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Full-Text Articles in Dispute Resolution and Arbitration

The Constitutionality Of Ouster Clauses: Nagaenthran A/L K Dharmalingam V Attorney-General [2018] Sghc 112, Benjamin Joshua Ong May 2019

The Constitutionality Of Ouster Clauses: Nagaenthran A/L K Dharmalingam V Attorney-General [2018] Sghc 112, Benjamin Joshua Ong

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Section 33B(4) of Singapore’s Misuse of Drugs Act purportedly partly ousts judicial review of the Public Prosecutor’s determination of whether a drug trafficker has substantively assisted the anti-drug enforcement agency. This paper argues that Singapore’s High Court erred in holding this provision constitutionally valid. Ouster clauses are unconstitutional vis-à-vis Articles 12(1) and 93 of the Constitution; the High Court’s view does not accord with the law on non-justiciability and is premised on a flawed theory of legislative intention. It is no answer that judicial power is subject to a ‘balance’ which renders a partial ouster clause constitutionally valid. The High …

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Old Ethics In New Wineskins? Examining The Ethical Difficulties In Court Online Dispute Resolution, Dorcas Quek Anderson May 2019

Old Ethics In New Wineskins? Examining The Ethical Difficulties In Court Online Dispute Resolution, Dorcas Quek Anderson

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This post is based on a presentation made at the National Mediation Conference, Canberra, April 2019. The presentation has been drawn from two articles, Ethical Concerns in Court-Connected Online Dispute Resolution (2018) 1-2 International Journal of Online Dispute Resolution 20, and The Convergence of ADR and ODR within the Courts: The Impact on Access to Justice (2019) 38(1) Civil Justice Quarterly 126.

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Ethical Concerns In Court-Connected Online Dispute Resolution, Dorcas Quek Anderson Apr 2019

Ethical Concerns In Court-Connected Online Dispute Resolution, Dorcas Quek Anderson

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This article examines the burgeoning trend of creating court ODR systems, focusing on the design aspects that are likely to raise ethical challenges. It discusses four salient questions to be considered when designing a court ODR system, and the resulting ethical tensions that are brought to the fore. As a fourth party, the ODR system not only replaces existing court functions, but enlarges the scope of the courts’ intervention in disputes and increases the courts’ interface with the user. Furthermore, certain ethical principles such as transparency, accountability, impartiality and fairness take on greater significance in the court context than in …

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Enforcement Of Mediated Settlement Agreements In Asia – A Path Towards Convergence, Eunice Chua Apr 2019

Enforcement Of Mediated Settlement Agreements In Asia – A Path Towards Convergence, Eunice Chua

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In 2014, the United Nations Commission on International Trade Law (UNCITRAL) first considered a proposal for the development of a multilateral convention on the enforceability of international commercial settlement agreements reached through conciliation (defined to include mediation). The goal of this project was to encourage international mediation in the same way that the New York Convention facilitated the growth of arbitration. UNCITRAL Working Group II has since completed its work on a convention on international settlement agreements resulting from mediation and amended model law on international commercial mediation and international settlement agreements resulting from mediation. The UNCITRAL Commission has also …

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Catch Me If You Can: Claiming Jurisdiction Over An Overseas Defendant: Shanghai Turbo Enterprises Ltd V Liu Ming [2019] Sgca 11, Aaron Yoong, Nguyen Sinh Vuong Mar 2019

Catch Me If You Can: Claiming Jurisdiction Over An Overseas Defendant: Shanghai Turbo Enterprises Ltd V Liu Ming [2019] Sgca 11, Aaron Yoong, Nguyen Sinh Vuong

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The appellant, Shanghai Turbo Enterprises Ltd (“Shanghai Turbo”), is a Singapore-listed company that owns Hong Kong-incorporated Best Success (Hong Kong) Ltd, which in turn owns China-incorporated Changzhou 3D Technological Complete Set Equipment Ltd (“CZ3D”). The respondent, Liu Ming (“Liu”), owned approximately 30% of the shares in Shanghai Turbo. He was also a director of all three companies, and held other management positions there. In April 2017, Shanghai Turbo fired Liu from all his positions in the companies, allegedly because of declining levels of profit under his management. Subsequently, Shanghai Turbo filed a suit against Liu for breaching his service agreement …

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Judicial Mediation: From Debates To Renewal, Jean-Francois Roberge, Dorcas Quek Anderson Mar 2019

