21 Sep 1999 President's Forum Neil Kaplan QC
Strictly speaking, the President's Forum is an innovation, the previous comparable events going under the title of 'Chairman's Forum'. Whatever the protocol, this has always been a well-supported meeting at the South East Branch and this year was very much up to standard.
If the President had not told us that due to a mishap he did not have the right notes with him, few of us would have guessed. And since his predicament provided an opportunity for him to tell a typical Lord Denning story (which space does not allow to be recounted here), the audience was glad of the lollipop.
Neil Kaplan QC has strong connections with Hong Kong and it is appropriate that the overseas links of the Chartered Institute are reflected in his progress to the Presidency. He reminded the meeting that this is a truly international body. Already some 42% of the membership is from overseas and this is expected to exceed 50% soon. The President referred to other aspects of the Chartered Institute's 'demography' such as the higher ratio of lawyers overseas and the small but rising number of women members.
1999 will be recognised as a year of considerable significance in the history of the Chartered Institute. It has seen, or will see, a new charter and bye-laws, new membership grades, new examination syllabuses and an improvement in our financial position. The idea of a practising certificate has gained some ground during the year. The long-term suitability of Angel Gate is constantly under review and there is a strong body of opinion that there should be an International Arbitration Centre in London - in which the Chartered Institute would have a strong interest. With regard to the executive staff at headquarters, significant changes at high level were being announced. Some administrative improvement were also to be expected. These include the telephone, the e-mail system and the world wide web site.
The President referred to the fair wind which the Courts are giving to arbitration processes, including mediation, and he looked forward to a steady departure from litigation tactics. Arbitrators will need to adapt to the new regimes. They will have to be 'hands on' and pro-active - they will get things right before the hearing. They will organise early agreement of facts between the parties and expect to see a statement of agreed facts. Similarly, experts will more often be required to meet the arbitrator before signature of their joint report. Discrepancies between the respective parties' objectives will be identified at an early stage. And time will be limited, bringing in speedier procedures such as written opening submissions. To demonstrate the feasibility of these targets, the President referred to case studies into arbitrations carried out in the Far East under time scales much less than those we take for granted here.
Whilst on the subject of the Far East the President told the meeting something about the prospects for the advancement of commercial arbitration in China. The potential is of course enormous but the obstacles presented by the legal systems ('request and response') and the various administrations (deeply institutionalised but lacking in direction) are formidable. Nevertheless, given the Chartered Institute's strong links in that region, China was a natural objective for arbitrators.
The President touched on the difficult area of challenges to those in judicial positions arising from a perception of bias. He referred to the recent unfortunate experiences of senior judges. For the time being the Chartered Institute is not announcing specific professional guidelines, although arbitrators are strongly recommended to be vigilant and sensitive to the present trend. In the meantime, we were advised that as we improve the quality of our awards and thus leave less and less scope for challenge, future challenges may be directed at the arbitrator personally.
The discussion which followed would have gone on for longer if more time had been available but most of those present managed to raise a point. These included practising certificates, ADR in Hong Kong, perceptions of conflict of interest, the arbitrator - poker-faced or open-faced? - the Chartered Institute's involvement in construction adjudications, the corporate plan and problems over pupillage (raised numerous times).
The meeting closed with an unashamed 'commercial' for the International conference to be held on 18 and 19 November 1999 with a very strong list of speakers.
Roy Sutcliffe