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In 2000, Asia’s share of global GDP was around 28%.[i] In 2019, Asia generated nearly 40% of the world’s GDP and is now home to nearly 60% of the world’s population. According to McKinsey & Co, “Asia is on track to top 50% of global GDP by 2040 and drive 40% of the world’s consumption, representing a real shift in the world’s centre of gravity.”[ii]

Our main argument in this article is that there is a strong and positive correlation between rapid economic growth in Asia and the growth of international arbitration as a means of resolving commercial disputes in Asia. In fact, our main thesis here is that international arbitration was a necessary condition for economic growth in Asia. Without recourse to international arbitration in commercial contracts, foreign investors and companies investing in Asia would not have been willing to invest their capital or with certainty protect their legal interests under their commercial arrangements in Asia. In the absence of international arbitration as a means of securing investor rights, Asia would not have been able to attract the size of investment and capital from all over the world.

In support of this thesis, we will first set out key statistics that show the rise of Asian economies and its effect on international trade. Second, we will show how the Asian economic growth directly correlates with the growth of arbitration cases in Asia and build-up of arbitration infrastructure in the form of arbitration institutions all across Asia. Accordingly, this has given rise to a significant arbitration related professionals all over Asia and in relation to cross-border commerce, international arbitration is now the preferred choice of dispute resolution all across Asia.

Transformation of Asia Relative to the Global Economy

The rise of Asia’s dominance over the global economy was not an overnight phenomenon.

The economic transformation of Asia was spearheaded initially by Japan, and then subsequently by South Korea, Singapore, Indonesia, Thailand, Malaysia, China, and India. In the Gulf Cooperation Council (“GCC”) region, the discovery of oil and gas in the early 20th century gave rise to natural resource economies in the Middle East, namely, Saudi Arabia, the UAE, Qatar, Kuwait, Oman, Iraq, Iran and Bahrain. For the Central Asian states, the fall of the Berlin wall and the collapse of the Soviet Union in 1989-1991, led to the creation of resource rich economies in Azerbaijan, Kazakhstan, Turkmenistan and Uzbekistan.

This period of economic growth did not stop – Asia still experienced significant economic growth in the 21st century as well. For example, in the last two decades, new Asian economies have surfaced as global players, e.g., Philippines and Vietnam, with Vietnam listed currently as one of the best performing economies in Asia. Simultaneously, the already-established competitive economies in Asia, e.g., China, started to re-engage and build relations with the rest of Asia, Africa and Europe. China’s Belt-and-Road initiative is one such example – China used this initiate to build relations with the “developed Western world” by developing infrastructure projects, increasing trade and investment with its financial institutions, sharing human capital and management, and so on.

The transformative results of economic progress in Asia are set out below:

Largest Economies in Asia - 2020[iii]

Rank

Name

GDP (in USD)

1

China

$14.7 Trillion

2

Japan

$5.06 Trillion

3

India

$2.62 Trillion

4

South Korea

$1.631 Trillion

5

Indonesia

$1.058 Trillion

6

Saudi Arabia

$700 Billion

7

Taiwan

$668 Billion

8

Thailand

$502 Billion

9

United Arab Emirates

$421 Billion

10

Israel

$402 Billion

11

Philippines

$361 Billion

12

Hong Kong (PRC)

$347 Billion

13

Singapore

$340 Billion

14

Malaysia

$337 Billion

15

Bangladesh

$324 Billion

16

Vietnam

$271 Billion

17

Pakistan

$264 Billion

18

Iran

$192 Billion

19

Kazakhstan

$170 Billion

20

Iraq

$167 Billion

21

Qatar

$146 Billion

22

Kuwait

$136 Billion

23

Sri Lanka

$80.71 Billion

24

Oman

$76.19 Billion

In view of the above, it should come as no surprise that, at the start of 2020, the largest four Asian economies (China, Japan, India and South Korea) were ranked amongst the top 10 largest economies of the world, in terms of GDP:[iv]

Largest Economies of the World - 2020[v]

Rank

Name

GDP (in Trillions USD)

1

United States

$20.9

2

China

$14.7

3

Japan

$5.06

4

Germany

$3.86

5

United Kingdom

$2.70

6

India

$2.62

7

France

$2.60

8

Italy

$1.88

9

Canada

$1.64

10

South Korea

$1.63

To demonstrate the progress Asia has made in the last 30-40 years, the following countries were the largest economies of the world as of 1980:

