Episode 61 - Neil Kaplan KC

Today’s guest is Neil Kaplan KC, one of the world’s leading authorities on arbitration. Neil reflects on his long and distinguished career, beginning as a barrister in London before relocating to Hong Kong to serve in the pre-handover Attorney General’s Chambers. He discusses the joys of working in private practice, the challenges of sitting as a Judge, and his tenure as Chairman of the Hong Kong International Arbitration Centre. He speaks with our Senior Partner, Colin Cohen. Stay tuned. 

 00:51 Introduction to Neil Kaplan: The Father of Hong Kong Arbitration
 01:37 Recent Activities and the Kaplan Lecture
 03:42 Journey into Law: Early Inspirations and Career Beginnings
 05:58 Specialisation and Transition to Hong Kong
 08:00 Government Service in Hong Kong
 09:57 Private Practice and Establishing Des Voeux Chambers
 10:40 Judicial Career and Arbitration Contributions
 13:35 Leaving the Judiciary and Embracing Arbitration
 16:10 Growth of the Hong Kong International Arbitration Centre
 18:16 Current Arbitration Landscape and Advice for Young Lawyers
 26:57 Reflections on a Distinguished Career and Life in Hong Kong 

Host: Colin Cohen
Director: Niall Donnelly
Producer and VO: Thomas Latter  

Established in 1985, Boase Cohen & Collins is an independent law firm equipped with Hong Kong knowledge and global reach. Please visit our website.

Transcript

[00:51:00] Colin: My guest today is Neil Kaplan, King's Council, widely regarded as the father of Hong Kong arbitration. Neil can reflect on a distinguished career spanning an incredible six decades during which he has served in the pre-handover Hong Kong Attorney General's Chambers. And as a judge of the former Supreme Court of Hong Kong. He was in the high court. He was in charge of a construction and arbitration list. He has passed chairman of the Hong Kong International Arbitration Center and helped to transform it into an institution of global standing. 

He's overseen arbitration proceedings in more than 20 countries. Neil, thank you so much for joining our podcast, and as usual, my first question is, what's been keeping you busy recently?

[00:51:56] Neil: Well, I've had some work to do, which has kept me busy. But it's been the summer, so I've been traveling a bit in Europe and enjoying our house in the Cotwalds during the lovely summer. And basically. Coming here in October for Hong Kong arbitration week and to celebrate the 40th anniversary of the founding of HKIAC, which we did in October as part of Hong Kong arbitration week.

So that was a very big week.

[00:52:25] Colin: Great. And obviously you are here right now for the well-known Kaplan lecture, a notable event in our legal calendar here. Tell us something a little bit about that and, give us the ordeur for the event tonight.

[00:52:39] Neil: Well 19 years ago, 'cause this is the 19th in the series. HKIAC kindly set up this lecture series. They asked me to give the first lecture, which I did. And since then every year it's been followed with a lecture by a very distinguished lecturer. We've had former Supreme Court justices. In the UK we've had Court of Appeal judges. We've had Ex-Chief Justice of Canada and a whole host of eminent names.

And tonight is the first, actually, because it's the first time I've been able to prise a Sitting Chief Justice out of his court to come and share his views with us tonight. So tonight it's Sundarish Menon, Chief Justice of Singapore, and he's gonna talk about the very interesting subject of corruption and arbitration.

What do arbitrators do if they suspect corruption, but neither party raises corruption. Do they have to do it on their own? And certain issues aligned with that topic.

[00:53:41] Colin: Well, that's gonna be very interesting and maybe it's for another guest to come on the podcast for me as well. Anyway, let's go back a little bit in time and I mean, very interesting.

I'm sure our listeners are, but you know, you've had so many milestones, but what brought you into the law? Let's go back. What made you become a lawyer and how did that all come about?

[00:54:00] Neil: I don't think there was any other profession that ever crossed my mind. I should rather say it never crossed my mother's mind.

'cause I mean, she always had it in mind that I was going to be a KC in those days. But from an early age, I was reading about famous trials and the cases of famous home office pathologists, the Crippen case and the Hay case and things like that. But then when I was at university, I decided to become a barrister, and I think they were a bit surprised, my parents, because they thought that was a rather risky profession.

But having walked from my college over to the temple, I fell in love with the temple area and decided I had to become a barrister. 

