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今天是英文阅读日。继【CLECSS法律#138】《中国大陆相关国际商业仲裁的观察（从香港执业律师的角度看）》（二），本周再度收到中国国际经济贸易仲裁委员会香港仲裁中心Wang Haocheng的投稿。Haocheng访问了在香港和韩国工作的著名仲裁员Benjamin Hughes，关于对他对中国大陆相关国际商业仲裁的观察。

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Observations from Hong Kong Practitioners on China-related International Commercial Arbitration (Series) - An interview with Mr. Benjamin Hughes, independent arbitrator

Benjamin Hughes and Wang Haocheng (Brad)

BRAD: Hi, Ben. It is really good to see you here during the Hong Kong Arbitration Week. Speaking of which, it is truly a banquet for arbitration circle around Asia Pacific region, isn’t it?

BEN:It really is. Hong Kong is really the center of the arbitration world this week. I have been especially pleased to see many arbitration practitioners from mainland China here this week. It is a great opportunity to exchange ideas and experiences.

BRAD: Indeed. We know CIETAC, together with other institutions, are definitely going to host another series of events same time next year, to bridge different arbitration practices and cultures to Hong Kong. Now, may I move to the subject? Thank you for joining in our initiative. I know you Ben firstly as an arbitrator of CIETAC, and get to know you further through your speeches at various seminars in Asia and lectures on Asian comparative arbitration at the University of Hong Kong. The very first question I always ask an arbitrator is their likes and dislikes of the counsels, call it “lawyer mentality” if you like.

BEN:Thanks for having me, it’s great to see CIETAC being so active in Hong Kong.

Arbitrators like counsel who are polite, focused on the issues, and don’t waste time on unimportant issues or tactics intended to cause annoyance or delay.

Every case is different. Some cases may require aggressive advocacy, while some require a lighter touch. However, it is never acceptable to be rude to opposing counsel or parties. It is important to be polite, even in the midst of heated disputes. In fact it is much more effective and devastating to politely destroy a witness in cross-examination than to be rude or abrasive. I appreciate counsel who can make their points forcefully and clearly, without crossing the line into personal attacks or impolite language.

My favorite kind of advocate is the lawyer who can get directly to the heart of the matter, focus on the important factual or legal issues in dispute, and clearly lay out his or her client’s case for the tribunal. Spending time on extraneous issues only wastes time and undermines the counsel’s credibility.

BRAD: In the context of international arbitration, and those cases heard before CIETAC Hong Kong Arbitration Center, I found those gentlemen usually have maintained a rather good manner throughout the proceedings and stood in a position which is “hard on the case but soft on the people”.I would like to dig the question deeper, though - in oral hearings, sometimes we spot that some counsels are really “tactical” and they try to “massage” the proceeding in every possible way they can, but without pushing arbitrators too far. E.g., counsel may agree with the tribunal’s decisions on a, b, and c, in exchange for the approval of his own proposal on d. And occasionally the tribunal might let pass of that. Do you have any comment on strategy similar to those kinds?

BEN:Generally I would say that such tactics do not work. The tribunal is not really interested in negotiating with the parties. The tribunal’s job is to conduct the proceedings fairly, give the parties and full and equal opportunity to present their respective cases, and come to a decision on the merits as efficiently and fairly as possible.

Attempts to be tactical or massage the proceedings by brown-nosing the tribunal are not only ineffective but potentially undermine the confidence of the tribunal in the credibility of counsel. Counsel should not try to play games with the tribunal or the proceedings. We are aware of what is going on, I assure you.

BRAD: Noted. Move back to the arbitrators. In the Mainland, we have few fulltime arbitrators. In Hong Kong, there are only a small number of independent arbitrators. But the figure is surely on the increase given that arbitrators are paid better (which I believe they should) than before and the caseload is going north in general. Ben, here comes my question, what qualities do you find integral in developing a fulltime arbitrator career, as I am sure a lot of practitioners are interested? For example: language skill, as you have mastered English and Korean, and I can understand every Putonghua you said.

BEN:Well, thank you Brad. I am still working on my Chinese. I lived in Beijing for a while many years ago, but it was too short and it was a long time ago!

It is of course wonderful if you can speak a few languages of the region in which you intend to practice, but I am not going to conduct arbitrations in Chinese or Korean language. I think the real advantage of speaking Chinese if you are a foreigner is that Chinese parties can trust that you have invested considerable time and effort in learning Chinese language and culture, that you have Chinese friends and colleagues, and that you will understand and be fair to Chinese parties in an arbitration. Often it is necessary to appoint an arbitrator who is not a national of either party to the arbitration. In that case, the Chinese party needs to find someone who has some experience with Chinese language and culture and business practices. The same is true of Korean parties. I’ve been appointed in several cases involving Chinese and/or Korean parties (sometimes against each other) and I think my background has been somewhat helpful.

I think we will see more and more independent arbitrators in the region, for several reasons. First, there are more and more arbitrations happening in Asia. Why should Asian parties go all the way to London to arbitrate, when we can do it in Hong Kong? Also, the issue of conflicts is becoming more and more important. If you are in a large law firm, you cannot accept many appointments as arbitrator due to conflicts on interest. This is one reason I decided to leave my firm. As arbitration develops more and more in China and the region, there will be a need for more arbitrators who understand the region and are fully independent and impartial with respect to the parties and their counsel.

