到目前为止,经有近70个国家加入了带一路议这一庞大工程,复杂的商业纠纷因此不可避免。虽然机遇可能伴随着风险,但亚洲的律师们表示,企业可以采取多种措施来保护自己以及自己的商业利益。

 

规模宏大的带一路议启动至今已有六年多,但人们对此的兴趣似乎并未消退。2020年一月,《纽约时报》报道称,中国企业2019签署了价值近1280亿美元的带一路合同,与2018年相比增长了40%以上。

但并非一切都进展顺利。最近几年,政治紧张局势以及对债务失衡的担忧使情况变得相当复杂。对于企业而言,随着跨多个司法管辖区的复杂项目逐渐增多,纠纷风险也不断增加。律师们表示,除非得到适当的保护,否则就是在玩火。

做好准备很关键

谢尔曼思特灵律师事务所的国际仲裁业务合伙人Nils Eliasson总结道,带一路许多项目都是雄心勃勃的高价值且具有技术挑战性的项目,涉及复杂的金融、政治和法律因素,尤其是许多带一路沿线国家的政治和金融体系缺乏稳定性

Eliasson援引了上海市商务委员会委托进行的一项研究,研究称,在位列前12名的接受带一路资国家中,仅有两个国家被列为安全的一级司法管辖区。

鉴于这样的风险背景,他建议企业从项目一开始就寻求自我保护,在合同谈判阶段谈判好合同保障措施,例如明确的财务责任限制和解决纠纷的适当机制;他指出业还应考虑安排其参与带一路项目的结构,以便从任何现有的双边和多边投资条约保护中获益。

但准备工作并非仅此而已。他提醒,业还应在项目的整个生命周期内实行有效的合同管理,包括严格遵守合同要求并保存全面的文件记录。有效的合同管理是减少纠纷风险以及在无法避免纠纷的情况下增加胜算的关键。

德尊(新加坡)律师事务所的一位负责人Mahesh Rai同意Eliasson的看法,他表示,在项目过程中,企业可以采取一些预防措施来保护自己。“企业应认真规定合同机制,监测和管理对基础设施项目造成时间和成本影响的任何变化;他们还应该就如何尽早解决项目过程中的纠纷作出规定;尤其是雇主,应该在合同中包含要求及时向合同管理人发出额外付款和延期索赔通知的条款,以确保以后不会因为此类索赔而感到意外。”

优先处理案头工作

关于争议的准备,富而德律师事务所的合伙人钟津翰表示,简而言之就是,与其为争议做好准备,不如避免发生争议。鉴于协议过程中可能会出现的复杂状况,钟律师建议全方位仔细审视整个过程。

“在合同起草阶段,必须特别注意合同中语言的使用。黄金法则是使用词语本身自然、普通的含义,因为你不希望在词语解释上产生争议。企业还应该考虑各种实景模式下的合同有效期,以确保合同条款规定足够详尽,可以在不同情况下(例如是否会产生纠纷)提供确定性。”他建议道。

钟律师说,认真记录也很有必要。此外,保存“同时期证据——即在事件发生时或事件发生后立即记录的证据”,这点十分关键。

“在法院和法庭看来,基于认为当事各方可能会故作姿态,因此认为同时期证据比在事件发生很久之后(尤其是在发生争议之后)提出的证据有更大的证据力;所以如果可能的话,企业应该定期保存同时期记录。”他建议说。

钟律师还说,争议解决条款是非常重要但“有时会被忽略”的条款。“我们建议客户慎重起草争议解决条款,以便保护自己。合同能否成为有效保护当事人权益的工具取决于其争议解决条款。”

印度尼西亚律师事务所Parulian Situmorang & Partners的合伙人Ellrico Situmorang说,争议不仅对企业具有挑战性,还可能对项目构成致命打击。

“基础设施企业非常希望能够避免争议的发生,尤其是在施工过程中。很多时候,我们看到项目被弃置或者搁浅,就是因为在项目过程中利益相关方之间或项目参与各方之间存在着不断的争议。”他说。

