Dispute Resolution and Arbitration Commons^™

How Should The Courts Know Whether A Dispute Is Ready And Suitable For Mediation? An Empirical Analysis Of The Singapore Courts’ Referral Of Civil Disputes To Mediation, Dorcas Quek Anderson, Eunice Chua, Tra My Ngo

Research Collection Yong Pung How School Of Law

In line with international developments in court-connected mediation, the Singapore courts have strongly supported the use of mediation and have taken steps to encourage litigants to attempt mediation. This article features the very first empirical analysis of the Singapore courts' referral of civil cases to mediation. Although focused on Singapore, the results of the study also inform the referral policies of other judiciaries that similarly engage in the practice of referring cases for mediation. The study uses a rigorous method to shed light on the crucial factors to be considered by the courts in referral practice and designing of mediation …

Singapore High Court Rejects Application To Adjourn Enforcement Of Foreign Arbitral Award, Wei Ming Tan, Aaron Yoong, Lixin Chen

Research Collection Yong Pung How School Of Law

In the recent decision of Man Diesel & Turbo SE v I.M. Skaugen Marine Services Pte Ltd [2018] SGHC 132, the Singapore High Court (“HC”) rejected an application to adjourn the enforcement of an arbitral award that was also the subject of a setting aside application in Denmark, the seat of the arbitration. This case is the first of its kind in Singapore and provides clarity as to when litigants can seek an adjournment of proceedings to enforce a foreign arbitral award.

Singapore Convention On Mediation, Nadja Alexander

Research Collection Yong Pung How School Of Law

The forthcoming Singapore Convention on Mediation will be the first UN Treaty named after Singapore. At the 51st Session of the United Nations (UN) Commission on International Trade Law (UNCITRAL) on 26 June 2018, the final drafts of the Convention on the Enforcement of International Settlement Agreements and corresponding Model Law were approved. A resolution to name the Convention the “Singapore Mediation Convention” was also approved. This concludes three years of vigorous debate with participation by 85 member states and 35 international governmental and non-governmental organisations. Once finalised and adopted by UNCITRAL, the next step is for the UN General …

Dictum On Dicta: Obiter Dicta In Wto Disputes, Henry S. Gao

Research Collection Yong Pung How School Of Law

This paper discusses an important legal issue raised by the United States in its recent attempt to block the reappointment of an Appellate Body member. According to the US, in some of his decisions, the member has made overreaching findings that amount to obiter dicta. As obiter dictum is a unique concept in the Common Law system, the US argument may only stand if the concept may be found in the WTO legal system as well. With a careful analysis of the concept of dicta in Common Law and a close examination of the effects of past panel and Appellate …

Interpreting Contracts Under Singapore Law In International Arbitration — The Sequel, Darius Chan

Research Collection Yong Pung How School Of Law

Article 16(3) of the UNCITRAL Model Law on International Commercial Arbitration provides in relevant part that, “if the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party may request … the court … to decide the matter”. One question that arises is, to the extent issues of evidence arise, what rules of evidence should the court apply when “decid[ing] the matter”? Does the Court apply national rules of evidence, or does the Court apply the same rules of evidence, if any, that the tribunal was obliged to apply? This thorny question reared its head recently in …

New Online Service On International Arbitration, Adeline Chong

Research Collection Yong Pung How School Of Law

The Chinese perspective on The South China Sea Arbitration, is just one of the 40+ texts searchable on the new online service, International Arbitration.The service is made up of content from three respected publishing brands (Hart Publishing, CH Beck-Nomos and Bloomsbury Professional). It provides access to materials by over 60 respected author names with the speed and convenience of online research.

The Trump-Kim Summit: Is “Attitude” More Important Than Preparation?, Nadja Alexander

Research Collection Yong Pung How School Of Law

Here in Singapore, along with the rest of the world, we await the Trump-Kim Summit scheduled for Tuesday 12 June. What can we expect? While we may have learned to expect the unexpected from these two leaders, Donald Trump and Kim Jong-Un, recent media reports have highlighted one apparently predictable feature of Trump’s negotiation approach. As a CNN reporter framed it: “Trump picks ‘attitude’ over prep work ahead of Singapore summit”. In relation to the Summit, Trump has reportedly said, it is about attitude not preparation. Earlier this year as he rejected Japan’s proposal for a tripartite co-ordination of the …

Global Reform Of Investor-State Arbitration: A Tentative Roadmap Of China’S Emergent Equilibrium, Mark Mclaughlin