Judicial Mediation: From Debates To Renewal, Jean-Francois Roberge, Dorcas Quek Anderson

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Judicial mediation involving a judge actingas a mediator in a court dispute has been implemented in many jurisdictionsworldwide as a way to overcome access to justice challenges. This innovationhas raised many debates on the changing role of the judge built on either its congruence with or divergence from judicial adjudication. Over the years, thesedebates have become increasingly stagnant. The evolving vision on access tojustice brings an opportunity to draw from the earlier debates and forge adifferent way forward. This paper argues that a coequality approach to understanding judicial mediation is a betterway to design the process in a way that …

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Pro-Development Dispute Resolution Mechanisms And Norms For Investment And Commercial Disputes In Asean, Man Yip Mar 2019

Pro-Development Dispute Resolution Mechanisms And Norms For Investment And Commercial Disputes In Asean, Man Yip

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The establishment of the AEC in December 2015 marked an important milestone in the acceleration of regional economic integration. In the next ten years, according to the AEC Blueprint 2025, an area of focus for ASEAN is the development and promotion of MSMEs. Transnational transactions within and with ASEAN will therefore continue to rise, which will undoubtedly lead to a concomitant increase in the volume as well as the complexity of disputes. This chapter explores the strategic development of innovative approaches to facilitate the resolution of investor-state and commercial disputes in ASEAN. It argues that the creation of new dispute …

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Singapore Convention Series: Why Is There No ‘Seat’ Of Mediation?, Shouyu Chong, Nadja Alexander Feb 2019

Singapore Convention Series: Why Is There No ‘Seat’ Of Mediation?, Shouyu Chong, Nadja Alexander

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For dispute resolution practitioners familiar with the concept of the seat of arbitration, it may come as a surprise that the new UN Convention on International Settlement Agreement Resulting from Mediation does not include provisions in relation to the ‘seat’ of mediation. Why, you may ask? The Convention includes no provisions on ‘seat’ simply because there has never been the need for a ‘seat’ of mediation when cross-border disputes are brought before a mediator, and this remains the case. In this blog post, we will develop a hypothetical scenario to explore the issues.

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An Implied Ground For Refusal To Enforce Imsas Under The Singapore Convention On Mediation: The Effect Of Article 6, Shouyu Chong, Nadja Alexander Feb 2019

An Implied Ground For Refusal To Enforce Imsas Under The Singapore Convention On Mediation: The Effect Of Article 6, Shouyu Chong, Nadja Alexander

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This post is part of a series on the UN Convention on Mediated Settlement Agreements Resulting from Mediation (the Singapore Convention on Mediation). In previous posts we have outlined the conventional view that Article 5 of the Singapore Convention establishes exhaustively all the possible exceptions to the enforcement of iMSAs that have otherwise have complied with the requirements set out under Article 4. In this post we question this initial position and ask whether there is an implied ground for refusal to enforce iMSAs under the Singapore Convention made available through an application of Article 6.

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Mediation In The Singapore Family Justice Courts: Examining The Mandatory Mediation Model Under The Judge-Led Approach, Eunice Chua Jan 2019

Mediation In The Singapore Family Justice Courts: Examining The Mandatory Mediation Model Under The Judge-Led Approach, Eunice Chua

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In orderto reduce acrimony and the adversarial quality of family litigation, theSingapore family justice framework went through an overhaul in 2014. Chiefamong the changes was the creation of the Family Justice Rules (“FJR”) uniqueto the newly constituted Family Justice Courts. The FJR are meant to reflect anew judicial philosophy for family law disputes, with a “judge-led” approachmandated by Rule 22 of the FJR. As part of the directions a court may give inthe exercise of this “judge-led” approach, Rule 22(3)(a) introduces a new,express power for the court to direct that parties attend mediation orcounselling. This paper seeks to examine the …

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The Singapore Convention On Mediation - A Brighter Future For Asian Dispute Resolution, Eunice Chua Jan 2019

The Singapore Convention On Mediation - A Brighter Future For Asian Dispute Resolution, Eunice Chua

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On 26 June 2018, the UnitedNations Commission on International Trade Law (UNCITRAL) approved, largelywithout modification, the final drafts of the Convention on International SettlementAgreements Resulting from Mediation (the Singapore Convention) and amendmentsto the Model Law on International Commercial Mediation prepared by WorkingGroup II. These instruments aim to promote the enforceability of internationalcommercial settlement agreements reached through mediation in the same way thatthe New York Convention facilitates the recognition and enforcement ofinternational arbitration awards. This paper provides a critical analysis of theSingapore Convention and some commentary from an Asian perspective.