Situmorang指出,做好准备非常重要,但还需要考虑其他策略。他说:“当事人可以通过多种方式避免纠纷。以我的经验,他们需要从一开始就持开放的态度,这很重要。必要时,合同各方可以建立一个临时机制,以解决各方之间的分歧——不论规模大小,然后再考虑将争议提交公开诉讼。”他随后又补充道,合作的心态和良好的沟通也可以帮助解决争议。

考虑客户需求

鉴于潜在的纠纷可能会越来越复杂,律师们建议与客户建立紧密的关系,以确保进行充分的风险评估。Eliasson说:“从基础设施项目一开始,我们就与客户密切合作,确保在合同中全方位解决与项目相关的具体法律、财务和政治风险。”

如果客户是承包商,团队还会考虑如何构建项目以便从投资条约保障措施中受益。Eliasson补充说:“ 结合利用合同与投资条约保障措施能够为解决争议提供强有力的保障。”

但还有其他一些因素需要考虑。Eliasson提醒企业必须始终确保合同中包含有效的争议解决条款,例如“在对仲裁友好的司法管辖区根据公认的一套仲裁规则进行仲裁,例如,根据香港国际仲裁中心(HKIAC)规则进行仲裁,因为可以通过这种机制履行合同条款。合同还应在各方之间全面分配风险,包括:明确责任限制和上限,困难和不可抗力条款的可用性,以及合同终止和中止条款。”

Rai告诉ALB,有时不仅要帮助客户做好准备以应对冲突,他的团队在争议开始后也会加入进来。“如果客户能够尽早找到我们,我们就能够帮助他们做好准备应对争议,包括确保已经准备好与争议问题相关的必要文件。咨询我们之后,客户将处于更好的位置,因为我们协助评估他们的主张和辩护的优势和劣势,并就如何以最佳的方式处理可能引起争议的领域提供建议。这不仅可以帮助客户为最终的争议解决程序做好充分准备,我们的建议中还通常包含避免纠纷的内容,即:如何避开潜在的陷阱并避免发生纠纷。”

Rai还指出,对于价值超过5亿新元(3.7亿美元)的项目,各方可以考虑在其合同中纳入《新加坡基础设施争议管理议定书》(SIDP)。

“根据该《议定书》,设立一个‘ 常设’争议委员会(即在项目开始时就参与,并将在整个项目期间保持不变)。四十多年来,争议委员会一直被用作避免和解决基础设施领域争议的方法。此类争议委员会由中立人士组成,他们的职责是协助迅速、经济有效地避免和解决争议,而无需将争议诉诸更昂贵、耗时的仲裁或诉讼。”Rai说。

Oentoeng Suria & Partners是与亚司特律师事务所联营的印度尼西亚律所,该所律师Prawidha Murti告诉ALB:“虽然不可能永远避免各种纠纷风险,针对每种可预见的风险制定最全面的条款是发生纠纷时保护企业的最佳方式。我们希望所有各方都有足够的把握来决定采取正确的行动推进项目,从而最大程度地减少正式争议解决程序的需求。”

保护措施非常重要的同时,在争议解决条款中规定恰当的谈判、调解方式也将有助于确保能够“根据各方的商业利益,迅速而友好地解决争议”。

让律师参与其中

虽然良好的准备工作有助于推动项目顺利进展,但更需要从一开始就寻求法律的支持,这一点是无可替代的。律师们表示,在项目起步阶段寻求法律建议有助于更快地发现挑战,同时以正确的方式应对。

“在争议的早期阶段就让内部或外部的律师参与进来是非常重要的。”钟律师说,“这可能包括聘请国际争议律师团队,他们可以提供法律和战略建议,包括在必要时在多个司法管辖区使用程序工具。他们还可以就选择合适的仲裁员和专家提供咨询建议。”

钟律师表示,他的团队通过培训内部律师处理纠纷来帮助客户做好准备工作,并补充说:“内部律师的作用至关重要,他们能够促进外部律师与业务团队之间的沟通,并帮助客户的项目获得良好开局。”

在他看来,为业务团队提供法律指导非常重要,但却经常被忽略业务团队直接参与公司的日常运营,确保他们能够识别出纠纷的早期迹象,并知道如何妥善处理纠纷,这是极为有用的。正如前面所提到的,在项目的整个生命周期中,保存同时期记录的做法是很重要的。在这种情况下,业务团队在提供事实信息方面发挥着关键作用。