BRAD: I agree with you on both. Another observation here, to which I find correlated to the present and future independent arbitrators: CIETAC will release its new Arbitration Rules at the very beginning of next year. The Hong Kong Chapter, which is incorporated in the revised Rules intended for cases administered by CIETAC Hong Kong Arbitration Center, sets new standard for fee arrangement for arbitrators. This will form a significant difference from CIETAC’s previous approach and is considered more in line with international practice.

BEN:I think that is a really significant development. CIETAC should be congratulated for taking such a proactive step in a very competitive market like Hong Kong. I think this will provide an excellent alternative, especially for Chinese parties who are familiar with CIETAC procedures but need to agree to arbitrate outside of mainland China.

BRAD: Let’s go to arbitrators in the Mainland. Ben, you have been involved with several cases at the Mainland whose tribunals are multi-international. What the strengths do you think the Mainland arbitrators carry? What's the most significant difference between your style of practice and that of your Mainland counterparts in the same tribunal? How do you cope with those differences, for example, when deliberating?

BEN:Mainland arbitrators obviously have a special understanding of business and cultural practices in mainland China. In my experience they also tend to be more flexible than most arbitrators from other jurisdictions, particularly fromthe west. Flexibility and cultural understanding is important when dealing witharbitration cases in China, which often involve procedures unfamiliar to arbitrators practicing outside of China. I have learned a great deal from my Chinese colleagues both as counsel and as arbitrator.

I believe deliberations benefit from different styles and approaches, so I have not viewed the approach of my Chinese colleagues as a problem. There is a perception among some practitioners that Chinese arbitrators tend to be biased in favor of Chinese parties, but I have not found this to be the case in practice. The perspective they add to deliberations, particularly in helping the other arbitrators understand certain linguistic nuances and cultural or business practices, has been helpful in my view.

BRAD: That is really good to hear, Ben. Now, shall we move from the tribunal to the venue? Why do you think Mainland counsels should be more confident to draft a contract in which it says Arbitration in a certain institution in Hong Kong, for example, CIETAC Hong Kong Arbitration Center, HKIAC and ICC Asia Office?

BEN:The ICC and HKIAC have long offered excellent arbitration services in Hong Kong. With the opening of CIETAC’s office in Hong Kong, Chinese parties now have the added comfort of being able to agree to the CIETAC Rules for arbitrations seated in Hong Kong. This is a very positive development both for Chinese parties and for the Hong Kong arbitration market. Chinese parties are often more familiar with CIETAC’s rules and procedures, while foreign parties are sometimes reluctant to agree to arbitrate in mainland China. With CIETAC’s presence in China, both sides can confidently agree to CIETAC arbitration in Hong Kong, combining CIETAC’s vast experience in administering arbitrations in China with Hong Kong’s outstanding reputation as a fair and neutral seat of international arbitrations. Together with the HKIAC and the ICC, the options for Chinese and foreign parties in Hong Kong are numerous and attractive.

BRAD: What do you see as the key challenges/trend facing Mainland or Hong Kong arbitration then?

BEN:I believe we will see more mainland Chinese arbitrations (i.e., between mainland Chinese entities, but may contain foreign related elements) taking place in Hong Kong, likely under the CIETAC rules. Hong Kong remains an excellent seat of arbitration, and awards from Hong Kong are respected around the world. Challenges will naturally arise. For example, the CIETAC rules were originally drafted for arbitrations taking place in mainland China only, and this is reflected incertain provisions of the rules which are consistent with Chinese Law and court practices, but may not translate well in a Model Law jurisdiction like Hong Kong. But I believe these challenges will be met, the proper adjustments will be made, and CIETAC arbitration will thrive in Hong Kong.

BRAD: Thank you Ben. We hope the new arbitration rules can ease such concern. But before we finish this interview, I am not going to miss this opportunity of asking you some about Korean related arbitration, which I know you are an expert of. Any observations from there you find particular interesting?

BEN:Korea is another jurisdiction that is trying to attract more arbitrations as a seat. We have launched the Seoul International Dispute Resolution Center (SIDRC) in central Seoul to provide state-of-the-art facilities for arbitration hearings. Many international arbitral institutions have taken up space in the SIDRC, including the HKIAC, SIAC, ICC and the LCIA. I hope CIETAC will come to Seoul someday.

The Korean Commercial Arbitration Board (KCAB) is experiencing a growth in international cases, both in terms of the number of cases and the size of the disputes, and I am sitting in several KCAB cases now. We are seeing more and more Chinese parties arbitrating under the KCAB rules, as the business relationship between the two countries continues to grow.

I do not view all of these various arbitral institutions and jurisdictions as competing with each other, but rather as working together to provide different options for the parties. That is why I am very pleased to see CIETAC offering the parties another excellent option for arbitration in Hong Kong.

BRAD:Really good to know! Thank you very much Ben. See you at CIETAC Cup this year.

BEN:Thank you Brad. Nice talking with you as always!