Sri Lanka recently joined in the Chartered Institute of Arbitrators (Lon) (CIArb) as its latest member with the purpose of training Arbitrators and expanding awareness of arbitration as a form of Alternative Dispute Resolution (ADR).
After the launch, the Director-General of CIArb Anthony Abrahams sat with the Sunday Observer to discuss their plans for Sri Lanka
Q. What do you expect to achieve through establishing a branch of CiArb in Sri Lanka?
A. We are a global organisation which concentrates on training individuals, corporations and small businesses in dispute avoidance, dispute management and dispute resolution. So, we assist centres, we don’t compete with them and we don’t actually administer arbitration but we provide them with people who are trained to an acceptable standard. All members of the Chartered Arbitrators Institute are of the same standard. In essence, that’s what we do. We promote the facilitation of arbitration and all forms of dispute resolutions, thereby avoiding having to resort to the courts. So, we try and keep people out of the courts.
Q. What made you think that this is the correct time to come to Sri Lanka?
A. As a global organisation what happens is that members join us from anywhere and in Sri Lanka we currently have 97 members and our threshold to form a branch is 40. Sri Lanka is well over that limit, and I was coming to Sri Lanka on holiday anyway, in early 2018, and as we had well over 50 members, I thought of asking members if they would like to get together and form a branch.
Becoming a branch gives a focus to the development of ADR and it gives a meaning to it. It means we’ve started talking to the right people rather than having a bunch of individuals who happen to get together on a global scale but don’t do so locally. It’s quite important that with such a number we can then help the judiciary, government, businesses and individuals.
Q. Other than these markets mentioned, do you expect to attract any international clients? Do you think there’s a potential for it in Sri Lanka?
A. “I think in the medium to long term potential there is. I think Sri Lanka has the opportunity at the moment with the megapolis project to gain international credibility.The Government has to develop its own resources to say ok if we have problems, and the government is, after all, is going to be the big infrastructure figure, and if we hit bumps in the road we need to resolve them. How they’re going to do that is, (if they decide to use the centre), and that centre is independent of the government and seen to be honest, open and give decisions which are straight, then I think there is a chance for Sri Lanka to grow itself into the international market arena. Particularly when international organisations start coming into Sri Lanka”.
When major contractors come along and they have to sign a contract with the Government they need to understand and they need to be sure that if there is a dispute, there’s a neutral place which withstands international scrutiny. Win or lose, you will know you had a fair hearing.We don’t have any corruption or any pressure by Government , on the arbitrators. That’s what arbitration brings- this certainty, a sense of security- to know what you’re doing, and ultimately, a good resolution.
Q. In your opinion would it impact investor confidence, if so in what way?
A. Absolutely yes. Unfortunately, in many countries like England and even Sri Lanka court hearings are far too lengthy.When people sign a contract and they put arbitration into that contract, they can then specify how the arbitration will take place. It’s a win-win situation. At the time you’re all popping the champagne corks because everyone is getting on so well, that’s the very time to start thinking, “if we do have a problem, how are we going to resolve it?”
You can talk to each other and include arbitration, and the project finishes, without being mired in litigation for years.
Q. In comparison with other countries do you feel that arbitration as an ADR is being used to it’s fullest in Sri Lanka?
A. No, it’s not used to its fullest. I think there is a huge capacity for people to decide (if they think about it early enough), how they are going to avoid these disputes, and manage disputes and how to resolve them, because resolution by arbitration should be the last resort. When you sign a contract, both sides intend to fulfill the contract, and that’s the time you need to lay the ground rules. How to resolve disputes? Are we going to mediate or to mention in the contract at the very beginning if experts are to be involved in the process. If it goes a bit further, and then if you really have decided that it’s not going to work out, and there’s a dispute about how it happened and what the consequences are, then of course you go into arbitration. You can limit the time the arbitration can take.
Q. What services do you intend to provide, will you have arbitration bodies?
A. No. we are not like Singapore International Arbitration Centre, the London arbitration centre or the ICC. We let them get on and manage their own arbitration . All we do, is we can provide a frame work, our rules and our guidelines and we can train people.
This is what we do mainly. Particularly with governments and major corporations, training the contract managers, project managers early so that they have confidence and they know where they are going to go on the ground and know when something is in the way, how to shift it. That’s what we are trying to do.
Q. Who are your stake holders?
A. The public. Technically we an English charity currently a global organization so we are responsible to the English charity commission as to fulfill our tasks. So all our members are stake holders we have corporate members, we have partnerships with universities, governments, we work with the judiciary- so they too become our stake holders.
Q. How important it is for small scale businessmen/contractors how do you’ll intend to expand awareness and train the small-scale sector?
A. It’s not just about training the neutral it’s actually trying to get the individuals the corporate to put within their terms that if there is a problem,” this is how it’s going to be resolved”. We have what is called fast track rules for businesses, and in England it’s a small claim up to about a hundred thousand sterling, and if you have arbitration you will get a decision within 90 days at a fixed cost, so you know exactly what your risks are and that is quite attractive to small businesses. It will give them certainty and minimise risk.
Q. Wouldn’t it be more convenient if the courts are taken away from the arbitration process?
A. First is that when people sign a contract its consensual, where both agree to arbitration. Secondly arbitration is a specialists area where countries have been successful it is because they have appointed particular judges who understand the process and can then act efficiently to make sure that it works. In our centenary year we produced what we call the principals of a safe seat. And there are 10 principals which a country can measure itself or a location can measure itself against or even just an institution. One of them is “how easy it is to enforce?”. If a country says that they will put bureaucracy in the way and it will slow the whole process, then why would people come to invest here. If you haven’t got certainty, you take a risk and that means you put the price up and it reflects badly on the country itself.
Q. What’s your international footprint like?
A. We have 16,299 members in 134 countries and 69 percent of them are outside the United Kingdom. So, it’s quite a big foot print. And we genuinely cover the globe. We have 40 branches, including Sri Lanka and it’s been a relatively quick process. It started with my meeting with the members in February last year.
Q. So, the Easter Sunday attacks didn’t stop you?
A. Oh no, it made us more determined. The rule of law is what we are ultimately about. And when a country is in trouble helping it and getting the international community together to support a country in trouble, its actually very rewarding and its something to aim for and to achieve.
We kept the launch, we kept the first training program ongoing until the UK government issued a travel advisory. Even though we knew that there had been a terrorist attack, I and the trainers were prepared to come here , but when the travel advisories came in we had to pull out. But I am glad that we are eventually here and it has been a success.