This report has demonstrated that arbitral institutions in Asia have come a long way in the last decade. However, recent events indicate that there is plenty of room for Asia Pacific jurisdictions to grow before they reach their full potential as arbitral seats.
One sign of potential growth is that preeminent international arbitral institutions like the ICC and the Permanent Court of Arbitration (the PCA) have opened up shop in key Asian jurisdictions. The ICC has opened offices and based case management teams in Hong Kong and Singapore in recognition of their importance as international arbitral seats. The PCA has also opened an office in Singapore and entered into a host country agreement with Hong Kong to allow it to facilitate investor-State arbitrations in these key seats.
The legalisation of third party funding (TPF) in Hong Kong and Singapore is also expected to be a key driver of growth in the coming years.
Susan Dunn, co-founder of Harbour Litigation Funding (Harbour), was as a member of the Hong Kong Law Reform Commission Working Group on Third Party Funding. She observes that “the Working Group played an instrumental role in getting the Code of Conduct approved, which removed the final hurdle to third party funding of arbitration in Hong Kong. This will only serve to make Hong Kong a more attractive seat for arbitration (much like the legalisation of TPF did for Singapore in 2017). We are looking forward to now funding arbitrations to add to the insolvency claims we already fund in Hong Kong.“
Harbour’s Chief Investment Officer, Ellora MacPherson, is also optimistic about third party funding’s positive impact on arbitration in Asia: “Lawyers in Singapore and Hong Kong have historically worked not only on arbitrations seated in their home jurisdictions but also further afield in places like South Korea, Japan, and Mainland China. The fact that the TPF legislation in Singapore and Hong Kong permits funding of those lawyers’ services in arbitrations seated elsewhere will help to open up new or less developed arbitration markets whilst affording the end users of arbitration (that is, the clients) access to some of the best arbitration lawyers in the world.”