In WWL: Arbitration 2020, Michael Hwang SC was one of only 49 international arbitration practitioners selected as a Global Elite Thought Leader, including one of only 13 in the Asia-Pacific region.
Past Appointments: Chief Justice of the Dubai International Financial Centre (DIFC) Courts; Judicial Commissioner (Contract Judge) (and currently Senior Counsel) of the Supreme Court of Singapore; Singapore’s Non-Resident Ambassador to Switzerland and Argentina; President, Law Society of Singapore; Vice President of the ICC Court of Arbitration and International Council of Commercial Arbitration (ICCA) and IBA Arbitration Committee; UN Compensation Commission; Scholar, Pembroke College, Oxford; BCL, MA (Oxford), Hon LLD (Sydney); Visiting and later Adjunct Professor, National University of Singapore.
What led you to focus on international arbitration?
Between 1991 and 1992, I served as a Judicial Commissioner of the Supreme Court of Singapore (a judge on contract for a fixed term). As previously agreed with the Chief Justice, I had decided in advance of my appointment to return to private practice after a fixed period, as I did not feel ready to commit myself to being a national judge for the rest of my career, and my firm had in effect allowed me to take leave for 19 months while I was on the Bench. Coincidentally, at the time I returned to practice in 1993, Singapore was preparing itself to become an international arbitration centre. On my return to my firm, my managing partner encouraged me to become involved in this emerging field of practice owing to my (then) rare status of a former judge in private practice, using my judicial experience to leverage my entry into the world of international arbitration.
How did you prepare for your entry into international arbitration?
I did not assume that, merely because I had been a judge, I would automatically be a successful arbitrator or arbitration counsel. I therefore invested time and effort in studying the principles and practices of international arbitration by enrolling for the CIArb Fellowship Course and sitting for the relevant examination.
I flew to Paris to attend a short ICC course which resulted in the acquisition of further knowledge from one of the oldest (and largest) arbitration institutions in the world. I also attended courses organised by the HKIAC, as that was the only active arbitration centre in Asia with over a decade’s track record, and had knowledgeable international arbitrators (such as Neil Kaplan, Teresa Cheng, Sally Harpole and Philip Yang) who were willing to impart knowledge and experience to neophytes like myself. Attending international conferences organised by the Inter-Pacific Bar Association (IPBA), LCIA (at Tylney Hall) and the IBA enabled me to acquire valuable knowledge and contacts in the form of practitioners who were in a position to make appointments for their Asian arbitrations.
At this time (in the early 90s) I was a comparative rarity in the shape of a native Asian who had common law judicial experience and some knowledge of arbitration. By judicious interventions at international arbitration gatherings, I was also able to demonstrate some knowledge of international arbitration principles and practices, as well as an appropriate gravitas and arbitral temperament. I was soon receiving invitations to speak at such gatherings (as well as publishing my talks in well-known arbitration journals), and thereby enhancing my credibility as an arbitrator.
It also helped that I was Singaporean, and could bring with me the “halo” effect of the general reputation in international circles of Singaporeans being competent as well as being less prone to corruption, both important qualities for an international arbitrator. I was thus able to earn appointments such as sole or presiding arbitrator by institutions looking for competent arbitrators from neutral countries, as well as friends I had made at these international conferences and courses.
In 1998, within my first decade in international arbitration, I was fortunate to have gained enough international recognition to be invited to become a member of the highly prestigious body, ICCA (the International Council of Commercial Arbitration), which was then considered the “College of Cardinals” of international commercial arbitration with a limited membership of (if I recall correctly) 33 members.
How do you think your particular legal background prepared you better for your role as international arbitrator?
In Singapore, all lawyers are admitted to practise both as an advocate as well as a solicitor, but I was one of the few who actively sought to practise both in transactional cases as well as in the field of disputes. In Singapore where, despite the unlimited scope of practice, practitioners tended to choose either to be a transactional or a disputes lawyer, I was unusual in trying to maintain an equal level of practice in three areas of importance to me: (1) corporate (including M&A) and banking law (2) real property and (3) dispute resolution.
This mix of experience put me in good stead when I was a judge, as I was able to deal with disputes from different areas of law, and that advantage has carried over into my practice as an international arbitrator. I can understand the language of complex financial, corporate and property transactions, as well as the underlying legal principles underpinning the standard clauses in commercial documents, which are not usually taught in law schools.
The law and practice of commercial transactions have to be painfully learnt by experience as a transactional lawyer, and studying the precedent books on standard clauses in commercial agreements, with their commentaries on the legal principles embedded in the standard clauses.