[00:54:40] Colin: Of course. You're at King's College. 

[00:54:42] Neil: I was at King's College. 

[00:54:43] Colin: There's literally a stones throw away from that area. And then you went straight into the Bar.

[00:54:48] Neil: Yes, well, I was the last lot that were able to go straight from university to the bar with only a seven week course. And we were also able to take cases as soon as we were called to the bar. So two days after I was called to the bar, I was doing a three day case in the county called, all about BTUs. I didn't know what they were, but by the time the case ended, I knew there were British thermal units.

[00:55:14] Colin: So your early practice. I mean, what type of work were you doing when you were starting off?

[00:55:19] Neil: That's an interesting question because I joined a set of generalist Chambers.

[00:55:22] Colin: Garden Court.

[00:55:23] Neil: One Garden Court, it was then. Louis Halzer and Charles Lawson's Chambers. And we did everything, from a murder one day, the company's caught the next day. Town and country planning the next, dangerous driving the next. So you were a jack of all trades and certainly master of none. And in those days it was quite remunerative to be a generalist. But by the time the seventies came. Well, I should have added that legal aid was at its peak in the late sixties, it was paying very well for these sort of cases.

And the chaps who were doing the charter parties and the difficult stuff in the commercial chambers, they were getting paid very little. But in the early 70s, things changed and it became the era of specialists, so you were better off to become a specialist. So I started specializing a bit, stopped doing some of the wider variety of work.

[00:56:12] Colin: What type of work did you specialize in the late seventies?

[00:56:15] Neil: Well, it was a mostly commercial cases, but not in the strict sense of commercial. It wasn't charter parties and that sort of thing 'cause they were all very specialized, but generally disputes between corporations.

Some high level, high value personal injury cases, and quite a bit of heavy divorce cases. Heavy money cases.

[00:56:36] Colin: Yeah. So in drawing garden chambers, as you know, and yet in early 80, you decided to come to Hong Kong. Now tell us what brought you to go east.

[00:56:47] Neil: Well, I'd always had this sort of fantasy of becoming a magistrate in Tuvaloo and sitting on an island dispensing justice under a palm tree. But my then wife wouldn't hear of it, of course. And then one day under my door in chambers came a note saying that the Attorney General of Hong Kong, John Griffiths, was looking for relatively senior members of the bar to come out and help him sort of beef up his chambers in Hong Kong. Now I knew John because I'd appeared in front of him. He'd led me and I'd been against him in a case. So I was quite interested. So I phoned the person who was doing the recruiting and asked him what the terms were. He said, I'll come back to you later, sir.

And on Sunday morning he phoned me very secretively and said, can we speak? And I said, sure. And he told me the terms, and I had this eureka moment because I suddenly saw how I could turn one income into four incomes because I would've let the house in London I would've been had a salary and all the expenses in benefits in Hong Kong.

My wife was just about to be called to the bar so she could then work in Hong Kong. And all the solicitors who hadn't paid me was feel so guilty they'd start paying me, which they all did as soon as I left, and that's how it worked.

[00:58:05] Colin: So you arrived in Hong Kong in 1980. Deputy Principal Crown Council. If I recollect, that's your first post until you saw, But when you've just arrived what work were you doing, tell us a little bit about it. 

[00:58:17] Neil: I was in the civil division and the head of that was the Crown solicitor.

It was very nice Scott, and he was just about to retire when Jeremy Matthews took over from him. And we all got on very well. But it was a very old fashioned system. A file would come in and he'd hand the files out almost, by rote, you know, you get this one, it's your turn to have this one, and so there was no specialization.

So one day you could be asked to advise on an immigration matter, and the next day you might be asked to advise on a commercial arbitration matter or construction, and that seemed to be quite ridiculous. So John asked me to sort this out and I set up a civil litigation department. So we had specialist advocates who could do all the litigation.

And that's what we did. We did all the litigation and arbitration involving the Hong Kong government and instead of asking people in London to do the Privy Council appeals, I started doing them myself.

[00:59:12] Colin: E Exactly. Flying back and, when you sat in Downing Street, they say we are sitting as if we are in Hong Kong, those ones as well.

[00:59:18] Neil: Quite terrifying. The first one, I can assure you. Before Lord Diplock.

