... a bit of a break from investment and trade law, but there is a mention of Fyodor Dostoyevsky. Happy weekend!

1. Sponsored by
Hong Kong International Arbitration Centre Chartered Institute of Arbitrators (East Asia Branch)
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Asian
Review
Dispute
Since 1999 July 2018
AsianDisputeReview JULY2018pp.101-150

2. Contents
103 Editorial
ARBITRATION
104 Arbitrating Business and Human Rights Disputes:
Viable for Victims?
Antony Crockett & Marco de Sousa
112 Entry Restricted Casually: The Supreme Court of India’s
Judgment on the Entry of Foreign Lawyers in India
Bhavana Sunder, Kshama A Loya & Vyapak Desai
In-house Counsel focus
119 Can or Should Parties be Able to Waive
the Right to Set Aside an Arbitral Award?
Olga Boltenko
Mediation
125 Dispute Resolution Under the Belt and Road Initiative:
Constructing an Effective Mediation Regime in the
Guangdong-Hong Kong-Macau Bay Area
Peter CH Chan
Jurisdiction Focus
131 Australia Country Update
Albert Monichino QC & Luke R Nottage
book review
141 Court Mediation Reform
Reviewed by Robert Morgan
143 International Investment Treaties and Arbitration Across Asia
Reviewed by Rahul Donde
145 News
July 2018
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Asian
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pp.101-150
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Romesh Weeramantry
Robert Morgan
John Choong
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Consulting and Technical Editor
Editorial Advisory Board
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Julian Lew QC
Michael Moser
Yoshimi Ohara
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3. editorial
contributors
General Editors
Dr Peter CH Chan
City University of Hong Kong
Hong Kong
Albert Monichino QC
Chartered Arbitrator
Australia
Professor Luke R Nottage
University of Sydney
Australia
Olga Boltenko
University of Hong Kong
Hong Kong
Rahul Donde
Lévy Kaufmann-Kohler
Geneva
Kshama A Loya
Nishith Desai Associates
India
103[2018] Asian Dispute Review
Bhavana Sunder
Nishith Desai Associates
India
Marco de Sousa
Herbert Smith Freehills LLP
London
Vyapak Desai
Nishith Desai Associates
India
Antony Crockett
Herbert Smith Freehills LLP
Hong Kong
Robert Morgan
Consulting and Technical Editor, Asian Dispute Review
Barrister (England & Wales, Queensland)
This issue of Asian Dispute Review commences with an article by Anthony Crockett and Marco de Sousa which
discusses whether arbitration can be used as a mechanism for resolving disputes arising out of business-related
human rights abuses. This is followed by an article by Bhavana Sunder, Kshama A Loya and Vyapak Desai which
discusses the effects of a recent judgment of the Supreme Court of India with regard to the entry of foreign lawyers
to practise in India.
The ‘In-house Counsel Focus’ article by Olga Boltenko ventures into a controversial area and asks whether parties
can or should be able to waive the right to set aside an arbitral award. This is followed by an article on dispute
resolution under the Belt and Road Initiative by Peter CH Chan, with a spotlight on mediation.
The ‘Jurisdiction Focus’ article by Albert Monichino QC and Luke Nottage explores the legal infrastructure, recent
legislative developments and several other pertinent topics regarding arbitration in Australia.
The issue concludes with two book reviews. The first is Court Mediation Reform, reviewed by Robert Morgan. The
second is International Investment Treaties and Arbitration Across Asia, reviewed by Rahul Donde.
We regret that James Chan and Harry Edwards ceased to serve as Editorial
Assistants after the April 2018 issue. We thank them for their support and wish them
well in their careers. We would like to take this opportunity to welcome our new
Editorial Assistants. Filip Nordlund and Jonathan Mackojc.

4. in-house counsel focus
119[2018] Asian Dispute Review
Can or Should Parties be Able to Waive the
Right to Set Aside an Arbitral Award?
Olga Boltenko
This article discusses the generally accepted power of the courts of the seat of the
arbitration to review and set aside arbitral awards. It raises the question whether a right to
waive review and set aside should be conferred on parties and considers the approaches
of a number of jurisdictions to this question.