仲裁需求增加

在争议解决方面,仲裁的迅猛发展不可低估。最近的发展提升了亚洲市场作为仲裁中心的实力——《新加坡调解公约》于2019签署;同时,《中国内地与香港特别行政区法院就仲裁程序相互协助保全的安排》亦于2019年公布,根据《安排》,“在香港进行的仲裁程序中的任何一方当事人都可以向中国内地有关法院申请与仲裁程序相关的临时措施。该《安排》受到了广泛好评。

印度尼西亚律师事务所Kudri & Djamaris表示,仲裁被公认为是诉讼更为有利的方法,尤其是在国际商务合同争议方面,而这其中有一部分原因就是争议双方感受到了仲裁的优势

其广泛的优势包括但不限于其保密性,程序灵活性,时间效率以及仲裁员的专业领域,这些优点总结了诉讼无法提供的好处。我们认为,仲裁一直是最合适的选择;仲裁将继续作为解决争议最有利的选择和主要途径。们说。

们还补充道,调解可能也将会越来越受欢迎,别是在解决与带一路相关基础设施项目中的争议方面。这一预测是基于这样一种理解,即:调解可以为缔约方提供更友好的解决争议方式,不会损害他们之间的业务关系。们说。

MurtiALB东南亚大多数跨境业务和交易通常以仲裁作为其争议解决机制,部分原因是其具有国际执行效力。

最著名的对仲裁友好的司法管辖区是新加坡和中国香港特别行政区。由于这两个司法管辖区靠近东南亚地区,在地理位置上具有优势;而新加坡国际仲裁中心(SIAC)和香港国际仲裁中心(HKIAC)都是世界上最著名的仲裁机构,且各自拥有世界一流的仲裁员,因此这个两个司法管辖区经常作为仲裁的首选地点。说。

展望未来,她预测仲裁领域可能会进一步发展。们认为,在东南亚国家,仲裁的需求仍然很高,这是因为带一路议带来了更多新的跨境项目,也提升扩展了交易的数量、规模和种类。随着市场对仲裁的需求增加,仲裁机构无疑将不断更新其仲裁规则,提高服务质量、设施和仲裁标准。

Eliasson认为,在亚洲,好的合同通常将仲裁确定为解决基础设施纠纷的首选方法这是一个明智的选择,因为仲裁为解决争议提供了中立的论坛,同时《纽约公约》综合性国际框架下承认与执行外国仲裁裁决,公约缔约国总数达161个,其中包括大多数带一路沿线国家。常见的情况是,当事各方都同意采用级方法解决争议;首先以谈判、专家裁决或调解为最初的争议解决形式,如果争议未能得到解决,则进行仲裁。在跨境的情况下,包括在基础设施项目中,仲裁比依赖当地法院更为可取,因为当地法院可能不可靠而且处理事务的速度相当缓慢,具体情况取决于不同的司法管辖区。

如果企业参与的基础设施项目受到了基础设施项目所在国家或地区的国有实体的不利影响,那么企业也可以依靠投资条约直接对东道国提起仲裁程序。投资条约仲裁可以为基础设施项目获得补救提供强有力的保障机制。说。

Parulian Situmorang & Partners的合伙人Situmorang表示,虽然仲裁监管在东南亚相对较新,但已经成为市场上解决争议的一种趋势。他说:各方在达成争端解决协议之前需要进行深入讨论。时指出,法院程序可能更具限制性。

在印度尼西亚的法院环境中,这里的法官通常手头有足够多的案件,可能还有很多的事情要处理,还需要理解非常多的法规。例如,一位法官可能早上要处理有关家庭法的案件,下午则要处理民事或商业诉讼,然后在下午晚些时候或者有时甚至是晚上,他们还要讨论和审查刑诉讼案件。Situmorang说。

因此我认为,(仲裁是一种首选方法),特别是对于商业或基础设施纠纷,因为你需要一位真正了解具体法规条例的人员,他对所讨论的领域有第一手经验并且有深入的了解。补充说。

