A Law Student’s Arbitration Clerkship in Singapore

By: Ariana Green, Guest Contributor

I lived in Singapore during the fall of my third year of Berkeley Law, spending part of my time clerking at the Singapore International Arbitration Centre. Having spent almost four of my six pre-law school years living abroad (working as a journalist and on a Fulbright and a Gates Scholarship), I missed the adventure and discovery that comes with moving to a foreign country.

Life in Singapore as a lawyer-in-training exposed me to international law practice and also gave me a chance to travel the region and meet people from all over. Though I plan to join Cooley LLP as a corporate associate—doing transactional work for tech companies and startups—I want to be the kind of corporate attorney who understands dispute resolution. Many of the contracts I reviewed as a summer associate contained an arbitration clause, meaning that should a disagreement arise, the parties go to arbitration instead of seeking relief by way of the courts.

Arbitration is particularly suitable in situations where parties to the contract come from different countries, since arbitral awards have the potential to be enforced globally. Because arbitrations need not follow the same rules of procedure and evidence as trials, the process can be quicker. While court decisions are published and hold precedential value, arbitral awards are kept confidential. Arbitrations can therefore be a good choice for companies who do not want their dirty dispute laundry aired.

For disputes involving international parties, arbitration offers additional advantages. Courts in a given country employ local judges and apply local laws, but an international arbitration usually consists of one or more arbitrators appointed by each party, and the choice of applicable law should be indicated in the contract; it is frequently based on the law of the pre-selected location for the arbitration (for example, Singapore, London, New York etc.). Deciding on a jurisdiction and choice of law at the time the contract is signed provides clarity (ideally).

For law students who want to work abroad, I would highly recommend the Singapore International Arbitration Centre (SIAC). As a law clerk at SIAC, and separately, as a clerk for a senior arbitrator whose office was down the hall, I had an opportunity to get involved with high-stakes cases involving many millions of dollars, not to mention professional reputations.

At SIAC, I assisted in the scrutiny of arbitral awards—a process much like fact checking in journalism. I edited the awards for content and style. My colleagues included one other law clerk, from China, and the full-time attorneys at SIAC, who hailed from Singapore, Korea, India, London, Belgium, and Canada. Some of them had been law firm attorneys and judges. Each of them had had fascinating life and work experiences to share.

These lawyers, the so-called secretariat, provide support to parties and arbitrators, making the process smoother for everyone. The secretariat gets very involved in the details of each arbitration and makes sure parties comply with rules, meet deadlines, and receive cogent awards.

SIAC organizes events as a way to keep its presence in the community and further dialogue about arbitration. I went to several of their half-day conferences, on issues of enforcement and other topics. I met attorneys working in international arbitration and hailing from even more countries.

As part of my Singapore experience, I clerked for a very in-demand senior arbitrator. I followed a case, start to finish, on jurisdictional issues and had the opportunity to prepare a memo before the hearing, then to attend the hearing and conduct research for the award. This process resembles clerking for a judge, but with an international bent.

Throughout my time in Asia, I also made an effort to connect with people working on startups and in the tech scene, per my post-law school career plans. Free lunches at Google Singapore, hearing entrepreneurs’ pitches, and sitting in on mentoring sessions with new businesses made my semester varied and always stimulating.

In choosing to work at SIAC, I wanted exposure to dispute resolution so that I can be a better transactional attorney—one who understands what can happen if disagreements arise over the documents we transactional lawyers draft. My time in Singapore gave me that, and so much more.

 

Ariana Green is a 2013 J.D. candidate at Berkeley Law School. Her journalistic writing has been published in The New York Times, The Guardian, Popular Science, and elsewhere. Her law-related writing appears in The Berkeley Technology Law Journal (2012). Starting in the fall of 2013, Ariana plans to represent emerging companies as a corporate associate at Cooley LLP in New York.