“Is harmony worth the tears of one tortured child?”
(Fyodor Dostoyevsky, The Brothers Karamazov)
Setting the scene: the courts’ undeniable powers
The power to set aside an award is a nuclear weapon of
arbitration-related litigation. In deploying that power, the
courts may annul an arbitral award, thus treating it as though
it had never existed and laying to waste years of arbitral
proceedings and substantial amounts in legal fees.This power
has been recognised by the New York Convention for the
purpose of denial of enforcement of an award by a foreign
court,1
endorsed by the UNCITRAL Model Law2
(the Model
Law) for the purpose of review and set aside of an award by a
court of the seat of arbitration, and widely adopted in the laws
of most arbitration-friendly jurisdictions around the world.3
A generous body of case law from jurisdictions both far and
near has emerged in support of the courts’power to set aside
awards. In Hong Kong, the Court of Appeal has consistently
recognised this power over an award.4
In Singapore, both
domestic and international awards may be set aside by the
courts of the seat.5

5. In-house counsel focus
120
The power to set aside
an award is a nuclear weapon
of arbitration-related litigation.
In deploying that power, the
courts may annul an arbitral
award, thus treating it as
though it had never existed and
laying to waste years of arbitral
proceedings and substantial
amounts in legal fees.
A philosophical dilemma: the power to set aside v the
power to enforce
The power of a court of the seat to set aside an award is as
undeniable as the power of a foreign court to enforce one.
Without these two fundamental powers, the system of
international arbitration would not function.
The right to enforce an award cannot be contracted away. To
contract out of the right to enforce would make arbitration an
exercise in futility. Indeed, why arbitrate if, when all is said and
done, all that results is a well-reasoned essay which no court
would turn into an enforceable order? It follows that no sane
party would contractually waive its right to enforce an award.
Yet, the arbitration community has for a long time debated
issues arising out of the parties’ right to contract away their
right to set aside an award. In that debate, there seems to
have been a fundamental imbalance between the two pillars
of arbitration – the right to enforce an award and the right to
set it aside.
Mischievous award debtors and the abuse of set aside
proceedings
Through the medium of set aside proceedings, mischievous
award debtors can challenge awards made against them with
a view to delaying enforcement, frequently in an attempt to
reach a settlement arrangement that would be lower than
the amount awarded. They threaten award creditors with
protracted set aside litigation at the courts of the seat. This
threat has proved to be effective in a great number of cases.
Arbitration-conscious jurisdictions around the world have
tried to minimise the risks of abuse of set aside litigation. In
2016, for example, the Hong Kong courts declared that,6
that,
absent special circumstances, they should order the costs of an
unsuccessful challenge to an arbitration agreement to be borne
on an indemnity basis.7
Mimmie Chan J stated that there was
no reason for the court’s approach to differentiate between
the enforcement of an arbitral award and the recognition and
enforcement of an arbitration agreement.8
In Singapore, the judiciary has not addressed unequivocally
the issue of whether unsuccessful set aside applications
warrant special costs considerations.9
However, indemnity
costs would be awarded in Singapore if a party institutes court
proceedings in breach of an arbitration agreement.10
With that concern in mind, parties to arbitral proceedings
have devised a mechanism through which they may attempt
to minimise the risks of protracted set aside litigation. More
and more frequently, cost-conscious parties include in their
arbitration agreements a provision aimed at restricting either
party from challenging the award at the courts of the seat.
The origins of the waiver of the right to set aside an
award
Waiving the right to set aside an arbitral award is therefore
arguably a right that rests predominantly on the parties’
freedom to contract. If they are free to choose arbitration
over litigation in their contracts, parties should be free to do
away with any further interaction with courts, including by
challenging the award in an attempt to set it aside.