对于仲裁员来说,他们不必拥有法律背景。他们可以有运输背景或税务背景等,当我们就运输问题发生争议的时候,当事人可以选择一位对运输有深入了解的仲裁员。特别是对于高度复杂的案件,我认为仲裁是一个很好的选择。说。

或将出现更多挑战

尽管有很多关于为争议危险做准备的讨论,但事实是,鉴于许多带一路项目的长期性,这些问题并不会马上出现。有的时候,随着项目的进行,直到几年后挑战才会出现。

Eliasson指出:础设施相关的争议通常会随着项目接近完成而出现,因此,随着越来越多的带一路础设施项目在未来几年进入这一阶段,我们很可能会看到更多与带一路项目有关的基础设施领域的纠纷。而且由于某些争议的性质,这些争议可能需要在国家与国家层面上解决,而不是依靠基础合同中的争议解决机制。

钟律师对这一观点表示赞同,随着早期项目开始逐渐演变成分歧和冲突,在未来几年内纠纷可能会增加。此外,随着项目范围的扩大,此类矛盾可能会加剧。他说:随着带一路的范围不断扩大,越来越多来自不同文化背景和法律体系、抱有不同期望的各方参与其中,这有可能在未来导致更多的纠纷。

Murti对此持不同的看法。她对ALB说:们认为,就每项基础设施业务的争议程度而言,即便不会减少,也会保持不变。

由于带一路议,东南亚对基础设施项目的需求会很高;但这也意味着,市场上的招投标数量和价值将不可避免地增加。因此,企业和法律顾问将有机会更多地接触基础设施项目,从而增加在这一领域的经验。说。

鉴于此,随着企业和法律顾问对基础设施业务越来越熟悉,通过制定强有力的合同和以友好的方式解决冲突以避免采用争端解决程序,使用正式争端解决程序的趋势可能会降低。不过,我们认为,只有在企业聘请了基础设施和建筑领域经验丰富的法律顾问专家的情况下,我们对于每项基础设施业务的争议程度保持不变(即便不会减少)的预期才有可能普遍发生。她提醒道。

 

A Smoother Road

As the mammoth Belt and Road initiative touches some 70 countries, complex commercial disputes cannot be avoided. But while the opportunities may come with risks, lawyers in Asia say there are a variety of measures companies can employ to help protect themselves and their business interests. 

 

It’s been more than six years since the PRC’s ambitious Belt and Road Initiative (BRI) kicked off, but it seems that interest has yet to fade. In January this year, the New York Times reported that Chinese companies had signed Belt and Road contracts worth close to $128 billion last year – an increase of more than 40 percent compared to 2018.

But not everything has gone smoothly. In more recent years, political tensions and concerns around debt imbalance have complicated matters. For businesses too, there is a rising risk of disputes as complex projects stretch across multiple jurisdictions. And lawyers say that unless you’re properly protected, you’re playing with fire.

PREPARATION IS KEY

Nils Eliasson, an international arbitration partner at Shearman & Sterling, outlines that many of the Belt and Road projects are ambitious “high-value and technically challenging projects involving complex financial, political and legal considerations, particularly since many of the Belt and Road countries lack political and financial stability.”

By way of example, only two out of the top 12 recipients of Belt and Road investments are classified as Tier-1 jurisdictions for “safe” investment, Eliasson says, citing a study commissioned by the Shanghai Municipal Commission of Commerce.

Given such a risky backdrop, he advises that companies seek to protect themselves from the outset of the project “during the contract negotiation stage,” negotiating contractual safeguards, “such as express limits on financial liability and an appropriate mechanism for resolving disputes,” he advises, noting that “Companies should also consider structuring their involvement in Belt and Road projects to benefit from any available bilateral and multilateral investment treaty protections.”

But the preparation doesn’t end there, he warns. “Companies should also exercise effective contract management throughout the lifetime of the project, including by adhering closely to contractual requirements and maintaining comprehensive documentary records. Effective contract management is key to reducing the risk of disputes and to increase the likelihood of success where disputes cannot be avoided.”

Mahesh Rai, a director at Drew & Napier, agrees that there are precautions that companies can take to protect themselves over the course of the project.