The Record: This Week in Review

Ireland Prime Minister Apologizes to Women and Children of the Magdalene Laundries

The Prime Minister of Ireland formally apologized to approximately 10,000 women who had served in the Magdalene Laundries.  A 1,000 page report revealed government complicity in the slave labor of women and children in Catholic Church-run institutions.  The Irish government is discussing a compensatory package for the survivors in an effort to make amends.  

New Peace Framework Signed for the Democratic Republic of Congo

Eleven African countries have pledged to not tolerate or support armed groups fighting in the Democratic Republic of Congo.  Furthermore, they have agreed to refrain from interfering with the Congo’s internal affairs.  The Congo suffers from persistent violence and this framework is a small step towards reducing that violence.

SCOTUS: Plaintiffs Lacked Standing to Challenge a 2008 Amendment to the Foreign Intelligence Surveillance Act

The U.S. Supreme Court has released its decision in Clapper v. Amnesty International, No. 11-1025. In a 5-4 decision, the Court ruled that the group of journalists, lawyers, and human rights advocates challenging a 2008 amendment to the Foreign Intelligence Surveillance Act lacked standing because their alleged harms were too speculative. The challenged amendment expanded the government’s authority to intercept international communications involving Americans.

EU Poised to Temporarily Waive Carbon Payments for Intercontinental Flights

The European Union will likely suspend for one year the requirement that all intercontinental flights using EU airports pay for their carbon emissions. The move comes in response to objections to the law from outside the EU and hopes that a global deal to limit airline carbon emissions can be reached. The suspension could be extended beyond one year if there is “clear and sufficient” progress toward a global deal. Any progress on such a deal would likely require a new interest on the part of the United States government in addressing this problem.

Kenya to Hold General Election Next Week; UN Officials Warn of Potential Displacement Crisis

UN officials are calling on the Kenyan government and international organizations to redouble their efforts to prevent violence and displacement in the wake of next week’s general election. After the last general election (in December 2007) 1,100 Kenyans were killed and 600,000 were forcibly displaced. Although a new constitution adopted in 2010 included political reforms addressing the 2007 election violence, the UN officials warn that the reforms have not been fully implemented and ethnic tensions have recently been on the rise.

IMF Paper Calls for Euro Area Banking Union

A recent IMF publication calls for a single supervisory and regulatory framework within the Euro Area for integrating European banking systems.  The paper calls for a “single supervisory mechanism” to oversee all Euro Area banks, in addition to resolution and wind-up powers for dealing with insolvent financial institutions. While this proposal builds on the European Council’s 2012 agreement on a similar arrangement, the IMF calls for substantially more focus on banking sector re-capitalization.

Jack Lew Sworn In As New U.S. Treasury Secretary

On Thursday, Jack Lew officially became the new U.S. Secretary of Treasury. Secretary Lew previously served as Chief of Staff for U.S. President Barack Obama and as Director of the Office of Management and Budget under former U.S. President Clinton.

European Parliament Approves Bonus Caps for Bank Employees

The proposed legislation will limit the bonuses that E.U.-based banks can pay their employees to twice an employee’s annual salary. This legislation would apply equally to employees of E.U.-based banks who worked outside of the E.U. (for example, New York or Singapore). The measure still has to be approved by the 27 member-states of the E.U., and Britain’s Prime Minister, David Cameron, has voiced concerns about the proposed measures.

