The President's Column

PRESIDENT'S MESSAGE

Covid-19 is a global health crisis like never before. The airports and travel industry are at a standstill. Hospitals are being overrun or at risk of being overrun. Hotels in Singapore are now being used to house returning Singaporean residents on 14 day stay home notice periods. While there is no doubt we must put health first, we must also find ways to continue.

International Arbitration has been disrupted globally. Travel restrictions and quarantine notices have made it impossible globally for witnesses to give evidence in person. Technology though gives us a means to pick up the pieces and keep going. We are being forced to quickly learn what digital platforms exist for hearings. And we are learning quickly that there are indeed innovations that make virtual hearings possible.

Physical hearings whenever possible remain an option, but we must adapt to social distancing in hearing facilities, and to instill a discipline to resist our natural urge to shake hands. Dedicated hearing facilities will have to adapt to provide seating with 1 metre gaps between individuals. We may have to reduce the number of counsel physically present and consider providing transcription or video links for other team members to follow proceedings remotely.

One opportunity amidst the present chaos is that we may learn to be more efficient with technology and time management. SIArb will be reviewing the possibility of delivering CPD events and courses through digital platforms. Some of the lessons we learn through this period of adaptation may be worth continuing with even after things “return to normal”. In the words of Dave Hollis, “In the rush to return to normal, use this time to consider which parts of normal are worth rushing back to."

Let us all comply with the measures the government has rolled out to keep us safe. Doing so will not only benefit us but also the tireless healthcare workers who need us to be vigilant so that they can do their difficult jobs without hospitals being overrun. Some of you may have already seen the video by Dr Michelle Au of Emory St. Joseph's Hospital in Atlanta, an anesthesiologist, who plays the critical role of intubating Covid-19 patients who can't breathe. She aptly said that it is us in the community that are in truth the "frontline" in this battle. The healthcare workers are the last line of defence, so let us do what we must to protect them whether it be by washing our hands, social distancing or complying strictly with stay home notices or quarantine orders.

Singapore has learnt from the experiences of SARS and we have been blessed with sterling and proactive government leadership. The sacrifices made in building up our national reserves since 1965 have proven wise as DPM Heng Swee Keat unveiled an unprecedented S$48.4 billion resilience package on 26 March 2020.

I look forward to meeting you in person again soon. Most importantly, take care of yourselves, your loved ones and your neighbours. We must remain resilient and get through this together.

PRESIDENT'S MESSAGE

December is upon us. It is a fitting time to look back at what 2019 has brought us.

On 26 Nov 2019, we launched the Singapore Arbitration Journal, a joint initiative with the Singapore Academy of Law. Members will all receive complimentary copies. I would like to congratulate the General Editor Mohan Pillay, Editor Chan Leng Sun SC and Publishing Editor Yeo Boon Tat for seeing this vision through from conception to delivery. We are also very grateful to the advisory board of VK Rajah SC, Toby Landau QC, Loretta Malintoppi and Prof Lawrence Boo for taking time to guide us. Not to be forgotten are the invaluable team of Assistant Editors, Ramandeep Kaur, Matthew Koh, Janice Lee, Mahesh Rai, Tan Hai Song, Benjamin Tham, and Derric Yeoh. The aspiration behind the journal was to produce a world class platform for thought leadership on global arbitration issues yet with a Singapore focus. I believe we have achieved that with this first issue and work is already underway to continue this. I hope the journal inspires you to consider making future contributions.

This year we also launched the SIArb Annual Lecture. We were very privileged to have Toby Landau QC with us to speak on “Arbitral Groundhog Day: The Problem of Repeat Claims and Issues in Arbitration”. I understand that Toby will be publishing a paper on this in the next edition of the Singapore Arbitration Journal so we look forward to that.

7 August 2019 will be a day etched forever in our memories. The Singapore Mediation Convention progressed from a dream to reality. Singapore now offers a tripartite solution for dispute resolution through International Arbitration, Mediation and the SICC. Some may be concerned about competition from within. I however believe these 3 offerings complement each other and provide end users a choice which hopefully leads them to Singapore. Competition if any can only be good as we strive to constantly improve and innovate.

The Queen Mary survey results on International Arbitration was released in March this year. Congratulations are in order for SIAC who were ranked the 3rd most preferred arbitral institution in the world. Singapore was ranked the third most preferred seat in the world and the top seat in Asia. The Singapore brand of arbitration excellence is certainly making its mark and we at SIArb must also play our part in ensuring its continued success. One issue that we will continue to raise is ethics in international arbitration. This is the subject of a paper by Michael Hwang SC and Adriana Uson in the journal and I urge you all to reflect on the issues and proposals made. We had kicked off 2019 with a panel session chaired by Leng Sun on the issue of ethics and got to hear views from VK Rajah, Gary Born, Michael Hwang and Professor Lucy Reed. I believe that ethics is the foundation for legal practice. If we lose focus on ethics, we are at risk of losing our status as professionals. The lack of a consistent and uniform enforceable ethical standard is a concern we must pay attention to. SIArb remains committed to widening this conversation.

