of a test. In arbitration, we don’t follow that principle as a matter of course, although some arbitrators would if they want to, apply that principle. But generally speaking, in international arbitration, particularly from those arbitrators and counsel from a civil law tradition, they don’t believe in this kind of common law principle of discovery and so what has happened now in international arbitration is that in order to accommodate a middle ground between common lawyers and civil lawyers who are coming together in the same arbitration, we tend to use a code called the International Bar Association (IBA) rules on the taking of evidence in international arbitration. In those rules we have a very economical test or a very stringent test for the production of documents. Basically on a need to know basis. And so which cuts down the scope of discovery quite considerably. So in general terms, in arbitration, if you apply the IBA rules then really you have to satisfy the tribunal that not only is the document relevant, but the document is material to the outcome of the case. So it really is going to make a difference to the way the case is going to be decided. Either for you or against the other party. So, its because the test is more stringent, you tend to get less documents from the arbitration equivalent of discovery and thereby the time and the expense is supposed to be reduced. That’s just one example. But its one of the most important examples. The other thing about arbitration compared to court proceedings is that you can generally be more flexible. If you look at the rules of court, you can see that there are several hundreds of rules of court and the rules of court are rather thick. IF you look at the rules of any SIAC for example, the new version having just come out, it is very thin. It’s a booklet. So you can see that there are many less rules in arbitration than there are when you go through court. But you find that there are many arbitrators that still borrow rules of court where there is no specific rule laid down in the SIAC rules or they can make up rules of their own. So it allows an arbitrator to customise the procedures for a particular arbitration according to how he thinks it is the most efficient way of dealing with it. Whereas under the rules of court, a court case has to proceed in a certain way and certain procedures have to be observed.

Give you another very important difference, in court every witness has to come one by one. One after the other. In arbitration, it is quite common now to put two witnesses from opposing sides together and ask them to give evidence together. And I have done it with 10 people in the room. With 12 people in the room giving evidence in the same time. You cannot do that in a court room. But you can do that in arbitration.

Q: Does this explain why parties prefer arbitration to the courts?

Well it depends. Some lawyers are very nervous when you tell them to change the way that they work because they are not used to it. They were trained in a particular way. They get they’re results by using all the techniques that are available to them. All the rules that they think they have got used. That they think that are their own weapons, their forensic weapons to achieve the end that they need for their clients. But we try and educate them. They can get to the same place. Maybe not in the same way but hopefully without injustice to their client.

Q: What is the role of the courts in the arbitration process? Do you think that the courts should have more or less supervisory powers over arbitrations?

The courts should stay out of the arbitration process except to assist the functioning of the process. They have a clearly defined function at the beginning and at the end of the process.

The beginning: if there is a challenge to the jurisdiction of the arbitrator. That gets dealt with first by the tribunal itself. But there is usually an appeal to the court. So the court can determine at the beginning whether or not the tribunal can carry on with the case. If you get past that hurdle, then the court should stay out of the process until after the tribunal has finished its work and produced its award. Then the court can look at the award and set it aside or not set it aside according to the criteria which in Singapore is set out in Article 34 of the Model Law and s. 34 of the International Arbitration Act but in between they should let the tribunal get on with its work unless there is a need to assist the tribunal in executing its orders. So for example, if there is some kind of a mandatory order from the tribunal directing someone to do or stop doing something the tribunal cannot send anybody to jail. Cannot enforce sanctions on its own. So you can take that order and go to the high court and get the high court to confirm the order so that if they violate that order, it becomes a violation of a court order and sanctions will then be imposed. So they can assist the work of the tribunal in that way. OR they can assist a party who needs urgent interim relief in order to keep the process on track. So getting for example, interim injunctions against one party running away or salting away the subject matter of the claim or destroying the subject matter of the claim. You need an injunction. Again, the tribunal has no power to impose an injunction on anybody. So you go to the court and ask them: can you help us. The tribunal has made an order but the tribunal’s order has no teeth. So can you please put some teeth into the tribunal’s order. Or we have time to go to the tribunal because the tribunal sometimes has three people in different parts of the world. So if you want urgent relief, you may not be able to get it. So you run to the court first and say look we can’t get the tribunal together can you urgently give us a Mareva injunction or an injunction lets say to stop a vessel from moving or to stop a party from moving money out of a bank account. Something like that. Once you have done that, we will get the tribunal to carry on. So its only to assist the work of the tribunal and to protect the rights of the parties in being able to see the fruits of their arbitration. If they win the case, they don’t want to find that in between the whole arbitration has been a waste of time because the other party has done something to destroy the… to deprive the other party of the fruits of its victory.

