Distinguished Malaysian lawyer and full-time international arbitrator Sitpah Selvaratnam is our guest for this episode of ‘Spotlight on …’ Host Gautam Bhattacharyyatakes us on a journey through Sitpah’s remarkable career, discussing the focus of her practice and the attributes she believes are necessary for anyone aspiring to become an arbitrator. The conversation then explores diversity, equity, and inclusion within the legal profession – pertinent given Sitpah’s role as co-chair of the Asia Pacific chapter of the Equal Representation in Arbitration pledge.
Transcript:
Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, global head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started.
Gautam: Hello and welcome back to our Arbitral Insights podcast series. And I'm delighted that in this edition we have as our guest, Sitpah Selvaratnam. Hello, Sitpah.
Sitpah: Hi Gautam. Thank you for having me on your podcast. I'm delighted to be here.
Gautam: Well, I'm delighted that you're on this podcast. I've been wanting to do a podcast with you for a long, long time and it's, it's wonderful that we've got this opportunity and I know that our listeners will thoroughly enjoy your thoughts and discussions on the points that we're going to be talking about. Now, I will first will introduce you because some of our listeners may not be familiar with you, but you are put it this way, a real force of nature and you are an incredibly impressive lawyer and arbitrator. So um I, I could actually spend the whole half hour talking about your antecedents, but I will have to keep this uh summary short about your profile. So, Sitpah is one of the leading lawyers in Malaysia. Um She's been practicing there for over 30 years. She was called to the Malaysian Bar in 1990 having studied over here in the UK. Yeah, and I'm sure we'll come back to that Sitpah over the course of our discussion, and she, she commenced her practice in Malaysia at one of the largest firms in Malaysia and then was a founding partner of the very excellent firm of Tommy Thomas, uh where she recently has just left. So she's just left that firm to set up practice as a full time arbitrator. And we'll be discussing that in the course of this podcast. Sit is a very highly ranked lawyer in a number of areas amongst other things. Apart from her commercial practice, she has a very, very well regarded maritime practice and that has always been one of her big specialisms as well as commercial arbitration and litigation. So it's a real honor to be doing this podcast with you Sitpah and I'm really looking forward to our discussions today.
Sitpah: Gautam, you are just too kind. It's so lovely to be here chatting with you. So I hope this is of interest to your listeners.
Gautam: It will undoubtedly be. And I, I want to start with this question, what drew you to law as a career in the first place right now?
Sitpah: So it was accidental, as much as it was a process of elimination. I come from a rather conservative family out here in Malaysia, of Sri Lankan descent. And so my father was only about to fund my education in the UK if I did a profession. And so the law and being a lawyer seemed least worse. And that's how I ended up in, in Cardiff reading law and then in Cambridge to do my master's and the rest is history.
Gautam: Well, thank goodness you chose the law because you made good history in the course of everything. So, you know, so, yeah, so you studied in, uh uh in Cardiff and in Cambridge. So tell us your thoughts about your time over here?
Sitpah: Oh, I, it, it still stands out as probably one of the best times of my life. Um, you know, I, I was, uh totally innocent, knew, not knew, not what to expect from the UK. And it just blew my mind, uh, the thinking, the exchanges, uh the freedom of expression, the variety of people I met. And so it was the most liberating experience I had and made me completely come into my home. And of course, it helped that law came naturally to me. So I was acing it and that of course, makes a whole lot of difference to how you experience the place. And London and UK remain such a favorite spot for me.
Gautam: Well, we look forward to seeing you back here very soon and I'm sure you've still got lots and lots of friends over here in the UK, as well as your professional friends and you know, many personal friends from your time here. So, you know, one of the things that, that we all benefit from in the course of our career are our mentors and inspirations. And I wonder if you could share with us your thoughts as to who in your professional journey so far have been your most important mentors and inspirations.
