Steven Y H Lim

39 Essex Chambers

Singapore www.39essex.com

steven.lim@39essex.com Tel: +65 96958723

Biography

Steven is an arbitrator and barrister. He has over 80 appointments as presiding, sole, co-arbitrator and emergency arbitrator, seated in Singapore, England, USA, India, South Korea, Thailand and Vietnam. He is also instructed as lead counsel in arbitrations. He has extensive experience with SIAC, ICC, ICDR, SCMA, KCAB, UNCITRAL rules, and ad hoc cases involving Asia-Pacific jurisdictions and farther afield in a broad range of commercial disputes. He is recommended as “the perfect arbitrator”.

It’s the choice of law issues that international arbitration throws up. I also enjoy the challenge of finessing the procedure for a case to best suit the issues for determination.

How did you break into arbitration practice?

I was in the right place at the right time. I commenced practice in Singapore in 1994. This gave me a ringside seat to the growth of international arbitration in Singapore and Asia, then in its nascency. In 1998, I managed to get into the ring myself with my first ICC international arbitration case as counsel. The rest, as they say, is history.

The current arbitration market is reportedly working with a small pool of arbitrators, and it is becoming increasingly difficult to find arbitrators who do not have a conflict of interest. Do you agree, and if so, how can this issue be effectively addressed?

There is a smaller pool of arbitrators who are in demand. This creates issues with availability and conflicts. Independent practice as an arbitrator can ameliorate conflicts. A bigger and broader issue beyond conflicts needs to be addressed though. The users of international arbitration have become much more diverse. Panel constitution needs to reflect this. Diversification and expansion of the nationality, ethnicity, gender, and legal background of the arbitrator pool will create greater buy-in to the arbitral process, in addition to ameliorating conflicts.

Many arbitral awards are starting to end up back in court for enforcement proceedings. Does arbitration have an enforcement issue, and how could this be addressed if so?

There’s been an uptick of due process challenges to awards in recent years. I anticipated this in my commentary on the Singapore Court of Appeal decision in AKN v ALC [2015] 3 SLR 488 in [2017] 1 APAR SG 50. This is due in part to the increased complexity of disputes being arbitrated. Several challenges succeeded on grounds that the tribunal failed to consider an argument raised by a party or decided the case on points the parties had not raised and did not have the opportunity to address. Tribunals must be ever more vigilant and proactive in case management, especially with tracking the issues for determination in a complex case. Maintaining a clear view of the issues to be determined in consultation with the parties as the arbitration progresses will help the tribunal ensure they consider all arguments and issues before them for the award, and the parties are given the opportunity to address all issues and arguments the tribunal relies on.

How has the pandemic made us rethink arbitration practice?

During the pandemic, we embraced technology to help us overcome the “tyranny of distance” – which had consciously or subconsciously influenced the design of international arbitration procedures. Now that tribunals can quickly and effectively meet with parties online, we should reassess how arbitrations can be conducted and examine the extent to which commonly accepted procedures included an accommodation for the time and costs of physical meetings. The potential of this revolution goes beyond replicating physical hearings virtually. We must explore how technology can be used to reshape how arbitrations can be conducted more efficiently and efficaciously – tribunals can now engage substantively on the merits with the parties in virtual hearings more frequently; the arbitration can be broken into tranches of hearings instead of deferring the resolution of all merit issues to one final hearing at the end. It is critical we explore the efficiencies technology affords, and not just default to old practices when the pandemic abates. Several institutions have adopted rules on expedited proceedings in arbitration. How fast can disputes proceed without breaching procedural rights?

Expedited procedures are applied in most cases because of the relatively low amount in dispute, not because of urgency or party agreement. Tribunals have an equal duty to ensure timely and efficient resolution of the dispute, as much as due process. With careful thought and consideration, it is possible to design a fair and efficient process to determine disputes within shortened timeframes. I did this for an ICDR expedited case that required me to hold a final hearing within 30 days of my appointment. Emergency arbitrators can effectively deal with complex issues in very short timeframes. This is equally possible with expedited proceedings, while preserving due process.

Early determination as been catching on as tool for time and cost efficiency in arbitration. Does this raise due process concerns?

Before making an early determination, tribunals need to hear and consider all the submissions that can be made on the issue or claim to be determined and satisfy themselves there is no evidence or argument any party can bring later, but has not yet brought, that will impact the decision. Early determination involves a full airing of all relevant issues including, if appropriate, a full evidential hearing of the issue or claim for determination – the right to be heard is preserved, despite the early determination. While the process is commonly called “early determination” it is better to think of it as fair and efficient determination at an appropriate stage given the nature of the claim or defence and the evidence and arguments that can be brought to bear on it.

Looking back over your career, what has been your most satisfying achievement to date?

My work as arbitrator, particularly when the parties accept the decision, even though complex issues had been hard fought.

Peers and clients say: “Steven is the perfect arbitrator” “He is always on top of his cases and has a very good judgement and an excellent manner” “Steven is a fair-minded and extremely capable arbitrator” “He is highly sought after”