Benjamin Hughes is a favourite among peers, who describe him as "the most sought-after American arbitrator based in Asia" and "a great practitioner".
Professor Benjamin Hughes is an independent arbitrator based in Singapore, with offices at The Arbitration Chambers in Singapore and Fountain Court Chambers in London. He has been appointed in over 150 international commercial arbitrations with several billion USD in dispute, spanning a broad range of commercial sectors, jurisdictions and governing laws. Prof. Hughes is also adjunct professor at the National University of Singapore Law School and a member of the Investment Committees of Omni Bridgeway.
What is the most interesting arbitration you have been a part of?
To me they are all interesting!
Your experience spans a range of sectors from intellectual property to shipping– to what extent is sector-specific knowledge on the part of the arbitrator important when handling commercial disputes?
Parties expect arbitrators to make commercially sensible decisions, and I think some exposure to certain sectors – construction, for example – can be very helpful in some cases. In many other sectors, however, I think the parties and counsel sometimes place too much emphasis on industry-specific expertise. The most important thing is to pick a good arbitrator who can manage the case efficiently, understand the case as presented by the parties and render a timely award that the parties accept as commercially and legally sensible. A good arbitrator will spend the time to learn the industry-specific knowledge they need in order to perform this service, assisted by counsel and experts as needed.
One of the things I enjoy most about sitting as an arbitrator is the variety of sectors, jurisdictions, applicable laws, etc. It keeps things interesting.
What would you say has been driving your practice to become increasingly global, moving beyond the Asia-Pacific region?
I think this is a natural consequence of Asia’s emergence as the new centre of the world economy. We have seen arbitrators from Europe and the US in Asia for many decades now. This was a reflection of the greater experience with arbitration in those jurisdictions and the need for their services here in Asia. As Asian economies have grown and Asian legal markets have developed, it is only natural that we will increasingly see Asia-based arbitrators sitting in arbitrations in Europe and the US. We have a long way to go but I am hopeful that the two-way traffic will continue to increase. Mixed tribunals, with arbitrators from around the world who come from different legal and cultural backgrounds, will in my view be able to render better awards because they will be better equipped to take different business practices and legal norms into account.
How will your recent appointment to the investment committee of a major dispute funder impact your practice? Does such an appointment pose conflict for your role as an arbitrator?
My role on the investment committees of Omni Bridgeway gives me a fascinating window into how third-party funding works and I am really enjoying it. The impact on my practice in terms of conflicts is minimal. If Omni Bridgeway is funding an arbitration I will not accept appointment, and if I am sitting as an arbitrator in an arbitration Omni Bridgeway will not fund it. It’s as simple as that. I have already had to turn down a few cases because Omni Bridgeway was involved, but this is a small price to pay for getting to be involved in such interesting work.
What are the reasons for Singapore’s considerable success as a seat of arbitration?
Singapore has done an excellent job of combining all of the necessary ingredients for a successful seat of international arbitration: modern arbitration legislation based on the UNCITRAL Model Law, arbitration-friendly courts and legislature, world-class domestic and international law firms, the Singapore International Arbitration Centre (SIAC, globally recognised as a leading arbitral institution), superb infrastructure (including not only Maxwell Chambers but also outstanding hotels, restaurants and public transport), and the list goes on. This is why we have recently seen the ICC Secretariat as well as an increasing number of international arbitrators and international law firms open offices here.
Do you envisage the emergence of any new arbitration seats that will rival those currently most popular?
I have recently been appointed to the board of directors of the Hainan International Arbitration Centre on the beautiful Hainan Island in China, so it is difficult for me to be objective about this question! But I do think there is room for another seat of international arbitration in China, as more and more international arbitrations are taking place there.
More importantly, however, the recent coronavirus pandemic has forced us all to realise that arbitrations can be effectively conducted online. Some of the advantages that many of the more popular seats have enjoyed in the past, in terms of physical infrastructure for example, may prove to be less important in the future. The most important characteristics of a good arbitration seat will continue to be modern arbitration legislation based on the Model Law, arbitration-friendly courts and experienced local counsel. However, it may be less important to build dedicated hearing facilities and other physical infrastructure, which could level the playing field considerably.
In your opinion, where does the future of arbitration lie post-covid-19? Can virtual hearings be relied on to decide high-stakes multibillion-dollar cases between parties?
