Ever wondered what does it takes to be an international arbitration practitioner in one of the oldest law firms in Singapore?
Asia Law Network had the privilege of interviewing Mr Arvin Lee, Partner and Arbitrator at Wee Swee Teow LLP, to get a firsthand understanding of the intricacies within international arbitration.
Arvin takes a problem-solving approach to client issues. In seeking to understand their commercial objectives, Arvin positions his dispute resolution strategy accordingly. He has carved a track record of winning under the pressure of time and against significantly better-resourced opposing parties.
Thank you for giving us the opportunity to interview you, Arvin! Could you share with our readers what inspired you to become a lawyer and why did you choose to specialise in arbitration?
What started this interest would be my love for languages when I was a kid. Then, when I did military service at 19, I drafted a letter for one of my superiors, who did not have a good command of English, seeking a refund for some bad service he and his family received at an attraction site. The letter I drafted got him not only a refund, but also a generous gift voucher. I knew that my facility with languages could be put to good use. I can also work in Chinese at a native level – one of the better things that came about from an upbringing by a “Tiger Mum”, who is also a Chinese language teacher, and a father who did most of his business in his later years in China – which is helpful for my Mainland Chinese and Taiwan disputes work.
I have to be honest and say that the language facility was, in my youthful naïveté, the most important thing that I thought necessary to do well as a lawyer. I was very fortunate that my interest in business grew in my 20s as I often followed my father on his business trips. An interest in business is a prerequisite to enjoying work as a commercial lawyer, whether on the front-end transactional side or the disputes side. Otherwise, you just cannot “grok it”, as the late Steve Jobs would say.
Arbitration is also one of the few areas that require a combination of commercial thinking with scholastic rigour – both of which I enjoy. A good number of the best practitioners have graduate law degrees from top universities. Hence, I feel a strong “at home-ness” within this practice area.
How did you start out as an international arbitration lawyer?
I actually started as a corporate transactional lawyer after I graduated from my LLM course at Harvard. Then, I moved to the public sector, as Manager (Strategic Planning) in the Singapore Academy of Law, where I was a staff officer to, among others, now-Judge of Appeal Justice Steven Chong and then-Judge of Appeal Justice VK Rajah. In late 2010, after a few years of that, I decided that I wanted to get back to private practice, this time in arbitration, and gave a call to Michael Hwang SC. I asked him for a chance to work with him, and he gave me that, including a half-year stint in the DIFC Courts in Dubai as Manager – Law and Policy in 2011.
On his international arbitration matters, he showed me what it was like working in international arbitration at a very high level. That experience gave me the basis to ‘reverse engineer’ years later when I started leading my own cases – essentially thinking about how the Tribunal would think based on my knowledge of the thought patterns of the many arbitrators I have worked with whilst in Mr Hwang’s employ, then calibrating my case accordingly.
Through working with him, I also had the opportunity to work on two rather substantial English- Chinese arbitration cases, for which I did the Chinese translations of his orders and communications for him, and also started my journey of getting insights into how Chinese parties think.
What are some aspects of arbitration do you enjoy the most?
The aspect I enjoy most is, of course, winning the case and getting it successfully enforced in a foreign jurisdiction – the acid test of an arbitration practitioner’s work. In arbitration, the place of enforcement operates on a system of law that is different from the governing law, which is presumably what the lead counsel is qualified in, and whether the award you obtained can carry the day in that foreign jurisdiction when it comes to enforceability is all that matters. There will be different enforcement ethos that you would have to watch out for. For example, certain Islamic jurisdictions treat interest as haram – or forbidden. If you are fighting a case governed by Singapore law among the reliefs you seek, it is very common to seek interest. This is usually a boilerplate relief that you would include. Although, if that is not removed, and assuming the Tribunal for some reason lets it stay, the whole award can be refused enforcement.
So, one of the things you must be mindful of is – just because you are familiar with the governing law because that is the law you are qualified in, fighting in the way you usually fight it often is not enough. You would have to think forward and backwards. When you run an arbitration as counsel, you always must think through second-order effects very clearly, and either avoid or mitigate those. Doing A might get you solution B but in turn create problems C and D. And this 360-degree thinking is something I enjoy, something that I think I am “hardwired” for.