Sitpah: Right, I was fortunate. I certainly will point to Tommy Thomas as my significant mentor, especially in the early days. He was my, one of my reporting partners. Uh And then we, of course, as you mentioned, set out a boutique firm together. And so for the uh early formative years, my practice, it was his work ethic uh that really was great to emulate. He worked hard, he played hard, his drafting precision, his commitment to preparation in court were just outstanding. Um And so those were good habits that I inculcated. But above all of that, I would say what inspired me most about Tommy Thomas was his courage. No client was too big to lose on a point to principle and no um worthy cause was too unpopular to deserve the same amount of attention and commitment. And so these were some of the great things I learned from Tommy. As you know, I'm no more with, with Tommy. After 33 years of being together, I've just become independent. But I would also say moving in my career, my career developed and you know about my maritime passion, I studied uh maritime law in Cardiff under Professor Kent Woloder and David Glass and then in Cambridge under Francis, Professor Francis Rose and Malcolm Clark. And I was determined to, to practice maritime law in Malaysia. And this is way back in 1991 where maritime law was unheard of in Malaysia. So in many ways, I was a pioneer, the first wave of lawyers coming out. And to me as my career program, I had more challenging maritime cases. I and and the English court decisions didn't seem to sit so nicely with me. I would car the the law reports of the region and it was principally justice also James also from Australia and also Selma Reyes from Hong Kong that I admired most, especially James also in his careful fair sound judgment. And it makes so much sense to me, it it sort of prioritized maritime and insolvency for instance, um together and then decided which to precedent. It excited me so much. So I would put them there as my inspiration in a closer home. It would be also justice Belinda And and Justice Judith Prakash in Singapore, who maritime practitioners who were elevated to the bench and contributed so much. These people truly inspired me.
Gautam: Well that's a wonderful array of people and inspirations. One of the areas Sitpah that you're extremely well known for and we'll come to this in the course of our discussion in the podcast is the world of arbitration and you've now set out as a full time arbitrator and again, we'll cover that. But how did you first get into the world of arbitration? Was it as a consequence of your maritime law practice which we just were speaking about,
Sitpah: Right, Gautam. So a lot of my life, the best things happen not by design, just by providence. So I got involved in a huge bonds dispute, say 20 or 25 years ago, it had really preeminence tribunal members including Lord Millet and Gavin Griffiths and Justice Boram, and I was second chair, but I had the pleasure of appearing before truly top class international panel and it made me rook the ways in which my dispute resolution career could evolve. And so that was the first days. And around the same time I got roped into the Chartered Institute of Arbitrators Malaysian branch into the committee. Again, that went further my appetite. And next thing you know is doing my diploma in International Commercial Arbitration in Keble College, Oxford, got my first two appointments and uh it just went on from there, I just loved making decisions. And as we all know, the institutions play an enormous role in getting the first couple of appointments and uh to that to their credit the SIAC and the AIC Malaysian Center at that time known as KLRCA uh were were terrific in their support in pushing um younger arbitrators in and for my time. So this would have been 2009, 2010 for a 40 ish year old ethnic minority female to be getting appointments was really ahead of the curve already. So I was very lucky.
Gautam: Well, one of the things which um you know, is wonderful is that you are, as you said, of an ethnic origin and there aren't enough ethnically diverse arbitrators out there doing major commercial cases. So it's wonderful that you're so prominent in that regard. It's also wonderful that as a woman, you are also extremely prominent and that adds to the importance of your, of what you stand for because you are female, you're ethnically diverse. One of the things that's gradually getting better and better is that there are more and more people becoming arbitrators and gaining prominence as arbitrators who are female and are ethnically diverse. One of the things that I wanted to ask you was to share your thoughts about the whole concept of diversity, equality and inclusion because it's obviously a very important concept in many walks of life. But in the world of International Arbitration, it is getting better and better. But I wonder if you could share your thoughts as to how it can get even better.
Sitpah: Yes, I would certainly want to share with you some of my thoughts. I think we've, I'm first of all, as a firm supporter of diversity, not just of gender and ethnicity, but all forms of diversity, generational disability, sexual orientation. To me, I start from the perspective that the tribunal should be reflective of society as far as possible of course, and then you get a more wholesome complete review of the dispute from several perspectives. Um So with that in mind, of course, I appreciate ultimately, the the arbitration is the party’s process, party autonomy, but there is some amount of obligation and responsibility on all our parts to make that make the parties aware of the benefits that come from diversity. And in this regard, I think where we have parties from different geographical areas, it is imperative that the tribunal closely reflects that the what you would say, the geographical areas, the demographics of the parties so that the the dispute gets, gets to be heard in its proper context with the flavor that it deserves. So to my mind, diversity has achieved in many respects, especially with gender and more and more conversations are going on in that regard. But to me, it is also an aspect of natural justice. One thing it's good that you have a diverse panel. But it is part of allowing the parties to feel that they have been heard. And parties from different aspects from different, different areas of the world have got different understanding of words, their body language difference, it differs. So only someone exposed to British humor would understand British humor. The converse is true. You couldn't begin to understand the party's language, their body language unless there's been some exposure to that their cultural background and background is important. It forms the lens through which we perceive facts and we perceive behavior and then that goes towards findings of fact of truth. So to me, it is an aspect of natural justice. And when we say that a party must be afforded natural justice. It is not just giving equal time, but that time must be quality time where the dispute has been properly appreciated in the social cultural context. So when I advocate for diversity, I come from the perspective that it is an aspect of natural justice.
