Colin Ong is the first ASEAN national to become a QC. He is admitted to the Brunei and Singapore bars, and has handled over 350 arbitrations (commercial and investor-state) as lead counsel and arbitrator. He is listed as a top-30 arbitration practitioner worldwide by Expert Guides: Best of the Best (2019). A civil law professor, he is widely published in the areas of advocacy and arbitration. He is listed as one of the 18 “most-in-demand arbitrators” by Chambers and Partners: Asia Pacific (2019) and described as a “top person in the field”. His languages include Chinese and Indonesian (award writing).
DESCRIBE YOUR CAREER TO DATE.
I started in 1992 at the English commercial bar, where I remain. From 1996 to 2014, I was a member of two leading Magic Circle barristers’ chambers, two large Singapore law firms and my Brunei law firm. Recurring conflicts as an arbitrator have necessitated moves to smaller practices in my fields of practice. Since 2014, I have been at 36 Stone in London and Eldan Law LLP in Singapore. Since 1996 I have been a visiting academic at many leading civil and common law universities specialising in commercial law. I am part of the governing council at the national arbitration centres in Brunei, Indonesia and Thailand and also the Chinese European Arbitration Centre (Hamburg). I have also held other interesting posts, including principal legal adviser to the ASEAN Centre for Energy and Panel Member, ASEAN Protocol on Enhanced Dispute Settlement Mechanism.
YOU ARE HIGHLY SOUGHT AFTER FOR YOUR WORK IN BOTH CIVIL AND COMMON LAW JURISDICTIONS. WHAT ARE THE KEY DIFFERENCES WHEN ACTING AS LEAD COUNSEL IN CIVIL LAW AND COMMON LAW-GOVERNED DISPUTES?
The start of the journey and the end goal are the same. An advocate needs to capture the minds and hearts of the arbitrators. However, there can be a huge difference as to how one goes about achieving the final goal. An advocate starts off by mastering the facts and then applying the correct legal principles to the case with a good strategy. Common law arbitrators tend to require a bit more cross-examination of witnesses, while civil law arbitrators generally prefer a more intense academic approach towards the key documents and the main principles of law.
WHAT ADVANTAGES DOES HAVING SUCH WIDE-RANGING EXPERIENCE BRING TO YOUR PRACTICE?
I believe that my wide experiences have moulded me into a better rounded lawyer. I have the ability to quickly understand technical details and the application of the law to the facts at several levels. As arbitrator, I understand difficulties of counsel well and give all parties an opportunity to be heard and present their grievances. My proactive approach in engaging counsel allows me to control the proceedings and keep the process efficient.
The understanding of cultural differences of both counsel and witnesses has made me more patient and better at communicating with my co-arbitrators. As counsel, I have become nimbler, and my experiences allow me to anticipate what different tribunals are really looking for and how to present my case. I am better at anticipating how my opponents are likely to move. Experience allows me to combine many different skill sets garnered across different areas of practice, and to synthesise them into submissions that arbitrators find clear, reasonable and persuasive.
AS AN ENGLISH SILK AND A CIVIL LAW DISPUTES SPECIALIST IN ASIA, HOW DO YOU SEE THE GLOBAL GROWTH OF ARBITRATION AFFECTING YOUR PRACTICE?
The centre of gravity in the arbitration world has been moving closer to Asia over the past decade. I foresee that this trend will continue to grow unabated. The majority of my arbitration cases have already been civil law-based and Asian-based for 15 years. This continued shift of cases towards Asian seats only helps my practice, as most of the Asian countries are civil law jurisdictions. The natural ability to think from a civil law perspective, coupled with the advocacy skills of an English silk, have served me well both as counsel and as arbitrator.
YOU HAVE DEEP EXPERIENCE AS BOTH COUNSEL AND ARBITRATOR. HOW DOES YOUR EXPERIENCE IN EACH CAPACITY ENHANCE YOUR CAPABILITIES IN THE OTHER?
My many experiences as both counsel and arbitrator across civil and common law jurisdictions have made me a more patient and well-rounded practitioner. My experiences as counsel have made me a more sympathetic arbitrator, as I understand the challenges of counsel in putting their case together. It helps me to explain to full-time co-arbitrators what interlocutory applications are meritorious, and to deal with unexpected situations that may arise in the middle of a hearing.
As an advocate, I am able to see things from the other side and understand how the tribunal is likely to see the situation. It allows me to be more objective as to which points are likely to succeed, and which are hopeless points that should never be taken. Quick strategic decisions as to what points should not be attempted, and which opportunities arise out of cross-examination, need to be taken on the spot. As an advocate, I am fast at getting to the crux of the case; the real issues, and not wasting too much time on any bad behaviour by opposing counsel. Experienced arbitrators expect a high level of credibility from counsel and appreciate counsel who are able to help them grasp the key issues of the dispute. Arbitrators prefer focused cross-examination and succinct submissions that deal with all the key issues in a fair manner.
