Introduction
This work（which is based on lectures delivered earlier this year under the auspices of the Hong Kong Maritime Law Association（HKMLA））is the second of a projected series of 5 books. The series examines how various aspects of the Hong Kong civil（as opposed to criminal）law system can become more responsive to the needs of the public.
The series assumes that we cannot continue as we have been doing and there is need for change. In particular, the series is predicated on the belief that, as a means for resolving disputes, the present civil law system is too expensive and cumbersome. Something has to be done to change that, otherwise there will be justice and the rule of law, but those abstractions will come at a price（both in terms of time and cost）which few can afford.
The first book in the series, Reflections on Civil Procedure under Civil Justice Reform1（based on lectures sponsored by the HKMLA in 2009）, explored the changes in civil procedure which the Judiciary introduced on 2 April 2009. Civil Justice Reform（CJR）（as the changes have come to be known）was a bold attempt to cut through the red-tape of overly technical nicety which had beset litigation in the Court. The hope was that, after CJR, there would be shorter trials, fewer last minute interlocutory applications, and almost no adjournments.
The jury of public opinion has yet to deliver its verdict on whether CJR has been successful. But in a Preface to the Chinese edition2 of the first book, I warned that CJR was in danger of becoming its own worst enemy. Unless everyone（judges, lawyers and litigants）is vigilant, the Courts are in danger of becoming bogged down in lengthy interlocutory arguments over whether one party or another has adhered to CJR in taking（or omitting to take）some procedural step. Without proper discipline, we will soon find ourselves back where we started, wasting time and money, simply arguing about what we should be arguing about, all in the name of CJR.
The third book in the series will consider how judges deal with moral dilemmas.
The fourth book will deal with the future of the Hong Kong Bar. It will argue that there is a need for change if the Bar is to maintain its vibrancy and pre-eminence in matters of advocacy and dispute resolution in the next decade.
The fifth book will look into the education of a lawyer. It is envisaged that this will be the most personal book of the series.
Let me, however, focus on this second book in the series.
This work reflects on arbitration. Arbitration may be defined as a process whereby disputes are resolved by the reasoned decision of a tribunal consisting of one or more independent persons appointed by the parties to the dispute. The independent persons are referred to as “arbitrators”.
It is a premise of this work that anyone can be a reasonably competent arbitrator, provided that the person makes an effort. From this comes the first half of this book’s English title： “How to be an arbitrator”. It is hoped that this book will serve as a toolkit. In other words, this book is intended to impart the “nuts and bolts”which one needs to know about or, at least be aware of, if one is to set up shop as a competent arbitrator.
The book is not a comprehensive manual. There are already several excellent commentaries on arbitration in general and the new Hong Kong Arbitration Ordinance（Cap.609）in particular. Those commentaries provide detailed scholarly analyses of the arbitration process from beginning to end and beyond. I cannot hope to compete with them in the breadth of their knowledge and utility.
My goal is somewhat more modest in one sense, but a little more ambitious in another.
My goal is modest in that I only seek to introduce the basics of being an arbitrator in Hong Kong, with as little technicality and citation of cases as possible. Although legal training will undoubtedly help, one does not need to be a lawyer to be an arbitrator or to read this book.
My goal is ambitious in my optimism that, even knowing only the basics found here, one can be a reasonably competent arbitrator, provided that one maintains a fair, patient and open mind while proceeding in a brisk “no-nonsense” manner towards the resolution of a dispute.
This, however, does not mean that everyone reading this work will become a great and famous arbitrator. It should not come as a surprise that some will inevitably be better at the task than others. Everyone can learn to become a reasonably competent tennis player, but only one or two can be Roger Federer or Serena Williams. Then again, just as not every tennis competition will justify paying for a Federer or a Williams, not every dispute will justify engaging an expensive top-of-the-line arbitrator.
Human beings are prone to argument. There will be all sorts of disputes wanting resolution. Some disputes will require specialist knowledge, while others will merely call for an understanding of human nature. The point is that, if we persevere at becoming reasonably competent, we each should be able to find some niche, where our services as arbitrator will be appreciated at a fair recompense.
One should not be discouraged from becoming an arbitrator by rumours of a “mafia” or “magic circle” which has supposedly cornered up all the plum cases for itself. One may never become a member of this mythical elite. But at least one can compete with it, slowly and surely, by building a reputation for quiet competence, hard work and steely efficiency. The task will be lonely on occasion and there will be setbacks, but it is not impossible.
