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Articles 1 - 30 of 285
Full-Text Articles in Dispute Resolution and Arbitration
Application Of Singapore's New Rules On Service Out Of Jurisdiction: Three Arrows Capital And Nw Corp, Adeline Chong
Application Of Singapore's New Rules On Service Out Of Jurisdiction: Three Arrows Capital And Nw Corp, Adeline Chong
Research Collection Yong Pung How School Of Law
No abstract provided.
Caroline E. Foster, Global Regulatory Standards In Environmental And Health Disputes: Regulatory Coherence, Due Regard, And Due Diligence, Henry S. Gao
Research Collection Yong Pung How School Of Law
With ‘The Rise of the Regulatory State’ 1 at the beginning of the twentieth century, regulation replaced litigation as the main method of social control in the United States. Over the past few decades, more and more countries around the world started to follow the example of the United States, which led to the global expansion of the regulatory state. This in turn spurred more international disputes due to divergences in the respective regulatory standards. Theoretically speaking, global regulation might be the best solution. However, so far this not happened, partly due to the paralysis of the law-making functions of …
Conceptualising State-Centric Mediation: An Analysis Of China's Foreign Investment Complaints Mechanism, Mark Mclaughlin
Conceptualising State-Centric Mediation: An Analysis Of China's Foreign Investment Complaints Mechanism, Mark Mclaughlin
Research Collection Yong Pung How School Of Law
This article argues that China's foreign investor complaints system constitutes 'state-centric investment mediation'. The Rules on Handling Complaints of Foreign-Invested Enterprises, which entered into force on 1 October 2020, place a state agency in the position of facilitating negotiations between a foreign investor and the agency being complained against. The prospects for this complaints system depend on how the state-as-mediator dynamic is perceived by foreign investors. To this end, it will be argued that settlement agreements reached pursuant to this system may be enforceable under the Singapore Convention on Mediation in certain circumstances. Investors and government entities operating similar systems …
Hague Service Convention Enters Into Force In Singapore, Adeline Chong
Hague Service Convention Enters Into Force In Singapore, Adeline Chong
Research Collection Yong Pung How School Of Law
Singapore acceded to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (‘Service Convention’) on 16 May 2023. It has now entered into force in Singapore on 1 December 2023. Two declarations were lodged: first, against Article 8(1) objecting to the direct service of judicial documents upon persons in Singapore through foreign diplomatic or consular agents unless the documents are to be served upon a national of the State from which the documents originate; and secondly, objecting to service of judicial and extrajudicial documents in Singapore by the methods of transmission set …
The New System Of Civil Appeals: What "Constitutional Or Administrative Law" Is; Whether To Appeal To The Appellate Division Or The Court Of Appeal; And Proposals For Further Reform, Benjamin Joshua Ong
The New System Of Civil Appeals: What "Constitutional Or Administrative Law" Is; Whether To Appeal To The Appellate Division Or The Court Of Appeal; And Proposals For Further Reform, Benjamin Joshua Ong
Research Collection Yong Pung How School Of Law
An application was made under s 95 of the Legal Profession Act to set aside a penalty imposed by the Council of the Law Society. The Court of Appeal held that an appeal lay to the Appellate Division of the High Court, and not the Court of Appeal, because this was not a “case relating to constitutional or administrative law”. The reasoning is problematic: it relied on an overly narrow conception of “public powers”, conflated judicial review with administrative law more broadly, erroneously considered the merits of the application as relevant to the “which court” question, and overlooked the similarities …
The Geoeconomics Of Belt And Road Disputes: A Case Study On The China-Pakistan Economic Corridor, Mark Mclaughlin
The Geoeconomics Of Belt And Road Disputes: A Case Study On The China-Pakistan Economic Corridor, Mark Mclaughlin
Research Collection Yong Pung How School Of Law