“Companies should carefully provide for contractual mechanisms to monitor and manage any changes which have time and cost impact on the infrastructure project. They should also have provisions to address disputes in the course of the project early on. Employers, in particular, should include provisions requiring timely notice of claims for extra payment and extensions of time to be made to the contract administrator to ensure that they are not taken by surprise by such claims later on,” says Rai.

PRIORITISE THE PAPERWORK

When it comes to the preparation side of disputes, John Choong, partner at Freshfields Bruckhaus Deringer puts it simply: It’s always better to avoid a dispute than to prepare for one. And, given the complexity of agreements that may arise along the way, Choong advises taking a bird’s eye view, and scrutinising the entire process carefully.

“At the contract drafting stage, it is important to pay close attention to the language used in the contract. The golden rule is that words will be given their natural and ordinary meaning and you do not wish to have a dispute over interpretation. Companies should also think through the life of the contract under various fact patterns to ensure that the contract is sufficiently detailed to provide certainty in different scenarios – such as if a dispute were to arise,” he advises.

Meticulous record-keeping is also necessary Choong says. Additionally, keeping “contemporaneous evidence – that is, evidence recorded at the time of or in the immediate aftermath of an event,” is key.

“In the eyes of the courts and tribunals, evidence created long after the event (especially after a dispute has arisen) will be given less weight than contemporaneous evidence, due to a perception that parties may be engaging in posturing. If possible, companies should maintain contemporaneous records as a regular practice,” he advises.

The dispute resolution clause is also a highly significant “sometimes overlooked” provision, says Choong. “We advise our clients to draft the dispute resolution clause thoughtfully, to protect themselves. A contract is only as strong as its dispute resolution clause – it provides the tools to protect the parties’ rights and interests, should a dispute arise.”

Disputes aren’t only challenging for companies, they can also serve as something of a death-blow for projects, says Ellrico Situmorang, partner at Indonesian law firm Parulian Situmorang & Partners.

“Disputes is something that infra-structure businesses really want to avoid, especially during the construction process. In many cases we have seen projects being abandoned or not being taken care of, because there is a running dispute between the stake-holders or between the parties involved in the process of the project,” he says.

Preparation is highly important, notes Situmorang, but there are also other strategies to consider. “There are many ways that parties can avoid disputes. In my experience, they need to be open from the very beginning of the process – that’s important. If necessary, the parties can create an ad hoc mechanism to settle the differences among them, regardless of the size, before they can put their dispute to open litigation,” he says, noting that a collaborative mindset and good communication can help smooth the way.

CONSIDER CLIENTS’ NEEDS

Given the likelihood of increasingly complex disputes on the horizon, lawyers advise developing close client relationships to ensure adequate risk assessments are carried out. “From the outset of an infrastructure project, we will work closely with our clients to ensure that the specific legal, financial and political risks associated with the project are comprehensively addressed in the contract,” says Eliasson.

In cases where the client is a contractor, the team will also consider how projects can be structured to benefit from investment treaty protections. “The combination of contractual and investment treaty safeguards offers powerful protections for resolving disputes,” Eliasson adds.

But there are other factors to consider too. Eliasson warns that companies must always ensure that contracts contain effective dispute resolution clauses “such as arbitration under a recognized set of arbitral rules in an arbitration-friendly jurisdiction (e.g. arbitration under the HKIAC Rules in Hong Kong), as this is the mechanism through which the terms of the contract are enforced. The contract should also comprehensively allocate risk between the parties, including through express limitations and caps on liability, the availability of hardship and force majeure, and termination and suspension provisions.”

Rai tells Asian Legal Business that sometimes it’s not just about preparing clients for conflicts, sometimes his team join the process once a dispute has already begun. “If clients come to us early enough, we prepare clients for potential disputes by making sure that the necessary documentation of the issues in dispute is in place. The clients are in a better position after consulting us as we assist with giving an assessment of the merits of their claims and defences, as well as advising them on how best to address areas which may give rise to disputes. This not only helps the client to best prepare its case for eventual dispute resolution proceedings, but there is often an element of dispute avoidance in our advice relating to how to sidestep potential pitfalls and avoid a dispute arising,” he says.

Additionally, for projects worth more than S$500 million ($370 million) in value, Rai notes that parties can consider incorporating the Singapore Infrastructure Dispute-Management Protocol (SIDP) in their contract.