As such, a waiver of the right to file a set aside application is a
matter of contract law that governs the underlying arbitration
agreement. Most jurisdictions do not tolerate deviating from
the parties’ freedom to contract, and recognise contractual

6. in-house counsel focus
121[2018] Asian Dispute Review
waivers as valid, with rare exceptions. In Greece, for example,
a waiver of civil rights, including a waiver of the right to have
recourse to courts, is invalid.11
In 2012, the Federal Commercial Court of the Moscow
Circuit declined to entertain a set aside application where the
arbitration clause provided that the arbitral award shall be
final and binding, thus excluding any recourse against it. The
court held that where the parties have agreed to waive their
rights to challenge an award, the only available remedy would
be to resist enforcement.12
Through the medium
of set aside proceedings,
mischievous award debtors
can challenge awards made
against them with a view
to delaying enforcement,
frequently in an attempt
to reach a settlement
arrangement that would
be lower than the amount
awarded. They threaten award
creditors with protracted set
aside litigation at the courts of
the seat.
In October 2017, the Swiss Supreme Court held that the
parties’contractual waiver of rights to set aside an award was
valid, and dismissed the award debtor’s application to set aside
an award rendered under the UNCITRAL Arbitration Rules
under the auspices of the Permanent Court of Arbitration.13
A waiver of the right to set aside an award may be implicit from
the parties’ conduct. A party may be deemed to have waived
the right to challenge an award by participating in the arbitral
proceedings without voicing an objection, despite knowing of
potential grounds for a challenge.14
Whether such an implicit
waiver has been made is also a matter of the contract law that
governs the arrangement. Implicit waivers deriving from the
parties’ conduct are valid in most common law jurisdictions.
In a recent Hong Kong judgment,15
for example, the Court of
First Instance affirmed that a party must raise an objection
without undue delay and that failure to do so would be
deemed a waiver of its right to object and, consequently, to set
aside an award.16
Should the parties be allowed to waive their right to
set aside awards?
Whether a waiver is expressly part of the arbitration agreement,
or whether it is implicit in the parties’conduct, the chances that
such a waiver can be validly made depend on the governing
law of the agreement.Whether valid or not, such a waiver may
seriously obstruct set aside and enforcement proceedings.
A more fundamental question than whether a waiver can be
made in the first place is whether, as a matter of international
arbitration policy, it should be permissible at all. Again, that
the parties cannot waive their right to bring an arbitral award
for enforcement is not called into question. By the same token,
should parties not be precluded from waiving their right to set
aside an award in a similar manner?
Many would argue that the right to set aside an award is
designed to secure a minimum standard of objectivity, fairness
and justice in arbitral proceedings, and is therefore a right that
is fundamental to the system of arbitration.With that standard
in mind, it is universally accepted that the courts of the seat
may set aside awards only on very limited procedural grounds.
This limited avenue for setting aside is intended to safeguard
the integrity of the arbitral process and to minimise the costs
and risks associated with set aside litigation.
Indeed, one of the main principles of international arbitration
law is that no judge is allowed to sit as an appellate instance
over an arbitral tribunal. Some jurisdictions, however, do not

7. In-house counsel focus
122
adhere to this principle,17
and allow parties a second go at
relitigating their dispute through a de novo review.
Whether a waiver is
expressly part of the arbitration
agreement, or whether it is
implicit in the parties’ conduct,
the chances that such a waiver
can be validly made depend
on the governing law of the
agreement.
Is winter coming?
The various differences and inconsistencies in arbitration
legislation, case law and approaches of the courts worldwide
make arbitration less predictable than one would have
hoped. When drafting their arbitration clauses, parties can
never be certain that any award they may obtain after years
of proceedings will put a stop to the costs of arbitration and
litigation. Indeed, after all, what advantage does arbitration
have over litigation if, having obtained a favourable arbitral
award after protracted proceedings, award creditors possibly
face years of set aside litigation? Would it not be more cost-
and time-efficient to litigate the dispute at the outset?
