Benjamin Hughes is an independent arbitrator at Fountain Court Chambers in Singapore, a member of the Court of Arbitration of SIAC, and adjunct professor at National University of Singapore Law School. He has been appointed in approximately 200 arbitrations with several billion USD in dispute. Professor Hughes was educated in both the civil law and the common law traditions, first at Seoul National University College of Law (all coursework in Korean) and then at NYU School of Law.

A common complaint about international commercial arbitration is that the process is no longer efficient. What can arbitrators do to ensure that the arbitration proceeds smoothly and without unnecessary delay?

It may be true that arbitration is less efficient than it was in the “good old days” when a handful of arbitrators heard most of the major cases globally. In a way this was inevitable; there are simply more large and complex arbitrations than ever before. Arbitral tribunals are dealing with huge cases with large teams of lawyers on each side, submissions reaching into the thousands of pages, large numbers of witness statements and expert reports, and hundreds if not thousands of factual exhibits and legal authorities.

However, there are measures arbitrators can and should take to ensure maximum efficiency. For example, relatively early in the proceedings, typically after the first round of submissions, I normally ask the parties to confer and agree upon a list of the issues to be resolved by the tribunal. To the extent that the parties are unable to agree on all aspects of this memorandum of issues (“MOI”), it will be settled by the tribunal after hearing from the parties. This requires additional work from the tribunal, which must thoroughly review and understand the submissions and proactively engage with the parties to accurately discern the issues to be resolved, but it pays dividends throughout the subsequent stages of the arbitration. It guides the parties in drafting their document requests, ensuring that they request only those documents which are relevant and material to a live issue in dispute between the parties. Likewise, it guides the tribunal in determining any disputed requests. It also focusses the parties on the important issues when drafting their subsequent submissions, witness statements and expert reports. This focus on the issues set forth in the MOI can also make the hearing more efficient, and can assist the tribunal when drafting the award. Of course the MOI is not an immutable document, and it is important to confirm with the parties at an appropriate juncture (normally after the final round of submissions prior to the hearing) that the issues in dispute have not expanded or contracted or otherwise evolved during the course of the proceedings, but I have found this to be an extremely effective exercise which increases not only the efficiency but also the fairness and transparency of the proceedings.

Document production is regarded by many as a costly and time-consuming exercise which rarely results in the production of determinative evidence. How do you manage document production in your arbitrations?

Document production can be a very frustrating exercise indeed, both for the parties and the tribunal. It is an issue I now raise with the parties at the outset of the arbitration. If the parties agree, I normally dispense with the Redfern Schedule and substitute a somewhat different procedure and schedule for document production.

First, the parties are asked to request only those documents strictly relevant and material to (i) an issue identified in the MOI (see above), and (ii) a specific factual allegation made in the submissions to date. Second, the parties are asked to consider the relevant burden of proof when assessing relevance and materiality. Without prejudice to a party’s right to argue in its submissions that the other side has not provided sufficient evidence to prove its case, the parties should not request documents from the other side where the other side bears the burden of proving the allegations which such documents would support. Third, where an objection is made to any request, the parties are directed to confer and attempt to resolve the objection between themselves. For example, where a party objects to a request based on overbreadth or excessive burden, it should indicate whether there is a narrower or less burdensome formulation with which it would be willing to comply. Likewise, the requesting party should indicate whether there is a narrower or less burdensome formulation that it would be willing to accept. The parties are directed to work together in good faith to find potential alternate formulations that avoid overbreadth and excessive burden, while still allowing production of documents that are relevant and material to the outcome of the case. Finally, if the parties are nonetheless unable to reach agreement on a given request, they are directed to submit the request on a modified schedule which I have creatively dubbed the “Document Request Schedule.” The requesting party must state the relevance and materiality of the request to an issue to be resolved under the MOI and a factual allegation made in the pleadings. The objecting party must state its objection(s), as well as its proposed revision of the request, if any. Finally, the requesting party may include a response to the objection and/or the proposed revision, together with its own proposed revision, if any.

I have found this process to be helpful because it forces the parties to confer and attempt to agree on the scope, relevance and materiality of disputed requests. This often leads to an agreed compromise, reducing the number of disputed requests and leading to a smoother and more cooperative document production process. I have also found that this procedurally cooperative attitude often spills into the rest of the proceedings, which tends to save time, cost and frustration for the parties.

You were recently appointed as a member of the Court of Arbitration of the Singapore International Arbitration Centre (SIAC). What is your role there, and how does this complement your practice as an independent arbitrator?

The SIAC Court is called upon to determine applications for consolidation and joinder, challenges to arbitrators, and jurisdictional objections prior to the constitution of the tribunal (on a prima facie basis). We may also be called upon to assist with amendments to the rules or guidelines. It is a very interesting role, and I am honoured to have the opportunity to make a small contribution to SIAC as an arbitral institution and to Singapore as a seat of arbitration. It fits in very well with my role as an arbitrator – save that I am conflicted out of accepting appointment in cases where I have previously made a determination in my capacity as a member of the court!

How do you think we can improve diversity in the pool of international arbitrators?

We’ve made a great deal of progress in addressing gender diversity. Without leaving that job unfinished, we also need to turn our attention to racial, cultural, linguistic and geographical diversity. In my view the best way to accomplish this goal as a community is to proactively identify young and talented lawyers with an interest in international arbitration and provide them with mentorship and opportunities to grow and develop as arbitration counsel and eventually arbitrators. I am very encouraged in this regard by the mentorship programs that have been established under the auspices of Young ICCA, Maxwell Chambers in Singapore and the Moot Alumni Association.

What is the best piece of career advice you have ever received?

That depends on what day you ask me. The advice that comes to mind now is from an early mentor: “Law – love it or leave it.” What she meant is that you should do what you are passionate about, and if practicing law does not give you that feeling then you should find something else that does. Life is too short to spend it doing something you do not find meaningful and fulfilling.