This article argues that the dovetailing economic, geopolitical, and security interests that underpin the Belt and Road Initiative demands a dispute resolution mechanism that focuses on broader interests and legal rights. Using the China-Pakistan Economic Corridor (CPEC) as a case study, it identifies the conditions in which Chinese investors could have initiated an investment arbitration but did not. This can be explained by the rights-based orientation of investment treaties failing to reflect the interests of multi-project initiatives. Instead, alternative methods of home state intervention, such as state-funded political risk insurance, are used to protect investors. In other words, the political …
Influence In Investor-State Dispute Settlement: A Dynamic Concept, Rachel Cahill-O'Callaghan, Anna Luisa Howard, Stavros Brekoulakis
Influence In Investor-State Dispute Settlement: A Dynamic Concept, Rachel Cahill-O'Callaghan, Anna Luisa Howard, Stavros Brekoulakis
Research Collection Yong Pung How School Of Law
Investor-state dispute settlement (ISDS) plays an increasingly important role in international trade resolution. The decisions have significant financial and in many cases policy implications, yet little is known about the formation of the ad-hoc panels and the decision-making process. Drawing on empirical evidence from interviews with key actors in the ISDS system, this article argues that influence plays a central role in both processes. The analysis further develops the framework for understanding influence in international decision-making to accommodate external factors (those visible to those appointing the decision-makers) and internal factors (those factors that become visible in the decision-making room). It …
Two Decades After Salini V Morocco: The Case For Retaining The Salini Test With Modifications, Darius Chan, Justin Lai
Two Decades After Salini V Morocco: The Case For Retaining The Salini Test With Modifications, Darius Chan, Justin Lai
Research Collection Yong Pung How School Of Law
The definition of an investment under Article 25 of the ICSID Convention continues to attract a divergence of views. Ever since its use in 2001, the Salini Test, in its various forms, has become the predominant method that tribunals use to determine whether there is an investment. However, the Salini Test is hardly free from controversy, and suffers from two significant issues. First, its criteria are often subject to differing interpretations, leading to confusion over how the test should actually be applied. Second, the Salini Test has lost its legal force over time, as it has been relegated to factors …
A Review Of The 2021/22 International Moots Season, Siyuan Chen
A Review Of The 2021/22 International Moots Season, Siyuan Chen
Research Collection Yong Pung How School Of Law
This is the eighth1 annual review of Singapore’s performance in international moot court competitions.2 An overview of the results for this season is presented at Table #1 below, while Tables #2 and #3 provide a snapshot of the results of the past 10 seasons. Despite the substantial lifting of travel restrictions throughout the world, the 2021/22 international moots season remained a virtually conducted one for many competitions, though competitions such as IP, Stetson, PAX, and WTO saw a much-welcomed return to in-person hearings, allowing students to compete and interact with teams and judges from around the world at places such …
International Commercial Mediation And Dispute Resolution Contracts, Nadja Alexander, Natasha Tunkel
International Commercial Mediation And Dispute Resolution Contracts, Nadja Alexander, Natasha Tunkel
Research Collection Yong Pung How School Of Law
Every transaction has the potential to go wrong and international commercial contracts are not spared this plight. It is when an international commercial contract fails – irrespective of the reasons, that the impact of different legal and cultural backgrounds of the parties come to light. The obvious venue for commercial disputes to be decided is generally understood to be in court (litigation)2 or before an arbitral tribunal (arbitration)3. However, there are numerous other alternative dispute mechanisms4 available to parties that are less well known and also deserve consideration; not least because they offer parties methods of resolving the dispute between …
Book Review: Mediation Ethics: A Practitioner's Guide Edited By Omer Shapira Ed, Dorcas Quek Anderson
Book Review: Mediation Ethics: A Practitioner's Guide Edited By Omer Shapira Ed, Dorcas Quek Anderson
Research Collection Yong Pung How School Of Law
