A rise in the use of regional dispute centres is set to continue as businesses spread their wings internationally. A panel at Legal Week's Commercial Litigation and Arbitration Forum reviewed which jurisdictions are gaining favour

Simon Davis, litigation partner, Clifford Chance: "In London we too often start from the proposition that anyone in their right mind would want to have their dispute resolved by English law with high quality English judges, and with that as our starting point, we then try to work out what might otherwise deter claimants from taking advantage of these fabulous benefits. The starting point should be in fact an attitudinal one, which is to ask ourselves: 'How do we make sure that disputes are resolved in England?' and the starting point in that context is to make it clear that UK Dispute Resolution plc is absolutely open for business because having parties litigate or arbitrate here generates benefits far beyond court fees or LCI fees.

"If we take the Commercial Court as an example, it should not be characterised as it often is as a cheap dispute resolution service for foreigners."

Justin D'Agostino, global head of dispute resolution, Herbert Smith Freehills: "The Asia economy is really driving the world's economy in many respects; it's driving law firms in terms of where we see growth and opportunities, and it's the same for our clients. And when a dispute arises, Asian parties want to resolve their disputes in Asia. So it's no surprise that there is a rise in the quality of dispute resolution in the region, and an increasing desire by clients to turn to centres in Asia as a place to resolve their dispute.

"Two leading centres in Asia have emerged – Singapore and Hong Kong. But there are others such as Seoul, Kuala Lumpur and even mainland China with the push by the PRC arbitral commissions to internationalise. If you look at the statistics, the number of cases that are now being resolved though the Singapore International Arbitration Centre (SIAC) has gone from something like 50 ten years ago to 250 new cases this year. That's a huge rise and it's similar in Hong Kong at the Hong Kong International Arbitration Centre (HKIAC).

"These seats and their arbitral institutions have also been highly innovative. They have made sure that their local laws and arbitration rules are bang up-to-date: one of the most modern arbitration laws in world at the moment is Hong Kong's – it's new and it takes best practice from around the world. We haven't amended the legislation in England for some time. You can also see innovation in the rules of the arbitration institutions in Asia – HKIAC, SIAC, and the Kuala Lumpur Regional Centre for Arbitration (KLRCA) – they are cutting-edge, as are their facilities."

Justice Sir Anthony Colman, former Deputy Chief Justice of the Dubai International Financial Centre (DIFC) Court: "Litigation in the DIFC Court has been steadily increasing year on year, and is now highly respected in the Gulf area and internationally. It has got a good population of English and commonwealth judges, it is English speaking, and in substance supplies English law. So it attracts – and of course has been until two years ago confined to – disputes connected with the DIFC area. It's now open to all-comers, if they consensually are selected. International arbitration in Dubai is a very different picture. On the one hand, one has the local Dubai International Arbitration Centre, which has been in existence for quite some time, and which I have to say is subject to a fair degree of adverse criticism and a lot of the cases there are not what we in Europe would regard as major international arbitration disputes.

"On the other hand, there is the DIFC Arbitration Centre which is a plant of young growth. It was grafted onto the London Court of International Arbitration (LCIA), and it is growing very slowly. I believe that given that it's going to be essentially a similar organisation to the LCIA in London; it will grow but it will take a long time to do so. It will have bigger international disputes and it will attract greater respect than the Dubai International Arbitration Centre."

Mike Stocks, senior dispute resolution counsel, BAE Systems: "Within my organisation, arbitration is by far the preferred dispute resolution method, and I think that is increasingly becoming the position with other multinationals where the ability to enforce awards virtually anywhere around the world is an advantageous feature of that arbitration process. Add to this the confidentiality of proceedings that many arbitral institutions offer, and arbitration becomes a much more attractive proposition than public litigation.

"As a company, we have historically sought to agree arbitration clauses referencing what have been considered the more 'established' arbitration centres such as New York, London and Paris. However as international trade broadens, foreign governments adopt a more pro-arbitration stance, and more arbitration centres become legitimised on the world stage, large organisations such as mine must be mindful that international customers will start to insist that arbitral seats or venues for hearings, no longer need to be confined to these 'western' locations."