Largest Economies of the World - 1980[vi]

Rank

Name

GDP (in USD)

1

United States

$2.8 Trillion

2

Japan

$1.12 Trillion

3

Germany

$853 Billion

4

France

$701 Billion

5

United Kingdom

$603 Billion

6

Italy

$482 Billion

7

China

$303 Billion

8

Canada

$276 Billion

9

Argentina

$233 Billion

10

Spain

$230 Billion

By comparing the two tables above, one can see that China, for example, progressed from a GDP of $303 billion in 1989, and ranked 6th amongst the largest economies of the world, to a GDP of $14.7 trillion and ranking 2nd behind the United States.

The above snapshot of the economic size and power of Asia in the 21st century can be described by looking at (a) Asia’s international trade with global superpowers, such as the United States; (b) increased use of technology, such as internet connectivity; (c) increased demand for venture capital and private equity investment; and (d) increased energy demand.

Asia and International Trade

One of the causes of the increase in the economic size and power of Asia in the 21st century is the increase of international trade between Asia and the rest of the world. Most of these countries are net exporters, meaning in aggregate they sell more goods to foreign countries through trade than it brings in from abroad. Countries that are net exporters usually take advantage of an abundance of natural resources, lower operational costs and weaker currencies. A net exporting country also typically experiences a current account surplus versus net importing countries. 

The table below demonstrates the scale and size of international trade of the leading Asian economies (China, Japan, India, South Korea, Indonesia, Thailand, Hong Kong (PRC), Singapore and Vietnam) and shows the dominant position of China as a world trading power both within and outside Asia. Further, the table illustrates enormous scale of intra-Asia trade. Below, you will see that this finding directly correlates with the growth of arbitration cases within arbitration centres of leading Asian economies and growth of arbitration institutions all across Asia.

 

Top 15 Trading Partners of the Leading Asian Economies – 2020
(Countries that imported the most from each of these economies in 2020)

Country

China[vii]

Japan[viii]

India[ix]

South Korea[x]

Indonesia[xi]

Thailand[xii]

Hong Kong (PRC)[xiii]

Singapore[xiv]  

Trading Partners

US: $452.6 billion (17.5% of China’s total exports)

China: US$141.6 billion (22.1% of total Japanese exports)

 

US: $49.3 billion (17.9% of India’s total exports)

China: US$132.6 billion (25.8% of total South Korean exports)

China: $31.8 billion (19.5% of Indonesian exports)

US: $34.1 billion (14.9% of total Thai exports)

China: $304.7 billion (55.2% of Hong Kong’s total exports)

China: $51.5 billion (13.8% of Singapore’s total exports)

Hong Kong: $272.7 billion (10.5%)

US: $118.8 billion (18.5%)

China: $19 billion (6.9%)

US: $74.4 billion (14.5%)_

US: $18.7 billion (6.6%)

China: $29.5 billion (12.9%)

US: $39.9 billion (7.2%)

Hong Kong: $46.2 billion (12.4%)

Japan: $142.6 billion (5.5%)

South Korea: $44.7 billion (7%)

 

UAE: 18 billion (6.5%)

Vietnam: $48.5 billion (9.5%)

Japan: $13.7 billion (8.4%)

Japan: $22.7 billion (9.9%)

UK: $18.2 billion (3.3%)

US: $40.2 billion (10.7%)

Vietnam: $113.8 billion (4.4%)

Taiwan: $44.4 billion (6.9%)

 

Hong Kong: $9.5 billion (3.5%)

Hong Kong: $30.7 billion (6%)

Singapore: $10.7 billion (6.6%)

Hong Kong: $11.2 billion (4.9%)

Switzerland: $15 billion (2.7%)

Malaysia: $33.3 billion (8.9%)

South Korea: $112.5 billion (4.3%)

Hong Kong: $32 billion (5%)

 

Singapore: $8.3 billion (3%)

Japan: $25.1 billion (4.9%)

India: $10.4 billion (6.4%)

Vietnam: $11.1 billion (4.8%)

Japan: $14.1 billion (2.6%)

Indonesia: $21.5 billion (5.7%)

Germany: $86.8 billion (3.4%)

Thailand: $25.5 billion (4%)

 

Bangladesh: $7.91 billion (2.9%)

Taiwan: $16.5 billion (3.2%)

Malaysia: $8.1 billion (5%)

