Datuk Prof. Sundra Rajoo
Director Kuala Lumpur Regional Centre for Arbitration (KLRCA)
A: Kuala Lumpur Regional Centre for Arbitration,
Bangunan Sulaiman, Jalan Sultan Hishamuddin,
50000 Kuala Lumpur, Malaysia
T: (603) 2271 1000
E: enquiry@klrca.org W: klrca.org
What have been some of the KLRCA’s key highlights from last year in terms of its growth and development?
It has been a busy year for the KLRCA and it doesn’t look like it will be slowing down anytime soon, which is a good thing, not just for the KLRCA but for the ADR scene as a whole.
Our caseloads have increased significantly – this is partially stemmed by our relocation to our new building, Bangunan Sulaiman.
Bangunan Sulaiman features more than 30 hearing and breakout rooms (some of which are equipped with State-of-the-Art Court Recording & Transcription Systems) as well as seminar rooms, an auditorium, multiple dining areas and a full service business centre. The size and amenities of this building has made us one of the largest ADR centres in the world.
With this, we have been able to accommodate more cases. In the past year, we have seen a healthy surge of case load. If the first half of 2016 is of any indication, we will be surpassing that number soon!
Bangunan Sulaiman has also allowed us to host world-class conferences, seminars and certification courses. This includes the Kuala Lumpur International Arbitration Week (KLIAW 2015), the KLRCA International
Investment Arbitration Conference (KIIAC 2016) as well as external events such as the LAWASIA International Moot Competition.
In the past year, we have also signed numerous strategic co-operation agreements with reputable local and international institutions that facilitated cross-border knowledge sharing and marketing expansion, thus allowing the KLRCA to continue redefining the ADR scene globally. Some of these institutions include the Russian Arbitration Association (RAA), the Chartered Institute of Arbitrators UK (CIArb UK) and the Securities Industry Dispute Resolution Centre (SIDREC), amongst others.
Another significant development for the KLRCA is the setting up of the Investment Treaty Arbitration and International Law department. This is in anticipation of the increase of investor-state disputes, especially with the signing of the TPP agreement.
What are some of the recent steps taken by the Malaysian government and/or other bodies to promote Malaysia as an arbitration hub? What are some of the steps that are helping the growth of the KLRCA?
As you might know, we are a signatory of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (also known as the New York Convention) since 1985. This means KLRCA’s arbitral awards are final, binding and enforceable in 156 countries.
The last time we spoke to ALB, I believe we spoke about the amendments in the Arbitration Act 2005 in 2011. Just to re-iterate, some of the amendments include the accentuation of the limited powers of statutory intervention by the court, the narrowed instances which the High Court can invoke to deny a stay of judicial proceeding, the empowerment of the courts to make orders for any interim measures even if the seat of arbitration is outside Malaysia and the liberalisation of Malaysian Courts in recognizing and enforcing foreign arbitral awards.
The amendments to the Legal Profession (Amendment) Act 2013 were also passed along with the Legal Profession (Licensing Of International Partnerships And Qualified Foreign Law Firms And Registration Of Foreign Lawyers) Rules 2014. This permits foreign legal experts to appear in arbitral proceedings in Malaysia and exempts foreign arbitrators from paying withholding tax on fees earned.
The above developments only partially show the level of support we receive from the Malaysian government. We are also given complete independence to function as a neutral and independent which is key to our success.
The Malaysian judiciary body is also supportive and its non-interference policy goes to show their level of confidence in ADR.
Perhaps, it would be more accurate to say that the judiciary goes beyond “supporting arbitration.” Any judiciary can be directed to simply “support” arbitration proceedings, although in many cases that is a necessary first step. The next step is for judiciary to become knowledgeable and understand international arbitration, and be in a position to positively interpret and develop arbitration law themselves. Malaysia is presently transitioning to this level.
However, Malaysia itself has much to offer, mainly, the cost and the language. We can safely say that it would be most cost effective to have a tribunal in Malaysia. Also, on top of being multi-lingual, English is widely spoken here; this greatly reduces possible language barriers.
This is a time of agreements like AEC, TPP, FTAs and so on. How has this impacted arbitration in Malaysia (and the work you are seeing) so far, and what future effects do you expect these to have?