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Expanding The Scope Of Dispute Resolution And Access To Justice, Masood Ahmed, Dorcas Quek Anderson Jan 2019

Expanding The Scope Of Dispute Resolution And Access To Justice, Masood Ahmed, Dorcas Quek Anderson

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This note considers recent civil justice reforms in England and Singapore in enhancing the role of ADR, in particular mediation, as a means of increasing access to justice. The English and Singaporean civil justice reforms reflect the continual efforts to encourage the greater utilisation of ADR for appropriate cases. The current range of mechanisms may be charted along a “continuum of madatoriness”, ranging from compulsory attendance at mediation orientation sessions; the utilisation of costs sanctions; having an opt-out system; and mandating mediation with no exemptions. However, the English and Singaporean experiences illustrate some of the drawbacks in penalising parties for …

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An Asian View On The Ceta Investment Chapter, Locknie Hsu Jan 2019

An Asian View On The Ceta Investment Chapter, Locknie Hsu

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The Canada-EU Free Trade Agreement (CETA) has been completed and awaits ratification against a backdrop of global economic uncertainty. The Trans-Pacific Partnership Agreement (TPP), which includes five Asian parties among its signatories, has lost the support of the United States and its fate is uncertain as well. The CETA is significant for Asian countries given that one of its parties -- the EU -- has signalled strongly that it wishes to negotiate a number of free trade agreements in the Asian region. The agreement offers valuable insight into the thinking of the EU in terms of investment protection guarantees, its …

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The Singapore Convention On Mediation - A Brighter Future For Asian Dispute Resolution, Eunice Chua Jan 2019

The Singapore Convention On Mediation - A Brighter Future For Asian Dispute Resolution, Eunice Chua

Research Collection Yong Pung How School Of Law

On 26 June 2018, the UnitedNations Commission on International Trade Law (UNCITRAL) approved, largelywithout modification, the final drafts of the Convention on International SettlementAgreements Resulting from Mediation (the Singapore Convention) and amendmentsto the Model Law on International Commercial Mediation prepared by WorkingGroup II. These instruments aim to promote the enforceability of internationalcommercial settlement agreements reached through mediation in the same way thatthe New York Convention facilitates the recognition and enforcement ofinternational arbitration awards. This paper provides a critical analysis of theSingapore Convention and some commentary from an Asian perspective.

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Book Review: The Negotiator's Desk Reference, Dorcas Quek Anderson Dec 2018

Book Review: The Negotiator's Desk Reference, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

Negotiation theory and practice have evolved at a phenomenal pace since thepublication of Fisher and Ury’s seminal work Getting to Yes.1 The sheer breadth of topics inThe Negotiator’s Desk Reference2 (“NDR”) attests to how negotiation has advanced as a multidisciplinary field. Published in 2017 to replace its predecessor The Negotiator’s Fieldbook,3the NDR comprises 101 chapters written by very prominent academics and practitioners drawnfrom a wide range of professions, disciplines and cultures. According to its editors, more thanhalf of the contents are new, reflecting the new frontiers of the negotiation field.

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Contemporary Issues In Mediation (Vol 3)Joel Lee & Marcus Lim Gen Eds, Eunice Chua Dec 2018

Contemporary Issues In Mediation (Vol 3)Joel Lee & Marcus Lim Gen Eds, Eunice Chua

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This is a book review of the third volume of Contemporary Issues in Mediation, published by the SingaporeInternational Mediation Institute.

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Arb-Med-Arb In Cross-Border Disputes, Janet C. Checkley, Nadja Alexander Dec 2018

Arb-Med-Arb In Cross-Border Disputes, Janet C. Checkley, Nadja Alexander

Research Collection Yong Pung How School Of Law

To satisfy the needs of an increasingly diverse set of legal cultures meeting in the global marketplace today, dispute resolution mechanisms must continually evolve. One of the recent solutions to arise out of the blending of legal cultures is evolutionary rather than revolutionary, because it is in fact not new at all: multi-tiered dispute resolution.

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Mediation, Dorcas Quek Anderson, Sabiha Shiraz Dec 2018

Mediation, Dorcas Quek Anderson, Sabiha Shiraz

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No abstract provided.