This foundation enables me to understand the language that commercial and finance lawyers use in their documents, and that experience helps me when interpreting such documents to arrive at commercially realistic interpretations. So I think that my varied practice in my early years has given me a rounded experience which enables me to be a better arbitrator than if I had just been a litigator all my professional life.
How does your experience as a litigator and a judge enhance your role as an arbitrator?
As a litigator and a judge in both Singapore and Dubai (where I served on the Bench for more than a dozen years, first as Deputy Chief Justice and then as the Chief Justice of the DIFC Courts), I naturally had to acquire an intimate familiarity with the rules and procedures of the national courts. While an international arbitrator tries to simplify arbitration procedures by eliminating many detailed measures that are prescribed for court cases, litigation experience nevertheless provides useful background knowledge for an arbitrator when faced with a situation which is not covered by an express rule or an established practice.
Even in court cases, I used to find that, despite the massive number of detailed procedural rules spelt out in the Rules of Court, there would inevitably be situations which were not covered by any existing rule, and it was then up to me to craft an order which best met the requirements of the situation. Like in litigation, so in arbitration, where the number of applicable black-letter rules are very minimal, so the arbitrator has more discretion to exercise in deciding how to meet unexpected situations in the course of an arbitration.
My court experience continues to guide me in exercising my discretion as an arbitrator to resort to whatever court procedures I feel are appropriate, especially bearing in mind the need for due process. Accordingly, when there is no express rule in the law of the seat or the applicable arbitration rules, I can either adopt (or adapt) an established litigation procedure to fill the gap and, if I follow the essence of an established litigation procedure, the chances are that it will meet the requirement of due process, and therefore increase the effectiveness of that particular arbitration without running the risk of introducing a completely unprecedented procedure which may arouse challenges for lack of due process.
How do arbitration practitioners react to suggestions of looking at litigation practices for guidance?
Some arbitrators who do not have litigation experience tend to instinctively reject any use of court procedures because they believe that arbitrators are meant to make procedures simpler, but it is only natural for arbitrators to look to appropriate precedents for guidance. This also extends to the rules of evidence, which normally do not apply in arbitration, but my view is that (at least in common law) the rules of evidence in each jurisdiction have evolved from the collective forensic experience in that jurisdiction, which has established safeguards against receiving information which should be excluded or treated with suspicion before being accepted as true.
So, for example, where the rules of evidence exclude certain types of purported evidence (such as hearsay) most common law arbitrators would (or should) admit evidence from prima facie reliable sources reporting on events which have been reported by multiple sources, but should continue to be wary of second or third-hand hearsay where the evidence submitted is on an important issue, which is contentious.
What other work experience have you had that has assisted you in your role as arbitrator?
I have been actively involved in the business world as director of several publicly listed companies on the Singapore Stock Exchange over the course of most of my working career.
My first directorship was at the age of 36 when I acted for a client in an acquisition of a 5-star hotel and then acted for it in listing the hotel on the Stock Exchange and served as a founding director of a project that I helped to create. The range of my eight directorships over the following 40 years have involved me in construction and engineering, port management, mining, property development, luxury watch retailing, farming and food production for public consumption, REIT management, fund management, and private hospitals. These have given me broad experience in multiple areas of business and finance, and have certainly made it easier for me to understand the commercial issues involved in the various cases that I have to try.
What is the difference between a court judgment and an arbitral award in term of drafting style?
The basic difference is the audience for the two types of decisions. A court judgment is normally a public document to be read by the general public and legal profession, and is meant to contribute to the jurisprudence of the country for the development of national law. Hence, there is often an extensive discussion in court judgments of applicable principles of law involved (especially when the governing law is common law), whereby a judgment may actually develop a new principle of common law by enunciating new principles of law or modifying existing ones.
In contrast, an arbitral award is primarily aimed at the parties to the award, and discussion of legal principles is normally kept to a minimum level, just enough to let the parties know which of their legal arguments have found favour with the tribunal (and why). So the bottom line is that, when an arbitrator writes an award, he is writing it only for the parties, and he has no obligation to the legal profession or the public at large, or duty to expound on his legal reasoning for the benefit of the development of the law.
The arbitrator’s main concern is to give sufficient detail in the award to enable a court which may eventually hear a setting-aside application to understand the arbitrator’s conduct and reasoning sufficiently to reject any argument that would justify setting aside the award, typically if the arbitrator has disregarded due process, or shown inadequate reasoning for the court to understand how the arbitrator arrived at this decision.