A review of the book Mediation ethics: A practitioner's guide, edited by Omer Shapira. Mediation ethics have been consistently featured in mediation training courses and mediation ethical principles have also been encapsulated in mediation providers’ codes of conduct for mediators. However, mediation ethics have probably inspired fewer publications and academic discussions than the popular topic of mediation skills. It is thus timely that Shapira has edited this publication focusing on mediation ethics. Published in 2021, this collection of reflections on mediation ethics has been written primarily for the American mediation profession, with frequent references made to the US Model Standards …
Non-Satisfaction Of Pre-Arbitration Requirements: Moving Away From Conditions Precedent Towards The Admissibility Of A Claim – Nwa V Nvf, Darius Chan, Joel Soon
Non-Satisfaction Of Pre-Arbitration Requirements: Moving Away From Conditions Precedent Towards The Admissibility Of A Claim – Nwa V Nvf, Darius Chan, Joel Soon
Research Collection Yong Pung How School Of Law
In earlier cases, the non-satisfaction of pre-arbitration requirements has been analysed by the Singapore and English courts by reference to the issue of conditions precedent. It was assumed without argument that, if a requirement was construed as a condition precedent, the failure to satisfy that requirement would deprive the tribunal of jurisdiction. More recently, English and Hong Kong case law has focused on a different issue, asking whether the failure to meet the pre-arbitration requirement affects the tribunal’s jurisdiction or the admissibility of the claim. This case note analyses whether the Singapore courts should follow suit.
Counting The Cost Of Enlarging The Role Of Adr In Civil Justice, Dorcas Quek Anderson
Counting The Cost Of Enlarging The Role Of Adr In Civil Justice, Dorcas Quek Anderson
Research Collection Yong Pung How School Of Law
Access to civil justice in many countries has been plagued by the common challenges of the high cost of litigation, inequality in parties’ financial resources, differing risk appetites and limited judicial resources. Singapore, a common law jurisdiction, recently implemented radical changes to its civil justice regime with effect from 1 April 2022 in order to ensure affordability and timeliness of the civil justice process. As in the United Kingdom, these civil justice reforms are premised on the proportionality principle: they seek to achieve procedure that is proportionate to the claim value and the means of the parties, without unduly compromising …
To Negotiate, Mediate Or Litigate? Examining The Durability Of Divorce Outcomes In The Singapore Family Courts, Dorcas Quek Anderson, Eunice Chua, Yilin Ning
To Negotiate, Mediate Or Litigate? Examining The Durability Of Divorce Outcomes In The Singapore Family Courts, Dorcas Quek Anderson, Eunice Chua, Yilin Ning
Research Collection Yong Pung How School Of Law
For many years, the courts have been grappling with the paradox of marriages—the most intimate of relationships—being dissolved in the courts that represent a public and adversarial setting. Despite the growth of divorce interventions, the perennial struggle remains in many courts on how to reduce the intense acrimony of divorce litigation. The question remains on the scope of “mainstream” interventions to be offered by the courts to divorce litigants. The current study therefore explores the use of court-connected negotiation, mediation, and litigation in the Singapore Family Justice Courts. It uses a statistical method of survival analysis to produce insights on …
The Road Goes Ever On: Diplomatic Service In Relation To Award Enforcement Proceedings Against Foreign States, Darius Chan, Louis Lau
The Road Goes Ever On: Diplomatic Service In Relation To Award Enforcement Proceedings Against Foreign States, Darius Chan, Louis Lau
Research Collection Yong Pung How School Of Law
The seemingly straightforward question of what and how a foreign state should be served when an award creditor seeks to enforce an arbitral award against the state has provoked differing views. On one hand, comity requires foreign states to be given notice of proceedings by a formal and predictable method through diplomatic processes. On the other hand, the potential for abuse by states, and practical difficulties of effecting diplomatic service, may exist in certain circumstances. This issue is of practical importance given the rise in cross-border investment with the Belt & Road Initiative and international investment instruments. This case note …