Another aspect of arbitration that I enjoy is the getting in of new clients, learning about the new industries they are in, gaining expertise and traction. For example, I began renewable energy work in 2016, starting my involvement in biomass, then subsequently diversifying to wind and solar. To learn more about this industry, I have done site visits to understand my clients’ businesses better. Every time I do so, not only do I feel like I’m part of a movement toward making Earth a better place, I get the excitement of understanding a new sector that has its unique commercial logic and approaches toward profitability. Gaining a deeper understanding of the business and operations involved is part of the joy of being an international arbitration lawyer. And I am getting more enquiries and work from this sector.
I also enjoy practising arbitration out of my 107-year-old law firm, Wee Swee Teow LLP. It is the firm that produced Singapore’s first Asian Chief Justice (Wee Chong Jin CJ). Our managing partner is a 75-year-old Senior Counsel, Giam Chin Toon SC, who has far more experience in law and in life than I do. He is active as lead counsel, as well as an Arbitrator across a great number of Singapore International Arbitration Centre (SIAC), International Court of Arbitration (ICC) and American Arbitration Association (AAA) arbitration rules. Furthermore, he has one of the most sound and balanced dispositions I have ever seen. He is happy to talk to me about my cases and how to position them. We have great Associates who are sound and take ownership over the work. Together, they have made me a far better lead counsel than I could have been without them.
I started by saying that I liked the winning. Although to be fair, we don’t learn as much from victories as they do from defeats. There were times when I lost major applications, and these instances gave me the inner fortitude to plough on in the face of future uncertainty. Once you have tasted defeat and come out through the other side, you know you can take on many things. Victory and defeat are both imposters, as some wise sage once put it. So, I have learnt equanimity too…
Could you share with us one of your most memorable case you took as an international arbitration counsel?
It was the time that I managed to get a Singapore International Arbitration Centre (SIAC) award for specific performance of the return of a trademark that I obtained as lead counsel enforced in China, through Chinese law firm King & Wood Mallesons which I instructed. The underlying arbitration was rather challenging to fight because the trademark licensing agreement was not exactly a paragon of good transactional lawyering, which gave rise to difficulties that we had to overcome. We managed to get the Tribunal to see the justice and logic of our case, and to find for us. What was even more gratifying was that the enforcement judgment was rendered by the Chinese Courts on February 2017, which was at the height of the diplomatic difficulties between Singapore and China over the confiscation of our Terrex armoured vehicles in Hong Kong. You hear about awards being refused enforcement because of nationalistic considerations in various parts of the world. Hence, I was rather anxious before the enforcement judgment was handed down. It was very gratifying when it was a 100% in our favour, because we got all the procedural bases covered, and the opponent did not have a leg to stand on under the New York Convention in its motion to refuse enforcement.
I became very heartened by the fact that the Chinese Court kept its eyes strictly on the law and enforced according to that, even during a difficult time for China’s and Singapore’s diplomatic relationship. Sometimes you will get cynical comments about international arbitration and enforcement, and some of these comments may be justified, but I know that I have this personal experience wherein arbitration has been proven to work.
It was all the more meaningful when we got back the trademark because the company has been growing the business from one generation to another and this meant a lot to the company’s chairman (who was the second-generation owner).
What are some of the challenges you face in international arbitration?
There are a few. First, you face competition from all over. International arbitration is not open to just Singapore law firms; it is open to international law firms as well. Sometimes, your competitors may be law firms with less stringent rules than those governing Singapore law firms regarding alternative fee arrangements they can accept, and you might lose businesses to these law firms.
This challenge, however, has a corresponding advantage. This is because, you learn from good opponents from a global pool compared to a local pool. I have fought against a mix of major international and major local law firms, as well as smaller law firms with unorthodox fighting styles. Sometimes, I need to deal with a whole mix of opposing counsel at the same time, when I have several live arbitrations going on concurrently. I learned quite a number of good techniques from my opponents which I have employed in some other cases. I have learnt from experience to treat all my opposing counsel with utmost respect, not just because I am part of a 107-year-old law firm that observes an old-school code of honour, but also because one never knows what one can learn from them in the future.
