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Spotlight article: Alastair Henderson

21 February 2018 | Southeast Asia
Legal Briefings – By Alastair Henderson

The Head of our Southeast Asia Disputes practice reflects on a career shaped by geography, serendipity, and conversations in college bars…

First published in Inside Arbitration, Issue 5

Alastair, how did you get into the law?

I had never thought about studying law. I did sciences at school and went to university to read zoology. But then I got interested in law through chatting with law student friends in the bar; so much so that eventually I changed my degree course. 

I trained in London at Ashurst Morris Crisp (as it then was). I had never thought much about working outside the UK, until I visited a university friend in Hong Kong. I found it so different and vibrant and fun that I decided straight away to spend some time there. As luck – or serendipity - would have it, Herbert Smith was advertising for a litigation associate in Hong Kong, and I jumped at the chance. Hong Kong in the mid-90s was an extraordinary, wonderful experience, with great work too.

A few years later my girlfriend (now my wife) gave me an ultimatum: return to London or go our separate ways. We went back and I re-joined Ashurst. But we didn't love being back in the UK and when Herbert Smith called on a dark and rainy winter day, to ask if I'd join its new Singapore office, it took about four seconds to say yes. We moved to Singapore in the summer of 1999.

Why have you chosen to build your career in Southeast Asia?

I've never had a long-term plan; it just turned out this way.

After a few years in Singapore, I moved to the firm's Bangkok office in 2002, at a time when Thailand's boom years and major projects of the 1990s were giving rise to a stream of disputes in the early 2000s. Thai Government contracts mostly provided for ICC arbitration in Bangkok, yet few firms in Thailand at that time had the resources and experience to handle complex international arbitrations. I was lucky enough to work on a string of large, interesting cases involving toll roads, power projects, joint venture disputes and the new Bangkok airport, and many others. It was superb experience in a fantastic cross-cultural environment, and of course we also loved living in one of the world's greatest cities. 

I moved back to Singapore in 2011 and now I head the firm's Southeast Asia Disputes practice. The ASEAN region is so diverse in its legal systems, cultures, languages, geographies, politics and development, from the heights of Singapore to the still-developing economies of Laos and Myanmar. We work on cases all across this region and in every country, often complex and always fascinating. I'm lucky to do this with an amazingly talented team. When you combine that with the landscapes, the beaches, the history and the people – well, I challenge anyone working anywhere in international arbitration to say they have a more rewarding job than mine!

Singapore enjoys significant government and judicial support that has helped it become one of the world's leading arbitral seats. What could other aspiring seats learn from Singapore's approach?

Singapore benefits from geography and history, and from the vision and drive of its leadership since 1965 who turned this island into one of the world's great centres of international commerce. Its legal system and infrastructure play key roles in sustaining this. These factors have certainly helped it develop as a hub for arbitration. But this is also attributable to the Government which decided years ago to promote Singapore's growth as a hub for legal services and specifically arbitration. Once that decision was made, it was pursued with relentless determination. Just as examples, arbitration law is continually updated to reflect best practice; immigration and legal practice rules were changed to allow international lawyers and arbitrators to conduct cases with minimal red tape; tax laws were changed to exempt visiting arbitrators; universities and institutions promote thought leadership and scholarship in this field. Meanwhile, steps were taken to develop the SIAC's international standing, and Maxwell Chambers was created as a first-of-a-kind facility for the business of arbitration. It's not an exaggeration to say that the holistic promotion of Singapore as a world-class arbitration centre is a matter of national policy.

"But Singapore is still in a class of its own – at least for now"

It is difficult for other jurisdictions to emulate that. Other SE Asian seats are viable and effective, for example Kuala Lumpur, Bangkok and Jakarta. We conduct arbitrations in all of them successfully. But none of them enjoys the degree of single-minded government support that we see in Singapore. Kuala Lumpur is closest; it has excellent new facilities, updated laws and dynamic leadership that has done a lot in recent years to lift its standing and caseload. But Singapore is still in a class of its own – at least for now.

You are known as a leading arbitration advocate. What advice would you give younger arbitration lawyers who want to develop their advocacy skills? In particular, how can they convince partners (and clients) to let them have a go at pleading before a tribunal?

The key to good advocacy is thorough preparation. Once you have mastered the detail and know the case inside out, you have the confidence to present clearly, to cross-examine effectively and deal with anything unexpected that might (or will!) be thrown at you during the hearing. 

It's also essential to be attuned and sensitive to the tribunal. This is particularly the case here, where tribunals can – and should – be very diverse in their cultural and legal backgrounds, their languages and the extent of their arbitration experience. Arbitrators have different expectations and preconceptions of what makes effective communication and what conduct is appropriate. I have watched a US lawyer tearing into a witness in front of a Thai tribunal, oblivious to the arbitrators' extreme discomfort at an approach they considered culturally unacceptable. Similarly, some English barristers speak exactly as they would before an English judge, the same arcane expressions and vocabulary although the arbitrators don't speak English as a first language and are clearly struggling to understand the jargon. It is as important to think about who you are speaking to, as about what you are saying. It's my experience that businesslike, straightforward advocacy is more effective and appealing than courtroom dramatics on most occasions.

"Partners need to trust and guide their juniors to get advocacy experience whenever they can"

Finally, you need to preserve your credibility with the tribunal at all costs. You want a tribunal to trust you and to believe the case you're presenting. If you lose that credibility by running hopeless arguments or misrepresenting the evidence or droning on unnecessarily and without a point, you will lose the tribunal and probably the case too.

Partners need to trust and guide their juniors to get advocacy experience whenever they can. You can start small with a minor witness or a peripheral issue, then build from there. In my experience, clients don't oppose associates taking on some of the advocacy as long as it's clear that the associate has the trust of the partner and has mastered the issues. Sometimes the hardest challenge for an associate is simply mustering the confidence to take that first step.

We hear a lot about artificial intelligence and online dispute resolution transforming the legal landscape in coming years. How do you think this will affect international arbitration?

There is already a large technology component in dispute resolution, including arbitration. Many big cases now involve electronic document review platforms, video displays of evidence, computer modelling, video conferencing and such like. But mostly these are simply ways of using technology to help us do our existing jobs better, faster or more efficiently; they haven't yet changed the game fundamentally. I think AI is on the cusp of driving much more profound change, in ways I haven't imagined and probably faster than we think. For example, AI-based decision making is bound to have an impact. When parties can enter the facts of the case into a computer that uses its stored knowledge and learned experience to spit out a ruling with – say – a 90% level of confidence in the conclusion, will there still be a place for the cost, time and disruption of traditional arbitration? Probably not, at least for disputes of a certain type and value, although I suspect that in higher-value disputes there is generally too much money and emotion at stake to rely exclusively on AI – in my lifetime, at least. More generally, there is still an important role for a human element in order for parties to feel that they have been through a fair process and can live with the result.

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