[00:59:22] Colin: yeah, I could, well, I could well imagine that as well. So you spent time there. Got promoted, acting solicitor general and crown solicitor on various occasions.

And you then decided. To leave and go into private practice. How did that come about?

[00:59:38] Neil: Well, there were some aspects of being a government lawyer I didn't like. And being a senior government lawyer, one of the things you had to do give appraisals for the people working with you. And I didn't like doing that. I'd never been in hr, never employed anybody in my life.

I'd always been a sole practitioner. And I didn't feel very comfortable about that. And in fact, quite frankly, I could see the large sums of money being earned by the Hong Kong barristers. And I thought I ought to give myself a chance of doing the same. And so on the 1st of January 1984. I set up in 1330 Prince's building with two other people.

And that was the Fonz and Origo of what is now Des Voeux Chambers with 102 members.

[01:00:19] Colin: We knew each other a little bit around that time because we met there then I remember when you then became a King's Council.

[01:00:26] Neil: That was while I was in government. 

[01:00:27] Colin: Queens' Council that the time now, King's Council. You became King's Council whilst you were in government when you came back in, and I remember we instructed you on a couple of cases as well back in the good old days. You know, I always remember those cases, as well. Enjoyable in the bar. You enjoyed yourself in Des Voeux? 

[01:00:43] Neil: I did. I did. It was great fun. It was quite tough toward the end heavy cases. A lot of work. And I thought, well, after seven years of doing this, maybe I should give it a try being a Judge. And so I did. And I thought it would be a more relaxing life. But in fact, running your own, list and if you do it well is quite a tough job because you've gotta be proactive and you've going to react as well to party's needs. So it's quite hard.

[01:01:12] Colin: So you also got admitted to a New York bar which is also interesting. So you're sitting there as high court judge. Some people said to me, it can be a bit of a lonely experience.

[01:01:23] Neil: Yes. It certainly can. Some of the judges in those days hardly ever came out of their room.

They never came down for lunch. You never saw them. I mean, if you were sitting in the court of appealed, you might see a couple of them. But some of them were very lonely. Led a very lonely monastic life. But luckily the person with the suite next to mine was Nick Barnett. Right. Who was at King's with me.

So I've known him an awful long time and we got on very well.

[01:01:49] Colin: Well, he was the solicitor then he became a registrar of the high court. And then he got appointed as a high court judge as well.

He was a very nice man. Yeah. As well. So judiciary writing judgments, you know, I mean, right now the biggest complaint which is going around is waiting for judgments now at the moment. At that time, I don't think it was that bad.

[01:02:09] Neil: Well, there were some bad cases. Of course some judges were a bit lazy but it was quite difficult because we didn't have any secretaries. It was all done through a typing pool.

So if you dictated a judgment. I mean, you can imagine, you know how it came back. And you had to spend an awful time going through it and correcting it. Judges used to have secretaries, but Nick Barney, when he was registrar, took them all away. And I think that was a shame. And I think today with the systems, there are. It can be a lot easier and quicker.

But I got a bit fed up with sort of resurrecting my judgments by having to listen to the oral. There's tapes and see if whether it was properly transcribed.

[01:02:52] Colin: And you were in charge of a construction and arbitration list? Yes. Now, that came about, because I know you did some arbitration work when you were in practice. Was that something you were asked to do or did you want to do that, how did that come into 

[01:03:06] Neil: play.

Well, just going back in 1978, while I was still in England, I became a fellow of the Chartered Institute of Arbitrators. That's a pretty funny story on its own if you want to know more. But the time I came to Hong Kong, so when John Grivous came in to see me and said, I've got this vision of turning Hong Kong into an international arbitration center and you are a fellow of the Chartered Institute of Arbitrators, so I want your help and I want you to be on these committees.

That's how I got involved with all the committees that were led up to the founding of HKIAC, the adoption of the model law. And all the amendments we made to the arbitration ordinance. 

[01:03:44] Colin: So sitting as a judge and just drawing, or not a drawing as well, but then you decided to leave the judiciary.

What was about that? Was it that you thought it was time or you wanted to do other things? 'cause once you become a judge, you can't go back to private practice. 

[01:04:00] Neil: true. 

[01:04:01] Colin: Other than doing arbitrations or that is allowed,

[01:04:04] Neil: Well, I was again, very lucky because three weeks after I was appointed the AL Model law applied, became Law of Hong Kong.