Another challenge would be the fact that you have clients who hail from different legal systems. They sign up to a different governing law but are used to different standards of business fairness dictated by their different home jurisdictions. The biggest initial challenge – and one which you always have to revisit – is to get the clients to have the right expectations. Instances that would justify a termination of contract in their jurisdictions may not necessarily apply, and vice versa. These clients are often run by seasoned businessmen, who are entrenched in thinking from years of dealings with things in one way in their home jurisdiction. Thus, they might not be able to appreciate or understand why you have to run a case in a different way even after you explain. Hence, you would often find yourself having to keep “educating” your clients because they are operating under very different thinking. It takes much time and effort to orientate them, and to do so repeatedly. The converted have to be repeatedly preached to. However, when they finally get it and understand what you have done all along with newfound appreciation, this makes it all worthwhile.
What changes/trends do you see in the international arbitration landscape in the next 5-10 years and what are your thoughts on the Singapore Convention on Mediation?
I see some movement from pure competition to “co-opetition” (competing and yet cooperating) between arbitral institutions. Institutions try to gain competitive edge vis-à-vis one another by coming up with innovations and new rules, such as Expedited Procedure, Emergency Arbitration and Early Dismissal. Other major institutions quickly play catch up. Thus far we are in competition mode. Then what happens next – albeit not immediately – is interesting. Institutions at case-manager level talk to each other more. Perhaps it is driven by the fact that each has similar difficulties of administering, and everyone is bound by shared difficulties. Also, some arbitration institutions are situated closer together these days in dispute resolution centres that house various institutions. Architecture drives behaviour, and that could also be why there is more friendly interactivity and learning from one another.
Another change would be the rise of Asia and the Asian use of international arbitration. We would expect further downward pressure on fees because the value of intangible services is often challenged by Asian clients more often, relatively speaking. There could be more uptake of processes/innovations for faster resolution of disputes because less time costs will be incurred.
I personally do not see the new Singapore Convention on Mediation shifting work away from arbitration. The new “teeth” that the Singapore Convention gives to mediated settlement agreements is a welcome development. But that does not necessarily mean that there would be more mediations, or more mediation agreements entered into, as was the case with the advent of the New York Convention in arbitration. A mediation result occurs because all parties see the benefits of the mediated settlement agreement, and sign. No one is pointing a gun at one of the parties saying, “Sign, or else…” How many non-willing parties would put themselves through the trouble of signing the settlement agreement, then spend more money on lawyers to challenge the settlement agreement? That’s just not done in the commercial world. A party not interested in performing the terms of the settlement agreement can simply walk, without signing. So, the benefits brought about because of added enforceability are of a different order and nature from that brought by the New York Convention to arbitral awards.
Which area within the renewable energy industry interests you?
I find that renewable energy project finance disputes suit my temperament because I am a hard-nosed pragmatist, and once you understand the commercial logic because of these transactions, it all flows. Also, you know that you are contributing to a cause that is greater than yourself.
And often we see in this industry, there is strong governmental support for the industry in many countries, both developed and developing, making it attractive for investors to invest. It is a growing industry where money chases projects, rather than projects chasing money.
What are some of the trends and changes within the renewable energy industry?
Governmental support is stronger than ever before, and renewable energy projects are seen as viable partly because of the governments increasing Feed-In Tariffs (FITs). Increasingly, private equity funds see renewables as an attractive asset class and are willing to invest in it; some renewable energy companies I work with are also looking at setting up private equity funds themselves.
It is also increasingly cheaper, on a year-on-year basis, to venture into renewable energy because of the lowering costs of infrastructure. Solar panels to generate a certain megawatt output that cost US$60 million 3 years back would now cost half as much, for the same output capabilities.
Another trend is the rise of new hedging instruments. Long term power purchase agreements are ironically getting scarcer even though government support is rising. These agreements are replaced by shorter term ones and with this, there is increased risk to the developer. To mitigate these risks, developers are starting to be more interested in hedging mechanisms. I think this is across all renewable sectors – wind, hydro, solar, biomass. I will be speaking at the 14th Powertrends Conference in Manila in early September, and the Chair of the Renewable Energy panel, Jocot de Dios, President of GE Philippines, suggested that I expand my scope from wind hedging to hedging across the other renewable sectors, because there would be interest. The rise of insurance players which developed these hedging mechanisms is also an increasing phenomenon.