Australia: $9.4 billion 4.2%)

India: $13.2 billion (2.4%)

Taiwan: $18.3 billion (4.9%)

Netherlands: $79 billion (3%)

Singapore: $17.7 billion (2.8%)

 

UK: $7.77 billion (2.8%)

India: $12 billion (2.3%)

South Korea: $6.5 billion (4%)

Singapore: $9.4 billion (4.1%)

Taiwan: $13.2 billion (2.4%)

Japan: $17.9 billion (4.8%)

United Kingdom: $72.6 billion (2.8%)

Germany: $17.6 billion (2.7%)

Germany: $7.7 billion (2.8%)

Singapore: $9.8 billion (1.9%)

Philippines: $5.9 billion (3.6%)

Malaysia: $8.7 billion (3.8%)

Vietnam: $11 billion (2%)

South Korea: $16.8 billion (4.5%)

India: $66.7 billion (2.6%)

Vietnam: $17.1 billion (2.7%)

Netherlands: $6.3 billion (2.3%)

Germany: $9.6 billion (1.9%)

Thailand: $5.1 billion (3.1%)

Indonesia: $7.54 billion (3.3%)

Singapore: $10.9 billion (2%)

Thailand: $14.1 billion (3.8%)

Taiwan: $60.1 billion (2.3%)

Malaysia: $12.6 billion (2%)

Malaysia: $6.2% (2.2%)

Malaysia: $9.1 billion (1.8%)

Vietnam: $4.9 billion (3%)

Switzerland: $7.53 billion (3.3%)

Netherlands: $8.3 billion (1.5%)

Vietnam: $12.5 billion (3.3%)

Singapore: $57.5 billion (2.2%)

Australia: $12.2 billion (1.9%)

Saudi Arabia: $6.2 billion (2.2%)

Mexico: $8.2% (1.6%)

Taiwan: $4.1 billion (2.5%)

Cambodia: $6 billion (2.6%)

Germany: $8.1 billion (1.5%)

Netherlands: $10.2 billion (2.7%)

Malaysia: $56.4 billion (2.2%)

Netherlands: $10.9 billion (1.7%)

Nepal: $5.9 billion (2.1%)

Philippines: $7.1 billion (1.4%)

Netherlands: $3.1 billion (1.9%)

India: $5.4 billion (2.4%)

Thailand: $8 billion (1.5%)

India: $9.2 billion (2.5%)

Australia: $53.5 billion (2.1%)

United Kingdom: $10.8 billion (1.7%)

Belgium: $4.57 billion (1.7%)

Russia: $6.9 billion (1.3%)

Australia: $2.51 billion (1.5%)

Philippines: $5 billion (2.2%)

UAE: $7.1 billion (1.3%)

Australia: $8.6 billion (2.3%)

Russia: $50.6 billion (2%)

Indonesia: $9.2 billion (1.4%)

South Korea: $4.52 billion (1.6%)

Thailand: $6.86 billion (1.3%)

Germany: $2.46 billion (1.5%)

Netherlands: $4.3 billion (1.9%)

South Korea: $7 billion (1.3%)

Philippines: $7.4 billion (2%)

Thailand: $50.5 billion (2%)

India: $9.1 billion (1.4%)

Vietnam: $4.5 billion (1.6%)

Indonesia: $6.32 billion (1.2%)

Switzerland: $2.4 billion (1.5%)

South Korea: $4.2 billion (1.8%)

Macao: $5.3 billion (1%)

Germany: $5.6 billion (1.5%)

As shown above, China remains the most important trading partner of the largest Asian economies. This illustrates that China remains the most important economic power in Asia and that there is a robust intra-Asia trade and at the same time it maintains strong trading links with the world. 

Second to China, is the United States. Given that is the largest economy in the world, the United States is the most important nation when it comes to international trade. The table below shows the top 14 trading partners of the United States in terms of exports and imports, which represents nearly 75% of its total global trade. As can be seen in this table, 6 of the 14 trading partners of the United States are Asian countries and they make up a combined 28.2% of the United States’ total global trade.