So I was one of the first judges in the world to be fashioning this new jurisprudence. So I got a bit of publicity as a result of that, and so I thought that, you know, a career in arbitration might be something that would work, but basically the decision to leave the judiciary was a personal one, which I'd rather not go into.

And it also coincided with the fact that they were just about to build a new airport. And the contractors had gone on strike. They wouldn't tender because they didn't like the dispute resolution provisions in the standard former contract that the airport authority had put out. So they had an emergency meeting one night, and I came into my judge's chambers one mor next morning.

And I was told that the Secretary for Land and Works and the chairman of the provisional airport Authority wanted to see me urgently at nine o'clock. So they came in and said we decided the only way around this is to set up a dispute review board and we'd like you to chair it. And I said, well, that's very good, because I was just thinking of retiring, so this is something I could do part-time post-retirement. That would be a good.

Segue.

[01:05:23] Colin: Yeah. And then you then you left the judiciary, but it was amazing having left the judiciary, you become even busier and, and more interesting work and development going down that route.

 Is that something you expected or did you think your desk gonna do a little bit? It's quite amazing, what happened?

[01:05:39] Neil: Well, you know, barristers are always worried about where the next case is coming from and, you're always worried whoever you are, that you're not gonna get any work. And we even distinguished presidents of Supreme Court have said to me, oh, I'm thinking of retiring. I don't think I'll get any work.

As an arbitrator, what do you think? And I always tell them, this time next year, you'll be so busy. You won't know where you're going. So I decided to take the plunge and of course I had this, job as the convener, which meant going to the airport every 13 weeks and spending a week there. So that was a nice cushion.

Yeah. And then the arbitration started rolling in and I got very, very busy.

And I suppose the rest is history.

[01:06:19] Colin: Let's talk about the establishment of the growth of the Hong Kong International Arbitration Center, which I think if you look at a primary responsible for getting it up and running and making sure that it all worked. 

[01:06:30] Neil: Well to be fair John Griffiths has to take the credit for the vision and putting it all in place. And then my predecessor, David Hunter, he was the first chairman. And of course it is a great coincidence because he was in the same chambers as me in London, and when I finished my Pupilage, he decided to leave chambers and that left a space for me to become a tenant.

So when he eventually turned up in Hong Kong as a judge, it was a pleasure for me to work with him on the establishment of the the center. But then tragically he died in about 1990 or 1991 and I was asked to take over and and I did. 

[01:07:09] Colin: And the Hong Kong arbitration center's developed a lot over the years. What's your feeling with it? What do you think are these sort of highlights and milestones that you can sort of say, you know, this has really turned Hong Kong into a real center for dispute resolution?

[01:07:25] Neil: Well, a lot of people have to take the credit for what's gone on. The Hong Kong government had been supportive from the very beginning. When we started off, they gave us premises in what was then the old prison and the police station in Hollywood Road, now a lovely art center. 

[01:07:41] Colin: It started off as a magistrates court 

[01:07:43] Neil: that you can see it on your way to one of the restaurants. You can see it. But then a very distinguished retired court of appeal judge. Said to me I can't come and do any more cases in Hong Kong.

I can't get up the stairs anymore. So we used that evidence to the Hong Kong government to say, please give us somewhere with a lift. And so they offered us the 38th floor part of it in Exchange Square. And that was a deal breaker because moving into those premises, we had this wonderful view, this wonderful space.

And even today it's probably. One of the best appointed arbitration centers anywhere,

[01:08:20] Colin: Yeah, I gotta make it. It has it's great facilities and it's well run as a good office. What areas of arbitration in Hong Kong do you think that can be improved on? 

[01:08:31] Neil: There's two aspects to this question, I suppose, what is what the arbitrators can do? And that's a worldwide problem or worldwide issue.

And the other is what can the arbitration center do. Now, I think the arbitration center does a pretty good job. But when they're administering arbitration, they have to be efficient. They mustn't allow delays when they can help it. They must make sure each case is properly funded. They must give the arbitrators and the parties as much assistance as possible, and they must apply the rules which they've laid down for the administration of arbitrations. So, I'm pretty happy with the way in which HKIAC is organizing itself.

