The panel discussion

We spend considerable resources in writing contract terms that reflect our business interests. But, in case of dispute, will arbitrators give the contract effect according to its wording?

The members of the panel are lawyers who regularly advise on the drafting and negotiation international commercial contracts. They will share experiences on contract clauses whose construction has proven to be uncertain, clauses that are meant to be interpreted faithfully, clauses that will probably be read in the light of the governing law, etc. They will also discuss the circumstances under which these clauses are drafted, and the expectations of the drafters when they insert them into the contract.

This discussion is one in a series of workshops organized in Oslo, Rome, Paris, New York, London, Vienna, Sao Paolo and Singapore. It is part of an empirical research project which verifies whether international contracts are construed uniformly in arbitration, or whether legal traditions play a role even though the frame is international.

The panellists:

Gary F. Bell is the Secretary-General of the International Academy of Comparative Law and an Associate Professor at the National University of Singapore (NUS). He also practices as an arbitrator based in Singapore but sitting on tribunals throughout Asia and beyond. He was the founding Director and now co-Director of the LL.M. in International Arbitration and Dispute Resolution (IADR) at the NUS. He was also the founding Director of the Asian Law Institute (ASLI). He studied both civil law and common law at McGill and American law at Columbia University. He clerked at the Supreme Court of Canada. He edited The UNCITRAL Model Law and Asian Arbitration Laws (Cambridge University Press, 2018). He teaches International Commercial Arbitration at the NUS.

Giuditta Cordero-Moss, Dr. juris (Oslo), PhD (Moscow), Professor, Oslo University, publishes and lectures in Norway and internationally on contract law, private international law and arbitration. Former corporate lawyer, arbitrator in international disputes since 2002. Among her positions: Norwegian delegate, UNCITRAL Working Group on Arbitration (2007-); member, Hague Academy of International Law’s Curatorium (2019-); President, International Academy of Comparative Law (2022-); Member, ICC Court of Arbitration (2018-2024); President (2017-20) and Judge (2007-2020), European Bank for Reconstruction and Development Administrative Tribunal; vice-president ( 2014-), Norwegian Financial Supervisory Authority’s Board of Directors; member (2015-), Norwegian Tariff Board on general application of collective agreements.

Kim Mijung (LL.B. Korea University, LL.M. Magna Cum Laude, Brussels School of Competition) is a Korean lawyer and a partner at TSMP Law Corporation, where she established and leads the Korea Desk. She has extensive experience across a wide range of industries, advising on diverse legal and business matters. Her areas of specialisation include corporate law, mergers and acquisitions, and commercial matters, such as contract review, general corporate advisory, compliance programs, intellectual property law, and regulatory and competition law. Her competition law expertise covers all aspects, including international cartels, merger control, abuse of dominance, sub-contracting, and regulatory compliance. She has worked with numerous multinational corporations, including Microsoft, Qualcomm, Samsung, LG, and the Hyundai-KIA Group. She currently serves as Vice President of the Singapore chapter of the International Association of Korean Lawyers (IAKL) and is a member of the Advisory Committee to the Ministry of Justice of Korea.

Dr Stanley Lai, SC (PhD, University of Cambrige) is Head of Intellectual Property and Co-Head of Cybersecurity & Data Protection at Allen & Gledhill. He specialises in IP litigation/arbitration and information technology disputes before the Singapore Courts and is also a commercial litigator and SIAC Arbitrator. He advises a broad spectrum of clients on IP/data management and cybersecurity. In the sphere of artificial intelligence, Stanley continues to advise clients on issues relating to intellectual property, data protection, content regulation, governance as well as legal tech. He serves as a member of the Copyright Tribunal, and sits on the panel of Arbitrators in the Singapore International Arbitration Centre, He is an author of many published journal articles.

Jonathan Lim is a partner in the London office of WilmerHale.  He has a broad practice with extensive advocacy experience in commercial and investment treaty arbitrations seated worldwide, including in Singapore, England, Brazil, Hong Kong, the Netherlands, Switzerland, and the United States.  His has represented clients in the aerospace, construction, energy, financial services, pharmaceutical, and telecommunications sectors, among others. Jonathan was recently named by Global Arbitration Review as one of the top “45 under 45” arbitration lawyers globally and ranked by Chambers and Legal 500 as a leading arbitration practitioner. Directories describe Jonathan as “an exceptionally gifted lawyer and forceful advocate” and “a consummate professional,” Others commend his “top-of-the-class legal and strategic advice,” noting that he is "a sure bet as a future global leader.” Jonathan also frequently sits as arbitrator and teaches arbitration at the NUS law school.

Olivier Monange, based in Singapore since 2014, has been working for nearly 40 years with Asia. He opened the first French law firm and made two stays in China (1986-88, 1994-2000). He then developed DS presence in Singapore, India and Indonesia. He has progressively become an expert in international arbitration on FDIs and international contracts in Asia. He is a member of the ICC Arbitration Commissions (Paris & Singapore) and Institute of World Business Law, admitted on several arbitrators panels of major arbitral institutions in Asia (SIAC- Reserve List Singapore, HKIAC Hong Kong, SHIAC Shanghai, BAC Beijing, AIAC Kuala Lumpur, PIAC Ho Chi Minh City), MCIArb, FSIArb. He is a SICC Registered Foreign Lawyer. He regularly acts as a counsel and arbitrator in Asia-related cases.

Welly Tantono is on the executive leadership team of Secretlab, the award-winning gaming and ergonomics furniture company. She oversees Secretlab's legal, compliance and information security functions globally. Welly has extensive experience in capital markets, M&A, IP transactions, and complex multi-jurisdictional litigation. She is a commissioner for PT. Steel Pipe Industry of Indonesia, Tbk, chairing its audit committee and serving on its nominating and remuneration committee. Welly holds a JD from Duke University School of Law and an AB in Mathematics from Harvard. She is the past-president of the Association of Corporate Counsel’s Singapore Chapter and the current president of the Harvard Club of Singapore. 

More on the project

We spend considerable resources in writing contract terms that reflect our business interests. But, in case of dispute, will arbitrators give the contract effect according to its wording?

Not really and not always, according to a pilot study carried out by Prof. Giuditta Cordero-Moss (University of Oslo), in cooperation with: New York University (Prof. Franco Ferrari), Sciences Po Paris (prof Diego Fernandez Arroyo), University of Sao Paulo (Prof. Cristiano Zanetti) and National University of Singapore (Prof. Gary Bell).

A pilot study was recently completed. It is briefly described in Kluwer Arbitration Blog, Pilot Empirical Project on Construction of Contracts in International Arbitration (https://arbitrationblog.kluwerarbitration.com/2023/08/01/pilot-empirical-project-on-construction-of-contracts-in-international-arbitration/). The pilot study asked 32 experienced international arbitrators to solve three cases in which the outcome would differ according to how literally or purposively the contract would be read.

• The majority of participants read the contract in the light of the applicable law (53%).
• A minority considered the contract to be self-sufficient (26%) or subject to the transnational law (21%);
• Within each approach, the outcome is not consistent: considering the contract to be self-sufficient leads to both literal (64%) and purposive construction (36%), and so does the transnational approach, although to a lesser extent (respectively, 9% and 91%).

The pilot project will be followed by a main study, in which 150 experienced arbitrators will be asked to answer a questionnaire based on 10 contract clauses. The panel discussion will contribute to the development of the questionnaire.