Research Collection Yong Pung How School Of Law

Investor-State arbitration is in a state of flux. In recent years, doubts about its adequacy have become apparent: questions of coherence, consistency, legitimacy, and utility have rendered fragile the central place of investor-State arbitration in global foreign direct investment (FDI) governance. Three threads of reform have been advanced as a corrective to these deficiencies, encompassing incremental reform, institutional reform, and fundamental reform. China is perhaps the most influential nation not to have declared a preference for one future or another. For over a decade, the Chinese approach to investor-State arbitration has been in a state of disequilibrium: bilateral investment treaties …

Navigating The Singapore’S Private International Rules In The Age Of Innovative Cross-Border Commercial Litigation Framework, Man Yip

Research Collection Yong Pung How School Of Law

In the last decade, Singapore has been consistently working on consolidating its position as a leading dispute resolution hub in Asia. China’s One Belt One Road (OBOR) initiative affords, in principle, an invaluable opportunity for Singapore to foster its role in dispute resolution services. Conversely, the success of the OBOR is in part dependent upon the availability of reliable and efficient dispute resolution mechanisms to handle commercial disputes that will invariably arise. Singapore looks poised to contribute to the success of the OBOR in that respect, in light of its mature and business-friendly legal system.

Coincidentally, China announced its OBOR …

A Convention On The Enforcement Of Imsas And A New Model Law, Nadja Alexander

Research Collection Yong Pung How School Of Law

During its 68th session from 5 – 9 February in New York UNCITRAL Working Group II (Dispute Settlement) concluded its work on the preparation of an instrument or instruments on the enforcement of international commercial settlement agreements arising from mediation. In the mediation community we often refer to such settlements as (international) mediated settlement agreements or iMSAs. The deliberations on this task commenced in 2015 subsequent to a proposal by the United States. The session were held in Vienna and New York and were chaired by Singaporean delegate Natalie Morris-Sharma.

Sgca Grants Senior Indian Advocate Ad Hoc Admission To Argue Arbitration-Related Applications, Aaron Yoong, Kartik Singh, Aaron Yoong

Research Collection Yong Pung How School Of Law

In a reversal of the High Court’s 2017 decision, Singapore’s Court of Appeal (“CA”) recently granted unprecedented ad hoc admission for Harish Salve (“Mr Salve”) – a Senior Advocate of the Indian Bar – to be admitted to argue foreign law issues in applications to set aside an ICC arbitral award. This is the first time the Singapore courts have granted foreign counsel other than Queen’s Counsel admission to argue a case before the local courts.

Recent Developments Concerning Similar Fact Evidence In Singapore: Pushing The Boundaries Of Admissibility – Pp V Ranjit Singh Gill Menjeet Singh [2017] 3 Slr 66; Micheal Anak Garing V Pp [2017] 1 Slr 748, Eunice Chua

Research Collection Yong Pung How School Of Law

This piece addressestwo recent local decisions on similar fact evidence that demonstratethe court’s difficulties with reconciling the provisions of the Evidence Actwith a more flexible approach that can be developed through the common law.These two cases extend the basis for admitting similar fact evidence beyond ss11(b), 14 and 15 of the Evidence Act.The application of the common law balancing test comparing prejudicial effectand probative value has also been broadened to consider factors such as the timingof the objection to the evidence and whether a co-accused wishes to rely on thesimilar fact evidence. Yet, the cases do not discuss the conceptual …

State Immunity And The Execution Of Investor-State Arbitration Awards, Stefanie Schacherer

Research Collection Yong Pung How School Of Law

This seminar paper examines the concept of state immunity in the context of investor-State arbitration. In the majority of cases, states adhere to investment awards. However, when a state refuses to comply, investors may pursue enforcement proceedings in national jurisdictions. Despite attempts, enforcing awards has proven challenging, often due to rules on state immunity from execution. The cases of Franz Sedelmayer v. Russia and of Yukos shareholders v. Russia exemplify these challenges of investor-State arbitration. The present seminar paper analyzes the obstacles of state immunity from execution in investor-State arbitration enforcement, and revisits to what extent international law and current …

An Introduction To The Singapore Convention On Mediation: Perspectives From Singapore, Nadja Alexander, Shou Yu Chong