The KLRCA is a longstanding partner of the International Centre for Settlement of Invesment Disputes (ICSID). ICSID is the world’s leading institution devoted to international investment dispute settlement.
In addition to that, Malaysia is a member of ASEAN - the ASEAN Protocol on Enhanced Dispute Settlement Mechanism provisions on investment protection are in line with those included in the bilateral and multilateral investment treaties signed by Asian States. This agreement also provides for the resolution of investment disputes by way of arbitration between an investor and a member of State.
Should parties to a dispute decide to resolve their investment disputes by referring the case to an ad hoc tribunal under the UNCITRAL Arbitration Rules, it should be recalled that the KLRCA Arbitration Rules draws intensively from the UNCITRAL Arbitration Rules.
In short, we are ready to manage disputes which could result from such bi-lateral agreements. We have been working with parties on disputes of this nature - some directly, some via our partners – we expect this to increase as these agreements mature.
Caseloads aside, the KLRCA also hosted its first International Investment Conference in March 2016. This along with other initiatives such as the KLRCA Summer Academy and investment arbitration focused topics within the KLRCA Evening Talk series, is part of our commitment to build capacity.
In what ways has KLRCA been promoting itself (as well as Malaysia arbitration) within the region and overseas?
The foundation of any good arbitration or ADR centres is in its rules – for instance, the KLRCA Arbitration rules, the KLRCA i-Arbitration rules, the KLRCA Mediation rules and so on. The KLRCA set of rules has been well received, however, it is important to keep improving. With this in mind, we have started updating our set of rules with aims to provide greater clarity to dispute resolution proceedings, which should ultimately result in more efficient, and timely turnaround time.
As mentioned above, we also host a series of events to help build capacity and educate the legal fraternity and the public. We have hosted 170 of such events since 2013, many of which feature leading legal experts from across the globe. It is not uncommon to see our representatives at related events hosted by our partners and other ADR institutions and associations too.
I believe that through representing the KLRCA at seminars and conferences around the world; and engaging and collaborating with business leaders and delegates from different cultures, professions and backgrounds, industries and geographies, we will be able to further promote both the KLRCA and ADR as the choice dispute resolution mechanism.
We are also in the midst of redesigning our website. The website, along with our newsletters and our social media initiatives are some of the other ways we connect with our stakeholders.
You are the global Chartered Institute of Arbitrators (CIArb) President for 2016 – can you tell us more about CIArb and how your presidency goes hand-in-hand with your role as the Director of the KLRCA?
CIArb was established in 1915, the institute represents the interests of ADR practitioners worldwide and currently has about 14,000 members across the globe. This presidency has an ambassadorial role to promote the objectives of the Institute, which includes attending official functions on behalf of the Institute, attending and speaking at Branch events and liaising with other professional bodies. In my capacity as Director of KLRCA, my tasks and objectives to a certain extent mirrors the role of a CIArb President, which is to continuously strengthen current best practices and discover fresh avenues to enhance and better the global alternative dispute resolution scene.
Both roles have granted me the unique position to understand and reflect on the challenges and opportunities that surrounds the ADR industry.
What do the next year or so look like for the KLRCA? What kind of arbitration trends do you expect to see?
We have come a long way, and we have a long way more to go. ALB once wrote about “KLRCA’s resurgence” and truth to be told, it really feels like a resurgence. The foundation has always been strong but these past 6 years has been a period of rapid growth. And now, more than ever, is no time to rest on our laurels.
We aim to defend our position as a strong contender as a credible ADR hub in Asia.
This goes hand in hand with the trend to de-centralise, as well as localise arbitration seats. The emergence of Asian jurisdictions as favoured arbitral seats means moving away from “traditional” arbitration venues.
Another related trend revolving international arbitration, in the midst of its increasing appeal as the choice dispute resolution mechanism, are the calls from users of international arbitration expressing concern about the cost of the process. With the localisation of arbitration seats, dispute resolution costs would be significantly lowered.
We also plan to continue our capacity building and knowledge dissemination activities. With the legal fraternity being more equipped and knowledgeable, innovation would rise effortlessly – this would further cement ADR’s position as a viable form of resolution. In fact, we are already seeing innovation in the form of hybrid dispute resolution methods. This is but another emerging trend in the ADR scene.
Having said that, exciting times are ahead for the industry and the KLRCA is ready to rise beyond expectations.