“International Commercial Arbitration: An Asia-Pacific Perspective” – Book Review

International Commercial Arbitration: An Asia-Pacific Perspective, by Simon Greenberg, Christopher Kee & Romesh Weeramantry, Cambridge University Press, Melbourne, 2011, 543pp + xxxvii tables: ISBN 9780521695701. Softcover A$120.
This book provides a comprehensive and in-depth overview of the law and practice of international commercial arbitration. It is the first work written by Australian experts that offers “an Asia-Pacific perspective” on a field that has burgeoned particularly in Asia and world-wide since the 1990s, following significant liberalisation of cross-border trade and investment. The book’s focus is more on “Asia” than the “Pacific”. It concentrates especially on arbitration law and procedural rules in Australia (including, briefly, the July 2010 revisions to the International Arbitration Act), mainland China and Hong Kong, India, Malaysia, New Zealand, the Philippines and Singapore, with reference also to Indonesia, Japan and the Republic of Korea. It also discusses developments in the United States, and to a lesser extent Canada, as well as in traditional “core” venues in Europe for international arbitration such as England and France.
After an “introduction to international arbitration and its place in the Asia-Pacific” (ch1), chapters cover all main areas of law relevant to drafting arbitration agreements, operating arbitration proceedings, and enforcing awards:
• “the law governing the arbitration and role of the seat” (ch2), “applicable substantive law” for the underlying disputes (ch3), formal and substantive requirements for the “arbitration agreement” itself (ch4);
• establishing or challenging “arbitral jurisdiction” (ch5), appointing or challenging “the arbitral tribunal” (ch6), “procedure and evidence” (ch7, including a helpful Table, at pp319-22, comparing approaches typically associated with civil law or common law traditions in civil procedure);
• “the award: content and form” (ch8) and its “challenge and enforcement” (ch9).
The book also adds a succinct introduction to “investment treaty arbitration” or investor-state arbitration (“ISA”: ch10). This is an increasingly important topic in the Asia-Pacific region – including Australia, where in April 2011 the “Gillard Government Trade Policy Statement” proclaimed that Australia would no longer include ISA in its investment treaties or Free Trade Agreements if this offered foreign investors more rights than local investors. This policy Statement reflects a recommendation of the Productivity Commission finalised last December, which I have criticised on this blog as well as on the East Asia Forum.