Top Trading Partners of the US - 2019[xv]

Rank

Name

Exports (in USD Billions)

Imports (in USD Billions)

Percentage of Total Trade

1

Mexico

256.4

358.1

14.8%

2

Canada

292.7

319.7

14.8%

3

China

106.6

452.2

13.5%

4

Japan

74.7

143.6

5.3%

5

Germany

60.3

127.5

4.5%

6

South Korea

56.9

77.5

3.2%

7

United Kingdom

69.2

63.2

3.2%

8

France

37.8

57.4

2.3%

9

India

34.4

57.7

2.2%

10

Taiwan

31.2

54.3

2.1%

11

Netherlands

51.2

29.8

2.0%

12

Italy

23.8

57.2

2.0%

13

Vietnam

10.9

66.7

1.9%

14

Brazil

43.1

30.9

1.8%

Technology and Innovation

The widespread use to technology has led to an explosion of business activity within Asia.

A significant factor in determining the level of Asia’s use of technology is looking at Asia’s use of internet connectivity over the last 20 years. In the last 20 years, the number of internet users have grown at an exponential pace, the majority of which has been experienced in Asia given its large share of the global population.

By way of an example, in 2000, only 23 million people were using the internet. By 2019, China only had approximately 829 million internet users. Similarly, India had merely 5 million Internet users in 2000 and in 2019, it had 560 million users of Internet.

The below table shows the sheer scale of growth of Internet users in the largest Asian countries (population wise) and there is still room to improve these numbers.

Number of Internet Users – Comparison between 2000 and 2019[xvi]

Country

2000 (in millions)

2019 (in millions)

China

23

829

India

5

560

Indonesia

2

143

Japan

47

119

This snapshot shows the growth of digital economy in the 4 large economies of Asia. The growth in the internet usage has lead to the following developments, which were provided in McKinsey & Co’s report titled, “How Asia can boost growth through technology leapfrogging”:

  • The number of internet users in Asia has grown rapidly in the last 20 years, and Asia is now home to half of the world’s total users of internet.[xvii]
  • “Between 2006–08 and 2016–18, Asia accounted for 52 percent of global growth in the revenue of technology companies. Based on market capitalization, four of the world’s top ten technology firms were Asian in 2020; ten years earlier, the region had no companies in the top ten.”[xviii]
  • “Asia’s growing e-commerce consumer market revenue [was] projected to reach $1.4 trillion in 2020, which is triple the market revenue in the United States.”[xix]
  • “Mobile e-commerce spending accounts for 74 percent of total spending on e-commerce in Asia, compared with 37 percent in Europe and 31 percent in North America.”[xx]
  • “App downloads have grown more in the region than in the rest of the world, reflecting Asia’s mobile-first approach to the internet, and its consumers are more likely to spend more time on those devices.”[xxi]
  • “The region accounted for 41 percent of all mobile app downloads in 2019.”[xxii]
  • “China has a rich ecosystem of start-ups, being home to 26 percent of the world’s unicorns, and has increased IP creation rapidly, but it continues to rely on imports of key specific technologies and, more broadly, of core IP.”[xxiii]
  • “Asia’s share of start-up investment, which includes venture capital investment and initial public offerings, increased from only 16 percent in 2006–08 to 40 percent in 2017–19, accounting for 43 percent of global growth.”[xxiv]
  • “Asia captured 87 percent of global growth in patent filings over the past decade; in the period from 2016 to 2018, China alone accounted for 45 percent of the world’s patents.”[xxv]

The above shows the sheer speed at which technology and technological innovation is transforming Asia and allowing it to compete with the world’s largest technology hubs globally.

Some Asian governments have been vital catalysts for the development of technology in recent years, steering its commercialization and execution. In China, for instance, the government’s stated aim is to develop a domestic AI industry worth nearly $150 billion by 2030. India has launched several programs that link technology and social development, such as the digital ID program, as a strategic tool for delivering government services, managing budgets, and increasing financial inclusion. Malaysia has formed digital free trade zones through which $65 billion of goods and services are expected to flow in the period to 2025.

Each of the Four Asias has strengths and challenges. Advanced Asia has strength and depth in technology companies but has far fewer unicorns than other major economies, and its economic growth is slowing. China has a rich ecosystem of start-ups, being home to 26 percent of the world’s unicorns, and has increased IP creation rapidly, but it continues to rely on imports of key specific technologies and, more broadly, of core IP.

Venture Capital and Private Equity Investment

The rise of venture capital and private equity investment in Asia has allowed for an efficient and transformative allocation of capital in industries and sectors across Asia.