The International Community’s Response to North Korea’s Nuclear Missiles Program: Thinking Outside the Sanction Regime

By Lexi Rubow, Assistant Contributor

On Tuesday, February 12, 2013, the Democratic People’s Republic of Korea (North Korea) launched its third and most powerful nuclear test. The test was executed in response to increased United Nations sanctions, following North Korea’s successful rocket launch in December 2012. The explosion was twice as powerful as the most recent nuclear test in 2009 and was ten times more powerful than the first test in 2006. The explosive power of the test was 10 kilotons and caused a 4.9 magnitude earthquake. In comparison, the bomb the United States dropped on Hiroshima at the end of World War II was 12-20 kilotons. US officials are currently determining whether the explosion used plutonium, or enriched uranium—a signal that North Korea’s technology has advanced. This is significant because North Korea’s plutonium deposits are limited, but its uranium deposits are plentiful, and the uranium enrichment process is easier to conceal. Further, there have been reports that the explosive itself was smaller than that of past tests. The main concern is whether North Korea will be able to manufacture a nuclear explosive that is small enough to fit on the “Unha-3” rocket that was launched in December 2012 and could be used to target the United States.

The test was perceived as an act of aggression and defiance by most of the international community. After the attack, President Obama met with South Korean leader Lee Myung-bak and issued a statement referencing the United States’ “nuclear umbrella” over South Korea, reminding North Korea that an attack on South Korea would be viewed as an attack on the United States. This alliance has been in place since the United States’ participation in the Korean War in the 1950s, but is rarely discussed, much less openly threatened. Further, South Korean and American forces have been carrying outlarge-scale military drills, deploying destroyers and submarines, and demonstrating cruise missiles to show their military readiness. President Obama has also expressed its intent to protect Japan and, together with Japanese Prime Minister Shinzo Abe, has agreed to seek action from the United Nation’s Security Council.

Newly appointed Secretary of State, John Kerry, expressed a willingness to take action: “If you are going to say things, they have to mean something. And to mean something you have to be prepared to follow up, and that’s exactly what we are prepared to do.” Some sources are skeptical, however, speculating that the current international bluster is no different than that following previous tests and will likely not meaningfully advance a solution.

For its part, the United Nations held an emergency session regarding the test and issued a statement condemning the acts and expressing concern for North Korea’s nuclear program’s impact on regional stability. The UN has experienced difficulties in achieving more than strongly worded statements, however, due to a deep divide between China and Russia, who are more friendly towards North Korea, and those countries that want to impose stricter sanctions, such as banning import of specific high-tech items used to create nuclear weapons, limiting banking transactions, and imposing more stringent inspection of ships bound to and from North Korea. There are signs that China’s relationship with North Korea is beginning to sour, particularly after the most recent test, which ignored China’s “appeals not to conduct the country’s third nuclear test.” There is also some speculation that the new Chinese leader, Xi Jinping, will be less patient with North Korea than his predecessor, Hu Jintao. However, despite the Chinese citizens fear of increased radiation exposure and the Chinese government’s realization that North Korea may not return its sentiments of brotherly love, Xi Jinping will have to balance this internal and international pressure with the risk of instability and mayhem that would result if North Korea were to collapse.  Further, even if China does agree to stronger sanctions and thereby ease the UN gridlock, some analysts speculate that North Korea’s economy is so closed that sanctions from China may not have very much leverage or may just enhance the Chinese-North Korean black market trade.

Past sanctions directed at North Korea have not been particularly successful, as North Korea has historically responded by increasing its military development, both in retaliation and as a bargaining chip for economic aid. For example, in 1994, North Korea threatened to withdraw from the Nuclear Non-Proliferation Treaty and produce nuclear weapons. The United States then entered into negotiations with North Korea discussing an Agreed Framework, wherein the international community, led by the United States, was to provide large amounts of capital, as well as enough oil to support the entire nation’s energy needs. Meanwhile, North Korea was supposed to use this capital to transition its energy grid from nuclear to light water reactors. The U.S. stopped shipments of oil in 2002 upon suspicion that North Korea was instead using the capital and other international support to develop a uranium enrichment program. North Korea viewed this as a breach of the Agreed Framework and withdrew from the Nuclear Non-Proliferation Treaty in 2003, and continued to build up its nuclear program. After North Korea’s first successful nuclear test in 2006, the United Nations passed a resolution calling on North Korea to end its nuclear weapons programs, and the United Nations’ member countries agreed to trade and travel sanctions. North Korea used this international attention to enter into six-party talks with China, South Korea, Japan, Russia and the United States, where it promised to shut down its reactors in exchange for foreign aid. In 2009, however, North Korea tested a rocket, which led to harsher UN Sanctions. In response, North Korea performed a second, stronger, nuclear test.

