RESPONDEK & FAN SINGAPORE · BANGKOK ATTORNEYS AT LAW ____________________________________________________________________________ ASIA ARBITRATION GUIDE 5th (Extended and Revised) Edition DR. ANDREAS RESPONDEK EDITOR RESPONDEK & FAN ASIA ARBITRATION GUIDE DR. ANDREAS RESPONDEK, LL.M. (EDITOR) Status of Information: February 2017 5th Edition 2017 © 2017 Respondek & Fan Pte Ltd., Singapore ISBN: 978-981-11-2964-3 RESPONDEK & FAN PTE LTD 1 North Bridge Road #16-03 High Street Centre Singapore 179094 Tel.: +65 6324 0060 Fax: +65 6324 0223 Email: [email protected] Website: www.rf-arbitration.com NOTICE The information provided in this Arbitration Guide has been researched with the utmost diligence, however laws and regulations in the Asia Pacific Region are subject to change and we shall not be held liable for any information provided. It is suggested to seek updated detailed legal advice prior to commencing any arbitration proceedings. 2 RESPONDEK & FAN TABLE OF CONTENTS INTRODUCTION - MR. NEIL KAPLAN CBE QC SBS .......... 7 STRUCTURE OF EACH COUNTRY REPORT ...................... 11 1. BANGLADESH ................................................................. 12 2. BRUNEI ............................................................................ 30 3. CAMBODIA ....................................................................... 42 4. CHINA ............................................................................... 51 5. THE CHINESE EUROPEAN ARBITRATION CENTRE – HAMBURG ................................................... 68 6. HONG KONG ................................................................... 80 7. INDIA ............................................................................... 102 8. INDONESIA .................................................................... 120 9. JAPAN ............................................................................... 138 10. KOREA ............................................................................. 153 11. LAOS ................................................................................. 164 12. MALAYSIA ....................................................................... 175 13. MONGOLIA ..................................................................... 187 14. MYANMAR ..................................................................... 200 15. NEPAL .............................................................................. 210 16. PAKISTAN ....................................................................... 222 17. PHILIPPINES ................................................................. 232 18. SINGAPORE ................................................................... 253 19. TAIWAN .......................................................................... 282 20. THAILAND ..................................................................... 307 21. VIETNAM ....................................................................... 322 3 RESPONDEK & FAN A U T H O R S Introduction: MR. NEIL KAPLAN, CBE QC SBS Bangladesh: MR. MOIN GHANI, MS. MAHERIN KHAN; Dr. Kamal Hossain & Associates Brunei: PROF. AHMAD JEFRI ABD. RAHMAN Associate Professor, Universiti Brunei Darussalam (UBD) Cambodia: DR. NARYTH H. HEM MR. KOY NEAM BNG Legal China: MR. RAINER BURKARDT MR JAN-MICHAEL HÄHNEL Burkardt & Partner Rechtsanwälte China/Europe: PROF. DR. ECKART BRÖDERMANN, LL.M. (Harvard) Brödermann Jahn Rechtsanwaltsgesellschaft mbH DR. CHRISTINE HEEG, LL.M. (Sydney) KPMG Law Hong Kong: DR. NILS ELIASSON Shearman & Sterling India: MRS. ZIA MODY / MR. ADITYA VIKRAM BHAT AZB & Partners Indonesia: MS. KAREN MILLS / MR. ILMAN RAKHMAT KarimSyah Law Firm Japan: MR. MICHAEL A. MUELLER MR. MAXIMILIAN HOCKE Mueller Foreign Law Office Korea: MR. HYUNG SOO LEE / MR. JOACHIM NOWAK Hwang Mok Park P.C. (HMP) 4 RESPONDEK & FAN Laos: MR. STEVE GODDARD MS. FLORENCE LO Arion Legal Malaysia: MR. THAYANANTHAN BASKARAN Zul Rafique & Partners Mongolia: MS. ENKHTSETSEG NERGUI MR. MUNKH-ORGIL TUVAANDORJ Anand & Batzaya Advocates Myanmar: MR. JAMES FINCH / MRS. THIDA AYE DFDL, Yangoon Nepal: MR. ANUP RAJ UPRETI Pioneer Law Associates Pakistan: JUDGE. S. AHMED SARWANA Former Judge, High Court of Sindh, (Court of Appeal), Pakistan Philippines: MS. RENA RICO-PAMFILO Associates Professor, Ateneo de Manila University School of Law Singapore: MR. CHAN LENG SUN, SC MR. SHEIK UMAR Baker McKenzie Taiwan: MR. NATHAN KAISER / MR. PO-HSIANG OU Eiger Law Thailand: DR. ANDREAS RESPONDEK MS. WERINORN MANPHAN Respondek & Fan Ltd Vietnam: MR. DINH QUANG THUAN Phuoc & Partners 5 RESPONDEK & FAN Amendments for the 5th edition Each country report has been completely revised and updated and was finalized in February 2017. The Nepal chapter has been newly added. 6 RESPONDEK & FAN INTRODUCTION MR. NEIL KAPLAN CBE QC SBS Respondek and Fan are to be congratulated on providing every two years a most useful summary of the arbitration laws of Asian jurisdictions. The 2017 edition contains a review of 21 jurisdictions. By including Nepal it has increased by one the number of jurisdictions covered in the last edition. Each chapter is written by experts from the relevant jurisdiction who bring to bear their unique experience of their jurisdiction. The chapters are not overlong and give the salient features of the law, practice and institutions of each jurisdiction. Each chapter has identical headings and thus one immediately gets the comparison needed. With the huge increase in the interest in arbitration in Asia which naturally coincides with the increase of economic activity in the region it is essential for practitioners to have a composite one volume guide to all