Insurers by and large have relatively less experience in this industry, so there will be structural challenges. Renewable energy projects by definition, need longer gestational periods. And the longer the time horizon for the projects to be completed, the greater the exposure for the insurer – renewable energy projects usually stay at the pre-revenue stage for a rather long time. I would expect some interesting disputes to arise from these new hedging instruments.
Lastly, you can expect more construction disputes because there will be more infrastructure built for renewable energy projects. The last two renewable energy arbitration enquiries I had were construction-related – which being in a law firm noted for construction disputes work helmed by a Senior Counsel with much experience and credentials in this area really helps.
Could you share with us some of the skillsets and advice if one aspires to become an arbitration counsel?
Think broadly of the ecosystem of arbitration – think about what you are good at and the skillsets you need to develop. What does “ecosystem” mean? It is all parts of the arbitration industry that play a role in arbitration – the counsel running the primary arbitration, the counsel assisting with enforcement, the institutions, the expert witnesses, the third-party funders, etc. To run a successful case, it is not just you, it is not just the lawyer’s individual brilliance, that is going to carry the day. For technical fields, you need solid expert witnesses to help you prove your case on a technical level. The ability to identify and engage good experts is important. Being able to know and engage local enforcement counsel to coordinate with is paramount. Having regular interactions with third-party arbitration funders will allow you to know whom to call for what threshold of claim values. Some take on only cases where the claim amount is north of US$10 million. Others have business models where they take on a larger volume of mid-market cases. It is important to build up networks among all the stakeholders in this ecosystem. Also, think broadly what “career” means to you. It may be equally viable to spend a few years with a third-party funder, or an arbitration institution, to see a different dimension. You will become more valuable when you are aware, on an insider level, of how these stakeholders work.
All these comes down to the basic premise that clients go to lawyers because they are problem-solvers, not just because they are good arbitration lawyers, good drafters, or good advocates per se. So, don’t be too fixated on one aspect of lawyering, which can happen to very bright junior lawyers in huge set-ups, where the tasks can be highly sub-specialised, if they do not make an effort to go beyond their work scope.
The ability to think many moves ahead, and think through secondary effects, is also key to be an effective arbitration counsel. I repeat what I said earlier about thinking forward and backwards.
I have never studied arbitration formally in either my LLB or LLM and learnt on the job. Michael Hwang taught me much for my grounding, and my almost-two years in SIAC where I ran the China department and had a dual role as Counsel has provided me with the depth of understanding regarding institution-administered arbitration. Hence, what I learnt was very practical. That being said, it is helpful before all the pressure of real work sets in, to have some doctrinal training in arbitration to help you adopt the right paradigm early on and cut back on your learning time. Doing an arbitration course also signals to your future employers about your interest and aptitude in this area.
It is also important to cultivate your own client following. Being able to develop your own clients allows you to develop your practice along the industry lines that you want. Where possible, develop clientele in a few counter-cyclical industries so that you have sufficient diversity to get work even in recession times. Client development is too important a job and a skill to be neglected, if you wish to build up a solid practice, and it is never too early for you to start.
Lastly, what are three fun facts that you can share about yourself Arvin?
First, I have been practising Aikido for 17 years. I trained in dojos in Berlin, Tokyo, Manila, Cebu and Bangkok. Recently I went to Manila on a business trip that required me to stay through the weekend. When my Saturday meeting got rescheduled, I informed a local Aikido federation I was friendly with that I could go to Bicol (a province an hour away by flight) to join them at their major annual training session as a participant. To my shock when I checked their social media that evening, I realized that they had designated me a guest instructor!
Second, I am a driving enthusiast, although an amateur one. While I was living in Dubai, I did both desert driving and F1 driving.
Third, I was a volunteer with the Children Cancer Foundation in Singapore – coaching two kids intensively for one year, which taught me much about the importance of going at other people’s rhythms, instead of imposing my own.