I mean, every institution can improve, but I'm pretty pleased with the way things are going. As to arbitrators? Well, the big difference between now and then when I started was there's so many more arbitrators today. Every day you read in the legal press, somebody of 35 or 45 is giving up practice and just decided to become a full-time arbitrator.

So that produces certain problems, which we have a lot of people who are not very experienced and they haven't got enough confidence. And so we're seeing this problem of what we call, due process paranoia. Everybody's so frightened about what the court might say, that they don't stick to their guns and do what they think is right or enforce their own previous orders.

[01:09:53] Colin: Yeah. And just to give our listeners sort of background, of course you have the arbitrations as well, but to enforce arbitrations, there's the Hay Convention.

And it seems to me now that if you look at the court list quite recently, numerous cases in Hong Kong. Were trying to have awards set aside based on allegations of impropriety bias. Didn't know about it, you know, no numerously things. We didn't get a natural justice, et cetera. That's built up a separate industry at the moment here. A little bit of one, I think.

[01:10:28] Neil: Well, the reason is because grounds avenues of appeal against arbitrators decisions have been cut off. You can't appeal on the merits. And therefore people have to come up with arguments about jurisdiction or lack of due process.

I mean that's the only way in which they got a chance of not enforcing the award under the New York Convention 

actually. But most of these cases fail, and it's only the egregious ones that get through and they get through rightly because that's the job of the supervising court or the enforcing court to make sure.

That the award is not tainted with illegality or some unfair procedure.

[01:11:07] Colin: Now, Neil, right now you are busy arbitrating all over this world.

I mean, from Hong Kong, London, even New York, Singapore. A favorite area, you know, is one area we, which you quite enjoy, you know, different jurisdictions, different sort of centers. Obviously Hong Kong must be a favorite place. And Singapore as well. Is there 

[01:11:28] Neil: Yeah, Hong Kong and Singapore. Favorite places. London's a favorite place, of course. And Australia. I don't get very many cases in Australia 'cause there aren't that many, but I've done a few there and that's always fun. Had a lovely case in Perth a few years ago, which was most enjoyable.

Lovely weather and a nice place to have the arbitration. Okay,

[01:11:51] Colin: Very good. Let's go back to 2019 where we did do something together. You and I both attended the St. Petersburg International Legal Forum. Was a fabulous event as well, and I recollect you on the opening. I managed to put you in touch with a friend of mine who I knew was a lawyer there, and you co panel discussion about the handling of legal matters involving Russian parties, and you also delivered a lecture.

As well, 'cause this on the art of law. But we did meet a very interesting person where you were on the stage. I always remember you saying you'll meet this gentleman. I mean, he, he became, you know, is Medvedev 

[01:12:31] Neil: mr. Med Medvedev. Med Medvedev. Yes. 

[01:12:34] Colin: Yes. 

[01:12:35] Neil: it was then, He, 

[01:12:36] Colin: he, he was being president because Putin had to give a break so 

[01:12:39] Neil: to Putin Yes. It 

[01:12:40] Colin: come back. Yeah. Yes.

[01:12:41] Neil: Yes. He was a tough looking character. Pretty G ruff. He was sitting next to me and I made a slight joke at the end of what I was saying and I can't say that he laughed, but he sort of gave a guff four, a deep grunt, and that's my sum total of my relationship with him.

[01:13:00] Colin: But it was a good event. I mean, it was a very interesting, whereby everyone got together and arbitration, it focused a lot of panel discussions on arbitration and dispute resolution for Russian clients. And it happened every year.

And your lecture was the Art of Arbitration, a cooperative venture, which you gave a good lecture. I remember that one.

[01:13:20] Neil: Well, I'm not sure I can, but what I remember most about that was that whole conference took place in the Ermitage. and we had free and unlimited access to all the art.

[01:13:30] Colin: Yes. It was quite amazing. It really was, lovely city, isn't it?

Ah, yeah. It, it, it was incredible. I mean, as I was earlier talking to you, I mean, I was doing a lot of work for Russian clients and all the rest until the Ukraine.

So now it's just, stopped. You know, it is very sad, I think in respect, like there was huge amount of potential in the field as well. Now you worked in the field of arbitration. You've been recognized over the years command of the order of the British Empire, Silver Bauhenia Star. Proud Moments. I will suspect for you.

[01:13:59] Neil: Yes, it was lovely to go to Buckingham Palace.