DO YOU SEE ARBITRATION EVENTUALLY REPLACING LITIGATION AS A FORM OF DISPUTE RESOLUTION?
As arbitration is consensual in nature, one would always need to have national courts in place to deal with any matters that fall outside the jurisdiction of the tribunal. I do not see a complete decimation of the litigation system. However, I foresee that even more of the largest commercial disputes will be arbitrated instead of litigated.
YOU WERE ONE OF THE DRAFTERS OF THE MALAYSIAN STANDARD FORM OF BUILDING CONTRACTS (PAM 2006), BUT WERE ALSO RESPONSIBLE FOR SUCCESSFULLY ATTACKING PART OF THE 1999 FIDIC RED BOOK. WHICH WAS MORE SATISFYING?
I enjoyed both experiences greatly. As a professor, I truly enjoyed working with the core drafting team to put together the 2006 Malaysian standard forms of contract. As a litigator, it was exhilarating to have been responsible for setting off the motions leading to the issuance of the FIDIC Guidance Memorandum 2013.
WHAT ADVICE WOULD YOU GIVE TO A YOUNGER PRACTITIONER HOPING TO ONE DAY BE IN YOUR POSITION?
Find a very strong and supportive mentor. Always ensure that your personal integrity and reputation is kept at the highest levels. Always try your best, but never try to mislead the arbitrator.
Colin Ong was the first ASEAN-practising lawyer to be elected as Master of the Bench of Inner Temple and appointed Queen’s Counsel. He is a litigator in Brunei, Singapore and the United Kingdom. He is described by Chambers & Partners as “an extremely creative and charismatic lawyer”, “the best cross-examiner” and “an excellent advocate” (2019), and as “a brilliant strategist and a very polished performer in court” (2018). He is a civil law professor and lead counsel who has acted in over 500 commercial cases (including international arbitrations).
What attracted you to specialise in litigation?
The idea of being trained by the best legal brains in London at the time was very attractive. I was very lucky to have excellent mentors, who were the best at the English Commercial Bar, and extremely lucky to have had Sir Michael Kerr as a mentor and a friend.
How has litigation changed since you started practising?
As business has become more cross-border, there is now a lot more cross-border litigation than there was 25 years ago. The best litigators in the world now battle it out in the largest commercial cases. Matters of case management, and cross-pollination of legal tactics, have made international litigation even more exciting than before.
What qualities make for a successful litigator?
A good litigator needs to be able to communicate effectively with others. It is important to have good advocacy skills and an ability to analyse any situation quickly and come up with a decision for good or bad.
What case has been your most interesting to date, and why?
As a civil law counsel, but also a common law silk, I have had so many incredible experiences and interesting cases that I really cannot name one that deserves to be singled out from the others.
How has your extensive experience in arbitration enhanced your litigation practice?
My experiences of international commercial disputes within almost all major industries and civil and common law systems across the world have often required me to interact with the best lawyers from different fields and jurisdictions, either as opposing counsel or as team members. I have learnt a lot of different strategies from all my experiences and have become a better-rounded lawyer.
What is the most significant trend you’re seeing in your practice at the moment? How is it affecting your work?
The use of artificial intelligence across the commercial law fields has grown a lot. This has led to increased efficiency of arbitration and litigation practices, and the use of such technology is unabating.
Why did you decide to set up your own firm? What challenges did you experience in doing so?
I wanted to set up a boutique firm dedicated to international arbitration and litigation. Brunei holds a central location within ASEAN and East Asia. The biggest challenges at the beginning included the need to handle administrative issues that no English barrister would ever need to deal with.
What advice would you give to younger practitioners hoping to one day be in your position?
Find a good mentor who is a leader in the field of practice that you aspire to excel in, and always ensure that your personal integrity and reputation are kept at the highest levels. Always try your best – but never try to mislead the judge or arbitrator.
Colin Ong QC is a highly respected figure among peers in the international banking market who praise him for his first-class expertise handling related disputes and transactional advice.
Colin Ong is a partner of Dr Colin Ong Legal Services and a member of the Brunei, English and Singapore bars. He has broad experience as an adviser and as counsel in court litigation and commercial and investment arbitration matters covering many areas of banking and finance, including: construction and infrastructure projects (bridges, downstream projects; pipelines, ports; roads), mining sectors, energy (coal mining; oil and gas and supply contracts; production-sharing contracts; electricity supply), information technology, and aircraft and shipping financing.