The second part of the English title of this work（“A personal view”）warns that this text will be opinionated, possibly idiosyncratic. I will be suggesting, sometimes strongly, ways in which a wouldbe arbitrator might deal with typical problems that can arise in an arbitration.
My suggestions are based on my experience as a judge attempting to deal with the same questions on a nearly daily basis in the Court.
I do not claim that my prescriptions are the only way. The reader may pick and choose from my recommendations as he or she feels appropriate. My purpose is more to provoke reflection on how an arbitrator should manage disputes to ensure their speedy and costeffective resolution.
So much for one’s goals. How does this work fit within the series which I started this Introduction by describing？
I think that greater resort to arbitration is one possible response to the ever increasing costs and time required by conventional civil litigation in the Courts. Thus, for instance, if there is a sizeable pool of competent commercial arbitrators, the latter can compete with the Courts by offering to resolve disputes more affordably within a reasonable time.
One can look at the market for dispute resolution as involving a number of service providers. The Court is only one such service provider. Two other service providers are arbitrators and mediators（of which I shall say more in a moment）. Where a service provider is too expensive or unsatisfactory in its performance, the consumer can seek the services of another provider.
Of course, the Court will always, must always, have the edge over other dispute resolution service providers. That is because Court orders may be enforced with the backing of the state. Failure to comply with a Court order can lead to a variety of powerful sanctions being taken against a recalcitrant party to ensure compliance.
It is here that arbitration enjoys a feature which mediation does not share. Arbitration’s advantage is that arbitral awards may be converted into Court orders and enforced as such, not just in Hong Kong, but also in the 140 or so states which are signatories to the New York Convention .3
Arbitration thus has flexibility. On the one hand, parties can engage an arbitrator of their choice, presumably having knowledge in the subject of their dispute, to resolve their differences quickly. On the other hand, parties can enforce the arbitrator’s award both here and abroad in the same way as an official order of the state.
So long as the Judiciary can ensure that appropriate procedures are in place for scrutinising an award and converting it into an order of the Court with a minimum of technicality, then the arbitral process will have the best of all possible worlds： the confidentiality of a tailor-made tribunal for the purpose of determination, and recourse to state machinery for the purpose of enforcement.
The arbitral process is in effect a parallel avenue of dispute resolution. It operates in cooperation with the Court system which enforces its awards. But it also competes with the Court in attracting disputants to try its dispute resolution services in lieu of those of the Court. The more commercial disputes that are tried by arbitrators, the less the pressure there will be on limited judicial resources. Judges will be freed to hear the many other cases which they have to deal with, including public（that is, non-commercial）matters, such as criminal trials and judicial reviews, which arbitration cannot really address.
In order to make arbitration even more competitive, the field needs more, not fewer, practitioners. Otherwise, if only a small number of persons act as arbitrators, parties will have little option but to resort to the available few, no matter how good or bad they may be. The fees charged will be exorbitant in the limited market and the quality of awards produced may not justify the resources spent. This book is accordingly written in the hope of attracting more to become arbitrators.
That is not to say that arbitration is a panacea.
Arbitration has its detractors. Like civil litigation, arbitration stands accused of having lost its way and become more costly, lengthy and technical. Some have gone so far as to say that, having been“hijacked” by the lawyers, the arbitral process may now even be more expensive, time-consuming and complex than normal litigation in the Courts.4
At the June 2012 Congress of the International Council for Commercial Arbitration（ICCA）, the then Attorney General of Singapore（the Hon. Sundaresh Menon SC）delivered a keynote address which began by lauding the ushering of “a golden age of arbitration” in the present era.5 But the speech was not a paean. Halfway into it, the Attorney cautioned that there were clouds over the horizon（such as the fact that arbitration had become too costly and too lengthy, while possibly being too free of Court supervision）. These threats had to be dealt with, if the benefits of the golden age were not to be undone.
In an attempt to address these concerns, I focus in this work on 3 critical matters. Those are the efficiency, cost and credibility of arbitration as a dispute resolution mechanism. Efficiency and cost are obviously relevant to the effectiveness of any mechanism of dispute resolution. I should explain what I mean by the “credibility”of arbitration.
The perceived problems with arbitration have led many commentators（myself included in the first book in this series）to push mediation as a possible means of resolving disputes at a reasonable price. But since then, as a result（among others）of a discussion with students described here in Chapter 4, I have had second thoughts.