Empowering The Courts To Order The Use Of Amicable Dispute Resolution: The Singapore Rules Of Court 2021, Dorcas Quek Anderson
Empowering The Courts To Order The Use Of Amicable Dispute Resolution: The Singapore Rules Of Court 2021, Dorcas Quek Anderson
Research Collection Yong Pung How School Of Law
The civil justice regime in Singapore entered a new phase of radical reforms with effect from 1 April 2022. The reforms have substantially expanded the role of amicable dispute resolution (ADR). Parties have a duty to consider ADR prior to and during civil proceedings. More significantly, the courts have been empowered to order parties to attempt ADR, taking into account the ideals of the Rules of Court and all relevant circumstances. This note analyses the key reforms relating to the use of ADR with reference to comparable English developments. It discusses the broad yet ambivalent scope of ADR that could …
Burdening Assignees With Arbitration Agreements Via ‘Conditional Benefits’, Chee Ho Tham
Burdening Assignees With Arbitration Agreements Via ‘Conditional Benefits’, Chee Ho Tham
Research Collection Yong Pung How School Of Law
In this article, the author compares two concepts that seek to explain why an assignee of a chose in action may be burdened by an arbitration agreement to which it is not privy. He posits that, of the “conditional benefits” concept and the “subject to equities” principle, the latter provides the better explanation.
Hearing, Darius Chan, Gerome Goh
Hearing, Darius Chan, Gerome Goh
Research Collection Yong Pung How School Of Law
In certain international commercial arbitrations, for instance, in expedited proceedings under the auspices of various institutional rules, the tribunal may decide the dispute based on documentary evidence only. However, in most cases, hearings are generally conducted for the tribunal to hear examination of any factual or expert witness and/or for oral argument. It is not uncommon for there to be multiple hearings in a single arbitration, with each hearing focusing on specific procedural or substantive issues. The hearing is therefore a forum for the parties to adduce evidence and/or put forward their legal views in direct confrontation with each other. …
Online Falsehoods, Constitutional Free Speech And Its Limits: The Online Citizen V The Attorney-General, Gary K. Y. Chan
Online Falsehoods, Constitutional Free Speech And Its Limits: The Online Citizen V The Attorney-General, Gary K. Y. Chan
Research Collection Yong Pung How School Of Law
The Singapore Court of Appeal has for the first time in The Online Citizen v The Attorney-General (8 October 2021) adjudicated on the constitutionality of correction directions issued by Ministers against allegedly false statements of fact under the Protection from Online Falsehoods and Manipulation Act 2019. An overarching framework was utilised to assess whether the Ministerial directions restrict free speech under Article 14(1)(a) of the Constitution; if so, whether the restrictions are justifiable under the Constitution and whether there is a rational nexus between the statutory aims and enumerated exceptions. This case comment also examines the constitutional stance towards subject …
A Requirement, A Factor, Or A Figure Of Speech? Role Of Prejudice When Challenging Awards Under The Model Law, Darius Chan, Zhi Jia Koh
A Requirement, A Factor, Or A Figure Of Speech? Role Of Prejudice When Challenging Awards Under The Model Law, Darius Chan, Zhi Jia Koh
Research Collection Yong Pung How School Of Law
Both parties and courts routinely invoke the term ‘prejudice’ in applications to set aside an arbitral award or refuse its enforcement. This suggests that the use of the term is more than just a figure of speech. It is generally understood that prejudice, in the sense of impact or effect on the outcome of the arbitration, is relevant for procedural challenges but not jurisdictional challenges. However, questions remain as to whether prejudice is legally relevant for challenges that are neither strictly procedural or jurisdictional in nature, whether prejudice is relevant as a factor for consideration or as a legal requirement …
Re-Formulating The Test For Ascertaining The Proper Law Of An Arbitration Agreement: A Comparative Common Law Analysis, Darius Chan, Jim Yang Teo
