Dispute Resolution and Arbitration Commons^™

To Boycott Proceedings Or Not? Recourse Against Arbitral Awards On Jurisdictional Grounds By Different Categories Of Respondents Under The Model Law, Darius Chan, Claire Neoh

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The remedies that award debtors have under Articles 16(3), 34 and 36 of the Model Law, and more critically the inter-relationship between those remedies, has attracted much debate. Yet there is a dearth of analysis on how the availability of each remedy may differ according to the award debtor’s degree of participation in the arbitral pro- cess. Such analysis carries significant practical value for parties in considering whether and to what extent they should participate in any arbitral process when they harbour jurisdictional objections. This article distils Singapore’s experience, describing how Singapore has implemented the ‘choice of remedies’ principle for …

Mediation: The New Normal?, Nadja Alexander

Research Collection Yong Pung How School Of Law

Imagine a tightrope walker, walking along a tightrope, holding a long, light rod. To help her balance, the performing artist continually moves the rod, changing the angle of the rod to maintain a constant – her balance in space. If she were to hold the rod in a fixed position, what would happen? She would fall off. In other words, the variation of the rod has the function of maintaining the deeper continuity which enables the artist to make it to the other end, alive. In this essay, the tightrope walker offers a metaphor for dispute resolution systems. In order …

Law And Covid-19, Aurelio Gurrea-Martinez, Yihan Goh, Mark Findlay

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This book is a collection of essays from scholars at Singapore Management University School of Law analysing the challenges and implications of COVID-19 from the perspective of different areas of law, including private law, corporate law, insolvency law, data protection, financial laws, public law, privacy law, commercial law, constitutional law, law and technology, and dispute resolution. It also analyses how the COVID-19 pandemic will affect the judicial system, the study of law, and the future of the legal profession. Beyond considerations of the pandemic’s influence on law and legal service delivery the authors consider how law can help facilitate the …

Ascertaining The Proper Law Of An Arbitration Agreement: The Artificiality Of Inferring Intention When There Is None, Darius Chan, Jim Yang Teo

Research Collection Yong Pung How School Of Law

The common law choice of law principles for determining the proper law of an arbitration agreement previously thought to be settled by the English Court of Appeal’s decision in Sulamérica v. Enesa [2013] 1 W.L.R. 102 have now been thrown into disarray after a recent string of three judgments: starting with the Singapore Court of Appeal’s decision in BNA v. BNB [2019] S.G.C.A. 84, followed by two decisions from the English Court of Appeal in Kabab-Ji v. Kout Food Group [2020] EWCA Civ 6 and Enka Insaat Ve Sanayi A.S. v. OOO ‘Insurance Company Chubb’ [2020] EWCA Civ 574.This article …

12 September 2020: The Singapore Convention On Mediation Comes Into Force, Nadja Alexander, Shou Yu Chong

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In this post on the Kluwer Mediation Blog, the potential impact of the Singapore Convention on Mediation is analysed.

Taking Disputes Online In A Pandemic-Stricken World: Do We Necessarily Lose More Than We Gain?, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

Online dispute resolution (ODR) used to be a secondary feature of the courts, arbitration institutions and mediation providers. ODR systems involving problem diagnosis, facilitation and online adjudication were primarily utilised for low value claims and not extended to all legal claims. Private mediation was largely conducted only on online platforms to bridge physical distances. However, the COVID pandemic has very abruptly compelled the courts and other dispute resolution practitioners to shift face-to-face processes to the virtual environment. ODR is likely to be the mainstream, and no longer the alternative, way of managing disputes in the immediate future.

The rapid migration …

Japan-Singapore Joint Mediation Protocol Announced, Nadja Alexander

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In this post, the potential impact of the Japan-Singapore Joint Mediation Protocol is analysed.

A Matter Of Interpretation? Understanding And Applying Mediation Standards For The Cross-Border Enforcement Of Mediated Settlement Agreements, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

This article focuses on the future role to be played by mediation standards in view of the signing of the Singapore Convention on Mediation. It argues that the convention has elevated the standing of mediation standards from soft regulatory codes to quasi-legal grounds impacting the enforcement of mediated settlements. However, the inherently generalized nature of mediation standards does not render them amenable to contextualized interpretation. More significantly, the courts may adopt the wrong frame when construing mediation standards. It is therefore imperative that the mediation community find ways to bridge frames and facilitate the cross-border understanding of standards.