Research Collection Yong Pung How School Of Law

At the 51st Session of the United Nations (UN) Commission on International Trade Law (UNCITRAL) on 25th June 2018, the final draft of the Convention on the Enforcement of International Settlement Agreements (the ‘Convention’) was recommended for submission to the UN General Assembly for its consideration, and the corresponding Model Law was adopted. A resolution to name the Convention the ‘Singapore Convention on Mediation’ was also approved. This concluded three years of vigorous debate in UNCITRAL Working Group II (Dispute Settlement) with participation by 85 member States and 35 international governmental and non-governmental organisations. The UN General Assembly has adopted …

Achieving Substantive Justice In Mediation Through Procedural Justice: An Illusory Or Realizable Goal?, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

Mediation has been plagued with a problem of legitimacy. Genn stated that mediation “does not contribute to substantive justice because mediation requires the parties to relinquish ideas of legal rights during mediation and focus, instead, on problem-solving”. Mediation appears to be all about procedural justice, a concept that is associated with perceptions of fair treatment. And procedural justice does not seem to have any discernible link with substantive justice, in terms of giving effect to well-accepted norms.This blog entry is drawn from a paper that was presented at the Australasian Dispute Resolution Research Network 6th Annual Roundtable and the LSAANZ …

Defining The Limits To Abuse Of Process: Lim Geok Lin Andy V Yap Jin Meng Bryan, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

The abuse of process jurisdiction, which forms part of the doctrine of res judicata, is meant to uphold finality of litigation and prevent abusive litigation. While the jurisdiction has been applied to the original parties of earlier court proceedings, it could also prevent a person who was not part of earlier court proceedings from litigating his claim. In such circumstances, the abuse of process doctrine has to be cognisant of the commercial realities and motivations driving choices to advance separate rather than consolidated proceedings, while also protecting litigants from repeated litigation. A recent Singapore Court of Appeal decision imposed constraints …

Deferred Prosecution Agreements In Singapore?, Eunice Chua

Research Collection Yong Pung How School Of Law

On 15 January 2018, Minister for Law and Home Affairs K Shanmugam said at a dialogue organised by the Law Society that deferred prosecution agreements (DPAs) could be introduced in Singapore as part of proposed changes to the criminal justice system. DPAs are agreements by the prosecutor to suspend prosecution of a corporate entity if it complies with specific conditions. If the corporation fails to comply with the conditions, the prosecution may resume. This post examines the case for and against DPAs and explores the issues they may present in the Singapore context.

Independence And Impartiality Of Arbitrators: A Rule Of Law Analysis, Stefanie Schacherer

Research Collection Yong Pung How School Of Law

Investor-State dispute settlement (ISDS) through arbitration remains in a state of legitimacy crisis and discussions on reform are ongoing. Much of the criticism is focussed on who is deciding investment dispute cases. Investment arbitrators have been called “private judges” who operate in secrecy, are biased in favour of big multinational companies and have no regard for conflicts of interest. The course of the negotiations on the Transatlantic Trade and Investment Partnership between the European Union (EU) and the United States, highlighted to what extent ISDS through arbitration is perceived as unfair and biased (at least in Europe). As a reaction …

International Investment Arbitration In Laos: Large Issues For A Small State, Romesh Weeramantry, Mahdev Mohan

Research Collection Yong Pung How School Of Law

Laos is no stranger to international investment arbitration. Despite its status as one of Southeast Asia's least developed countries, it has had an Investment Law for more than two decades and is also a party to several bilateral and Association of South East Asian Nations (ASEAN)-related investment agreements. More recently, two investment treaty claims have been made against it, one of which has given rise to an award challenge that went all the way to Singapore's highest court. This article will examine the history, evolution and current iteration of Laos' relationship with international investment law and focus on the two …

Vicarious Liability, Non-Delegable Duty And The Ng Huat Seng Decision, Kee Yang Low

Research Collection Yong Pung How School Of Law

In recent times, courts in Singapore and elsewhere have been grappling with the issue of delegability of duty of care. In the process, they have vigorously defended the conventional position that a duty of care is, in general, delegable. Accordingly, attempts at broadening the ambit of vicarious liability and non-delegable duty, respectively, have been carefully scrutinized. The recent Singapore Court of Appeal decision of Ng Huat Seng v Munib Mohammad Madni adds to the judicial thinking on this complicated and controversial subject.