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Singapore Case Note Part 2: What Happens When A Party To A Mediated Settlement Agreement Has A Change Of Heart?, Nadja Alexander, Shou Yu Chong Nov 2018

Singapore Case Note Part 2: What Happens When A Party To A Mediated Settlement Agreement Has A Change Of Heart?, Nadja Alexander, Shou Yu Chong

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In October, we reported on a recent case from the Singapore High Court: Chan Gek Yong v Violet Netto. In that post, we examined the High Court’s attitude towards parties who have had a change of heart after agreeing to conclude a Mediated Settlement Agreement (‘MSA’) and wish to challenge its validity. Last month we focused on one of the plaintiff’s (Mdm Chan) allegations, namely that the co-mediators put pressure on her to sign the MSA. As readers will recall, the High Court found there was no evidence to substantiate this claim. However this was not Mdm Chan’s only argument!

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Three “Pitfalls” For The Unwary: Third-Party Funding In Asia, Darius Chan Nov 2018

Three “Pitfalls” For The Unwary: Third-Party Funding In Asia, Darius Chan

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For some time, practitioners would have seen news alerts headlining that third-party funding is permitted in Singapore and Hong Kong for arbitration and arbitration-related court proceedings. Digging a little deeper beyond the shiny new labels, this article highlights three practical “pitfalls” which practitioners would have to be mindful of when dealing with third-party funding in Singapore and Hong Kong.

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Premature Service Of Payment Claims Under The Building And Construction Industry Security Of Payment Act: Audi Construction Pte Ltd V Kian Hiap Construction Pte Ltd, Benjamin Joshua Ong Nov 2018

Premature Service Of Payment Claims Under The Building And Construction Industry Security Of Payment Act: Audi Construction Pte Ltd V Kian Hiap Construction Pte Ltd, Benjamin Joshua Ong

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In Audi Construction Pte Ltd v Kian Hiap Construction Pte Ltd, the Singapore Court of Appeal considereda payment claim to have been validly served although it was served earlier thanthe contractually stipulated date. This was because the service of the paymentclaim was “effective” only from the contractually stipulated date, and theclaimant had had a “good reason” to serve the payment claim early. This notecritically examines the reasoning in Audi vis-à-vis the existing law, the principleof freedom of contract, and the intentions of the parties in that case. In theabsence of future judicial elaboration on the “effective service” and “goodreason” doctrines, …

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Does Investor-State Arbitration Have A Future? Keynote Speech By Sir Christopher Greenwood, Lixin Chen, Aaron Yoong Nov 2018

Does Investor-State Arbitration Have A Future? Keynote Speech By Sir Christopher Greenwood, Lixin Chen, Aaron Yoong

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SMU Asian Arbitration Lecture, jointly organised with the Centre for Cross-border Commercial Law at the Singapore Management University, took place on 18 October 2018. The distinguished event, graced by Chief Justice Sundaresh Menon, hosted a panel comprising: Sir Christopher Greenwood, DAG Lionel Yee, Judith Gill QC and Alastair Henderson (moderator). This post takes a closer look at the keynote speech delivered by Sir Christopher Greenwood

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An Interview On Scholar-Practitioner-Profile With Prof. Nadja Alexander, Gläßer Ulla, Nadja Alexander Oct 2018

An Interview On Scholar-Practitioner-Profile With Prof. Nadja Alexander, Gläßer Ulla, Nadja Alexander

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The following interview with Prof. Dr. Nadja Alexander (Academic Director of the Singapore International Dispute Resolution Academy, Singapore Management University, and practicing mediator) is the prelude to a Interview series (see Gläßer, ZKM 2018, 97 ff., in this issue), in which experts from different countries who shape the professional life as scholar-practitioners in the field of mediation / ADR are presented. Das nachfolgende Gespräch mit Prof. Dr. Nadja Alexander (Academic Director der Singapore International Dispute Resolution Academy, Singapore Management University, und praktizierende Mediatorin) bildet den Auftakt einer Interview-Serie (s. Gläßer, ZKM 2018, 97 ff., in diesem Heft), in der Expertinnen …

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Singapore Case Note: What Happens When A Party To An Msa Has A Change Of Heart?, Nadja Alexander, Shou Yu Chong Oct 2018

Singapore Case Note: What Happens When A Party To An Msa Has A Change Of Heart?, Nadja Alexander, Shou Yu Chong