What Users Say About Technology In Mediation: 2020 Sidra Survey, Part 3, Nadja Alexander, Allison Goh

Research Collection Yong Pung How School Of Law

In this post on the Kluwer Mediation Blog, the use and appreciation of technology in mediation among client users is analysed.

Sidra International Dispute Resolution Survey: 2020 Final Report, Nadja Alexander, Vakhtangi Giorgadze, Allison Goh

Research Collection Yong Pung How School Of Law

The International Dispute Resolution Survey: 2020 Final Report presents the findings of the Singapore International Dispute Resolution Academy’s inaugural examination into the preferences, experiences, practices and perspectives of international dispute resolution users around the globe. The survey examined three major international dispute resolution mechanisms: international commercial arbitration, international commercial mediation, international commercial litigation, as well as hybrid dispute resolution mechanisms such as mediation-arbitration and arbitration-mediation. The survey also inquired into the use of technology in international dispute resolution, such as predictive analytical tools and negotiation support systems, and asked the users to express whether they were satisfied with the use …

The Singapore Convention On Mediation: Supplying The Missing Piece Of The Puzzle For Dispute Resolution, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

In late 2018, the United Nations General Assembly passed a resolution to adopt the UN Convention on International Settlement Agreements Resulting from Mediation and to make corresponding amendments to the Model Law on International Commercial Conciliation. The convention was named the Singapore Convention on Mediation (“Singapore Convention”) when it was signed by 46 countries on 7 August 2019, and will come into force on 12 September 2020. The Singapore Convention is meant to achieve for mediation what the New York Convention has done for international arbitration. Its future success is highly dependent on the sound application of its provisions by …

Book Review: The Uncitral Model Law And Asian Arbitration Laws: Implementation And Comparison, Darius Chan

Research Collection Yong Pung How School Of Law

The project embodied by this book - a comparative survey of how every clause in the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration is implemented across 12 Asian jurisdictions - is as ambitious as it is breathtaking. Yet, if anyone can deliver on this scale, it would be Professor Gary Bell, an expert in arbitration law and practice based at the National University of Singapore (NUS) since 1996. Professor Bell is currently Director of the Asian Law Institute and Director of two NUS LLM programmes: Arbitration and Asian Legal Studies. He enjoys the …

What Users Say About International Mediators And Mediation Institutions: Part 2, Nadja Alexander, Allison Goh

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In this post on the Kluwer Mediation Blog, the key factors that influence users' choice of mediation institution and choice of the mediator are explored.

Why And How Users Make Choices In International Dispute Resolution: 2020 Sidra Survey, Nadja Alexander, Allison Goh

Research Collection Yong Pung How School Of Law

In this post on the Kluwer Mediation Blog, the experiences and views of legal and client users from common and civil law jurisdictions on why and how they choose dispute resolution mechanisms to resolve cross-border disputes are analysed.

The Evolving Concept Of Access To Justice In Singapore’S Mediation Movement, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

This article examines the key societal developments underpinning the growth of mediation in Singapore with the view to analysing the evolving conceptualisation of justice within mediation. The introduction of mediation corresponded with a shift from adversarial justice to an indigenous form of conciliatory justice, in which a respected mediator played an advisor role to the disputants and was trusted to ensure the fairness of the process. However, this trajectory was tempered by the need to ensure that Singapore mediation practice conformed with international practices concerning the protection of parties’ autonomy. The ambivalence concerning the mediator’s role has resulted in uncertainty …

International Mediation And Covid-19: The New Normal?, Nadja Alexander

Research Collection Yong Pung How School Of Law

What is the SIMC COVID-19 Protocol? The Singapore International Mediation Centre (SIMC) has just launched the SIMC COVID-19 Protocol to provide businesses with an expedited, economical and effective route to resolve any international commercial disputes during the COVID-19 pandemic period. SIMC’s Covid-19 protocol is a great example of a leading mediation service provider reaching out to a market severely disrupted by Covid-19. The option for Singaporean and international parties to mediate online means for a highly accessible, time and cost effective path to resolve disputes that have emerged in the wake of Covid-19.

Singapore Case Law Series: Dispute Resolution Clauses In Msas, Nadja Alexander, Shou Yu Chong

Research Collection Yong Pung How School Of Law

In this post on the Kluwer Mediation Blog, the Singapore Court of Appeal case of Retrospect Investment (S) Pte Ltd v Lateral Solutions Pte Ltd [2020] SGCA regarding questions on dispute resolution clauses in a mediated settlement agreement (MSA) is analysed.

