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2018年11月3日，以“国际商事诉讼与多元化纠纷解决机制”为主题的第三届“前海法智论坛”在深圳市麒麟山庄顺利召开。蓝海现代法律将陆续分享嘉宾们的精彩演讲，以飨读者。以下是新加坡国际商事法庭业务发展部高级主管王劳伦斯（Laurence Wong）在本次论坛“议题一：国际商事审判的最新发展”环节中主题演讲内容。
议题环节：国际商事审判的最新发展
发言嘉宾：王劳伦斯（Laurence Wong）新加坡国际商事法庭业务发展部高级主管
今天，我想先提一个问题，国际商事法庭的兴起是对“颠覆者”的颠覆吗？在这里，“颠覆者”是指国际仲裁。容我强调，这是一个问题，并非声明。
《纽约公约》已经生效60周年，国际仲裁已被证明是解决国际商事纠纷的有效形式。之所以产生国际仲裁，是因为历史上法院在解决国际商事争议时遇到了许多问题。《纽约公约》在发起之初，法院需要花费大量的时间来解决争议。有时，法官对部分争议涉及的技术性问题不了解，需要涉技术领域的专业人士担任审裁人员。
但现在，我们见证着国际商事法庭的崛起。随着亚洲贸易、商业、投资和金融的蓬勃发展，将会产生两个问题：首先，出现越来越多的争端；其次，也是更为重要的问题，出现的争端从本质上变得越来越复杂。由于这种日益增加的复杂性，当事人追求更高效的争端解决机制和方法。当事人需要且积极寻找可信赖的中立机构来解决这些争议，以及争端解决方式的新选择。问题是，这些争端能够通过国际商事法庭进行解决吗？
在本次前海法智论坛上，我们讨论的是国际商事诉讼与ADR。如今，从历史的角度上看，ADR代表的是“替代性争议解决方式”（Alternative Dispute Resolution）；但我建议，ADR实际上代表的是“合适的争议解决”方式（Appropriate Dispute Resolution）。这是因为解决国际商事争议的途径不止一种。选择适当的争议解决途径，无论通过调解、仲裁或诉讼，都取决于争议的情况和性质。
现在让我来介绍新加坡国际商事法庭（SICC）的基本情况。SICC是为解决跨境商事纠纷而建立，其中包括由外国法律管辖的商事纠纷。SICC为外国当事人尤其是亚洲当事人设立，适合倾向通过法庭解决争议的当事人。在本次演讲的最后，我将展示当事人选择国际诉讼而非国际仲裁进行争议解决的三个重要原因。关于SICC，最关键的一点是，SICC构建了国际认可的良好争议解决框架，这个框架基于国际商法以及国际最佳实践的实质原则进行构建。国际商法，大家都非常熟悉，是指导法院工作的规则；而国际最佳实践则是成立SICC时的关键考虑因素，它考虑并吸收了企业、当事人以及律师在国际仲裁中的青睐做法。根据《2018年国际仲裁报告》显示，人们不愿意选择国际仲裁排名前三的原因如下：
1 成本问题。国际仲裁的成本高昂，且随着时间的推移还会不停增加；
2 在仲裁的过程中缺乏有效的制裁措施。在法院诉讼中，并不会遇到关于申请制裁措施的问题；但在仲裁中，情况恰好相反。有时，当事人更希望能够向法院申请禁令；
3 与第三方缺乏紧密、有力的联系。法院比仲裁能更加有效的调整当事人与第三方之间的关系。
因此，对于那些需要在多合同情况下将多方当事人聚在一起的纠纷处理者来说，这是一个非常重要的因素。此外，仲裁还存在争议解决速度较缓慢的特征，而法院可以更有效地解决问题。
接下来，我为大家分析一下多合同或者多当事人的情况，在这种情况下，个人以及公司都是混合的。比如现在有三家公司涉及争议，即使能让这三家公司在“背靠背”仲裁条款上走到一起，但在这种情况下不可避免涉及到个人，而个人有时无法出席仲裁庭。因此，当事人可能最终面临多个争议解决平台、多个听证会，甚至可能出现当事人的法律顾问作为仲裁听证会的证人，转身在法庭上面临当事人起诉的情况。在这种情况下大家可以思考一下，是选择诉讼，还是选择仲裁更好呢？
关于判决的执行。执行法院判决有三种方式：第一是国家间签订的协议；第二是海牙《选择法院协议公约》，同时也很高兴能看到越来越多的国家加入了这个公约；第三个是软法的应用。我们常常会遗忘这个方法，而事实上利用软法来执行判决是在《纽约公约》签署之前就已经存在了的，对此我将作进一步阐述。
上图对比分析了新加坡国际商事法庭和仲裁的区别。大家可以注意到第四行，这个区别与当事人的利益有很大的联系。对于当事人而言，有时是否存在上诉渠道是一件非常重要的事情。法院解决争议时允许当事人上诉，但是仲裁裁决却是一裁终局。图表中的第五行指出了，在法院诉讼中可以追加第三人和其他相关方，而在仲裁程序中却不能。最后同样重要的一点，在国际商事法庭尤其是SICC中，设有公开判决书系统，而且还提供非常清晰的判决依据；而在很多情况下，仲裁裁决都是保密的，除非该裁决被带到法院申请撤销。除此之外，公众并不清楚仲裁裁决背后的判决理由。然而在法庭上，判决是公开的，法官们甚至提出了明确的判决理由，以便在未来更容易地对类似争端进行判决。在诉讼过程中，当事人实际上可以进入调解程序，而不需要再经历整个诉讼或仲裁程序。这样一来，通过公开判例就可以节省时间和成本。