The Venture Capital & Private Equity Country Attractiveness Index,[xxvi] provides the most attractive investment countries for venture capital and private equity investors. Below, the Venture Capital & Private Equity Country Attractiveness Index ranking for 2021 shows that private equity and venture capital industry is still finding its feet in Asia and that in the coming decade or so there will be more venture capital and private equity companies focusing on Asia. 

The Venture Capital & Private Equity Country Attractiveness Index Ranking 2021 – Top 15[xxvii]

 

Rank

Country

1

US

2

UK

3

Japan

4

Germany

5

Canada

6

Singapore

7

China

8

Australia

9

South Korea

10

France

11

Hong Kong

12

Netherlands

13

Sweden

14

Denmark

15

Switzerland

In the US, in the first half of 2021 alone, nearly $140 billion was invested in deals by venture capital funds.[xxviii]  Further, in 2019, “1,679 PE investment vehicles with a North American focus raised over $460 billion in capital commitments.”[xxix] Therefore, in comparison to the US, there is still room for growth in venture capital and private equity investments in Asia. This is illustrated clearly as follows:[xxx]

Amount of capital raised by Asia-focused private equity & capital vehicles closed since 2010

$667 Billion

Aggregate value of buyout and venture capital deals completed in Asia since 2010

$626 Billion

Assets under management of the Asia private equity & venture capital industry as at December 2017

$722 Billion

The increase in private equity and venture capital activity in Asia is further demonstrated by the number of unicorns[xxxi] in the Asia Pacific region as of April 2021.

Unicorns in the Asia Pacific Region as of April 2021 by Industry[xxxii]

Industry Sector

Numbers of Unicorn in Asia Pacific

Transportation & Logistics

35

Technology & Telecommunications

30

E-commerce

27

Finance and Insurance

25

Education & Science

15

Internet

11

Travel, tourism & hospitality

10

Health, Pharma & Medtech

9

Consumer goods & FMCG

9

Media

7

Services

4

Real Estate

4

Advertising & marketing

3

Construction

3

Sports & Recreation

3

Agriculture

2

Retail & Trade

1

Total

198

Energy Production and Consumption in Asia

Asian countries remain some of the largest producers and consumers of energy (oil and gas) in the world, which provides a resource of a significant amount of its trade with the rest of the world.

The 10 Largest Consumers of Oil in the World[xxxiii]

Rank

Country

Barrels per day (in millions)

Share of the world total

1

US

20.51

21%

2

China

13.89

14%

3

India

4.77

5%

4

Japan

3.79

4%

5

Russia

3.56

4%

6

Saudi Arabia

3.08

3%

7

Brazil

3.06

3%

8

South Korea

2.57

3%

9

Canada

2.53

3%

10

Germany

2.33

2%

However, in light of the climate change awareness, rise in pollution and healthcare related costs, Asian countries have gravitated towards cleaner energy alternatives, such as wind, solar, hydropower, biomass and geothermal. Asian countries are now actively investing in clean energy to create a more sustainable economic alternative to fossil fuels and reduce dependence on oil and gas imports. The table below provides the countries with most investment in clean energy alternatives:

Countries with Highest Clean Energy Investment in the World 2019[xxxiv]

Rank

Country

1

China ($83.4 Billion)

2

US ($55.5 Billion)

3

Japan ($16.5 Billion)

4

India ($9.3 Billion)

5

Brazil ($6.5 Billion)

6

Australia ($5.6 Billion)

7

Netherlands ($5.5 Billion)

8

UK ($5.3 Billion)

9

Chile ($4.9 Billion)

10

UAE ($4.5 Billion)

The table above shows that there is room for more Asian economies to invest in clean energy. Based on our international experience in Western and Eastern Europe, these Asian governments will need to incentivise investors to invest their capital in clean energy projects but must do so carefully in order to avoid breaching its international treaty obligations with investors investing in fossil fuel production from foreign countries.

The explanation of the causes of Asia’s economic growth above only provides a limited snapshot of the situation in Asia; it is not meant to be an exhaustive analysis of all Asian markets or the effects of all business sectors (especially in light of the impact of COVID-19). If one reviews data on global defence spending, telecommunication usage and spending, investment and growth in the use of low cost carriers in the aviation industry and the ever increasing scale of FMCG sector, it is most likely that Asian countries and companies will further dominate these statistics.