Chapter 10 of the book also covers the substantive obligations usually assumed by host states when home states negotiate treaties essentially on behalf of their own investors (pp 493-99), whereas the rest of the book does not delve into the principles of contract law or other substantive law that tribunals in international commercial arbitration are usually called upon to apply to the underlying disputes. The authors also do not emphasise all the differences between ISA and typical international commercial arbitration between firms – other than outlining, as one of investment treaty arbitration’s “innovative features”, “ICSID’s self-contained procedure” for review of awards when investors elect arbitration administered by the International Centre for the Settlement of Disputes and the host state has acceded to the framework 1965 Washington Convention.
This chapter does provide a very helpful overview of key aspects of investment treaty arbitration, even though Asian parties so far appear to be under-represented in reported ISA filings compared to counterparts from other parts of the world (p 479, referring at n10 to a study by co-author Romesh Weeramantry and myself, updated now for Vivienne Bath and Luke Nottage (eds) Foreign Investment and Dispute Resolution Law and Practice in Asia, Routledge, October 2011).
There are also useful Appendices and a Glossary of legal terms. The Appendices:
• summarise key features of most arbitral institutions located in the Asia-Pacific region (but without providing indications of their caseloads – probably because data on international cases is quite hard to compare across institutions);
• list countries that have adopted the UNCITRAL Model Law on International Commercial Arbitration as a template for international commercial arbitration legislation (although Australia is not marked as having adopted the 2006 revisions to the Model Law) or the 1958 New York Convention (but without noting the reservations made by member states, including many in Asia); and
• list the main statutes enacted in many Asia-Pacific countries.
Overall, the authors convey very clearly ideas and concepts that are often necessarily complex. For example, in chapter 2 they succinctly distinguish:
• the lex arbitri (the law of the arbitration, usually determined by the parties’ choice of a jurisdiction as the “seat” for their arbitration);
• the procedural law of the arbitration (which may be an arbitration law enacted in a jurisdiction outside of the seat, if the lex arbitri allows such a choice by the parties – although the authors convincingly argue that nowadays such a choice is rarely likely to be desirable anyway); and
• arbitration rules (chosen by the parties to amplify their arbitration agreement, thus subject to any contrary mandatory provisions of the applicable arbitration law).
Such basic distinctions appear still to pass the Australian legislature by, with the 2010 amendments not making it clear whether an international arbitration with the seat in Australia can adopt a foreign arbitration law. They also trouble some Australian judges, with the Queensland Court of Appeal in Wagners Nouvelle Caledonie Sarl v Vale Inco Nouvelle Caledonie SAS [2010] QCA 219 suggesting that it did not necessarily err in Australian Granites v Eisenwerk Hensel Beyreuth GmbH [2001] Qd R 461, which held that parties adopting the ICC Rules had impliedly opted out of the Model Law. The authors criticise Eisenwerk as “incorrect”, contrasting also Cargill International SA v Peabody Australia Mining Ltd [2010] NSWSC 887 (pp64-5).
They also venture into more detail than comparable textbooks on several important issues. For example, in chapter 1 they conclude with a nuanced view of the role of cultural influences in contemporary international arbitration in Asia, suggesting that “a previously sought after cultural neutrality has been transformed into a desire for cultural empathy and acceptance, while avoiding any unnecessary parochial influence” (p51, original emphasis). They go on to express a cautious openness towards “Arb-Med” (pp333-7), for example, noting that approaches do differ significantly across the region – as they do world-wide. (See also now Gao Gaiyan v Keeneye Holdings Ltd [2011] HKEC 514, where an award from mainland China was refused enforcement in Hong Kong on public policy grounds, because of apparent bias following a failed – and clumsy – attempt at Arb-Med pursuant to Xian Arbitration Commission Rules.)
The authors might have highlighted as a possible compromise a variant of Arb-Med that allows arbitrators actively to promote settlement if the parties expressly authorise this, but in principle without caucusing (private meetings with each party). This variant is now recommended by the UK-based Centre for Effective Dispute Resolution, and by myself with Richard Garnett in chapter 8 of our co-edited book on International Arbitration in Australia (Federation Press, 2010, cited at p333 n138).
Other controversial topics explored by the authors, where they helpfully express more definite views, include:
• which provisions of the Model Law are expressly or impliedly mandatory – based on a useful (but general) proposed test of whether altering a provision would alter “a fundamental innate quality of international arbitration” (p89, et seq);
• when mandatory laws may be imposed on parties regardless of their choice of substantive law (pp119-26);
• incorporation by reference of an arbitration clause contained in another document (such as a standard-form contract or bill of lading) – arguing that many Asia-Pacific jurisdictions, at least, seem to decide this issue based on the parties’ intentions in all the circumstances rather than always requiring specific reference to the arbitration clause (pp151-55);
• the significance of confidentiality in international commercial arbitration (pp371-8), including a very handy table comparing the different degrees of confidentiality provided under arbitration rules of major Australasian institutions.
The book benefits greatly from the combined backgrounds of the three authors, leaders in the “new generation” of international arbitration practitioners from Australia (and the Asia-Pacific region more generally). Simon Greenberg has practiced in Australia and Europe, and is currently Deputy Secretary General of the ICC’s International Court of Arbitration. He was former Deputy Secretary General of the Australian Centre for International Arbitration (“ACICA”), and is part-time lecturer on arbitration at two universities in France. Dr Christopher Kee has practiced in Melbourne and served as Co-Chair for the (Australia-based but pan-Asian) Australasian Forum for International Arbitration (“AFIA”), with a doctorate from the University of Basel gained under the supervision one of the world’s leading experts in comparative and international contract law. Dr Romesh Weeramantry has also practiced in Australia and Europe and was a founding Co-Chair of AFIA. He is now Associate Professor at the City University of Hong Kong, with specific expertise in investment treaty law and arbitration.
In the spirit of appropriate transparency in international arbitration – and in book reviews – I should also note that at various times since 2004 I have served with all three authors on the Arbitration Rules drafting committee of ACICA. Practical experience like that combined with the depth of knowledge characteristic of the academic world, with which these authors all have close connections as well, is reflected throughout their book.
All legal practitioners in Australia dealing with cross-border business – surely by now a large proportion of practitioners – should have a copy. It is also the perfect textbook for the many advanced courses in international commercial arbitration now provided by Australian universities and arbitral institutions. Its lucid explanations and Asia-Pacific focus make it precisely the sort of resource that I have been waiting for since arriving at the University of Sydney Law School in 2001 to assume responsibility for teaching its LLM course in international commercial arbitration. But the volume would also be eminently suitable for an LLB/JD course in Australia or the diploma course now offered by the Australian Branch of the Chartered Institute of Arbitrators. This publication provides an excellent advanced introduction to key concepts as well as more controversial topics in international commercial arbitration. It is particularly timely as concerted efforts are underway for Australia to play a larger role in this burgeoning field, particularly in the Asia-Pacific region.
[This Book Review draws on research for the project, ‘Fostering a Common Culture in Cross-Border Dispute Resolution: Australia, Japan and the Asia-Pacific’, supported by the Commonwealth through the Australia-Japan Foundation which is part of the Department of Foreign Affairs and Trade.]

Author: Luke Nottage

Prof Luke Nottage (BCA, LLB, PhD VUW, LLM LLD Kyoto) is founding co-director of the Australian Network for Japanese Law (ANJeL), Associate Director (Japan) of the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS), and Professor of Comparative and Transnational Business Law at Sydney Law School. He specialises in international dispute resolution, foreign investment law, contract and consumer (product safety) law.