The risks of potential set aside litigation have brought
arbitration into disrepute with many international businesses,
which have started to move away from arbitration in favour
of litigation in domestic courts. This trend is said to have
threatened the survival of arbitration as a dispute resolution
mechanism. In a seminal lecture at Queen Mary University of
London (QMUL) in November 2017, Gary B Born warned that
“winter is coming”for commercial arbitration in light of these
concerns.18
A sensible way to remedy the uncertainty and therefore to
prevent the ‘winter’ from dawning upon arbitration may
arguably be to exclude, both at the international and the
domestic level, the parties’ right to set aside an award. The
Singapore Ministry of Law, in a call for public consultations on
amendments to the Singapore International Arbitration Act
(Cap 143A) in 2011,19
considered including specific language in
the Singapore legislation that would allow parties to contract
away their right to file set aside applications:
“MinLaw is considering whether the IAA should be
amended to allow parties, by agreement, to waive their
right to set aside arbitration awards, thereby precluding
any appeal to the courts. Such waiver has been introduced
in Article 1522 of the new French Arbitration Act [2011],
which provides that “parties may, at any time, expressly
waive their right to bring an action to set aside”.20
This
provision was enacted to bring finality to disputes
between parties by preventing any action to set aside.
“Although such an agreement not to set aside would bring
finality, such a provision might be used to shut the door on
appeals in meritorious cases. This is of particular concern
where such a clause is used in cases where there is an
inequality of bargaining power, such as in standard form
agreements involving consumers or less commercially
savvy parties.”
The concern for the weakest parties that the Singapore
Ministry of Law had at the time remains a valid concern when
considering whether to allow disputing parties to waive their
rights to set aside an award, in an attempt to bring finality
to arbitral proceedings and to save arbitration as a dispute
resolution mechanism.
Express waivers raise conflicting questions of principle. If
waivers are included in arbitration agreements, chances are
that weaker parties may lose an opportunity to challenge
awards that are manifestly unfair. On the other hand, allowing
disputing parties to waive their right to set aside an award as
a matter of statute may bring greater certainty to the arbitral
process, save time and costs, and therefore remedy the vices

8. in-house counsel focus
123[2018] Asian Dispute Review
that have been seen to undermine the entire system of
arbitration.
Would the survival of arbitration as a dispute resolution
mechanism of itself justify an occasional disadvantage to
weaker parties? Powerful commercial parties tend to have
access to substantial resources in running their arbitration
cases, while weaker parties not only have no bargaining power
to reject waiver provisions in arbitration agreements but also
frequently do not have the resources to fund their arbitration
proceedings.
Express waivers raise
conflicting questions of
principle. If waivers are
included in arbitration
agreements, chances are
that weaker parties may lose
an opportunity to challenge
awards that are manifestly
unfair. On the other hand,
allowing disputing parties
to waive their right to set
aside an award as a matter
of statute may bring greater
certainty to the arbitral
process, save time and costs,
and therefore remedy the
vices that have been seen to
undermine the entire system
of arbitration.
Depriving weaker parties of their right to set aside an award
has the potential to turn such parties away from arbitration
in favour of litigation. If this were to happen, the number of
arbitration users worldwide would reduce significantly. That,
indeed, would mark the commencement of the winter of
arbitration’s golden age.
The Singapore Ministry of Law had the foresight to have that
concern in mind in 2011 when calling for public comments
on the waiver amendments to Singapore’s International
Arbitration Act. In the event, a general right to waive the
right to set aside awards was not incorporated in the 2016
amendments to the Singapore legislation. One cannot build a
brighter future for the arbitral process on the basis of injustice
and abuse of the weak. Should parties wish to waive their
right to set aside an award, they need to ascertain whether
such a waiver can validly be made under the governing law
of the arbitration agreement. The supervising courts of the
seat would decide whether a waiver that forms part of the
arbitration agreement is valid and whether, as a consequence,
they should entertain a set aside application. Once again,
however, it is a question of principle whether (i) parties should
be given freedom to decide whether a waiver of the right to
set aside an award is what they intend for their relationship,
assuming that this is permissible under the applicable law, and
(ii) there should be no universal bar on set aside waivers as a
matter of international arbitration policy.
Conclusion
Whilst having a statutory waiver to set aside an award may
bring greater certainty and finality to arbitration, it may also
put weaker parties at a significant disadvantage. Dostoyevsky,
through a character named Ivan in The Brothers Karamazov
(1879-1880), put a slightly more dramatic spin on the eternal
question,“is harmony worth the tears of one tortured child?”