these jurisdictions. This Guide is not meant to rival the ICCA publication which covers all jurisdictions worldwide but is meant to serve the growing number of practitioners in the Asian region itself. In recent years we have seen arbitration cases in several new jurisdictions. New arbitration laws abound. Centres are being set up in several new jurisdictions. The more established Centres like Hong Kong, Singapore, Malaysia, China and Korea are attracting many cases and this may well have a “knock on” effect throughout Asia. The ICC has seen a huge growth of cases involving Asian parties as well as those cases seated in Asia. Hong Kong and Singapore have taken the lead by introducing legislation which makes clear that third party funding for arbitration does not contravene rules of public policy that prevent the funding of litigation. This edition should also be of interest to in-house counsel as well as teachers and students of the subject. Its readable style will I am sure make it “a must have” for all practicing in this field in Asia. 7 RESPONDEK & FAN Andreas Respondek, the managing editor and founding senior partner of the firm, is to be congratulated for masterminding all this and for getting together the necessary experts to write the chapters for this hugely useful work which I look forward to placing yet again on my shelf. Neil Kaplan CBE QC SBS 8 RESPONDEK & FAN Dear Reader, Following the global trend in dispute resolution, arbitration has in recent years become the preferred method of alternative dispute resolution within the Asia-Pacific region, particularly where international commercial transactions are concerned. There is hardly any significant cross-border contract that does not include an arbitration clause. Parties to international contracts have certain fears and reservations to sue or being sued in a jurisdiction they are not familiar with. Differences in the various laws, language and legal and business culture are perceived as distinctive disadvantages. To those parties arbitration seems preferable as arbitration proceedings tend to be significantly more flexible than in the courts, with proceedings conducted according to familiar and well established arbitration laws that are usually held in a neutral location. Last not least due to the lack of the possibility to appeal against an arbitral award, arbitrations tend to be faster than court proceedings. The confidentiality of the arbitration proceedings that court proceedings do not enjoy is another factor that makes arbitration look attractive. In addition, arbitration offers the disputing parties to choose “their” arbitrators that have specific expertise in the disputed matter, thereby further enhancing a speedy conclusion of the disputed matter. The goal of this guide is not to provide a scholarly treatise on Asian arbitration but rather to summarize the practical aspects of the rules and regulations applying to arbitration in various Asian countries. This guide is designed to provide arbitration practitioners, companies and their legal advisors with an understanding of the various Asian arbitration regulations and the legal issues related to arbitration in each country. For companies seeking to rely on arbitration clauses when doing business in Asia, it is important to have a good understanding of how the arbitral process works in each country. In addition, it is hoped that this guide will assist companies in selecting arbitration rules and facilitate the drafting of arbitration provisions for their international commercial contracts. This guide is based on the joint efforts of leading arbitration practitioners in each country. Without their dedicated efforts this guide would not have materialized and I am especially grateful for their participation and excellent contributions. Special thanks go also to my secretary Ms. Avelin Kaur, to Ms. Jin Yujia and Ms. Amelie Sulovsky. Singapore, February 2017 RESPONDEK & FAN Dr. Andreas Respondek Chartered Arbitrator (FCIArb) 9 RESPONDEK & FAN ABOUT DR. ANDREAS RESPONDEK (www.rf-arbitration.com) Andreas started his legal career in the US with two ground-breaking (winning) precedents from the Louisiana Supreme Court1 in his own name in 1983. He is an American Attorney at Law, a German “Rechtsanwalt” as well as a Chartered Arbitrator (FCIArb). After heading the Legal Department of an MNC in Europe, he moved to Singapore in 1994 to establish the Asia Pacific Legal Department of a leading international Healthcare Company. Thereafter he led multinational companies in Asia as Managing Director (Thailand; Greater China) and Regional Managing Director Asia Pacific. He established RESPONDEK & FAN in 1998 in Singapore and its counterpart in Bangkok in 2000. Living and working since more than 20 years in Asia, Andreas advises successful corporate investors in the Asia Pacific region on their day-to-day legal issues and secures their continued growth on the legal side, focusing on International Arbitration, Corporate & Commercial Law, International Contracts, Health Care and Mergers & Acquisitions. He is on the panel of leading arbitral institutions, is regularly appointed as Arbitrator and Party Representative in international institutional and ad-hoc proceedings and publishes widely on international arbitration and other legal topics. His contact details are as follows: Email: [email protected] Office Tel: +65 6324 0060 Cellphone: +65 9751 0757 Office: 1 North Bridge Road #16-03 High Street Centre Singapore 179094 1 In re application of Andreas Respondek 434 So.2d 413 (La.1983); 442 So.2d 435 (La.1983) http://law.justia.com/cases/louisiana/supreme-court/1983/83-ob-2169-1.html 10