Correlation between the Rise in Economic Activity and International Arbitration

The rise of international arbitration cases at the largest international arbitration centres (for example, SIAC, HKIAC and KCAB, see more on this below) in the last 5 years correlates with the economic growth in Asia, fuelled by the movement of private equity and venture capital funds to Asia, rapid rise in the use of the Internet usage across Asia, rise in the consumer related e-commerce companies, rise in logistics companies, increase demand for infrastructure and energy related projects, development of technologies, AI and IP related rights, rise of manufacturing goods industry and so on.

Based on our experience, our Asia focused international arbitration practice has provided us with a ring side view of this Asian renaissance and enabled us to assist a variety of investors and companies across Asia. Our experience has also confirmed our argument that there is a positive correlation between the rise of economic growth and the rise of arbitration cases and centres all across Asia. By way of example, in the last 5 years, we have acted on the following disputes which demonstrate this point:

  • Represented a leading Italian fashion/apparel company in HKIAC arbitration proceedings arising out of a M&A transaction, a pledge agreement and a licence agreement (HKIAC Rules, Seat: Hong Kong)
  • Represented 3 large Chinese SOEs in an HKIAC arbitration, defending claims for over USD 43 million brought by a multinational company in an e-commerce related dispute (HKIAC Rules, Seat: Hong Kong)
  • Represented a leading Indian technology company in an SIAC arbitration pursuing a debt claim and defending claims relating to the quality of its deliverables against a Chinese-owned shipping company (SIAC Rules, Seat: Singapore)
  • Represented a leading Scandinavian energy services company in an SIAC arbitration against a Thai energy company in respect of unpaid invoices (debt) and quality of services (SIAC Rules, Seat: Singapore)
  • Advised a UAE commodities trading house in a SIAC arbitration against a Chinese supplier for the recovery of a USD 10 million debt (SIAC Rules, Seat: Singapore)
  • Represented a leading European technology company in a DIFC-LCIA arbitration against a Saudi based technology investor (shareholder dispute, DIFC-LCIA Rules, Seat: Dubai)
  • Represented a private equity company in a post M&A exit dispute arising out of a sale of a medium sized industrial manufacturer of essential medical products (UNCITRAL Rules, Seat: Hong Kong)
  • Advised a UAE-based commodities trader concerning the recognition and enforcement of a DIFC-LCIA arbitration award in China (DIFC-LCIA Rules, Seat: DIFC)
  • Representing a UAE-based contractor in a dispute with a UAE-based employer in a dispute concerning construction of a new hotel (DIAC Rules, Seat: Dubai)
  • Represented a Turkish garments manufacturing group in a Singapore seated arbitration concerning €50 million acquisition dispute with a Hong Kong based global consumer products trading company regarding the sale and purchase of a Turkish apparel manufacturing company

The reason that international arbitration has emerged as a dominant mechanism to deal with cross border disputes in Asia is due to the users’ positive experience with being able to design their arbitration agreements in a manner that allows them to have legal certainty and commercial comfort as they invest in new regions, countries or geo-political climate. This predictability and comfort is primarily achieved as follows:

  1. It is common to include a neutral governing law (for example, parties tend to use English law due to its vast commercial jurisprudence which makes it an ideal choice for parties) in the underlying contracts which provide greater certainty to the terms agreed by the parties and the interpretation to be used when analysing them.
  2. It is common to include a neutral seat (juridical place) of the arbitration in a leading or an emerging disputes hub in Asia or any country as the parties’ deem fit. Typically, parties choose an arbitration-friendly jurisdiction, which broadly means that the jurisdiction has sophisticated national courts that are known to observe the rule of law and to assist the arbitration process, if necessary.
  3. It is also common to choose the applicable rules of procedure, which often belong to an arbitration institution (for example, the CIETAC, SIAC, HKIAC, KCAB, JCAA and the VIAC) known to be fair, impartial and neutral to all the parties involved.
  4. The parties can choose the number of arbitrators that will make up their arbitral tribunal and, in some instances, agree on one or more of the individuals that will decide their dispute.
  5. As opposed to litigation in domestic courts, international arbitration is private and confidential. Third parties or non-parties have no rights to access the documents and/or attend any hearings.
  6. An arbitral award rendered by an arbitral tribunal chosen by the parties is enforceable in any New York Convention signatory state (which as of this article totals 168 states), which means once an arbitration award is rendered it is considered final, not subject to appeal on the merits[xxxv] and an enforceable final judgment in any of the signatory states.