Richard Indge, head of UK dispute services, EY: "Why do clients choose to resolve disputes where they choose to resolve them?"

Justice Sir Anthony Colman: "The regionalisation of arbitration is extremely important in general. The parties should be able to look at the likelihood of a dispute and decide where is it likely that the preponderance of material will be if something goes wrong, and go from there to choose the body of law. Very often it will be English law, Singapore law or whatever, but I think the starting point is, let's be practical about it. Because in my experience, arbitrations are a lot more expensive than litigation."

Justin D'Agostino: "There is a distrust of local courts – there is distrust if it's not your own courts. The second point is clients want an award which is globally enforceable. Then you get into much more sophisticated discussion such which seat, and clients will have a number of things on their list.

"If you are choosing a Hong Kong seat or a Singapore seat or whatever seat, is the local court trustworthy? Because ultimately they are supervising the arbitration process, they have supervisory jurisdiction. So if you don't have a local court system which is trustworthy with a modern arbitration law, forget it as a seat.

"Wherever you are doing business you want to have access to council and to arbitrators that understand the landscape in which you are doing business. That might be linguistic understanding, but more importantly cultural understanding. That's another reason why Asia is emerging as a very important venue for arbitration because you have got access there to counsel and to arbitrators who understand what it means to do business in that part of the world, and we shouldn't underestimate that."

Richard Indge: "Simon, what is your view from London? It never ceases to amaze me the ability of London-based lawyers to attract work, sometimes even when the seat isn't in London.

Simon Davis: "From the litigation perspective and my own experience, the clients – whether they are sophisticated or not – tend to fall roughly into two categories. And sometimes they overlap and sometimes they are distinct. The first is the tactical client and the second is the pragmatic one. The tactical client is somebody who is driven effectively to find the forum in which they will do best, put bluntly. If you are a claimant, you are going want to be in a jurisdiction where you can take rapid, effective action in the shortest possible timescale.

"As for freezing orders, injunctions and so on, to that extent, London is extremely effective. But other jurisdictions have their strengths too.

"If you are a defendant you are going to be driven almost by the entirely opposite factors, and anybody who has been on the receipt of an application for negative declarations in some courts, known as 'the torpedo', will understand the options open for defendants.

"Similarly, if you are a party who knows or hopes that the other side has a great deal of documentation in their possession which you would like to see, and more importantly would like your tribunal to see then you are likely to be heading towards the US or the UK, with their more expansive disclosure regimes.

"If you move away from the tactical to the pragmatic – and here I think litigation and arbitration start to overlap – you should not overlook the natural human desire for familiarity. I think much of the regionalisation of disputes is because parties want more and more to be litigating or arbitrating in a forum which feels familiar to them and which is in tune with their cultural sensitivities."

Mike Stocks: I agree with all of the points made. However, negotiating jurisdiction or arbitration clauses with our customers rarely starts with a blank canvas. Often we are confronted with a customer who says: 'This is where we are going to be arbitrating/litigating and these are the laws which we will be applying.' It's for the business lawyers negotiating these contracts to persuade the customer that the forum and laws suggested may not be suitable for either party, which can be a difficult exercise when those customers are fixed on their local courts, local arbitration centre and their own governing law."

Richard Indge: "We normally talk about trends in the context of normal or at least stable geopolitical situations, and of course there is a lot of stuff going on around the world at the moment. Do you see that having an impact on where people are choosing to go?

Justice Sir Anthony Colman: "I'd be very, very doubtful about that. It seems to me that the deciding factors are: can you be comfortable with the type of arbitral setup which you find in a particular country, and can you be comfortable with the way in which the courts have a relationship with arbitration in that particular jurisdiction. If you are satisfied that the courts are basically not corrupt and wouldn't interfere unless something goes very, very seriously wrong, I think that political disputes probably have a very, very marginal effect on the choice of venue."

Simon Davis: "Any particular centre where there is a degree of instability is likely, if anything, to work even harder to make sure that they are attractive as a jurisdiction. For example, many people think about Africa in terms of instability and danger. However, in Africa there is a proliferation of arbitration centres working extremely hard, and due to familiarity and the fact that people want their commodity disputes to be resolved locally, any perceived instability is not standing in the way."

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