I come back to my earlier case as an example. See when the counsel from Country X walked out, he went back to his country and he then started an action in the High Court of Country X and asked for all sorts of orders against the tribunal. Now I told you in the beginning that the place of arbitration was Singapore. So under arbitration law, my tribunal will only be subject to an order of a Singapore Court. If he didn’t like what we were doing he could’ve have gone to a Singapore Court and if the Singapore Court has seen fit to do something to us which it would not have because the Singapore Court is well aware of the principles that I have just said. Once we have jurisdiction, and there was no challenge to our jurisdiction, then good or bad, we do our work to the end unless you challenge us. If you challenge to remove, then fine, somebody will hear that challenge. But other than that, you just have to let the tribunal do its work to the end and if you think that the tribunal has done its work badly and it’s a ground for setting aside, then the court will set it aside. Or the court in Country X will not recognise it under the New York Convention. Because either you set it aside in Singapore because that was the place where the arbitration was heard or if there is no setting aside there and the winner takes the award back to Country X and tries to enforce it, then you can resist enforcement on the same grounds. But this particular party decided to go back to Country X and take out an action in the Supreme Court to make all sorts of orders against the tribunal to stop hearing the case. So that kind of shows you that courts in other countries don’t quite understand what the rules of the game are.

Q: How was the issue resolved then?

The case is still going on in the courts of Country X. I was just told that…

Q: You said that the tribunal has no teeth and the courts may have to assist. I understand that enforcement of awards may be a difficulty… Is that a real problem?

Not in the majority of cases. The majority of the cases are where the parties have contractual disputes and there is usually a claim for money and there’s just an issue to be decided: who is right and who is wrong. And people would wait for the result of that. Interim measures are only necessary where somebody tries to change the status quo of the subject matter of the dispute halfway through the arbitration. Then panic buttons get pressed. Because one party says that there is no point in me going on with this arbitration if what I am claiming is no longer there at the end of the arbitration because he has taken it away or he has destroyed it or he has converted it into something else. Suppose there is a dispute about who is entitled to a piece of land. As you may know, as between vendor and purchaser, a purchaser who has signed a contract for the sale of land is entitled to insist on specific performance, which means that he is entitled to say that I want this particular piece of land. And if halfway through the case if before the end of the case, the seller who disputes that he is liable, because he thinks that the contract has been broken or has been terminated and then he tries to re-sell it to somebody else, then the buyer is very likely to want an injunction to stop that from happening until after the case is decided and we know who is right and who is wrong. Then he will be asking for an interim injunction. From somebody. He can either ask it from the tribunal. Then the question is whether or not the tribunal’s order will be obeyed by the other party. And if the buyer thinks that the seller will not obey the order of the tribunal or simply says that I will sell first and argue with you later. And if you want you can sue me for damages but as far as I am concerned I am going to sell the land tomorrow. Then the buyer may need to get some kind of an order that will physically restrain the seller from doing what he threatens to do rather than punishing him after the act has been done. And that in most cases can only be done in a court. Because the court can say that I order specific performance or I grant an interim injunction to say that you cannot transfer this property while this case is going on. And if you do violate this order you go to jail. The tribunal can’t say that.

Q: What advice do you have for law students and young lawyers who aspire to specialise in arbitration? For instance, how long should one practice as counsel before moving on to serve as an arbitrator?