最后，让我来回答我一开始提出的问题：国际商事法庭的兴起是对“颠覆者”的颠覆吗？答案：“绝对不是”。不同的争议解决平台都有其适用的时间点和情况。对于当事人来说，尤其是对需要公开透明的程序、上诉渠道，以及进一步追加第三方或者相关方的当事人来说，考虑进行国际诉讼是比较适当的做法；而对于倾向要求争议解决过程具有保密性，在一次听证会后就有最终结果的当事人，便可以选择国际仲裁。综上，ADR将会是“合适的争议解决方式”，且将由当事人根据其自身的需求决定。
In this session, I have put a question on my title slide for you to consider. It is whether the rise of international commercial courts is disrupting the disruptor? The disruptor being international arbitration. This is a question, and not a statement, I stress.
It was mentioned earlier that this year is the 60th anniversary of the New York Convention, and the fact that international arbitration has proven to be a very effective forum for resolving international commercial disputes. International arbitration arose because historically there were issues with resolving international commercial disputes in the courts. At the time when the New York Convention was launched, dispute resolution in that courts took a long time and at times, the judges could not understand the technicalities involved in certain disputes, and there was a need for adjudicators who were subject matter experts.
But now, we are witnessing the rise of international commercial courts. If you look at the first box, with the continued growth of trade, business, investment and finance in Asia, two things will happen. Firstly, there will be more disputes. But secondly, and more importantly, those disputes are more complex in nature. Due to this increasing complexity, parties demand effective dispute resolution services. Parties require and look for trusted neutral venues to resolve those disputes, and new options for dispute resolution. The question is, can this be through the international commercial courts?
And here’s where we look at this topic in the Legal Intelligence Forum that talks about international commercial litigation and ADR. Now, historically, we know that ADR stands for Alternative Dispute Resolution, but I would like to propose that ADR actually stands for Appropriate Dispute Resolution. This is because there is more than one way to resolve international commercial disputes. Appropriate dispute resolution depends on the circumstances and the nature of that dispute – whether through mediation, arbitration or litigation.