“This would provide for a ‘standing’ Dispute Board (i.e. to be engaged at the start of a project and which will remain in place for its duration). Dispute Boards have been used as a method of avoiding and resolving disputes in the infrastructure sector for over forty years. Such Dispute Boards are made up of neutral individuals whose role is to assist with the swift and cost-effective avoid-ance and resolution of disputes without the need to resort to more expensive and time-consuming arbitration or litigation,” he says.

Prawidha Murti, a partner in the dispute resolution practice of Indonesia’s Oentoeng Suria & Partners,  which operates in association with Ashurst, tells Asian Legal Business that “whilst you can never insulate yourself against every risk of disputes, setting out the most comprehensive clauses on every foreseeable risk is the best way to protect businesses should a dispute arise. Hopefully, this will mean all parties will be prepared with sufficient certainty to determine the right actions to take moving forward, minimizing the need for formal dispute settlement processes,” she says. But while protections are highly important, designing negotiation and/or mediation within the dispute settlement clause, helps to ensure that disputes can be settled “quickly and amicably in line with the business interests of the parties.”

SEND IN THE LAWYERS

While preparation certainly helps smooth the way, there’s no substitute for having the law on your side from the very beginning. Seeking legal advice from the get-go helps outline challenges sooner and proceed in the right way, say lawyers.

“It is extremely important to involve lawyers – internal or external – at an earlier stage of a dispute,” says Choong. “This may include engaging a team of international disputes lawyers who can provide legal and strategic advice, including utilising procedural tools in multiple jurisdictions where necessary. They can also provide advice on selecting suitable arbitrators and experts.”

His team also work to prepare their clients by training their in-house lawyers on managing disputes, Choong notes, adding that “In-house lawyers play a critical role in facilitating communication between the external lawyers and the business team, and in helping our clients put their best foot forward.”

Legal guidance for the business team is also highly important according to Choong, but something that is “often overlooked.” “The business team has first-hand involvement in the day-to-day operations of a company, and it is extremely useful to ensure that they can identify early signs of a dispute and know how to deal with them properly. As mentioned earlier, it is important to develop a practice of keeping contemporaneous records throughout the life cycle of the project. The business team plays a key role in providing factual input in that context,” he says.

ARBITRATION RISING

When it comes to resolving disputes, the epic rise of arbitration cannot be underplayed. Recent developments have also reinforced the strength of the Asia market as a hub for this – the signing of the Singapore Convention on Mediation in 2019, while a recent agreement between authorities in Mainland China and Hong Kong that enables Chinese courts to grant interim measures in support of arbitrations seated in Hong Kong, has also been praised.

Indonesian firm Kudri & Djamaris say that arbitration has been acknowledged as “a more favourable approach than litigation especially in area of international commerce contract’s dispute, partly because its perceived advantages felt by the disputing parties.”

“Its wide array of advantages such as, but are not limited to, its nature of confidentiality, procedural flexibility, time efficiency and arbiter’s area of expertise conclude its benefit that litigation cannot offer. We believe that arbitration is and has been the best suitable option and we feel that it will stay as the most favourable option as the main approach of dispute resolution,” they say.

They also add that mediation is likely to rise in popularity in the future

“especially in relation with dispute in the BRI’s related infrastructure project.”

“This prediction comes from the understanding that mediation could provide a friendlier approach for dispute resolution for the contracting party without a potential of damaging the business relationship,” they say.

Murti informs Asian Legal Business that most cross-border businesses and transactions in Southeast Asia are typically carried out with arbitration as their dispute resolution mechanism, in part due to its international enforcement capability.

“The most famous arbitration-friendly countries being Singapore and the Hong Kong SAR due to its proximity to the Southeast Asian region. Both countries are frequently the venue of choice for arbitration given their geographic convenience and the fact that each of them hosts one of the most prominent arbitration institutions in the world (SIAC and HKIAC), along with their respective world-class lists of arbitrators,” she says.

But looking forward, she also predicts there may be further developments in the arbitration scene in the future. “We believe the demand for arbitration will remain high in Southeast Asian countries, including because of the Belt and Road Initiatives enhancing the number, size, and variety of new cross-border projects and transactions. With more demand for arbitration in the market, certainly arbitration institutions will consistently update their arbitration rules, and enhance the quality of service, facility, and the standard of their arbitrators.”