Gautam: I, I totally agree with you. And you know, and you know, those were uh you know, wonderful thoughts to hear because you know, that ability to ensure that the parties feel that they've been properly considered and all aspects of the process have worked as well as they can is very important because arbitration is a service industry and arbitrators are there to serve the parties. And so they need to be very mindful of who the parties are, what the parties expect. And as you say, what sort of reaction the arbitrators are giving to the parties in terms of how well prepared they are, how they interact with the parties, their demeanor, the sorts of questions they ask. So I, you know what, what you said was very, very interesting and really resonates with me. You know, one of the things, as I mentioned a little earlier is that after your glittering career in practice, you've now become a full time arbitrator and you will continue to do wonderfully well, Sitpah because you are an incredible name and you're a real Trailblazer. I wonder if you could share your thoughts as you know, over the years in all the arbitrations you've sat in, you've obviously gained an insight into how the process works. And I wonder if you could just share some of the um sort of lessons the perspectives that you've learned as an arbitrator because I think that would be, I think of real interest to our listeners.
Sitpah: For sure, Gautam. Um It's been a phenomenal 15 years sitting as an arbitrator and I would say I, I could put it down to two or three main lessons. Uh The main lesson is how essential it is to be clear thinking and decisive and to be able to prioritize uh parties or council submissions and to then distinguish between very closely uh competing positions which should actually uh nudge out the other. And I often find myself, you know, um standing by the window, hands in my pocket or with a cup of coffee just reflecting on this and just filtering through in a very rational manner to see who comes up uh, you know, the better comes up with a slightly better argument on that and that is with, with, with some luxury of time to reflect. But actually more than that when you're in the arbitration room and you're hearing cross examination of expert witness testifying, then that clear decision, the clear thinking also comes in to be able to decide whether that's irrelevant, that's relevant, let's stop it here to be efficient whilst being fair. So clear thinking, very decisive and that's not something everyone has is very important. And the second is something I've alluded to earlier, the importance of making parties feel that they have been heard and understood. And especially if you're going to dismiss the argument, then some part of that must be reflected in the ward so that the confidence in that whole process, the satisfaction that the parties get from the dispute resolution process is upheld and may be linked to that. I would say it is also that the impartiality of me at the arbitrator I feel strongly about must be seen, must be felt. And it comes across when I actually with my body language, when I want to hear why the witness does what the witness did so that I can appreciate that though it may not be what the law affords them, the protection they may have chosen a law that they are not familiar with, but it may have been put in there by the counter party. They have had my year to that and quite often related to that is the fact that parties are not always equally represented. And then it's finding the right balance to remain neutral and yet try as far as possible to rise the imbalance, so to speak. So I would say in short, I have learned how to be firm and yet be approachable.
Gautam: Yeah, and that's a wonderful balance. Um And I, you know, and I, you know, again, that's just music to my ears because that's, those are the sorts of things I love to see in arbitrators mix of having a personality but being a decisive mind and, and just, you know, and just being inclusive and nice to deal with and being well prepared. Like I said, these are some of the real features because in the years that I've been practicing, I think you and I have been practicing for more or less the same amount of time. I'm sure between us, we've got a lot of interesting. I'm sure we were to speak more on this. We'd have a few war stories to share. Now I want to turn to one other topic before we go to the final topic, which is, I want to ask you this arbitration is obviously now um well established as a really important dispute resolution mechanism. And um it's recognized globally as the most important way of resolving disputes, but it can obviously be made better. It's not the perfect system. So are there any thoughts you've got as to how the arbitration process can be improved so that it becomes a better form of itself?
Sitpah: Ok Gautam, I think I'm going to go out on a limb here. So um bear with me, I come from Asia. So it might not be the same experience where you sit. But let me tell you what it is, I think needs strengthening and that is the strength, strengthening of the perception of impartiality and neutrality of tribunals. And of course, diversity helps because diversity can sort of disrupt the, the, the the club, so to speak of the same people sitting as arbitrators. But why do I say this? Um Out in Asia, we have a few experiences and the appointment process to us needs to be a little bit more transparent. As it stands disclosure is still very much self regulated. The arbitrator has to make disclosure. I think even in your 1996 consultation paper, it still remains that way. And so we don't get an objective listing of firms repeat appointments, arbitrator or co arbitrators appointments. Uh And so the with the objective then being trying to trying to minimize repeat appointments or unspoken reciprocal arrangements. I feel that something needs to be done. More than that is also out in Asia is what I call the double standard syndrome. That an arbitrator can behave differently depending on his or her environment, depending on the sophistication of the seat or the parties. Do I have an answer for it? Of course not. I don't presume to know how to write this very tricky issue, but it's a real issue, but I can share what my husband and I often speak about quietly. He's also an arbitrator lawyer. And it is this, we so often speak about disgruntled parties about the manner of behavior of an arbitrator that we wonder whether a peer oversight process can be put in place. Not one that will upset the award because that award will go through the setting aside process or enforcement process. It may or may not make the mark for setting aside, but the parties may perhaps be given an opportunity to add the grievance in a peer oversight committee. And then the repercussions obviously would just before the arbitrator personally or you can be avoided to council or however you want to work it. But here we talk about the arbitrator but obviously is open to abuse and it's something perhaps either in my lifetime or after may be worthy of some thought.