He has broad and deep specialist experience across a wide spectrum of banking law and financial services practice. He is regularly instructed by government-owned companies; major corporations as well as banks and major law firms to work as part of the drafting team and to provide front-end advice on commodities supply; cross-border structured finance transactions in major energy projects; power-purchase agreements; and major infrastructure and IT projects. He regularly provides advice under English, Singapore and Brunei laws across various aspects of derivatives, financial collateral, Islamic banking, revolving credit facilities, securities lending, structured finance, swaps and syndication of loans. He advises financial institutions and their holding companies on regulatory issues and is regularly instructed by banks and financial services entities (including hedge funds) to provide advice in the development of new financial products and services for the ASEAN markets. He advises financial entities on how to structure and market securities products without triggering off securities laws, and represents banks, private equity and hedge funds in connection with new banking products. He is also regularly consulted on new Islamic banking products for project finance, insurance products and risk management and the avoidance of riba and gharar.
He advises institutions without the requisite financial licences on how to work within the applicable securities legislation and has also had experiences in providing assistance to financial regulators on feedback as to regulations and comparative law. He works with financial and non-traditional financial clients on a broad array of regulatory compliance issues, including issues related to anti-money laundering, anti-bribery and anti-terrorist financing.
As counsel, he has much experience in dealing with various aspects of civil fraud, enforcement, asset-freezing measures and tracing relief.
He holds several legal qualifications including LLB (Sheffield), LLM, PhD in Law (Queen Mary, London), FCIArb, FMIArb, FSIArb and DiplCArb. He is a visiting professor of law or has been a visiting professor in both civil and common law jurisdictions.
He has been on various editorial boards including Butterworths Journal of International Banking & Financial Law and Maritime Risk International since 2000. He was a core drafting member of the current Malaysian PAM 2006 Standard Building Forms of Contract.
Sources identify Colin Ong QC as "undoubtedly one of the star advocates and arbitrators" in the construction market. He impresses clients with his "mastery of the detail".
Colin Ong is senior partner at Dr Colin Ong Legal Services (Brunei); Queen's counsel at 36 Stone Chambers (London) and counsel at Eldan Law LLP (Singapore). He has acted as arbitrator and counsel in over 300 arbitrations governed under civil and common law applying most major institutional rules as well as UNCITRAL rules. He has been appointed as arbitrator or engaged as lead counsel by both sub-contractors as well as state-owned entities and some of the world’s largest organisations (contractors, owners, financial institutions) in their infrastructure and construction projects globally with a focus on Asia. He has generally acted or sat in complex high value international disputes. Many of his arbitration matters involve values up to some billions of $US. A recent example includes being appointed arbitrator in a US$2.6 billion SIAC case in 2017 involving a massive infrastructure project.
He works across all aspects of construction and engineering projects, including civil infrastructure (airports, bridges, downstream projects, hospitals, highways, pipelines railways), electricity, industrial plants, shipbuilding; coal mining facilities, construction of turnkey plants, licence agreements, LNG projects, mining, oil and gas (power purchase agreements, production sharing contracts, electricity supply, gas contracts and oil exploration joint ventures), gas facilities, petrochemicals, pharmaceuticals and biotechnology, and ports, procurement contracts, power plants (coal-fired, gas-fired), steel, technology transfer, steel manufacturing facilities, urban development and wind farms.
He was the main lawyer drafter for the current Malaysian PAM 2006 Standard Building Forms of Contracts. He is highly recommended as a leading arbitrator and counsel in a number of publications including the top 30 arbitration lawyers in the world by Expert Guides: Best of the Best 2019. He is described as "an extremely creative and charismatic lawyer … the best cross-examiner … with a brilliant legal mind, and an excellent advocate” (Chambers and Partners 2019).
He was the first ASEAN practising lawyer to be elected a master of the bench of the Inner Temple (2010). He is a chartered arbitrator, is and has been visiting law professor at leading universities of both civil and common law jurisdictions. He was visiting professor of construction law at Kings College London for a 10-year period. He is a member of the ICC commission’s task force (arbitration) and a member of the task force of ICCA-Queen Mary (costs and third-party funding).
He is author of leading advocacy; arbitration and law publications. two books listed as EndNote 1 reference books in two CIArb practice guidelines. He sits on many editorial boards of journals He sits on the governing boards of four ASEAN national arbitration bodies. He was listed as a “45 under 45” in Global Arbitration Review. He was lead counsel at the arbitration and Singapore Court of Appeal in PT Perusahaan Gas Negara v CRW  SGCA 30. It divided the construction law world and was named as GAR Awards 2016 runner-up for Most Important Reported Decision. He was lead counsel in a different arbitration which led to FIDIC amending Clause 20 of its 1999 suite (http://fidic.org/node/1615). He was principal consultant to the ASEAN centre for energy, and panel of the ASEAN protocol on enhanced dispute settlement mechanism. He is a vice president of APRAG and vice chair of IPBA arbitration committee. His languages include English, Chinese and Bahasa, Indonesia and Malay.