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Hot off the press, the case of Chan Gek Yong v Violet Netto (practising as L F Violet Netto) and another and another matter [2018] SGHC 208 (‘Violet Netto’) decided by the Singapore High Court provides us with clues as to the Court’s general attitude towards mediation and mediated settlement agreements (‘MSAs’). It is useful to reflect on the Singapore Court’s attitude towards mediation in light of the introduction of the Singapore Mediation Act (No. 1 of 2017) – which has been in effect since 1 November 2017 – and the emergence of the draft Singapore Convention on Mediation, which …

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Siac-Simc's Arb-Med-Arb Protocol, Aziah Hussin, Claudia Kuck, Nadja Alexander Oct 2018

Siac-Simc's Arb-Med-Arb Protocol, Aziah Hussin, Claudia Kuck, Nadja Alexander

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In conjunction with its launch on 5 November 2014, the Singapore International MediationCentre (SIMC), in collaboration with the Singapore International Arbitration Centre (SIAC), introduced the Arbitration-Mediation-Arbitration (Arb-Med-Arb) Protocol (the AMA Protocol), aprocess that aims at combining the benefits of these two most prominent alternative dispute resolution tools.

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Is Article 16(3) Of The Model Law A ‘One-Shot Remedy’ For Non-Participating Respondents In International Arbitrations?, Darius Chan Oct 2018

Is Article 16(3) Of The Model Law A ‘One-Shot Remedy’ For Non-Participating Respondents In International Arbitrations?, Darius Chan

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It is not uncommon for practitioners acting for claimants in an arbitration to encounter a respondent who chooses to boycott the arbitral process. In cases involving such “non-participating” respondents, what are the rights and obligations of each party? Specifically, insofar as Model Law jurisdictions are concerned, if a tribunal decides on jurisdiction as a preliminary issue must the non-participating respondent apply under Article 16(3) of the UNCITRAL Model Law on International Commercial Arbitration (Model Law) to the curial Court to review that decision, or otherwise lose the right to challenge any eventual award thereafter on jurisdictional grounds? Can the non-participating …

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Can Mediation Survive In A World Of Trumpian Negotiators? Thought Provoking - New Thinking, Nadja Alexander Oct 2018

Can Mediation Survive In A World Of Trumpian Negotiators? Thought Provoking - New Thinking, Nadja Alexander

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Berkaca pada implementasi Konvensi New York yang terbilang sukses memudahkan eksekusi putusan arbitrase, maka eksekusi aset hasil perjanjian mediasi melalui Singapore Mediation Convention bukanlah hal yang mustahil.

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Im Skaugen Se V Man Diesel & Turbo Se [2018] Sghc 123, Adeline Chong Aug 2018

Im Skaugen Se V Man Diesel & Turbo Se [2018] Sghc 123, Adeline Chong

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In IM Skaugen SE v MAN Diesel & Turbo SE [2018] SGHC 123, the Singapore High Court had the occasion to discuss and resolve various meaty private international law issues. The facts concerned the alleged negligent or fraudulent misrepresentation by the defendants on the fuel consumption of a specific model of engine that was sold and installed into ships owned by the plaintiffs. The issue before the court was whether the Singapore courts had jurisdiction over the misrepresentation claim. The defendants were German and Norwegian incorporated companies so the plaintiffs applied for leave to serve the writ out of Singapore. …

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Feel The Earth Move – Shifts In The International Dispute Resolution Landscape, Eunice Chua Aug 2018

Feel The Earth Move – Shifts In The International Dispute Resolution Landscape, Eunice Chua

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This blog post discusses the themes in international dispute resolution that emerged from a panel on 25 July 2018 at the 2018 UNCITRAL Emergence Conference, moderated by Professor Nadja Alexander, CEO of the Singapore International Dispute Resolution Academy.

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A Contribution To The Conversation On Mixing The Modes Of Mediation And Arbitration: Of Definitional Consistency And Process Structure, Eunice Chua Aug 2018

A Contribution To The Conversation On Mixing The Modes Of Mediation And Arbitration: Of Definitional Consistency And Process Structure, Eunice Chua

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One of the trends that has been growing in importance in international commercial dispute resolution has been the combining and mixing of modes, particularly of mediation and arbitration. Surveys of users indicate that the reason for this growth has been the perception that mixing of non-adjudicative and adjudicative modes can help to achieve certain process goals, such as international enforceability, cost-effectiveness and relationship preservation. This article first suggests an approach towards articulating the myriad ways that mediation and arbitration may be combined, focusing on mediation followed by arbitration (med-arb), arbitration followed by mediation (arb-med), and opening mediation windows in the …

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