With these characteristics, many multinational companies gain comfort in expanding their business networks to jurisdictions all over the globe, with the certainty that they can submit themselves to an identical dispute resolution mechanism regardless of where the dispute arises. Thus, by design, the international arbitration mechanism has protected foreign investments in growth markets of Asia and given foreign investors and companies’ ability to take risks in these markets. Collectively, this enabled massive inflow of foreign direct investment in Asia (both from within Asia and outside Asia) and has resulted in economic renaissance all over Asia.

Rise of International Arbitration in Asia

As will be explained below, the increased prevalence of arbitration in Asia is not merely anecdotal. By number of arbitration filings, in Asia, the following arbitration centres have reported significant growth in arbitration matters and is illustrated as follows:

Arbitration Institution

Cases Filed

The China International Economic and Trade Arbitration Commission (CIETAC)

In 2014: 1,610 arbitration cases were filed with CIETAC[xxxvi]

In 2020: 3,615 arbitration cases were filed with CIETAC[xxxvii]

Singapore International Arbitration Centre (SIAC)

In 2014: 222 arbitration cases were filed with SIAC[xxxviii]

In 2020: 1,080 arbitration cases were filed with SIAC[xxxix]

Hong Kong International Arbitration Centre (HKIAC)

In 2014: 252 arbitration cases were filed with HKIAC[xl]

In 2020: 318 arbitration cases were filed with HKIAC[xli]

The Korea Commercial Arbitration Board (KCAB)

In 2014: 382 arbitration cases were filed with KCAB[xlii]

In 2019: 443 arbitration cases were filed with KCAB[xliii]

The Vietnam International Arbitration Centre (VIAC)

In 2014: 124 arbitration cases were filed with VIAC[xliv]

In 2019: 274 arbitration cases were filed with VIAC

Each of the above named arbitration institutions are ably supported by arbitration-friendly national courts who have developed arbitration-related jurisprudence in support of international arbitration practice and recognition and enforcement of arbitral awards.

In addition to CIETAC, SIAC, HKIAC, KCAB, and VIAC, almost every country in Asia is now supporting the practice of international arbitration. In addition to the above, some of the other leading arbitration centres in Asia include:

  • the Japan Commercial Arbitration Association
  • the Thai Arbitration Institute
  • the Thai Arbitration Centre
  • Asian International Arbitration Centre (Malaysia)
  • the Regional Center for Arbitration at Kuala Lumpur
  • the Indonesian National Board of Arbitration (Badan Arbitrase Nasional Indonesia) (BANI)
  • the Philippine Dispute Resolution Centre
  • the Shanghai International Economic and Trade Arbitration Commission/Shanghai International Arbitration Center (SHIAC)
  • the South China International Economic and Trade Arbitration Commission/Shenzhen Court of International Arbitration (SCIA)
  • the Beijing Arbitration Commission/Beijing International Arbitration Center (BIAC)
  • the China Maritime Arbitration Commission (CMAC)
  • the Shanghai Arbitration Commission (SHAC)
  • the Guangzhou Arbitration Commission.
  • the Dubai International Arbitration Centre
  • the Mumbai Centre for International Arbitration (MCIA)
  • the Saudi Center for Commercial Arbitration

Future of International Arbitration in Asia    

 In the next twenty years, there is no doubt that Asia, and the leading Asian economies led by China, will have greater economic and geo-political power to shape the future of global trade and commerce.

Based on our experience of practising international arbitration in Asia, we would like to finally submit that international arbitration is here to stay in Asia and in time Asian international arbitration institutions will emerge as the leading arbitration centres of the world.

 