We have all learned that this is possible and in many cases it will be preferable. Personally, I still prefer an in-person hearing where possible, but an inability to meet in person is not an obstacle to proceeding and we cannot let cases drag on forever on this basis. I have conducted more than a dozen hearings since the outbreak of this pandemic, with witnesses and counsel appearing from various parts of the world and with translators and court reporters involved, and they have all gone smoothly and with little or no complaint from the parties. After this experience, it may be difficult in the future to justify flying witnesses around the world to testify for a short time, when this can just as easily and effectively be done virtually.
Benjamin Hughes is a favourite among peers, who describe him as "the most sought-after American arbitrator based in Asia" and "a great practitioner".
Benjamin Hughes is an independent arbitrator with The Arbitration Chambers in Singapore and Fountain Court Chambers in London, and adjunct law professor at the National University of Singapore. He has been appointed in over 120 arbitrations around the world with billions of dollars at stake. Ben previously practised as counsel at Shearman & Sterling in the US and Singapore, and was the founding co-head of the international arbitration practice at one of Korea’s largest law firms.
What do you think parties look for in an arbitrator?
Whatever people may say, the truth is that parties are looking for an arbitrator who will help them win their case. They want an arbitrator who will give them the award they want, or a co-arbitrator who will persuade the other arbitrators to do so. This does not necessarily reflect any dishonest intentions, as most parties probably feel they are right and that they should be vindicated in the arbitration. But we must deal honestly and openly with this extreme moral hazard.
A different question is: what makes a good arbitrator? Essentially, we are looking for someone with good judgement and management skills. A good arbitrator is procedurally efficient and fair, giving both parties the feeling that they have truly had the chance to present their respective cases; and he or she writes an award that is fully enforceable for the winning party but fully understandable for the losing party.
If you could introduce one reform in international arbitration, what would it be and why?
I think it is time to revisit how we conduct document discovery in international commercial arbitration, including in particular the Redfern Schedule. Parties tend to spend a great deal of time (and therefore money) on this exercise, usually with very little to show for it in the end. Objections and responses on the Redfern Schedule often devolve into formulaic repetition and improper submissions on the merits, neither of which are helpful to the tribunal. I have started using a different approach in some of my recent cases, which I hope will reduce the time and effort wasted on this frequently fruitless exercise. I will let you know if it works as well as I hope!
What role do you see third-party funding playing in arbitration moving forward?
I happened to be an arbitrator in the first case in Singapore involving a third-party funder. We had to deal with several very interesting issues, such as the respondent’s applications for disclosure of the funding agreement and security for costs, and the claimant’s cost submission seeking recovery of the amount of its winnings it had agreed to pay the funder.
I believe the role of third-party funding will only grow in the future, providing greater access to the arbitral process among clients with limited resources. Arbitral tribunals must be prepared to deal with the issues that arise as a result, including disclosure, potential conflicts of interest, security for costs and recovery of costs. But I believe the role played by third-party funders is a positive one, providing a way for well-founded claims to go forward.
What steps can younger arbitration practitioners take to improve their chances of getting appointments? Is there an important role to play here for experienced lawyers?
I get asked this question very often by young lawyers and even law students. I tell them about the time that I, as a young-ish arbitration lawyer, asked an arbitrator in one of my cases how I might improve my chances of being appointed as an arbitrator. He smiled kindly at me and said: “You need some grey hair.”
He was right. One of the most important qualities of a good arbitrator is a certain amount of wisdom born of experience. I do think we need more gender, racial and cultural diversity in international commercial arbitration, but youth is decidedly not, in my view, a diversity category. We will all age and get wiser. So, my advice to younger arbitration practitioners is to gain that valuable experience and wisdom as counsel, and to seek opportunities to sit as arbitrator when you are in your ripe old 40s.
You have enjoyed a very distinguished career so far. What would you like to achieve that you have not yet accomplished?
The wonderful thing about this line of work is that there is so much variety, so many different and interesting things to do. I have never sat as arbitrator in an ICSID case, for example, and I think that would be very interesting. I worked on one case briefly as counsel and found the intersection of public policy and commercial interests fascinating. I would also like to finish the book I have been working on (off and on) for the past several years, if only not to be continuously embarrassed that it is not finished yet. I would like to sit as arbitrator on a case in Spanish. The list of what I have not yet been able to achieve in this field goes on and on. And I hope the list is always longer than the time I have left!
