31 March 2022
Kelvin Aw is a partner in CMS and co-heads its infrastructure and construction practice in Singapore. He brings more than 25 years of court and board room experiences to champion clients’ interests in both contentious and transactional matters in the sector. Kelvin is consistently ranked as a leading individual by various legal ranking directories for his expertise in construction, projects & energy, and dispute resolution, such as Chambers Asia-Pacific: Leading Lawyers for Business, Legal 500, Best Lawyers and Benchmark Litigation. He has been described as “a very experienced construction lawyer who knows his stuff” and that “he is well-versed in contentious matters, including international arbitration”. Kelvin is also a Senior Accredited Specialist for Building and Construction recognised by the Singapore Academy of Law. He is a fellow of the Singapore and Chartered Institutes of Arbitrators, and an accredited Senior Adjudicator with the Singapore Mediation Centre. In addition, he has served on the Council of the Singapore Institute of Arbitrators and has taught construction law modules at the National University of Singapore.
Questions:
How would you describe yourself in three words?
Introverted yet extroverted
How did you first get involved in arbitration work?
I pupiled in Chan Tan & Partners, a rare boutique construction law practice, under Mr Raymond Chan. As a young lawyer, I was expected to navigate through piles of documents with little to no electronic aid, as was then common in the construction and arbitration bar. The masochist in me enjoyed the process thoroughly, and with the encouragement of my then boss, I specialised early in this field.
In the course of your work, do you notice a trend in clients preferring arbitration over litigation as a form of dispute resolution?
Earlier in my career, the trend was to prefer arbitration over litigation. However, with the rising costs associated with arbitral proceedings, coupled with the streamlining of the court process in Singapore and the emergence of the SICC, I have observed a renaissance of interest in litigation at least in Singapore. However, with arbitration still being prescribed in most industry-standard forms, clients invariably resolve their differences through arbitration instead of litigation. While this may appear to be a prescribed “choice”, it may not necessarily reflect a real “preference” at any one point in time.
What is the most memorable arbitration or arbitration related matter that you were involved in, and why?
In my 2nd year of practice, I was asked by my then boss to sit as local counsel in the closing submissions of an ICC international arbitration held in Vancouver but seated in Singapore. The award was subject matter of a setting aside proceedings in John Holland Pty Ltd v Toyo Engineering Corp [2001] SGHC 48 which has been recently affirmed by the Court of Appeal as to the elements needed to be established to set aside an award on grounds of natural justice under Singapore law. Under the Singaporean arbitration regime those days, foreign lawyers could only argue in Singapore seated arbitral proceedings in the presence of local counsel. In practice, to satisfy such a requirement, a junior lawyer from a Singapore law practice would usually be assigned to perform this task; a practice that is now redundant given the amendments to the International Arbitration Act 1994. I sat with the team at Clayton Utz, helmed by Professor Douglas Jones AO, who ran a paperless arbitration – a first for me those days. I had the good fortune of being shown their data room beside the hearing venue at the now Mandarin Oriental Hotel, Singapore. Fast forward 20 years, and with the advent of virtual hearing due to the pandemic, paperless arbitration is now something that is here to stay.
What advice do you have for a young fellow practitioner interested in arbitration work?
I would first parrot my then Pupil Master’s advice to me, and that is to decide on early specialisation and get into the arbitration circuit as soon as you are qualified to do so. Secondly, I would encourage young practitioners to consider the myriad dimensions in which arbitration cross-fertilises with other forms of ADR, because there is no “one size fits all” solution to dispute resolution.
What are the challenges you think arbitration practitioners will face in the upcoming years?
The pandemic has rendered virtual hearings a new normal, and with its adoption by progressive arbitral institutions around the world, arbitration practitioners will have to gear up on tech, both hardware and software, if not now then in the upcoming years. While it is encouraging to see that the arbitration bar getting younger and more tech savvy, senior members of the bar will need the support to adapt.
What advice do you have for a young fellow practitioner interested in developing a career as an arbitrator?
In my view, a good arbitrator is one who maintains objectivity throughout the proceedings. One good way of developing this sense of impartiality is to have prior experience advocating from either side of the issue or case. While those with legal training have a distinct advantage in this respect, industry professionals can equally hone their skills through training and courses provided by institutes such as the SIArb.
Who is the person(s) who has had the greatest impact and/or influence on your career?
I was fortunate to have pursued the MSc in Construction Law and Arbitration run jointly by King’s College London and the National University of Singapore. It was and still is the longest running multi-disciplinary construction law and arbitration course in the world. I recall that my first tutorial in the construction technology module was conducted by Professor Phillip Capper, who posed a question on the water closet or WC which none of us lawyers could answer. That tutorial left an indelible mark in me, to always be curious. Clearly, the “whys” and “why nots” have been a constant guide in my practice.
If you weren’t in your current profession, what profession would you be in?
I would have pursued music arrangement and be a producer in the music industry.
What’s your guilty pleasure?
A moist and frost-coated slice of carrot cake (not the Singaporean dish by the same name) paired with a cup of freshly brewed earl grey.
What is one talent that not many people know you have?
I conduct a community choir for folks from all walks of life who enjoy singing and community engagement.
Fill in the blank: “Arbitration is to dispute resolution as icing is to cake”.