It never is. adr
1 Article V of the New York Convention provides that recognition and
enforcement of an award may be refused if (inter alia) the award
has not yet become binding on the parties, or has been set aside or
superseded by a competent authority of the country in which, or under
the law of which, that award was made.
2 Article 34 of the latest (2006) iteration of the Model Law provides that
an arbitral award may be set aside by a court of the seat under certain
limited circumstances. Editorial note: This is a mandatory provision of
the Model Law, meaning that parties cannot contract out of it.
3 Legislation based on the Model Law has been adopted in 78 States
in a total of 109 jurisdictions. See, http://www.uncitral.org/uncitral/
en/uncitral_texts/arbitration/1985Model_arbitration_status.html (last
accessed 16 March 2018).

9. In-house counsel focus
124
4 Tronic International Pte Ltd v Topco Scientific Co Ltd and Others [2017]
4 HKC 481 (Court of Appeal, Hong Kong). Editorial note: See also s
81 of the Arbitration Ordinance (Cap 609), which applies art 34 of the
Model Law.
5 See s 48 of the Singapore Arbitration Act (Cap 143A). See also s 24 of
that Act.
6 Chimbusco International Petroleum (Singapore) Ltd v Fully Best
Trading Ltd [2015] 1 HKLRD 562 (Mimmie Chan J).
7 See further Jonathan Gray, Indemnity costs for Unsuccessful
Challenge to an arbitration agreement, Hong Kong Lawyer (January
2016), available at http://www.hk-lawyer.org/content/indemnity-costs-
unsuccessful-challenge-arbitration-agreement (last accessed 19
March 2018).
8 Editorial note: At [14].
9 See, for example, Shaun Lee, Setting Aside Arbitral Awards in
Singapore: A Problem in the Standard of Review? (Singapore
International Arbitration Blog, 21 October 2013), available at https://
singaporeinternationalarbitration.com/2013/10/21/setting-aside-
arbitral-awards-in-singapore-a-problem-in-the-standard-of-review/
(last accessed 19 March 2018).
10 Tjong Very Sumito and others v Antig Investments Pte Ltd [2009] 4
SLR(R) 732.
11 See Athens Court of Appeal judgment 4354/2008; see also Supreme
Court judgment 1308/2010. Despite this unequivocal provision of the
Greek Constitution, in an interesting judgment of 11 February 2011,
the Greek Supreme Court held that if the waiver is approved by the
parliament or has otherwise acquired the force of law, it may be
deemed valid. In Greece, therefore, waivers to the setting aside of an
award are typically included in state contracts and concessions.
12 See LLC Vega Engineering v CJSC Kompaniya Transtelecom.
13 Decision 4A_53/2017.
14 See s 34, para 2 of the Swedish Arbitration Act.
15 Arjowiggins HKK2 Ltd v X Co [2016] HKEC 2472.
16 See further Thomas Walsh & Lei Shi, Set Aside Application
Shredded: Hong Kong Court Refuses Set Aside Application in Joint
Venture Dispute, available at http://arbitrationblog.kluwerarbitration.
com/2016/12/10/set-aside-application-shredded-hong-kong-court-
refuses-set-aside-application-in-joint-venture-dispute/ (last accessed
19 March 2018).
17 In Singapore, the judiciary at times exercises de novo review powers
over arbitral awards. In PT First Media TBK v Astro Nusantara
International BV [2014] 1 SLR 372, for example, the Singapore Court
of Appeal stated that the courts would apply a de novo standard of
review when reviewing an arbitral award on the ground of lack of
jurisdiction.
18 QMUL CIDR (Comparative and International Dispute Resolution
specialism), Winter is coming … (17 November 2017, as yet
unpublished).
19 Editorial note: See Review of the International Arbitration Act: Proposals
for Public Consultation (October 2011), available at https://www.mlaw.
gov.sg/content/dam/minlaw/corp/assets/documents/linkclickf651.pdf.
20 Editorial note: It should be noted that France, unlike Singapore, is not
a Model Law jurisdiction. Cf note 2 above.
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