[i] https://www.boj.or.jp/en/announcements/press/koen_2015/data/ko150424a1.pdf. For the purposes of this article, we are taking a broad view of Asia, which covers the following geographical areas: South Asia; East Asia / Asia-Pacific; Middle East; and the Central Asia.
[ii] McKinsey & Co, Asia’s Future is now, 14 July 2019 (https://www.mckinsey.com/featured-insights/asia-pacific/asias-future-is-now)
[iii] https://tradingeconomics.com/country-list/gdp?continent=asia
[iv] Gross domestic product (GDP) is the standard measure of the value added created through the production of goods and services in a country during a certain period.
[v] https://tradingeconomics.com/country-list/gdp
[vi] https://countryeconomy.com/gdp?year=1980
[vii] https://www.worldstopexports.com/chinas-top-import-partners/
[viii] https://www.worldstopexports.com/japans-top-import-partners/
[ix] https://www.worldstopexports.com/indias-top-import-partners/
[x] https://www.worldstopexports.com/south-koreas-top-import-partners/
[xi] https://www.worldstopexports.com/indonesias-top-15-import-partners/
[xii] https://www.worldstopexports.com/thailands-top-import-partners/
[xiii] https://www.worldstopexports.com/hong-kongs-top-import-partners/
[xiv] https://www.worldstopexports.com/singapores-top-import-partners/
[xv] https://www.census.gov/foreign-trade/statistics/highlights/top/top1912yr.html
[xvi] McKinsey & Co, Asia’s Future is now, 14 July 2019 (https://www.mckinsey.com/featured-insights/asia-pacific/asias-future-is-now)
[xvii] https://www.mckinsey.com/featured-insights/asia-pacific/how-asia-can-boost-growth-through-technological-leapfrogging
[xviii] https://www.mckinsey.com/featured-insights/asia-pacific/how-asia-can-boost-growth-through-technological-leapfrogging
[xix] https://www.mckinsey.com/featured-insights/asia-pacific/how-asia-can-boost-growth-through-technological-leapfrogging
[xx] https://www.mckinsey.com/featured-insights/asia-pacific/how-asia-can-boost-growth-through-technological-leapfrogging
[xxi] https://www.mckinsey.com/featured-insights/asia-pacific/how-asia-can-boost-growth-through-technological-leapfrogging
[xxii] https://www.mckinsey.com/featured-insights/asia-pacific/how-asia-can-boost-growth-through-technological-leapfrogging
[xxiii] https://www.mckinsey.com/featured-insights/asia-pacific/how-asia-can-boost-growth-through-technological-leapfrogging
[xxiv] https://www.mckinsey.com/featured-insights/asia-pacific/how-asia-can-boost-growth-through-technological-leapfrogging
[xxv] https://www.mckinsey.com/featured-insights/asia-pacific/how-asia-can-boost-growth-through-technological-leapfrogging
[xxvi] https://www.boj.or.jp/en/announcements/press/koen_2015/data/ko150424a1.pdf
[xxvii] https://blog.iese.edu/vcpeindex/ranking/
[xxviii] https://qz.com/2034727/venture-capital-deals-in-the-us-will-set-a-record-in-2021/
[xxix] https://uk.practicallaw.thomsonreuters.com/1-500-5474?transitionType=Default&contextData=(sc.Default)&firstPage=true
[xxx] Preqin Special Report: Asian Private Equity & Venture Capital – September 2018 (https://docs.preqin.com/reports/Preqin-Special-Report-Asian-Private-Equity-September-2018.pdf)
[xxxi] A unicorn is a privately-owned start-up that has a current valuation of at least $1 billion.
[xxxii] https://www.eia.gov/tools/faqs/faq.php?id=709&t=6
[xxxiii] https://www.eia.gov/tools/faqs/faq.php?id=709&t=6
[xxxiv] https://www.statista.com/statistics/799098/global-clean-energy-investment-by-country/
[xxxv] An arbitral award can only be set aside on narrow, procedural grounds.
[xxxvi] http://www.cietac.org/index.php?m=Page&a=index&id=40&l=en
[xxxvii] http://www.cietac.org/index.php?m=Page&a=index&id=40&l=en
[xxxviii] https://www.siac.org.sg/
[xxxix] https://www.siac.org.sg/
[xl] https://www.hkiac.org/about-us/statistics
[xli] https://www.hkiac.org/about-us/statistics
[xlii] 2019 KCAB Annual Report, KCAB INTERNATIONAL 11 (May 8, 2020), https://globalarbitrationnews.com/wp-content/uploads/2020/07/2019-KCAB-ANNUAL-REPORT_FINAL.pdf
[xliii] 2019 KCAB Annual Report, KCAB INTERNATIONAL 11 (May 8, 2020), https://globalarbitrationnews.com/wp-content/uploads/2020/07/2019-KCAB-ANNUAL-REPORT_FINAL.pdf
[xliv] https://www.viac.vn/en/statistics/2019-statistics-s30.html#:~:text=As%20the%20leading%20arbitral%20institution,thousand%20billion%20VND%20in%20dispute.

 

 

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Salah Matoo
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International Arbitration and Public International Law
MB Kemp
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Marco Pocci

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MB Kemp
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Brian Kotick

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