I suppose that it is not really a choice of the lawyer concerned because to be an arbitrator you have to be appointed an arbitrator. I think realistically first of all your question should be how does a young lawyer break into the world of arbitration. Especially international arbitration. Because there are two parts. If you want to be involved in domestic arbitration. That is a completely different career path than if you want to be involved in international arbitration. Domestic arbitration is not normally, how should I put it, a career choice in itself. People don’t usually say that I want to become a domestic arbitration practitioner. What they say is that I am interested in construction law. If you are interested in construction law, you have to understand domestic arbitration because most of the construction cases are resolved by arbitration and if they are between local parties, then it will be domestic arbitration. Of course if one of the parties is international, then it may be international arbitration and it is usually international for the bigger projects that the foreign party may very well want to have a mixed panel including some foreign arbitrators rather than just domestic. But if you are just doing domestic construction law, then it is not that you want to become an arbitrator or an arbitration practitioner for the sake of it. You do it because it is just ancillary to doing construction law. Whereas if you want to do international arbitration, then the range of topics is very very wide. It is not so much that you choose topics, you start thinking about being an arbitration lawyer rather than a court lawyer. If you are a court lawyer, then you will still primarily start working in domestic litigation. Most litigation is domestic. So you have to learn your trade. You have to learn your trade by doing simple things like debt collection, maybe some accident cases. Normal contractual disputes. And then after a while you will get cases with an international element. Then you will understand what international commercial litigation is about and you start understanding certain principles that are only applicable for international disputes. So private international law becomes very important. Forum non conveniens becomes very important. Which you don’t have to get involved in If you are just doing domestic litigation and hire purchase disputes or banking claims. It is probably not a bad idea to start in litigation anyway because certain of the skills that you need for international arbitration are better learnt in a court context. For example cross-examination. It is a skill that maybe only comes with doing court cases. So you have to understand what court cross-examination is about in the first place before you can adapt that technique to international arbitration. If you don’t know what court cross-examination is like, you tend not to be so efficient in cross-examination in arbitration. Even though in arbitration, you will not be given the same latitude. Counsel will not be given the same latitude because in court, our judges will give you one day – two days to cross-examine one witness. Sometimes more. In arbitration, it is very rare where the tribunal is going to allow you more than one day and we usually very much encouraging you to finish off a witness in half a day because normally arbitrations are fixed for five days. Even for very big amounts. If you ask for ten days they are already starting to question as to whether you are really preparing your case in an efficient way and whether you are stretching things out beyond what is necessary.

The hearing process tends to be much more reduced in arbitration. Because you reduce the discovery process. So to a certain extent, the arbitration process is more distilled. I don’t want to say less rigorous, but its more distilled. You try and focus on the real issue. Ok we see the disputes we’ll hear you. To a certain extent we will hear the other party to a certain extent. But we are not going to track every little issue to the nth degree and we are not going to have this luxury to cross-examine this witness for many hours simply to show that he is not telling the truth. In court you do a lot of that. You try and destroy a witnesses’ credibility for the sake of it. So there are a lot of questions which are asked which are not directly relevant to the issue but are justified on the grounds that you want to demonstrate that the witness is a liar. In arbitration you call that an indulgence. Because most of the cases don’t turn on credibility as such. Its just a question of who has the better case than the other side. And its usually a question based mostly on documents. It is international commercial arbitration. Commerce generates a lot of documents. When you have a lot of documents, especially contemporaneous documents, documents tend to speak for themselves and people who try and explain documents are usually giving what we call revisionist theories and trying to alter the words of the documents which really speak for themselves.

Q: We understand that you were appointed the Deputy Chief Justice of the Dubai International Finance Centre Courts in 2005. How has your experience there been thus far?

