7 November 2017
SIAC-CIL Academic-Practitioner Colloquium

By Daniel Ow, Associate, WongPartnership LLP

The inaugural SIAC-CIL Academic-Practitioner Colloquium on 7 November 2017 was significant as it marked an important development in the Singapore arbitration arena. Essentially, the event provided academics with a platform to showcase their current research work in the field of international arbitration, and to test their ideas on a panel of arbitration practitioners and fellow academics. In turn, the event provided practitioners with an opportunity to interact with academics researching on issues that might have relevance to their areas of practice. The event was well attended, and attracted an audience of 100 attendees, comprising corporate counsel, practising lawyers and academics.

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Left to Right: Professor Lucy Reed, Toby Landau QC
and Lim Seok Hui

Opening Address delivered by Toby Landau QC

Mr Toby Landau QC (Member, SIAC Court of Arbitration; Barrister and Arbitrator, Essex Court Chambers) kicked off the event with opening remarks explaining the format and purpose of the seminar. This was then followed by the paper presentations by the two academics and panel discussions.

The two researchers who presented at the inaugural event provided an insightful discussion on the integration of a two-tier court system into new trade agreements, and also shed light on how a witness’ memory might be distorted and the impact of this on witness testimony in international arbitration. The panel sessions comprising seasoned arbitration practitioners also provided participants with candid, and at times, critical insight into the realities of international arbitration practice.

Paper Presentation 1: The New EU-Led Approach to Investor-State Arbitration: The Investment Tribunal System in the Comprehensive Economic Trade Agreement (CETA) and the EU-Vietnam Free Trade Agreement

Ms Elsa Sardinha (Research Associate & Practice Fellow to Chris Thomas QC, Investment Law & Policy Group, Centre for International Law (Singapore); National University of Singapore) presented the first paper. The first panel session was moderated by Professor Nicolas Jansen Calamita (Head, Investment Treaty Law & Policy, Principal Research Fellow; Research Associate Professor, Centre for International Law (Singapore); National University of Singapore), and comprised Mr Gary Born (President, SIAC Court of Arbitration; Chair, International Arbitration Practice Group, Wilmer Cutler Pickering Hale and Dorr LLP), Ms Koh Swee Yen (Co-Chair, YSIAC Committee; Partner, WongPartnership LLP) and Professor Muthucumaraswamy Sornarajah (C J Koh Professor, Faculty of Law, National University of Singapore).

Since 2004, treaties have become more complex and more precisely drafted to provide a richer context for interpretation. Two new treaties that were recently introduced – the Canada-EU Comprehensive Economic Trade Agreement (CETA) and the EU-Vietnam Free Trade Agreement (EU-Vietnam FTA) – were reflective of this shift in treaty-drafting practice. Both treaties established a two-tier investment tribunal system (ITS), where a permanent appellate tribunal has the power to review tribunal decisions. The ITS provides for a spectrum of possible challenges to arbitral awards by incorporating the grounds for annulment in Article 52 of the ICSID Arbitration Rules into both treaties, together with the power to review for errors of law and fact. Further, the CETA has a 24-month deadline for the final award to be rendered whereas the EU-Vietnam FTA has an 18-month deadline for the final award to be rendered.

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Elsa Sardinha

Left to Right: Elsa Sardinha, Professor Muthucumaraswamy Sornarajah, Professor Nicolas Jansen Calamita, Koh Swee Yen and Gary Born

Elsa analysed the ITS under these two treaties, and argued that the treaties contained some potentially problematic features, such as the removal of the involvement of disputing parties in the selection of the tribunal members and the extremely tight deadlines to render final awards. In particular, considering the number of rounds of pleadings and the time that the tribunal would require to digest submissions in order to reach its decision, she suggested that the short deadline was unrealistic.

While the creation of the ITS aimed to solve the problem of the lack of independence and impartiality of some arbitrators, the panellists questioned whether this problem was in reality so prevalent in practice that it warranted such a drastic change. The panellists also pointed out other problems with the ITS, such as the limited term of tribunal members and the potential effect of the lack of tenure on tribunal members’ decision-making, and the disadvantages which might be faced by States with less bargaining power. Whilst there may be some potential benefits of implementing such a tribunal system, the panellists did acknowledge that such a radical change should be cautiously proceeded with.

Paper Presentation 2: Human Memory and Witness Evidence in International Arbitration

Dr Ula Cartwright-Finch (Managing Associate, Linklaters LLP, London) presented the second paper on “Human Memory and Witness Evidence in International Arbitration”. The second panel session was moderated by Mr Chelva Rajah, SC (Member, SIAC Board of Directors; Managing Partner, Tan Rajah & Cheah), and comprised Mr Toby Landau QC, Professor Lucy Reed (Member, SIAC Court of Arbitration; Director, Centre for International Law (Singapore); Professor, Faculty of Law, National University of Singapore) and Mr Alan Thambiayah (Member, SIAC Court of Arbitration; Professional Arbitrator, The Arbitration Chambers).

The accuracy of a witness’ memory is crucial to the various stages of an international arbitration, from the initial investigation, to the focused investigation, the preparation of witness statement and the hearing.

However, the ability of witnesses accurately to recollect events from the past and provide reliable testimony has always been a controversial issue in international arbitration. Drawing on research in psychology and neuroscience, Ula suggested that the human memory undergoes a continuous reconstructive process that is susceptible to distortion.

In her presentation, Ula discussed 3 instances in which a witness’ memory might be distorted and how these effects might arise in the context of witness testimony in international arbitration.

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Ula Cartwright-Finch

Left to Right: Ula Cartwright-Finch, Toby Landau QC, Chelva Rajah, SC, Professor Lucy Reed and Alan Thambiayah

Firstly, the misinformation effect, whereby a witness’ recollection of episodic memories could become less accurate due to post-event information such as the way that a question was posed during the cross-examination. In a 1975 research by Loftus & Zanni, after a video was shown to participants, they were split into two focus groups. The first group was asked whether they had seen a broken headlight, whereas the second group was asked whether they had seen the broken headlight. It was shown that participants in the second group were more likely to report having seen a broken headlight.

Secondly, a witness might be susceptible to false memories, whereby his or her recollection of events might be affected by his or her personal belief or opinion. This was exemplified by the “lost in the mall” scenario, whereby confabulations about events that never took place – such as having been lost in a shopping mall as a child – could be created through suggestions made to participants.

Lastly, a witness’ memory might be conformed and compromised when another person’s recollection of a memory influences his or her recollection of the same experience.

Distortions of witness’ memories may have severe consequences by impacting the witness’ testimonies and consequently the findings of fact in an award. Therefore, in her paper, Ula proposed some practical strategies to mitigate the potential impact of these effects on memory, such as carrying out timely witness interviews and taking special precautions in framing the questions during the interviews.

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Members of the audience

Members of the audience during networking drinks

The panellists noted that the problems with witness recollection would extend to the cross-examination and re-examination stages of the arbitration as well. The panellists also observed that the research conducted on witness recollection have thus far been carried out in relatively controlled scenarios, and hence might not accurately reflect or be directly applicable to international arbitration processes. There was nonetheless consensus in the room that these witness recollection issues highlighted the importance of arbitration tribunals in the assessment of witness testimonies.
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