The statements made by the Korean Central News Agency, the North Korea-run news agency, also indicate that sanctions may fan the flames of defiance and retaliation rather than pressure North Korea into compliance. The nation does not show any indication of bowing to pressure, stating that “concession leads to defeat in the face-off. Key to ultimate victory is to steadily increase the military capability in every way.” The UN Security Council’s resolution on sanctions is described as “armed blackmail against the DPRK,” and the most recent nuclear test was characterized as “frustrat[ing] the brigandish campaign of ‘sanctions’ launched by the U.S.” Further, the nation has repeatedly threatened “second and third high-intensity counteractions” if the United Nations and United States continue sanctions. While sanctions are certainly not welcomed by any nation, the vitriol spouting from the Korean Central News Agency indicates that North Korea will likely break before it bends.

In light of the fact that increased sanctions may potentially escalate, rather than diminish, military tension with North Korea, the international community may wish to explore other options, such as those that encourage long-term stability and change from within.  Modern wars are typically fought not against nations, but against leaders. The goal is not necessarily the traditional use of ground force against state militaries to cause one side to capitulate but rather a regime change that must largely come from within a nation. For example during the war in Kosovo, in addition to traditional aerial attacks, NATO also tried to counter Milosevic’s nationalist and ethnocentric propaganda by flying aircraft over Yugoslavia and broadcasting its own propaganda. While some of NATO’s operations were controversial (particularly the bombing of Radio Television Serbia), the idea of stimulating internal regime change by providing outside media may be important to stability in the Korean Peninsula.

An underground market for outside media has already begun to thrive in North Korea. Particularly popular are Korean dramas and American TV dramas, usually smuggled in from China on memory sticks and played on black market computers or televisions rigged to watch foreign broadcasts. These dramas have created a shift in the way that North Koreans evaluate their lives and country, as they compare their living situations with others’ lives in the United States, China and South Korea and find North Korea to be lacking. As stated in the Huffington Post:

“North Korean viewers living in tiny two-room homes and struggling to feed their families can see houses with bedrooms just for children, and dinners with endless food. They see everyday people casually complaining about policemen and politicians. Scenes like that are provocative in a country where defectors say criticizing the ruling family can send entire families to sprawling prison camps, and where bicycles are considered luxury items for many.”

This black market, and the resulting thirst for consumerism, has created an increasingly conspicuous bourgeois class in North Korea. It is questionable whether these black market entrepreneurs are a danger to the government, since they, like bourgeois classes elsewhere, have a stake in preserving the status quo. However, the existence of this market indicates a rare glimpse of resistance to the North Korean regime of enforced austerity and obedience.

The question remains how the international community can encourage this nascent cultural transition. Since North Korea is not currently engaged in any military conflict, the approach NATO took in Kosovo is too heavy handed. An aircraft flying over North Korea would be misinterpreted and would likely spark military conflict. Further, the current political and cultural climate is much more critical of perceived American cultural imperialism. While the level of economic sanctions appear to be a point of contention in the UN, deciding how to expose North Korea to outside culture — and which culture should it be — seems to be even more controversial. Another option may be to increase international protections for those individuals smuggling media into North Korea. However, this is also a dangerous endeavor, since it may be difficult to condone one sector of the black market without inadvertently condoning other criminal behaviors.

Despite the logistical difficulties of these alternatives, as the United States, United Nations and other international entities grapple with how to respond to North Korea’s most recent round of nuclear tests, they should consider alternatives to the typical sanctions routine which has thus far only increased tensions and the probability of forceful retaliation.