Gautam: I mean, again, uh fascinating, I agree with you completely. I mean, those are incredibly perceptive comments uh which are drawn from your experience. And I think many of our listeners would also agree entirely with them. Uh, so I think you're spot on, on everything there, Sitpah unsurprisingly spot on in your observations.
Sitpah: Sadly so, right?
Gautam: Well, you know, you know, life has this habit of raising all of these issues and, uh, you know, we just have to talk about them. So I think that it's really good and, you know, thank you for raising those points with us. You know, I traditionally end these podcasts by delving into some more lighthearted conversation, you know, not law, not arbitration, not anything like that, just about the person. You know, you're an incredibly vivacious energetic dynamic person, you're very busy all the time. Uh I'm sure your diary is completely chock a block for a long time to come. But when you do get some spare time, what do you like to do in your spare time? Right.
Sitpah: So I've been told that, you know, I can't bear to see five minutes of my time, not used and therefore I would fit something into it. It's of course an exaggeration, but I am a bit of that personality. And so I have packed many, many things in my life, but I would, I suppose say two things stand out as a particular passion, which is I, I love my martial arts. So I still train in the martial arts of Aikido. And um I'm terribly pleased to have got finally after many years of training my black belt. So that's something I do at least twice a week.
Gautam: Congratulations. Wonderful.
Sitpah: And the other is I love discussing life and I do workshops with parents with young adults about living skills because thought processes, emotions just living life. So challenging is important to me. And I love seeing other perspectives for my children from other young adults, from anyone really who is willing to discuss life as it is uh with me. And that would be what I would say is my other particular interest.
Gautam: Incredible. And, and you know, I didn't know that um you had such a passion for martial arts. Uh I think it's, it's really, really wonderful to know actually, I mean, uh you know, when I see you next, I'll talk to you about that a bit more. I'd like to find out more about that because amongst other things, I think some of the most disciplined um sports people on the planet are the people who are, who are mixed martial artists because they've got to master so many skills and they've got to be on top of not just one martial art, but many martial arts and there's a lot to learn, I think from people like that. So, and then in terms of travel, um is there a particular place outside of Malaysia that you particularly enjoy traveling to? I mean, and excluding the UK okay.
Sitpah: Oh gosh, I was just going to say London’s like home. It makes me a li I feel like a student again hopping in and out of tubes when they're not on strike. Uh Yes, but no. If London is ruled out, then I would say quite a few areas. But um Bali is magical. Milford Sound, New Zealand’s South Island is just heavenly. Angkor Wat is, is mystical. So many beautiful places on this planet. But finally, we go back to India, even though I'm from Sri Lanka. Really my roots rather is from Sri Lanka. Uh We go back to India where the family comes together over the delicious food, the Bollywood, uh the, the, the resplendent clothes and the cricket. So um India is an annual model and I suppose I have to say that here.
Gautam: Well, yeah, I mean, absolutely. And you know, we're all a product of our heritage and we should be proud of our heritage and all that goes with it. Well, I will look forward to seeing you in India. Uh Yeah, at GAR in Delhi on the ninth of March. And you know, I'm sure we can, we'll have a lot more conversations there in person, but can I just say Sitpah it’s been an absolute delight to do this podcast with you. It's been thoroughly enjoyable. Thank you for being such a wonderful guest, so open and so engaging in all of your thoughts and in and in your enthusiasm for all of the topics we discussed. It's, it's, I mean, I'm sure our listeners will thoroughly enjoy this episode. So, thank you again very much. Um I wish you all continued success in your arbitrator practice and I look forward to seeing you very, very soon.
Sitpah: Thank you so much, Gautam. I look forward to India and was such a pleasure because you picked all the questions I love speaking about. So, thank you for that and we'll catch up again in New Delhi.
Gautam: Absolutely. Thank you.
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