"He is brilliant, very practical and does not waste time or money"
"A fantastic arbitrator"
"He is a top-shelf arbitrator"
Benjamin F. Hughes is an independent arbitrator at The Arbitration Chambers in Singapore and Fountain Court Chambers in London, adjunct professor at the National University of Singapore Faculty of Law and a member of the Investment Committees at Omni Bridgeway, a leading third-party funder. Previously, Professor Hughes was a member of the faculty at Seoul National University Law School, the founding co-chair of the international dispute resolution practice group at one of Korea’s largest full-service law firms and a member of the international arbitration team at Shearman & Sterling in the US and Singapore. Since leaving law firm practice in 2013, he has been appointed as arbitrator in over 150 international arbitrations, with several billion USD in dispute.
Professor Hughes has served as arbitrator under the rules of the AAA/ICDR, ACICA, AIAC/KLRCA, BIAC/BAC, CAA, CIETAC, DIFC-LCIA, DIS, HKIAC, ICC, JCAA, KCAB, LMAA, SCC, SCMA, SIAC, UNCITRAL (both administered and ad-hoc) and VIAC. He has also acted as emergency arbitrator, sole arbitrator in expedited and fast-track proceedings, a member of dispute boards and mediator. He is a panel arbitrator of numerous arbitral institutions around the world.
Professor Hughes’ experience as arbitrator spans a broad range of complex and high-value commercial disputes, including joint venture and shareholder disputes, intellectual property and licensing, media and telecommunications, construction and infrastructure projects, energy and resources, shipping and shipbuilding, automobile and heavy machinery manufacturing, agency and distributorship agreements, military acquisition and procurement contracts, sale of goods and general commercial disputes. He has been appointed in cases seated in Bangalore, Beijing, Dubai, Delhi, Geneva, Guam, Hamburg, Hanoi, Hong Kong, Kuala Lumpur, London, Manila, Maui, New York, Seoul, Singapore, Stockholm, Sydney, Taipei, Tokyo and Zurich. Professor Hughes has heard cases governed by the CISG and the laws of Australia, Austria, BVI, Cayman Islands, China, England and Wales, Fiji, France, Germany, Hong Kong, India, Indonesia, Japan, Korea, Malaysia, Mauritius, Mongolia, the Philippines, Saudi Arabia (including Sharia), Singapore, Sweden, Switzerland, Taiwan, the UAE, the USA (including New York, California and US territories) and Vietnam, as well as lex mercatoria. He has also handled complex conflict of law and jurisdictional issues, joinder and intervention applications, summary dismissal applications and disputes involving multiple contracts and applicable laws.
Chambers and Partners recognises Professor Hughes as a “most in-demand arbitrator” for Singapore and the Asia- Pacific region, stating: “Independent practitioner Benjamin Hughes is widely regarded as ‘an outstanding arbitrator with a particularly strong market reputation for Korean matters.’ Interviewees clearly indicate that he remains ‘a shoo-in for Korean-related appointments’ but are also quick to point out that, having relocated from Seoul to Singapore and notably broadened the geographical scope of his practice, ‘his reputation now transcends the country.’ One source identifies him as ‘one of the new wave of arbitrators who are bringing a breath of fresh air to the space.’ They also emphasise the ‘nice mix of the academic and commercial’ in his approach, ‘the way he tries to create a consensus’ in proceedings and the ‘efficient and decisive’ manner he adopts in conducting them.”
Professor Hughes is a Fellow of the Chartered Institute of Arbitrators, the Hong Kong Institute of Arbitrators and the Singapore Institute of Arbitrators. He has taught extensively in the field of international dispute resolution prior to joining NUS as an adjunct professor, including as associate professor of law at Seoul National University Law School (2015-2019) and as a visiting professor at the University of Hong Kong Faculty of Law and National Taiwan University Law School. Professor Hughes also serves on the editorial boards of the Asian International Arbitration Journal, the Korea Arbitration Review and the Journal of Korean Law.
Prior to commencing his practice as an independent arbitrator, Professor Hughes was the founding co-chair of the international dispute resolution practice group at Shin & Kim, one of Korea's oldest and largest full- service law firms. He previously practiced international arbitration at Shearman & Sterling in the US and Singapore, and at Kim & Chang in Seoul.
Professor Hughes was educated in both the civil law and the common law traditions, having studied first at Seoul National University College of Law (MA, all coursework in Korean), and then at NYU School of Law (JD). While at NYU, he spent one semester at the University of Palermo Law School in Buenos Aires, Argentina (all coursework in Spanish). He also studied Chinese (Mandarin) in Beijing and East Asian history at Harvard University.