[01:14:01] Colin: Here in Hong Kong at the moment, now, you know, we are seeing a sort of great deal of development in the Greater Bay area, and there's a lot of talk of arbitrations going over there. A lot of people are getting appointed as fellows and dealing with that.

Your take on all that area 

[01:14:18] Neil: Well, I'm not heavily involved in it. I mean, we, we do see here in Hong Kong a large number of cases involving Chinese parties. I mean, we are the favored venue in the region for dealing with cases involving Chinese parties because of the protocol we have with the mainland, which enables you to get an injunction freezing assets, for instance, in the mainland in favor of a Hong Kong arbitration, where nowhere else can do that.

So that's a big bonus here. And most of the cases I've had recently are cases of shareholders disputes. Involving Chinese company and a non-Chinese company, or sometimes two Chinese companies. And I think that Hong Kong with its stable legal system, its commercial law and its well thought of judges, I think will have an important part to play in the GBA and I think it'll always be a major center of a dispute resolution. I mean, think about it.

HKIAC has come through as Hong Kong. So many problems over the last 30 years from SARS to COVID to the economic crisis of 1998 and other economic crises.

And every time we've come out stronger and the arbitration center has survived and got stronger and stronger. And last year. We dealt with cases to the value of 13 or 14 billion US dollars. So that's a lot of big cases 

[01:15:48] Colin: Yeah, incredible. I mean, a lot of people want that dispute resolution in your contracts to be governed by arbitration and, there might be competition between Singapore or Hong Kong, but in the end of the day, it works out, you know, wherever you go, 

[01:16:03] Neil: There's enough work enough work for everybody.

[01:16:05] Colin: Exactly. As well. Now, if you were talking to a young lawyer. Everyone knows arbitration's part of their courses and they, I I was well, no, no, no, no, no you and I go back a very long, long way. Yeah. But, and what advice would you give them for becoming an arbitrator if you were asked, if sort someone said, look, come someone comes and sees you, you know, what should I do?

[01:16:26] Neil: Well, I would certainly advise them to. Make sure they did well in conflict of laws. I would suggest that they went and did , a master's or PhD in another jurisdiction, another country.

I think that's terribly handy. If it's possible, suggest that they learn a foreign language and the best advice you can give to anybody is, to put your face around, to go to all the conferences, join up all the institutions, the under 45s. To write and and just get known, meet people. And that's how work comes eventually.

[01:17:02] Colin: Indeed, it does. I keep on saying that to all my young lawyers as well. Now you've been practicing law for over 60 years. You'll continue to travel the world as an arbitrator. There's no chance of you slowing down. Is there?

[01:17:15] Neil: Well, I have slowed down. I'm not as busy as I used to be for obvious reasons. You know, not as easy these days to travel as much as I used to and I don't want to. No, I mean, I think it's a question of market forces. The older you get, the less work you'll probably get and you know. Things will come to an end, but how lucky, to be my age and still be working, even if not full time, enough to keep the brain cells still working.

[01:17:45] Colin: I think that's very, very important to do that, Hong Kong is my home. I'm here. I've been, here for a long time. Your views on Hong Kong right now. You've seen everything here and you come here a lot.

[01:17:57] Neil: Yes. I mean, the only thing I miss now, and this is a natural part of aging, is a lot of the friends I had in the early days are no longer here. Not necessarily deceased, but they just don't live here anymore. They, they moved on or they retired. And so that, that is a bit of a, a problem when you come back.

There are less friends to see. But I think the economic activities, picking up. Retail is a bit worrying. I mean, you walk around the landmark and places like Prince's building, it's a bit quieter than it used to be. 

I understand that. But there are more IPOs coming on the markets and the, it'll be a very busy season for that.

And arbitration numbers are holding up well, which means there are disputes. So I'm fairly confident about the arbitration scene and the commercial activity scene, but I decided now my age, I'm not gonna guess anymore about what's happening in the future because who would've thought. 25 years ago when we were just celebrating the millennium change. What a mess we'd be in 25 years later and we all hoped we were gonna be in a better position than we were then. That was wishful thinking, 

[01:19:09] Colin: It was indeed. Neil, it's been a pleasure chatting with you. Thank you so much for joining us on Law & More..

[01:19:16] Neil: thank you for the invitation.