Published by International Arbitration Law360 on January 25, 2016. International Commercial Arbitration 2015: A Year in Review —By John D. Roesser, Anton A. Ware, Anne Brooksher-Yen, Michael Igyarto and Muriel Raggi, Arnold & Porter LLP Law360, New York (January 25, 2016, 11:57 AM ET) -- Looking back, it is easy to see that 2015 was an important year for international commercial arbitration. We have seen an accelerating gravitation toward Hong Kong and Singapore as global centers of commercial arbitration and witnessed interest in arbitration clauses reach a record high, both domestically and internationally, including as a result of the discussions surrounding the Trans-Pacific Partnership and Transatlantic Trade and Investment Partnership. Third-party funding has been another hot topic this year, with an international arbitration tribunal issuing a controversial order compelling claimants to disclose their third-party funding arrangement. We have seen the international arbitration community gain access to previously unavailable information on individual arbitrators’ characteristics and awards through the formal launch of Arbitrator Intelligence. Finally, here in the United States, despite concerns about possible regulation of arbitration clauses in light of the Consumer Financial Protection Bureau’s rulemaking activities, such regulation would be narrow and would have no effect on international commercial arbitration. All in all, it’s been quite a busy year. Continuing Shift Toward Hong Kong & Singapore Although not a new development, the ongoing shift toward Hong Kong and Singapore as global centers for international commercial arbitration continued throughout 2015. Over the past few years, several of the highest profile international commercial arbitration practitioners have relocated their practices to Hong Kong and Singapore. Lucy Reed, for example, the global head of international arbitration at Freshfields Bruckhaus Deringer, moved to the firm’s Singapore office in early 2014. Last year, that trend continued as Allen & Overy’s Judith Gill announced her relocation to Singapore in early 2015 and Gary Born took over as president of the Singapore International Arbitration Centre (“SIAC”), effective April 1, 2015. In addition to attracting practitioners of the highest level, both Hong Kong and Singapore have actively promoted themselves as prime venues for international commercial arbitration. For example, the Hong Kong International Arbitration Centre (“HKIAC”) opened an office in Shanghai’s free trade zone. This is a milestone achievement, as it is the first time an offshore international arbitration institution has opened a representative office in mainland China. In August 2015, the SIAC formally commenced a review of its 2013 rules. The rules’ revision will account for “recent developments in international arbitration practice and procedure, and is aimed at better serving the needs of the businesses, financial institutions and governments that use SIAC.” The SIAC Arbitration Rules 2016 are expected to take effect in May of this year. Finally, the HKIAC and SIAC have topped various surveys as most preferred (and most improved) arbitration institutions outside of Europe. For example, the 2015 Survey “Improvements and Innovations in International Arbitration[,]” carried out by the School of International Arbitration at Queen Mary University of London, found that: the “five most preferred arbitral institutions are the ICC, LCIA, HKIAC, SIAC and SCC”; the “most improved arbitral institution (taken over the past five years) is the HKIAC, followed by the SIAC, ICC and LCIA”; “[t]he five most preferred and widely used seats are London, Paris, Hong Kong, Singapore and Geneva”; and “the most improved arbitral seat (taken over the past five years) is Singapore, followed by Hong Kong.” At the 2015 Global Arbitration Review (“GAR”) Awards Ceremony, the HKIAC received the award for “innovation by an individual or organisation in 2014,” and a 2013 GAR survey ranked Singapore’s Maxwell Chambers alternative dispute resolution center as one of the top three ADR venues in the world. Resurgence of Interest in Commercial Courts Last year also brought a resurgence of interest and attention to specialized international commercial courts (and court proceedings more generally) as a preferred forum for resolution of cross-border commercial disputes. A number of factors appear to be driving this phenomenon. On the positive side, the development of the Singapore International Commercial Court has served as a model for specialized international commercial courts that may someday rival international arbitration as the preferred venue for cross-border dispute resolution. On the negative side, there appears to be a waning of public confidence in arbitration generally, driven in part by continued frustration over ballooning delays and costs in international commercial arbitration proceedings, and in part by the sharply negative debates over the inclusion of socalled investor-state dispute settlement (“ISDS”) clauses in the Transatlantic Trade and Investment Partnership (“TTIP”) and the Trans-Pacific Partnership (“TPP”), as well as negative press regarding consumer arbitration (discussed separately below). The government of Singapore has been a strong proponent of court resolution of international disputes, continuing its development — and aggressive promotion — of the Singapore International Commercial Court (“SICC”). The SICC, which began hearing cases in May 2015, offers some of the features that