You are known for proposing innovative changes in arbitration. Describe some of your favourites.
When I was Chief Justice of the DIFC Courts, I (with the advice and assistance of others) introduced a court protocol whereby judgments of our courts could be more effectively enforced internationally by a process of arbitration pursuant to a pre-judgment arbitration agreement to arbitrate any dispute about the enforcement of the judgment. It is a protocol that can be used by private parties anywhere in respect of any dispute which parties have agreed to litigate in court first, and then to arbitrate any dispute arising from the non-payment of the judgment sum. The purpose of this protocol is to give an additional means of enforcement of a judgment debt by providing an additional remedy in the form of an award which could then be enforced in all 166 New York Convention countries where a court judgment could not.
I have also published a Model Procedural Order on establishing a Confidentiality Regime in Arbitration (which has been publicised by Nathan O’Malley in his book Rules of Evidence in International Arbitration) which can reconcile the principle of confidentiality in arbitration with an identification of the principal situations where it would be appropriate to allow full or partial exceptions to the general rule.
I have just published a chapter in the Liber Amicorum for Michael Moser describing a Protocol for Hot Tubbing of Fact Witnesses based on my own experience in organising such sessions in a number of hearings with many factual witnesses testifying together on separate issues where all participating witnesses have given witness statements.
And in my second volume of essays, I have expounded on my theory of effective advocacy in commercial arbitration, where the emphasis should be on advocates taking the tribunal through the documents and the evidence with a road map in a detailed Opening Statement rather than spend too much time on cross-examination.
Finally, in my latest article published in Singapore last year, I have argued that the solution to controlling misconduct by counsel in the course of an arbitration is to (1) change institutional rules to allow an exception to confidentiality so that errant counsel can be reported to the bar association of their home jurisdiction, and (2) allow those bar associations to take appropriate disciplinary action against such counsel.
But I have no illusions about any of these innovations being widely adopted, as (with the exception of the Redfern Schedule) no innovation proposed by an individual practitioner or academic (however distinguished the proposer and however good the innovation) has been widely adopted. Only institutions have the effective power to change arbitral practices by innovations.
What advice would you have for young legal practitioners who wish to work exclusively or mainly in international arbitration?
My strong belief is that aspiring young arbitration practitioners would benefit greatly from having a significant exposure to litigation before they move seriously into international arbitration.
Litigation experience will instil in practitioners a familiarity with the rules of court, the law of evidence, and advocacy techniques, all of which will stand them in good stead when they start their careers in international arbitration. The rules of court show how a national court deals with a host of situations which under institutional arbitrational rules are usually left to the discretion of the tribunal. So, with litigation experience, young arbitration practitioners could be more imaginative in considering litigation procedures to request the tribunal to adopt in cases where conventional arbitration procedures prove inadequate (e.g. by asking for Further and Better Particulars of a vaguely pleaded Statement of Case or Defence).
Likewise, although international arbitration typically excludes reliance on national laws of evidence, it is important to know what conventional rules of admissibility of evidence exist in a national court because such rules are usually formulated on the basis of human wisdom and experience accumulated over the decades. While the law of evidence can sometimes be excessively exclusory (owing to higher standards of proof being required for criminal law cases) it is important to understand the rationale for the conventional rules of evidence so that, when submitting oral or documentary evidence is proffered which could be inadmissible in a national court, counsel can explain to the tribunal why the normal rationale underlying national rules of evidence should (or should not) apply in the particular case.
Why do you emphasize the value of experiencing courtroom practice as opposed to exposure to arbitration hearings?
Litigation gives to young counsel a good platform to practise the art of oral submissions and cross-examination in small domestic cases, which he (by which I include female counsel as well) will usually not find at the beginning of his arbitration career, where he would likely start as third or even fourth chair to the chief counsel on his arbitration team. His earlier experience in litigation will prepare him for the day when he is finally given an opportunity by his team leader in an arbitration case to take on the responsibility of making his or her first oral submission to the tribunal, or of leading or cross-examining a witness.
A good litigation practitioner will find it easier to convert to being a good arbitration practitioner because he only has to learn which parts of his litigation skills to put away, save in exceptional situations where he can draw on his litigation knowledge or skills to good use in arbitration. It is not so easy for a good arbitration practitioner to be equally successful in a national court, as he will have to learn additional knowledge and skills (which his opponents in court will have learnt long ago), and be prepared to play catch-up on his feet in court.