I still believe mediation is a highly effective means of resolving a dispute swiftly and early. It is difficult to argue with its impressive success rate in a wide range of situations, but I have come to realise that mediation will not be an appropriate or adequate solution in all cases for all persons.
Sometimes, individuals will feel a strong desire to be vindicated in a dispute through a pronouncement of right by the Court. That will be the case even where the Court’s declaration requires much time and effort to obtain.
On a crude “dollars and cents” reckoning, this innate desire may seem irrational. If mediation offers the prospect of a reasonable（or more than reasonable）monetary or other settlement at an early stage, why hold out for a declaration of right by the Court？
Perhaps in a majority of cases, it would be foolish to turn down a“good deal” reached through mediation. However, in some cases, a person might understandably prefer a Court pronouncement over a“good deal”. An obvious example is where a person wishes to show an unscrupulous adversary that not everyone’s compliance can be bought for a price. Money or money’s worth will not then be the sole issue.
There may of course be a large element of pride or “face” involved. But, as a matter of first impression, there are situations where I do not think that one can fairly criticise a person as irrational for insisting on a pronouncement of right by the Court. That is, after all, what the Courts are supposed to do： namely, to declare and protect the rights of members of the public.
Mediation will not cater for this innate desire which I have posited, but arbitration can. That is because arbitration proceedings and the enforcement of awards are ultimately subject to the supervision of the Court. It is this backing by the Court which（I suggest）gives arbitration its credibility.
The appropriate degree of Court supervision may be a matter of debate. In any event, arbitration is versatile. As we shall see, the parties can agree among themselves whether the Court is to have a maximum or minimal degree of supervision in their case.
Ironically, some would limit the degree of interference which the Court may exercise over an arbitration to almost nil. In this book, I side with those who argue the contrary. I suggest that, exercised with moderation, the Court’s ability to scrutinise the arbitral process and awards should be held up as an advantage, and not an embarrassment.
The method of this book is to examine the arbitral process over and over, albeit from different perspectives each time. I hope that such repetition will not be found too tedious.
Chapter 1 sketches the framework provided by the Arbitration Ordinance. The chapter summarises the salient provisions of the statute. It concludes by giving a “feel” of how the Ordinance works by answering 3 sample questions about the arbitral process.
Chapter 2 revisits the arbitral process in much greater detail. It is the heart of this work and concentrates on the case management of an arbitration.
Chapter 3 goes over the ground already covered in the previous 2 chapters. But this time it does so from the standpoint of 5 bodies of rules which parties commonly adopt for arbitrations in the Asia-Pacific region. The 5 sets of rules have common features which are identified at the end of the chapter.
Chapter 4 looks at the enforcement of awards by the Court. It stresses the need for efficient procedures for the scrutiny of awards and their enforcement as orders of the Court. The argument which I have started in this Introduction is fleshed out here.
The final chapter recapitulates the themes of this Introduction. It compares arbitration and mediation and ends with reflections on the future of arbitration as a means of resolving disputes.
I hope that this reiterative process will help the reader to absorb, bit by bit, the basics of arbitration. I accept that the plan may not be the most riveting way into the subject of arbitration, but I hope that the journey will still be rewarding or at least provocative. Throughout I attempt to stress what is practical, in preference to the overly theoretical.
In the remainder of this book, I will normally use “Ordinance”to mean the “Arbitration Ordinance”. I shall use the expression“tribunal” to mean a panel of arbitrators. The panel may consist of one or more arbitrators. By similar token, when I refer to “arbitrator”, I do not necessarily just mean a sole arbitrator. Depending on context, I may be using that word interchangeably with “tribunal”.
I discuss arbitration on the basis of a 2-party paradigm, a claimant against a respondent. But the discussion is equally valid for arbitrations involving more than 2 parties. Further, although I contrast arbitration and mediation, I should not be taken as excluding the possibility of using mediation in aid of arbitration.
1．Privately published in 2 printings of 1，000 copies each.
2．Reyes（trans. Sunny Chan）， 《淺談新民事司法訴訟》（Hong Kong， 2012）.
3．The Convention is discussed in detail in Chapter 4.
4．See, for instance, Stone, “Judicial Reflections on Arbitration”, ［2012］ Asian Dispute Review 83.
5．Film footage of ICCA’s XXIst Congress（including the Attorney’s keynote address）may be accessed at www.arbitration-icca.org.