Case Note: Enforceability Of Agreements To Mediate In English Law, Nadja Alexander, Shou Yu Chong

Research Collection Yong Pung How School Of Law

Are agreements to mediate enforceable?The short (and incomplete) answer is: yes, they may be provided they are drafted appropriately. In this post we review a recent English judgment which sets outs guidelines for the enforceability of agreements to mediate under English law.In August 2019, the Technology and Construction Court of the Queen’s Bench Division in England made an important ruling in regard to the enforceability of agreements to mediate as a precondition to court or arbitration proceedings. Ohpen Operations UK Ltd v Invesco Fund Managers Ltd [2019] EWHC 2246 (TCC) provides guidance for how and when parties may rely on …

Five Recurring Problems In International Arbitration: The Relationship Between Courts And Arbitral Tribunals, Iris Ng, Melissa Ng, Andre Soh, Siyuan Chen

Research Collection Yong Pung How School Of Law

In recent years, five recurring problems regarding the relationship between courts and tribunals have gained prominence due to case law developments. These run the gamut from preliminary issues with the arbitration agreement to disputes at the enforcement stage. This article examines these problems in detail, with a view to shed new light on the question of what it means for a jurisdiction to be “pro-arbitration”. The authors argue that the oft-repeated binary categorisation of “pro-arbitration” and “anti-arbitration” jurisdictions is too broad-brush. Instead, there is no easy answer to what constitutes a truly “pro-arbitration” approach, and no one-size-fits-all approach to being …

Singapore Case Note: Settlement Agreement Invoked As Shield, Nadja Alexander, Shou Yu Chong

Research Collection Yong Pung How School Of Law

The Singapore Convention on Mediation makes clear that international mediated settlement agreements (iMSAs) may be used as a sword or invoked as a shield in judicial or arbitral proceedings (defence). In the post-Singapore Convention world, lawyers are looking closely at the extent to which courts may recognise settlement agreements, especially mediated settlement agreements, as a shield or a defence to arbitral or litigation proceedings.

Optimising Performance: How Jungian Alchemy Informs Organisational Transformation, Nadja Alexander, Michelle Lebaron

Research Collection Yong Pung How School Of Law

In this paper we explore the alchemical possibilities of aesthetics in transforming organizational performance. We ground our discussion in an exploration of how four alchemical elements – earth, water, air and fire – identified in the work of Swiss psychiatrist Carl Jung, can catalyse transformation. Inspired by Jung, we examine how these elements help us to better build awareness – of ourselves, of others in teams and work groups, and of untapped potential in organizational contexts. By developing greater awareness of aesthetics and their alchemical potential, leaders can better navigate the emergent and complex workings of organizational transformation processes, whether …

Singapore Convention Series: Bill To Ratify Before Singapore Parliament, Nadja Alexander, Shou Yu Chong

Research Collection Yong Pung How School Of Law

Signing on to the Singapore Convention is only the beginning. The Convention will come into force six months after three States have ratified it into their domestic law (Article 14 of the Convention). A Bill currently before the Singapore Parliament seeks to pave the way for that – ratify the Convention in Singapore through the enactment of legislation to implement its terms. It is anticipated that the Singapore Convention on Mediation Bill (the ‘Bill’) will be passed into Law before the end of March 2020. It may very well be the first piece of legislation that ratifies the Convention. Other …

Un Treaty On Mediation Signed In Singapore, Nadja Alexander, Shou Yu Chong

Research Collection Yong Pung How School Of Law

The Singapore Convention on Mediation is a multilateral treaty which offers a legal framework facilitating the circulation of international mediated settlement agreements (iMSAs) across national borders. The Singapore Convention achieves this by elevating iMSAs to the status of a new type of legal instrument recognised in international law: neither a contract nor a consent arbitral award, iMSAs that fall within the scope of, and that satisfy the conditions within, the Singapore Convention enjoy a unique status. As outlined below, the new Convention establishes a system for the recognition and enforcement of commercial iMSAs. This report is a follow up to …

Equitable Fraud And Double Liability Of A Debtor Following Notice Of Equitable Assignment Of The Debt, Chee Ho Tham

Research Collection Yong Pung How School Of Law

‘Equitable fraud’ is broader in its conception than fraud at common law. Notwithstanding ambiguities as to its precise boundaries, equitable fraud can help explain why a debtor who tenders payment to his or her creditor, despite having received notice that the money debt had been equitably assigned to an assignee, may be ordered to make payment to the assignee if the creditor-assignor were to abscond with the sums tendered, leaving the assignee out of pocket. Such liability can be explained on grounds of the debtor having committed a form of equitable fraud by dishonestly assisting in the creditor-assignor’s breach of …