Re-Formulating The Test For Ascertaining The Proper Law Of An Arbitration Agreement: A Comparative Common Law Analysis, Darius Chan, Jim Yang Teo
Research Collection Yong Pung How School Of Law
Following two recent decisions from the apex courts in England and Singapore on the appropriate methodology to ascertain the proper law of an arbitration agreement, the positions in these two leading arbitration destinations have now converged in some respects. But other issues of conceptual and practical significance have not been fully addressed, including the extent to which the true nature of the inquiry into whether the parties had made a choice of law is in substance an exercise in contractual interpretation, the applicability of a validation principle, and the extent to which the choice of a neutral seat may affect …
The Importance Of Ethics In The Practice Of Mediation, Dorcas Quek Anderson
The Importance Of Ethics In The Practice Of Mediation, Dorcas Quek Anderson
Research Collection Yong Pung How School Of Law
What is the predominant function of ethics for the mediation profession in Singapore? Do ethical principles assume greater significance in light of increasing institutionalisation of mediation programmes in Singapore? What can mediators, mediation advocates and mediation institutions do to ensure consistent adherence to ethical standards? These and other related issues were discussed in a webinar organised by the Singapore Academy of Law in May 2021 featuring Lim Tat, Chuan Wee Meng and this author as panellists, together with See Chern Yang as moderator. This article highlights the notable discussion points of the webinar, including the significance of mediation ethics, common …
Investor-State Mediation And The Belt And Road Initiative: Examining The Conditions For Settlement, Mark Mclaughlin
Investor-State Mediation And The Belt And Road Initiative: Examining The Conditions For Settlement, Mark Mclaughlin
Research Collection Yong Pung How School Of Law
Despite the dominance of arbitration in the realm of investor-state disputes, the variety of proposals for reform suggest considerable stakeholder discontent with the current framework. One suggested reform is the introduction of investor–state mediation, which has been supported by the conclusion of the Singapore Convention on Mediation and the proposal by the International Centre for Settlement of Investment Disputes (ICSID) of a set of mediation rules. This article examines the respective merits of arbitration and mediation to settle investment disputes related to the Belt and Road Initiative. Many of the principles underpinning the implementation of the Belt and Road Initiative …
Proper Characterisation Of The Parol Evidence Rule And Its Applicability In International Arbitration, Darius Chan, Yi Hang Louis Lau
Proper Characterisation Of The Parol Evidence Rule And Its Applicability In International Arbitration, Darius Chan, Yi Hang Louis Lau
Research Collection Yong Pung How School Of Law
Most arbitral statutes and institutional rules give great latitude to tribunals on the admissibility of evidence, and do not mandate application of domestic rules of evidence. In common law jurisdictions where the parol evidence rule applies, the issue that arises is whether the parol evidence rule is necessarily a procedural rule of evidence which tribunals are not bound to apply, especially in jurisdictions which have codified the rule under domestic evidence legislation. Notwithstanding any codification, this article argues that the parol evidence rule at common law is a substantive rule of contractual interpretation that should be applied as part of …
To Stay Or Not To Stay? A Clash Of Arbitration And Insolvency Regimes, Darius Chan, Sidharrth B Rajagopal
To Stay Or Not To Stay? A Clash Of Arbitration And Insolvency Regimes, Darius Chan, Sidharrth B Rajagopal
Research Collection Yong Pung How School Of Law
In the wake of the global Coronavirus disease 2019 (COVID-19) pandemic, a rise in creditorinitiated winding-up proceedings is likely to be impending in coming years (See e.g., RCMA Asia Pte. Ltd. v. Sun Electric Power Pte. Ltd. [2020] SGHC 205). At the same time, geopolitical developments, such as the scale and ambition of Belt & Road Initiative projects, have raised questions over the issue of debt sustainability. Given the prevalence of arbitration clauses in modern international commercial and project agreements, the interplay and relationship between insolvency and dispute resolution, and especially arbitration, requires careful attention. While the intersections between the …
