Young ICSID Profiles Part Seven - Focus on East and Southeast Asia

Young ICSID is pleased to share the seventh installment of its profiles of professionals in the field of international investment law and dispute settlement. Each issue examines practical issues related to building a career and skill set from the perspective of young professionals from around the world.

In this issue, we had the pleasure of interviewing three practitioners with extensive experience in arbitral practice in East and Southeast Asia: Ara Cho, at Peter & Kim in Korea; Samantha Tan, at Freshfields in Singapore; Shimpei Ishido, at Nishimura & Asahi in Japan.

What is your current role and what does a typical day look like?

Ara: I am a partner at Peter & Kim, based in Seoul. About 90% of cases that I am currently dealing with are international commercial/investment arbitration and arbitration-related court litigation. The remaining portion is pre-dispute or post-dispute advisory works.

I try to start my day early so that I can come home before my 9-year-old daughter goes to bed. So I usually work at home for about an hour or more in the early morning (6:30-8:00 am) and then continue working at the office from 9:30 am. My typical day would be similar to any international arbitration lawyers around the world. My day usually is filled in with attending video calls or in-person meetings with clients, co-counsels, and/or experts, reviewing the case record, drafting various emails, memos, and submissions, reviewing and commenting on the drafts prepared by others, and discussing cases with team members. There are of course special periods such as the week of Seoul ADR Festival, and Peter & Kim international arbitration workshop for law school students.

Samantha: I view my new role as partner as a multifaceted one. It includes both providing excellent service to clients (through sound, carefully considered, and commercial advice and top-tier advocacy) and developing my team and maintaining a docket of stimulating and profitable work for them.

One of my favorite things about this job is that my typical day differs almost from week to week. As I write this, I am spending 9 to 5 in a hearing and then spending 6 to 9+ working with witnesses and preparing for the next day. Before this hearing began, my days tended to involve a few hours working on drafts, a few hours corresponding with colleagues and clients on strategy and work product, some pitching along the way, and meetings with potential clients and industry colleagues with whom it may be possible to collaborate or from whom I could learn a thing or two. After this hearing, I hope to have a few (not so) typical days of hanging out on a beach!

Shimpei: I joined the Tokyo office of Nishimura & Asahi as a senior associate six and half years ago and was promoted to partner this year. I focus on investor-State and on international trade dispute settlement, including WTO disputes.

My typical day starts with a Zoom call with a client and/or the co-counsel team, followed by a Zoom or in-person meeting with my team members to discuss issues concerning ongoing drafts and cases. After lunch, I concentrate on drafting or reviewing memos and submissions that my associates have prepared. The time after dinner with my family is usually allocated to calls with my team members, checking and returning e-mails, and checking the ICSID website, GAR and IAReporter articles, and non-billable work such as drafting newsletters or articles.

For those contemplating a career in international arbitration, what is one pro and one con (or challenge) to that career path that you feel they should be aware of?

Ara: Pro: You will never get bored.

Con: Questions you are asked to answer will never be easy.

Samantha: It is an obvious pro that working in international arbitration lets us, in a way, directly experience the geopolitical, macroeconomic, and business issues driving our world. It is not at all uncommon for stories in the international press to resonate because of an ongoing case. International arbitration also gives us special exposure (with confidentiality duties, of course) to the inner workings of foreign governments and some of the largest multinational corporations in the world. The range that international arbitration work offers is amazingly enriching.

On the other hand, I’m starting to think there are relatively fewer opportunities to advance jurisprudence in international arbitration than in litigation—in Singapore, at least, and I am thinking of a particular slice of civil litigation practices here. Because litigation is not predicated on a commercial contract or an investment treaty with the usual standards, there is a broader spectrum of causes of action—and therefore legal issues—that could be litigated. Across this wider waterfront, one may encounter a novel issue more often. There is, of course, scope for advancing international investment law in arbitration, but it is increasingly rare for an investment law issue to arise that has not been well‑ventilated. And, of course, the confidential nature of arbitral awards means many of them do not add to the jurisprudence.

Shimpei: International arbitration is a very trans-national arena where competent arbitrators and lawyers from various jurisdictions come together to resolve international disputes. As a result, there are many opportunities to interact with legal cultures that are different from those of your own jurisdiction. To deepen mutual understanding with the arbitrators and your co-counsel, and sometimes your opposing counsel, it is necessary to understand the legal background of the other side before speaking out. This is a very CHALLENGING but intellectually stimulating exercise, and one that makes me glad I pursued a career in international dispute resolution.

The flipside of working in such a trans-national environment is that there are inevitably fewer opportunities to analyze and advise clients on legal issues regarding the laws of your home jurisdiction. As a professional, however, there are situations where you are expected to be familiar with such laws. This familiarity also serves to develop your own client services. Arbitration lawyers are therefore required to consciously pursue opportunities to cultivate their knowledge of the law of their domestic jurisdiction.

What advice would you have for someone preparing for their first arbitration case in Korea, Singapore, or Japan?