Well we are still in the early days of the court, so it is a work-in-progress. As of day, I would have heard one full case. I have just delivered a judgment last week in Dubai. There is a second case that is progressing through and I have heard some of it. I have heard a number of applications for ex parte injunctions which effectively are the beginning and the end of a case. Because what happens is that they have a very proactive financial authority there. Their equivalent of our MAS which is very vigilant in trying to stop what they perceive to be frauds or scams that invoke the name of the Dubai International Financial Centre. So whenever they see anybody pretending that they have a connection with the DIFC when they don’t, then they will take action to try and shut these people down. To close down their websites in particular. They see themselves as enforcers and they want to use the courts for their enforcement actions. That’s actually not common here. MAS does not take that same profile or same stance. I am not saying who’s right and who’s wrong. I am just telling you that this is why there are a number of applications. Possibly because this is a financial centre which is still nascent and therefore needs to fight very hard to protect its reputation. That wants to be seen that it is operating to its highest standards and therefore any monkey business will be dealt with very swiftly. Whereas in Singapore, we now are very well established and we don’t need to be so proactive and can wait until some real damage is caused before prosecutorial action is taken. But they try and do a lot of pre-emptive actions. So that has generated a certain amount of court activity. But the workload of the court will increase in direct proportion to the physical growth of the area. Right now, I don’t even think that a tenth of the area has been developed. But in three or four years, the whole area that is the jurisdiction of the DIFC will be completed and it will have 40 – 50,000 people who will be working and living there and it will just be a community. It will be a mini-township with a very high factor of commercial activity taking place. There are bound to be a lot of cases that will require resolution in court for one reason or another. Right now, not a lot of buildings have been built. Not all the tenants have moved in. Just a limited amount of commercial activity going on. But there will be eventually… It will be a full community. There will be offices, hotels, apartments and all the activities associated with that. So although our court I think was set up primarily to deal with financial cases, I think that we will have to cope with all kinds of disputes.

Q: Do you think it’s a valid concern that arbitration may stunt the development of case law?

Well if you mean by that that arbitration has lesser jurisprudence; that is partly correct. But the most well known arbitral institutions with one of the largest caseloads is the International Chamber of Commerce (ICC). The ICC has published a collection of its arbitral awards in what we call a sanitised version. And it stretches over many volumes. So there is quite a lot of jurisprudence which is quoted from ICC records even though arbitration is meant to be confidential. In Singapore, arbitrations are generally confidential, even though the laws are not very specific about the exact nature and extent of confidentiality. I actually have a case in the high court next week which is going to turn on that question. But, once you have a case that gets out of arbitration and into the courts for enforcement: You have an award that needs to be enforced by the court, then the prima facie rule is that that is public and we have a lot of jurisprudence from the High Court of Singapore, which is a major contributor to international arbitration jurisprudence because we are a model law country. The model law is adopted by many countries. Every new country that wants to change its arbitration law, well 95% of them adopt the Model Law. So our decisions on the Model Law are very important for the development of international arbitration law. There is the ability under our International Arbitration Act for one party or the other to ask for a gag order on a case. But from memory, I think there is a limit. It remains embargoed for I think ten years. Up to ten years. You can check that if you like. I don’t have that in front of me. So, there is blanket secrecy about arbitration and therefore principles do develop.

Your question was stunting the growth of case law. Again, theoretically it is possible to reconcile confidentiality with publication of case reports. But that depends on the institution. I told you ICC, although ICC theoretically respects confidentiality they have for many years been publishing. Usually with the parties consent. I have to say that it is usually with the parties consent. And then with sanitisation, meaning that you can’t identify the party.

SIAC have not yet done so on a large basis. But you see that now and again, SIAC will publish a sort of summarised reports of cases, for this very point. So that people are aware of developments and decisions by arbitral tribunals. As I said jurisprudence comes in two levels. The arbitration tribunal’s own decision: Which in many cases are actually not that significant or important in terms of developing arbitration law. They might be significant in developing the substantive law of the dispute. So if the case let us say is about Bills of Lading, it might contribute to the law of Bills of Lading. It may not have an arbitration point at all. And to that extent, yes, maybe the law of Bills of Lading may be deprived. But that is made up for if the Institution administering the arbitration says that this case is useful, it has many cases on Bills of Lading. Somehow we should make it known. And they take it upon themselves to edit it and either publish it in some report or other or in their own reports. So there is no universal answer to your answer. It is not a black and white answer either way.

Rajaram Vikram Raja is a second year law student and an associate editor of SLR.