I give you the prospect of the SICC. It has been structured as a court for cross-border commercial disputes, including those governed by foreign law. It is a court for foreign parties, particularly those in Asia. And it is for parties that prefer to have their disputes resolved in courts. I shall give you three reasons at the end of this speech why parties want to consider going for international litigation rather than arbitration. The last point on this slide is a key one – that at the end of the day, the SICC is a court with an internationally-accepted framework on resolving disputes based on substantive principles of international commercial law as well as international best practices. Now international commercial law we are familiar with, that’s what a court of law should do. International best practices were a key consideration in the formation of the SICC. It took into account practices that businesses, parties, and lawyers liked in international arbitration. This slide is from the 2018 Queen Mary/White & Case Survey on international arbitration. Look at the top three characteristics that respondents did not like about international arbitration. First is the cost. Cost of international arbitration are high, and we all know that the cost is escalating over time. The second one, interestingly, is the lack of effective sanctions during the arbitral process. In litigation, in a court of law, you would not have issues in applying for such sanctions, which you might face in arbitration. Some times, parties would like that they are able to seek injunctions from the court. And the third consideration is the lack of power in relation to the third parties. This is an important aspect that a court of law is able to address more effectively than in international arbitration. So for disputants who require to bring together multiple parties in multi-contract situations, this is a strong consideration for going to an an international commercial court. The next point is ‘Lack of speed’ in arbitration, which courts can address more effectively.
I need to skip through the next few slides very quickly. This is just a very quick example of what I mean about multi-party, multi-contract situations, where you have both a mixture of corporations as well as individuals. If you think about it – even if you can bring the three corporations together on back-to-back arbitration clauses, sometimes you have individuals involved, and these individuals at times cannot be brought into an arbitral tribunal. So you may still end up with multiple platforms, multiple hearings where the consultant is a witness in an arbitral hearing and you then turn around and sue him in a court under tort! So I will leave you with that thought for now.
I would not touch on the next few slides and stop on enforcement, even though it has been mentioned by the speakers before. I will just say that there are three methods of enforcing a court judgment. From the left would be bilateral treaties that countries will have with each other. In the center, as was mentioned by James, is The Hague Convention on Choice of Court Agreements. And it’s good to see more and more countries coming on deck. On the right-hand side is the application of soft law, which many times we have forgotten that this was the method even before the New York Convention came about. The ability for a money judgment from one court to be recognized by another court and enforced. Chief Justice Michael Hwang has covered this in great detail, so I shall elaborate further.
I have a table here on the differences between the SICC – that’s an international commercial court – and arbitration. There are various differences. The one that I want to bring to your attention is on the fourth line. Again, where parties are concerned, sometimes it is important to have an avenue of an appeal. And we know that this is something that within courts you can have. But when you have an arbitral award, it is final and it is a one-off thing. On the fifth line, I would like to remind you again about the ability to join third and related parties in a court of law, whilst you don’t have that within an arbitration. And the last one is also just as important. In the international commercial court, especially in SICC, a system in place for publications of judgments, and very clear grounds of decision; arbitral awards, as you know, are confidential, until it’s brought to court in an application to set aside an arbitral award. But other than that, you do not understand or it is not public knowledge what went on behind the granting of a particular award. Whereas in a court of law, the judgments are public knowledge. The judges even raise clear grounds of decisions, so that going forward in the future, it will be easier to adjudicate a similar dispute. And when I talk about adjudicating, you can actually move into a process of mediation, rather than having to go through an entire court process or an arbitral process again. So that time and costs can be saved with that level of precedents, if I may call it that.
Finally, as the Standing International Forum of Commercial Courts has been addressed by the speakers before me, I shall not spend too much time on it. What is important is the convergence of the various commercial courts around the world to promote best practices and further the rule of law. At the last meeting, there were 37 courts from 28 countries and jurisdictions, and they are all coming together to share best practices and work together to keep pace with rapid commercial change.
So I will conclude by answering the question that I had asked at the beginning; are the international commercial courts disrupting the disruptor? The answer is definitely not. There is a time and a place for different dispute resolution forums. And for parties, especially those who require transparency and published judgments, who like an avenue of appeal, and further need to be able to bring together third and related parties, it is appropriate to consider international litigation, whereas parties who prefer confidentiality, who prefer the fact that after one hearing, there’s finality – they could choose international arbitration. So at the end of the day, again, in summary, ADR would be Appropriate Dispute Resolution – and for parties to decide. With that, I thank you very much!