Ara: Make sure you stay close, in walking distance, to the hearing venue. Seoul has a lot of traffic, so I recommend minimizing your time spent in the road!

Samantha: Dress warmly for the indoors! And reach out to a local (like me) for food recommendations.

Shimpei: If the company has no experience in international arbitration, I recommend seeking in-house counsel who understands the company's business and internal affairs and has basic knowledge of arbitration. Such in-house counsel can act as a bridge between the company's management and business units and outside counsel and can contribute to efficient and effective preparation for the arbitration case.

As a practical matter, Japan does not have extensive document production or discovery, as in the UK and the US, given it is a civil law jurisdiction. As such, Japanese companies tend to not be familiar with such procedures and their burdensomeness. Therefore, I would advise the person on the importance of explaining the system to the management of the company as well as the people involved in the subject matter of the intended arbitration, so that the company as a whole is ready to engage in extensive document collections.

How would you describe the future of investor-State dispute settlement in East and Southeast Asia? Any trends or developments that you anticipate in the next decade or so?

Ara: The general public’s knowledge and interest about investor-State dispute settlement (ISDS) has dramatically increased over the past decade or so. As a result, I think the States will take a more cautious approach in terms of both agreeing to ISDS mechanisms in their treaties, and responding to specific ISDS claims.

For example, the Regional Comprehensive Economic Partnership (RCEP) which was signed by ASEAN member States, Australia, China, Japan, New Zealand, and South Korea in 2020 and entered into force in 2022, does not include an ISDS clause, although inclusion of it was discussed during the negotiation. However, the treaty contains a clause (Article 10.3) requiring the signatory States to “enter into discussions on (a) the settlement of investment disputes between a Party and an investor of another Party” by no later than two years after the date of entry into force of the said treaty.

At a more general level, I wonder whether States in East and Southeast Asia will play more of a role as a rule-maker rather than rule-taker, based on increase in the volume of incoming/outgoing investment to and from this region, and these States’ accumulated experiences in ISDS cases.

Samantha: Promising, for now. Asia—and Southeast Asia, in particular—is an increasingly attractive destination for foreign investment. Yet, the volatility arising from climate change, energy insecurity, domestic politics, and other factors still warrants foreign investors arming themselves with leverage, one of which is investment treaty protection. Then again, foreign investors in this region of emerging economies may not be inclined to sue the government of a State whose market or resources they continue to want to access. I expect a continued exercise of caution before pulling the trigger on a treaty claim. I also expect more and more Asian investors, who are increasingly well-capitalized and investing abroad, to invoke investment treaties as a tool in their dealings with host States.

Shimpei: While there have been some negative trends, such as the termination of existing bilateral investment treaties by India and Indonesia and the lack of ISDS in the RCEP, I expect that the region will continue to maintain adequate ISDS protection. Japan has investment treaties with almost all East and Southeast Asian countries that include ISDS. Moreover, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), to which the UK has recently acceded, will continue to expand its membership base in the region.

In the next decade, presumably, there will be more cases that concern measures related to energy transformation, such as renewable energy projects and carbon capture storage, as well as economic security-related measures in the context of supply chain management.

Are there recent innovations in international investment agreements in the region that have caught your attention?

Ara: Mechanisms for contracting States to provide a joint binding interpretation of the relevant agreement to the arbitral tribunal caught my attention. One such example is Article 19.18.2 of China–Australia Free Trade Agreement (2015) which provides that “A joint decision of the Parties, acting through the Committee on Investment, declaring their interpretation of a provision of this Agreement shall be binding on a tribunal of any ongoing or subsequent dispute, and any decision or award issued by such a tribunal must be consistent with that joint decision.”

It remains to be seen how the two contracting States will reach an agreement on their “joint decision” in specific circumstances, but it could effectively assist settling the dispute at issue, and provide guidance on future disputes. 

Samantha: The nuances in the protections afforded in the newer treaties are interesting. Take the 2018 Singapore-Indonesia BIT, for example. It contains the express provision of a “right to regulate”, where a modification to laws that interferes with an investor’s expectations does not amount to a treaty breach, as well as the qualification that “the mere fact that a Party takes or fails to take an action that may be inconsistent with an investor’s expectations does not constitute a breach of this Article, even if there is loss or damage to the investment as a result”.

The CPTPP’s investment chapter contains similar nuances, including a carve-out for measures taken with regard to “environmental, health or other regulatory objectives”. This intentional calibration of the scope of application and substantive obligations in newer Asian treaties—clearly informed by investment arbitration case law—signals, I think, a growing sophistication in the region’s approach to investment treaties. I find this an encouraging development for the analyses and considerations to be taken into account in future ISDS proceedings.

Shimpei: I am not sure whether we can characterize this as an innovation, but there has been a recent trend of expanding the scope of the security exception clauses in investment agreements. This probably is due to the growing importance that States are placing on economic security in recent years.