Eliasson agrees that well-drafted contracts in Asia “frequently identify arbitration as the preferred method of resolving infrastructure disputes.” “This is a sensible choice given the neutral forum that arbitration offers for resolving disputes as well as the comprehensive international framework that exists under the New York Convention for enforcing arbitral awards in 161 states, including most Belt and Road countries. It is also common to see parties agreeing to a “tiered approach” to dispute resolution, with negotiation, expert-determination or mediation as the initial form of dispute resolution followed by arbitration if the dispute has not been resolved. In a cross-border context, including in infrastructure projects, arbitration is preferable to relying on local courts, which can be unreliable and slow depending upon the particular jurisdiction.”

“Where a company’s involvement in an infrastructure project has been negatively impacted by a state or state-owned entity in the country where the infrastructure project is located, the Company may also be able to rely upon an investment treaty to initiate arbitration proceedings directly against the host state. Investment treaty arbitration can offer a powerful mechanism for obtaining redress in infrastructure projects.”

Situmorang at Parulian Situmorang & Partners weighs in, commenting that while arbitration regulation is relatively new in Southeast Asia, it has become quite a trend in dispute resolution in the market. “The parties they need to deeply discuss matters until they come to a dispute agreement,” he says, noting that the court process can be somewhat more restrictive.

“In a court setting in Indonesia, judges here usually have more than enough cases at hand and may quite a lot to handle and so many regulations to comprehend. For example, maybe in the morning a judge will be settling a case on family law, in the afternoon they’ll be handling civil or commercial litigation, then in the late afternoon, or sometimes evening, they’ll discuss and review the case on criminal proceedings,” Situmorang says.

He adds: “Therefore I am of the view that [arbitration is a preferable method] especially for commercial or infrastructure disputes, because you need someone that really knows the specific regulations, who has first-hand experience and deep understanding about the area being discussed.”

“For arbitrators, you don’t have to have a legal degree. You can have a shipping background, a tax background. When we have a dispute regarding a shipping issue, an arbitrator who has a deep knowledge of shipping can be chosen by the parties. Especially for high complexity kind of cases, I think arbitration is a good choice,” he says.

MORE IN THE OFFING

While there is much talk of preparing for the dangers of disputes, the reality is that given the long-term nature of many of the BRI projects, these aren’t always forthcoming. Sometimes challenges are buried further down the road, only to emerge years later.

“Infrastructure disputes typically emerge as projects near completion so, as increasing numbers of Belt and Road Initiative infrastructure projects move towards this stage over the coming years, we are likely to see more infrastructure disputes relating to Belt and Road projects,” predicts Eliasson, noting that because of the nature of some disputes, these may be resolved at a state-to-state level, as opposed to dispute resolution mechanisms in the underlying contracts.

Choong echoes the belief that disputes are likely to increase over the next few years “as earlier projects are beginning to mature into disagreements and conflicts.” Additionally, such conflicts may grow as projects swell in scope. “As the scope of the BRI continues to expand, more parties from different cultures and legal systems with differing expectations are becoming more involved, and this is likely to lead to more disputes in the future,” Choong says.

But Murti takes a different stance, telling Asian Legal Business: “We believe the extent of disputes per infrastructure business will remain the same in the future, if not decrease.”

“Although there will be high demand for infrastructure projects in Southeast Asia because of the Belt and Road Initiative, it also means that there will inevitably be a higher number and value of tenders available in the market. In consequence, both companies and legal counsel will be exposed to dealing with infrastructure projects more often, increasing their experience in this area,” she says.

“From there, the trend of using formal dispute process will likely to decrease, as companies and legal counsel grow more familiar with infrastructure businesses and avoid dispute settlement processes by developing strong contracts and settling conflicts amicably. Nevertheless, our belief regarding the stagnant, if not decreasing, number of disputes per infrastructure business will most likely prevail only if companies hire experienced legal counsel expert in the infrastructure and construction field,” she warns.

 

To contact the editorial team, please email ALBEditor@thomsonreuters.com.

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