make arbitration attractive (the ability to have a nonpublic hearing, for example), but also allows for its judgments to be enforceable as judgments of Singapore’s High Court and, in certain cases, allows for appeal to Singapore’s Court of Appeal. Some believe that the SICC may be a possible competitor to international arbitration in Singapore, and a model for specialized international commercial courts to be developed in other regions, although that remains to be seen. Other members of the international community have shown renewed interest in bringing disputes into various countries’ court systems. For example, the October 2015 entry into force of the Hague Convention on recognition and enforcement of choice of court agreements provides a New York Convention-type approach to recognizing and enforcing forum selection clauses. Although 30 countries have signed this agreement (of which 28 have ratified it), some key counterparties in the global economy are not yet signatories and do not regularly recognize forum selection clauses. Until they do, international arbitration remains the better choice for cross-border disputes. Negative publicity has also played a role in “pulling” parties toward litigation. Arbitration clauses garnered significant domestic and international attention after it was learned that the TTIP and TPP trade agreements would likely include increasingly common ISDS clauses. The expressed concern surrounding ISDS clauses is that a corporation would be able to bring an action in an international tribunal to challenge a sovereign’s laws without being subject to the sovereign’s court system, coupled with the fear that taxpayers could be left to foot the (possibly hefty) bill for a judgment against the sovereign. Regardless of the merits of such concerns, interest spiked. In the United States, for example, an 18-minute segment of John Oliver’s Last Week Tonight show was dedicated to explaining the legal struggles that embroiled Australia over its plain packaging cigarette laws. Although these efforts to challenge Australia’s laws were ultimately unsuccessful, fear of private challenges to duly enacted laws and regulations led to vocal outcry and the rhetoric reached a fever-pitch, with U.S. politicians like Senator Elizabeth Warren, DMass., weighing in. Third-Party Funding in Arbitration Third-party funding continued to gain acceptance in 2015, but with that came significant new attention to the concept, particularly relating to issues of disclosure. The IBA’s Guidelines on Conflicts of Interest in International Arbitration, which were adopted in October 2014, attempted to address the issue of disclosure of third-party funders. In June 2015, in what appears to be the first decision of its kind, the tribunal in Muhammet Çap & Sehil Inşaat Endustri ve Ticaret Ltd. Sti v. Turkmenistan ordered the disclosure of the identity of the claimants’ third-party funder and the details and nature of the terms of the third-party funding arrangement. The stated justification for the disclosure included avoiding a conflict of interest for the arbitrators, ensuring transparency and verifying the identity of the true party to the case, and determining the need for and availability of security costs. Although this was an investment treaty case, some of these same factors could be present in commercial arbitration proceedings, and the tribunal’s reasoning could well have influence on commercial arbitration tribunals. These recent developments demonstrate some of the issues that will need to be resolved as third-party funding becomes more prevalent in arbitration. The Formal Launch of Arbitrator Intelligence After its pilot phase ended in January 2015, Arbitrator Intelligence formally launched its interactive informational network with the goal of “democratizing” and crowdsourcing information about arbitrators and arbitration awards. The program gives parties valuable insight into the traits of individual arbitrators by collecting feedback with surveys on specific areas, including case management, evidence taking, and award rendering. The program has already collected a total of 1,140 awards and procedural orders and is likely to continue to gain steam and recognition as its database grows and more information on various arbitrators becomes available. Potential Regulation of Arbitration Agreements in the United States Concerns about possible regulation of arbitration agreements in the United States increased in 2015. The Consumer Financial Protection Bureau released two documents last year addressing arbitration: a March 2015 report on the results of its study of consumer arbitration clauses in consumer financial products markets, which included findings that nearly all surveyed arbitration clauses barred class actions and most consumers did not know that their contracts contained arbitration clauses or that in some cases they could opt out of the clause; and an October 2015 outline of a proposed rule prohibiting contracts that require consumers to forfeit their right to join a class action and a proposed rule requiring submission of arbitral disputes and awards to the CFPB. Any action by the CFPB, however, will likely have no effect on international commercial arbitration. The U.S. Supreme Court continues to regularly uphold and apply arbitration clauses, consistent with the Federal Arbitration Act. Any actions by the CFPB would be inherently narrow, applying only to U.S.