Until the early 2010s, most regional investment treaties in this region adopted the so-called GATT/GATS-type security exception clauses when providing for security exceptions. For example, Article 18 of the China-Japan-Korea investment treaty, signed in 2012, provides that each party may take measures "which it considers necessary for the protection of its essential security interests", but sets out an exhaustive list of the subject matters of such measures as measures “taken in time of war, or armed conflict, or other emergency" and "relating to implementation of national policies or international agreements respecting the non-proliferation of weapons”. Investment treaties concluded by ASEAN countries similarly limit the subject matter of security-related measures that could be adopted, while they enumerate other subject matters (e.g., Article 13 of the China-ASEAN FTA, Investment Chapter).

However, recent investment treaties in this region tend to abandon such subject-matter limitations. First, Article 29.2 of the Trans-Pacific Partnership (TPP), which was originally signed in 2016 and later transformed into the CPTPP after the US withdrawal, adopts the US model BIT security exception and does not enumerate the subject matter of measures that can be taken for the protection of essential security interests. Article 10.15 of the RCEP in 2020 adopts a similar approach. It is also noteworthy that Article 1.5 of the UK-Japan EPA (signed in 2020) and Article 16.2 of the Angola-Japan Investment treaty (signed in 2023) maintain subject matter lists, but these lists are illustrative.

A number of countries in Asia have been strong advocates for mediation as a means to resolve commercial and investment disputes. Why do think that is, and in practice do you feel mediation is used to a greater extent in Asia than elsewhere?

Ara: Preference of a consensual procedure over a contentious one would be the key reason. There is also an expectation that mediation will save time and cost compared to full-blown arbitration or other adversarial dispute resolution mechanism.

As to the feature that the parties will have more say in shaping the outcome of the dispute (when resolved by mediation), it has two competing aspects. Greater degree of party control over the outcome is considered as an advantage of mediation, as the parties can avoid unexpected outcome. On the other hand, I have also heard private companies saying that it is sometime more convenient (and less burdensome) to receive the binding decision by the adjudicator, without having a choice of saying yes or no to that decision. This means that mediation giving more power to the parties does not always act in favor of mediation.

I do not think I can generalize that mediation is used to a greater extent in Asia compared to elsewhere. 

Samantha: I think there is a perception of Asian culture favoring more amicable forms of conflict resolution. But I do not believe this can be generalized across the continent. There is a perceptible willingness by Indian and Korean parties, for example, to litigate. In my experience (which is focused on high‑stakes international commercial and investment disputes), a party’s appetite to mediate has turned more on the nature of the dispute and what is at stake than their cultural background. I view Singapore’s advocacy for mediation as arising primarily from its neutrality and desire to position itself as the one‑stop fora for dispute resolution. And I am completely in favor of integrating mediation into one’s arsenal of options for resolving disputes, regardless of region or culture.

Shimpei: I have been involved in the ISDS reform discussions taking place in UNCITRAL Working Group III since 2017 and many Asian countries are strong supporters of mediation as a means to settle investment disputes.

Asia is a diverse region, and my views are limited to those relating to Japan. I believe that non-adversarial resolution of disputes, including mediation, conforms with Japan’s social traditions. Article 1 of Japan’s first constitution, which was issued in AD 604, starts with the words, “Harmony is to be valued, and avoidance of wanton opposition, is to be honoured.” It is a common practice of Japanese civil court procedures that judges usually try to encourage the parties to settle the dispute. Court statistics reveal that more than 30% of the civil cases before the first instance court were resolved by judicial settlement. Japan also has a 100-year history of court-annexed mediation which has been heavily used.

Turning to ISDS, I think non-adversarial means of dispute settlement, including mediation, are an effective and efficient means of dispute settlement when compared with arbitration. They are less expensive and relatively less burdensome for the parties and are more likely to ensure the survival of future economic relations between the investor and the host State. Furthermore, the parties have control over the outcome, and if a settlement is reached, there is a high likelihood of voluntary performance by a party. As use of such means does not deprive the parties of the option to ultimately go to arbitration, it at least deserves attempting.

I am aware of several ISDS cases in which Japanese companies have been able to de-escalate a dispute, and through amicable consultations with an Asian State avoided arbitration altogether. In one of these cases, which is publicly known, the dispute was resolved before the case was referred to ICSID arbitration. In addition, an investment treaty arbitration between a Japanese company and a South Asian country has been resolved by settlement after an affirmative decision on jurisdiction was issued.

In these cases, the parties settled through amicable consultations, without resorting to mediation. It remains to be seen whether mediation will be actively used in actual practice as a means of bringing about settlements.

What is your motto in life?

Ara: Let life happen to you.

Samantha: No regrets: everything happens for a reason; there’s something to be learnt from every experience.

Shimpei: Work cheerfully, energetically, and happily. Sleep well and eat well. Not only for your own sake, but also for the sake of your clients. This is what I learnt from my former boss at the Ministry of Foreign Affairs of Japan.

The opinions expressed in this publication are those of the interviewees. They do not purport to reflect the opinions or views of ICSID, nor those of the organizations with which the interviewees are associated or employed.