Cultural Confusion — A Good Thing For Mediation?, Nadja Alexander

Research Collection Yong Pung How School Of Law

Greg Bond’s recent post on mediation cultures reminded me of an encounter I had with a group of mediators several years ago. Allow me to share with you my recollection of what happened.I was conducting a workshop on international and intercultural approaches to mediation for 15 freshly-minted mediators from a European country — all participants were nationally accredited and had completed more than 350 hours of training and assessment. As part of the first day I played a DVD of a real mediation conducted by a people’s mediator in Guangzhou, Guangdong Province, China. The dispute involved a wife who wanted …

Legal Barriers To Supply Chain Connectivity In Asean, Locknie Hsu

Research Collection Yong Pung How School Of Law

This is an Interim Report published pursuant to a Tier 1 research grant from SMU, examining legal barriers to doing business in ASEAN countries. The Interim Report presents research material and findings on such barriers and a number of actionable preliminary recommendations for policy-makers to consider and utilise. The main areas of barriers examined are corporate, trade, investment, land use, dispute settlement and legal information barriers encountered in the region. The Final Report is expected to be published in March 2018.

Some Reflections On The Willem C Vis And Vis East International Commercial Arbitration Moots: Negotiating And Bridging The Civil-Common Divide, Siyuan Chen, Bethel Ruiyi Chan, Eden Yiling Li

Research Collection Yong Pung How School Of Law

This article draws from the co-authors’ personal experiences of competing in the Willem C. Vis and Vis East International Commercial Arbitration Moots and highlights the importance of awareness of diversity in legal traditions. The article focuses on points of divergence between the civil and common law jurisdictions in three main aspects: substantive law, procedural rules and advocacy techniques. Specifically, the article discusses the doctrine of good faith in the United Nations Convention on Contracts for the International Sale of Goods, the group of companies doctrine, and the concept of discovery and disclosure in the International Bar Association Rules on the …

Managing The Inter-Cultural Dimensions Of A Mediation Effectively: A Proposed Pre-Mediation Intake Instrument, Dorcas Quek Anderson, Diana Knight

Research Collection Yong Pung How School Of Law

Being a culturally responsive mediator has become increasingly challenging amidst the growing cultural complexity within many societies. Drawing on the existing research on culture and the authors’ experiences of mediating disputes amongst diverse disputants in Australia and Singapore, this paper proposes an emic-constructivist approach for the mediator to understand the individual disputant’s unique cultural preferences. It also recommends bringing forward the exercise of understanding cultural preferences through conducting pre-mediation intake interviews. It is argued that this approach enables the mediator to embrace the parties’ cultural complexity and to design the mediation process based on their rich milieu of preferences. Finally, …

How Should Bare Arbitration Clauses Be Enforced By The Courts?, Darius Chan

Research Collection Yong Pung How School Of Law

No abstract provided.

Have The Singapore Courts Faltered In The Enforcement Of Arbitration Agreements?, Darius Chan

Research Collection Yong Pung How School Of Law

No abstract provided.

A Coming Of Age For Mediation In Singapore? Mediation Act 2016, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

The Mediation Act 2016 was recently passed by the Singapore Parliament and is soon to come into operation. This legislative comment compares the Act’s key provisions to the common law principles concerning confidentiality and admissibility, enforcement of mediated settlement agreements and stay of proceedings pending mediation. It argues that the Act has refined the common law in certain areas, but has brought about greater uncertainty in other aspects. It also discusses how the major provisions are likely to be applied by the court in light of similar developments in other jurisdictions.

Towards A Harmonised Approach To Mediation Legislation In Asia?, Nadja Alexander

Research Collection Yong Pung How School Of Law

In the past few years Singapore has been busy revising, refining and extending its dispute resolution offerings in cross-border litigation, arbitration and mediation. In 2017 Singapore offers international parties a full suite of dispute resolution services for commercial cross-border disputes.

The Eu As A Global Actor In Reforming The International Investment Regime In Light Of Sustainable Development, Stefanie Schacherer

Research Collection Yong Pung How School Of Law

The international investment law regime is undergoing a process of reform. The guiding paradigm of this reform is the principle of sustainable development. The EU, through its exclusive competence over foreign direct investment, has become a significant actor on the stage of international investment law governance. According to recent statements of the EU institutions, the EU seeks to shape its policy to be consistent with the principle of sustainable development. In more concrete terms this means that EU investment law making shall be consistent with core labour standards, environmental protection and the conservation of natural resources as well as with …

Book Review: Contemporary Issues In Mediation (Volume 1), Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

This is a review of a publication by Singapore International Mediation Institute (SIMI) featuring the top ten entries of its inaugural essay writing competition. The author comments on the essays covering a range of topics in the mediation field including the impact of Singapore culture on the practice of mediation; mediation theories and techniques; and the interface between mediation and the law.