Singapore Case Note: Enforceability Of Settlement Agreements, Nadja Alexander, Shou Yu Chong

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Since the signing of the Singapore Convention on Mediation in August this year, there has been an increased interest on the enforceability of settlement agreements, particularly those arising from mediation. The case of Law Chau Loon v Alphire Group Pte Ltd [2019] SGHC 275 from the Singapore High Court provides us with some general legal principles to consider when a settlement agreement is drafted. Although mediation did not take place between the parties in dispute, the principles stated by the High Court here remain relevant to the drafting of binding mediated settlement agreements (MSAs). This case is essential reading for …

International Dispute Resolution Survey: Currents Of Change: 2019 Preliminary Report (Sidra), Nadja Alexander, Janet Carolyn Checkley, Shou Yu Chong, Joel Ng, Daoyuan Zhu

Research Collection Yong Pung How School Of Law

The 2019 International Dispute Resolution Survey: Currents of Change Preliminary Report presents the first-look findings of the Singapore International Dispute Resolution Academy's groundbreaking examination into the preferences, practices, and perspectives of international dispute resolution users around the globe. These findings examine three international dispute resolution mechanisms: International Commercial Arbitration, International Commercial Mediation, and International Commercial Litigation. The report summarises findings from each mechanism in turn and provides an overview of the results, then explores key trends drawn from the data identifying currents of change drawing international dispute resolution into the third decade of the 21st century.

Un-Übereinkommens Zur Internationalen Durchsetzung Von Mediationsvergleichen, Nadja Alexander

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Das Singapur-Übereinkommenist ein multilateraler Vertrag, der einen Rechtsrahmenfür die erleichterte Zirkulation voninternationalen Mediationsvergleichen (IMV) über Landesgrenzen hinweg schafft.Das Übereinkommen erreicht dies, indem es den IMV den Status eines neuartigen, auf internationaler Ebene anerkannten Rechtsinstruments verleiht: Weder ein Vertrag noch ein Schiedsspruch mit vereinbartem Wortlaut; IMV,die in den Anwendungsbereich des Singapur-Übereinkommens fallen und dessen Voraussetzungen erfüllen, genießen eine einzigartige Stellung. Mit dem neuen Übereinkommen wird ein System für die Anerkennung und Vollstreckung vonIMV eingeführt.

Enforcement Of International Settlement Agreements Resulting From Mediation Under The Singapore Convention – Private International Law Issues In Perspective, Shou Yu Chong, Felix Steffek

Research Collection Yong Pung How School Of Law

This article introduces the Singapore Convention on International Settlement Agreements Resulting from Mediation (“the Convention”). It discusses the enforcement of mediated settlement agreements under the Convention against the background of private international law. First, the Convention and its genesis are introduced. Second, the rationale and scope of the Convention are examined. Third, the Convention is placed in the context of private international law. Fourth, the requirements for enforcement of an international mediated settlement agreement (“IMSA”) under the Convention are laid out. Fifth, the grounds for refusal of judicial enforcement of IMSAs are examined. The article ends with a conclusion and …

Ten Trends In International Mediation, Nadja Alexander

Research Collection Yong Pung How School Of Law

In this essay, the author offers an international overview ofmediation developments in the 21st century and identifiescontemporary influences such as artificial intelligence andthird-party funding. With a focus on mediation ofcross-border disputes, the author identifies ten trends ininternational mediation. These include the changing profileof cross-border disputants and corresponding developmentsin international mediation practice and law. The role ofmediators and lawyers is analysed in the context of theprofessionalisation of the field through credentiallinginitiatives and the new specialisation of mediation advocacy.With the growing internationalisation of mediation, there hasbeen greater appreciation of diverse practice models and thecultural assumptions underpinning them. These developmentsare explored along with …

Enforcement Of International Mediated Settlements Without The Singapore Convention On Mediation, Eunice Chua

Research Collection Yong Pung How School Of Law

This paper considers how international mediated settlement agreements can be enforced without the Singapore Convention on Mediation. Although the Singapore Convention on Mediation represents an important contribution to facilitate resolution of cross-border disputes through mediation, it will take time before there are enough signatories to make a significant impact. Additionally, in deciding whether or not to become a signatory to the Singapore Convention on Mediation or to opt out of it if given the option, jurisdictions and potential users of mediation will need to be aware of what the available alternatives are. This paper discusses these alternatives, taking into account …