Mediation Ethics: From Theory To Practice, Field, Rachael And Crowe, Jonathan. Edward Elgar Publishing, 2020, Dorcas Quek Anderson
Mediation Ethics: From Theory To Practice, Field, Rachael And Crowe, Jonathan. Edward Elgar Publishing, 2020, Dorcas Quek Anderson
Research Collection Yong Pung How School Of Law
For too long within the mediation field, there has been confusion on how the foundational principles of mediator neutrality, impartiality, and self-determination work together to bring about a fair outcome. There has been a corresponding lack of clarity on what the mediator does to ensure that these principles are collectively fulfilled through a consensual settlement. Astor (2007), who has written extensively on mediator neutrality, has described the mediator's role as maximizing party control. However, Astor also comments that making decisions aimed at maximizing party control is not simple and highly dependent on the context. The mediator has to intervene in …
Arbitration By Ssos As A Preferred Solution For Solving The Frand Licensing Of Seps?, Kung-Chung Liu
Arbitration By Ssos As A Preferred Solution For Solving The Frand Licensing Of Seps?, Kung-Chung Liu
Research Collection Yong Pung How School Of Law
In the last decade, the licensing of standard essential patents (SEPs) on fair, reasonable and non-discriminatory (FRAND) terms has been a thorny issue for SEP holders in the US and Europe on the one hand, and major SEP implementers in major Asian economies on the other, such as Japan, Korea, the PRC, Taiwan and even India. With the rise of the Fourth Industrial Revolution, driven by the Internet of Things (IoT), 5G, driverless vehicles, and artificial intelligence (AI), which relies even more on interconnectivity, more and more new standards and SEPs will emerge, and the issue of FRAND licensing of …
The Emergence Of Mediation Law In Asia: A Tale Of Two Cities, Nadja M. Alexander
The Emergence Of Mediation Law In Asia: A Tale Of Two Cities, Nadja M. Alexander
Research Collection Yong Pung How School Of Law
Contemporary mediation systems are emerging throughout Asia. In 2019, 16 jurisdictions from Asia and the Pacific region signed the UN Convention on International Mediation Settlement Agreements Resulting from Mediation (the Singapore Convention). Asian signatories include its three largest economies, five ASEAN countries and seven members of the RCEP.
Why is this important? In a strict legal sense, the Singapore Convention is an instrument to facilitate the enforcement of international mediated settlement agreements (iMSAs), however its broader objective is to facilitate cross-border trade and investment as is reflected in its Preamble.
The Singapore Convention promises to leave a significant impact on …
Investor-State Mediation: How The Landscape Is Changing [Sidra Survey], Nadja Alexander
Investor-State Mediation: How The Landscape Is Changing [Sidra Survey], Nadja Alexander
Research Collection Yong Pung How School Of Law
Slowly but surely the dispute resolution landscape is shifting for investment related disputes. More than half the respondents to the International Dispute Resolution Survey published by the Singapore International Dispute Resolution Academy (SIDRA) last year indicated that they have been involved in an investor-state dispute between 2016 and 2018. And, it is of course no surprise the majority of survey respondents indicated that institutional arbitration was the mechanism of choice to resolve investor-state disputes.
Digital Readiness Index For Arbitration Institutions: Challenges And Implications For Dispute Resolution Under The Belt And Road Initiative, Allison Goh
Research Collection Yong Pung How School Of Law
Post-COVID-19, a paradigm shift has occurred in the adoption of technology in arbitration. Leading arbitral institutions have adapted quickly, highlighting the foresight of institutions who have existing technological infrastructure in place. This article proposes a ‘Digital Readiness Index’, which aims to evaluate arbitral institutions on their level of digital readiness based on five evaluative indicators. Cross referenced against Institute for Management Development (IMD’s) 2019 World Digital Competitiveness Rankings, the findings reveal synergies between an economy’s digital competitiveness and the adoption of technology in dispute resolution. To further the development of dispute resolution processes under the Belt and Road Initiative, strategic …