-based consumer finance arbitration agreements. Finally, the CFPB’s efforts are far preferable to earlier efforts to amend the Federal Arbitration Act, which could have risked incidental disruption to commercial arbitration practice. John Roesser is a partner in Arnold & Porter's New York office and counsels in complex crossborder commercial disputes under the rules of the major arbitral institutions and in state and federal courts. He also regularly serves as an arbitrator, speaks and writes frequently on international arbitration topics, and is a U.S. delegate to the ICC Commission on Arbitration and ADR. Anton Ware is a partner in the firm's San Francisco office and focuses on dispute resolution, with an emphasis on international arbitration and business litigation. He is also an adjunct professor at UC Hastings College of the Law, where he teaches a seminar on international commercial arbitration. Anne Brooksher-Yen is counsel in the firm's New York office, representing corporate clients in arbitrating, litigating and settling highly complex commercial disputes and in conducting internal investigations. Most recently, she successfully represented Philip Morris in a billion-dollar arbitration over payments due under the tobacco Master Settlement Agreement. Michael Igyarto and Muriel Raggi are associates in Arnold & Porter's New York office. The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.  This followed the publication of the judgment of China’s Supreme People’s Court in Longlide Packaging Co. Ltd v. BP Agnati SRL SPC, 2013 Min Ta Zi No.13, which upheld for the first time the validity of an arbitration clause providing for ICC-administered arbitration in China.  HKIAC Achieves Breakthrough by Launching Office in Mainland China, Conventus Law (Nov. 20, 2015), http://www.conventuslaw.com/report/hkiac-achieves-breakthrough-bylaunching-office-in/#sthash.vjdlPYgG.dpuf.  The SIAC 2015 Year in Review, http://www.siac.org.sg/.  Id.  2015 International Arbitration Survey: Improvements and Innovations in International Arbitration, Queen Mary University of London, available at http://www.arbitration.qmul.ac.uk/research/2015/.  Id.  Kathryn Sanger & Yvonne Shek, Hong Kong in the Spotlight - the Rule of Law and International Arbitration, in The Asia-Pacific Arbitration Review 2016, (Global Arbitration Review, 2016), available at http://globalarbitrationreview.com/reviews/71/sections/238/chapters/2880/hong-kong/.  Tom Feissner, Singapore’s Maxwell Chambers Among World’s Leading Venues for International Arbitration, JDSupra Business Advisor (Jun. 13, 2015), http://www.jdsupra.com/legalnews/singapore-s-maxwell-chambers-among-66743/.  Emmanuel Chua & Gitta Satryani, The Singapore International Commercial Court: Friend or Foe to International Arbitration in Singapore?, Kluwer Arbitration Blog (Jan. 14, 2015), http://kluwerarbitrationblog.com/2015/01/14/the-singapore-international-commercial-court-friendor-foe-to-international-arbitration-in-singapore/.  Id.  https://www.youtube.com/watch?v=6UsHHOCH4q8.  Elizabeth Warren, The Trans-Pacific Partnership Clause Everyone Should Oppose, The Washington Post (Feb. 25, 2015), https://www.washingtonpost.com/opinions/kill-the-disputesettlement-language-in-the-trans-pacific-partnership/2015/02/25/ec7705a2-bd1e-11e4-b274- e5209a3bc9a9_story.html.  Khaled Moyeed, Clare Montgomery & Neal Pal, A Guide to the IBA’s Revised Guidelines on Conflicts of Interest, Kluwer Arbitration Blog (Jan. 29, 2015), http://kluwerarbitrationblog.com/2015/01/29/a-guide-to-the-ibas-revised-guidelines-on-conflictsof-interest/.  Muhammet Çap & Sehil Inşaat Endustri ve Ticaret Ltd. Sti. v. Turkmenistan, ICSID Case No. ARB/12/6, Procedural Order No. 3, available at http://cisarbitration.com/wpcontent/uploads/2015/10/Ticaret-Turkmenistan.pdf.  Arbitrator Intelligence, http://www.arbitratorintelligence.org/.  See Patricia Shaughnessy, Arbitrator Intelligence - An Interview with Its Founder and Director, Professor Catherine Rogers, 1 J. Tech. Int’l Arbitration 1 (2015), available at http://www.arbitratorintelligence.org/wp-content/uploads/2015/06/Journal-of-Technology-inInternational-Arbitration_interview.pdf (where Arbitrator Intelligence was featured in the Journal’s inaugural edition).  A more detailed analysis of the report can be found at http://www.arnoldporter.com/resources/documents/ADV13Mar2015CFPBReleasesMuchAnticip atedArbitrationClauseStudy.pdf.  Outline of Proposals Under Consideration & Alternatives Considered, Small Business Advisory Review Panel for Potential Rulemaking on Arbitration Agreements (Oct. 7, 2015), http://files.consumerfinance.gov/f/201510_cfpb_small-business-review-panel-packet-explainingthe-proposal-under-consideration.pdf.  See United States Supreme Court Order List (Jan. 11, 2016), http://www.supremecourt.gov/orders/courtorders/011116zor_n7io.pdf (where the U.S. Supreme Court reversed and remanded three related cases in which the Hawaii Supreme Court found the arbitration clauses at issue to be ambiguous and unconscionable); Ritz-Carlton Development, et al. v. Narayan, Krishna, et al., 577 U.S. __, No. 15-378; Ritz-Carlton Development, et al. v. Nath, Virendra, et al., 577 U.S. __, No. 15-379; Ritz-Carlton Development, et al. v. Narayan, Krishna, et al., 577 U.S. __, No. 15-406.  The Arbitration Fairness Act of 2013, which proposed amendments addressing pre-dispute arbitration agreements, was referred to the Subcommittee on Regulatory Reform, Commercial & Antitrust Law, but never became law. See Bill Summary & Status 113th Congress, Library of Congress (June 14, 2013), available at https://www.congress.gov/bill/113th-congress/senatebill/878/committees.