It remains for me to congratulate our Council members and Committee chairs for all the excellent work they have done. I wish all members a blessed Christmas and a Happy New Year!

PRESIDENT'S MESSAGE

7 August 2019 will be a day etched in the memories of the Singapore legal community for years to come. The Singapore Mediation Convention progressed from a dream to a reality. 46 countries signed the Convention in Singapore on this historic day. Credit must go to all involved, particularly the Ministry of Law. I had the privilege of serving as a host to delegates and they were full of praise for Singapore.

Singapore now has a tripartite solution for international disputes. International Arbitration, International Mediation and International Litigation (through the SICC). End users have the benefit of choice and flexibility to utilise the most appropriate dispute resolution mechanism. Any “competition” between the tripartite offering can only be a good thing as standards and processes are constantly improved. Singapore has adopted a transnational approach for the various rules and processes, wherein best practices from both civil and common law traditions are reflected.

At the opening of Maxwell Suites on 8 August 2019, Minister of Law, K Shanmugam said that his Ministry would be reviewing whether conditional fee arrangements should be allowed. This is a welcome move that will enhance Singapore’s status as one of the Premier international arbitration destinations in the world. It will give multinational corporations an added option as regards fee arrangements so as to better manage risks allocation and access to justice. It will also benefit Singapore Lawyers who would be otherwise handicapped in the international arbitration arena by being unable to offer clients a conditional fee arrangement that is permitted in other leading arbitral seats such as London and Paris.

Some may wonder why conditional fee agreements are necessary since third party funding (TPF) is already allowed for international arbitration. A TPF arrangement is purely between two independent commercial entities. A TPF provides funding for the legal costs in exchange for a share in the damages that may be awarded. Such arrangements should not be undertaken by lawyers as they may run afoul of ethical issues relating to champerty or overcharging. It bears noting that the area for consideration by the Ministry of Law is conditional fee agreements as opposed to contingency fee arrangements. The latter would allow lawyers to take a share of the damages, hence raising ethical concerns. Conditional fee arrangements permit the lawyer to recover fees based on usual hourly rates plus an uplift or success fee only in the event they win. In Australia, the uplift is capped at 25%.

I am looking forward to our Annual Symposium at the iconic Old Parliament House on 26 November 2019 and our Annual Dinner on 27 November 2019. I hope to see you there.

PRESIDENT'S MESSAGE

It has been an eventful start for the Singapore Institute of Arbitrators (SIArb) for 2019.

In 2018, SIArb launched the Guidelines on Party-Representative Ethics (“Guidelines”). It was thus timely that the year kicked off with a discussion on the issue of party representative ethics on 24 Jan 2019. Are such guidelines of any real value? What practical steps could be taken to ensure that such guidelines are effective. It was a robust discussion chaired by Chan Leng Sun SC, with valuable insights from Mr Gary Born, Michael Hwang SC, Professor Lucy Reed and VK Rajah SC. The global diversity of standards and the lack of any common regulator emerged as a key obstacle to a clear pathway forward. My own takeaway is that the existence of challenging obstacles must not deter us. Ethics is ultimately fundamental integrity, which is foundational to international arbitration. SIArb is committed to working with our members, arbitral institutions, bar associations and end-users towards always raising the bar on the issue of ethics. It is when we suddenly find ourselves thinking that ethics is not important or beyond control that we would be too far down the slippery slope.

Professor Lawrence Boo’s talk on developments in Singapore Arbitration law has become a staple in the SIArb calendar. As always, the talk (Chaired by Mr Francis Goh) was very well received. On 12 Feb 2019, Professor Boo shared the stage with Ms Christine Artero and together they provided insightful views on the arbitration related decisions that had emanated from the Singapore Courts in 2018. 2018 saw 4 applications to set aside arbitral awards, 2 applications to review the arbitral tribunal’s jurisdiction and several stay applications.

Just around the corner is SIArb’s Inaugural Lecture on 28 March 2019. We are privileged to have Toby Landau QC speak to us on: Arbitral Groundhog Day: The Problem of Repeat Claims and Issues in Arbitration. As at the time of this message, the venue is 90% full so do register right away to save your seat.

SIArb has also seen increasing regional interest in our training programs. In recent years, we have conducted training seminars for a visiting delegation from Russia and also in Qatar. We will be conducting a 2 day training program on international commercial arbitration with the Japanese Association of Arbitrators (“JAA”). We have also been invited to propose a training program for Oman. We will continue to build meaningful ties within the region.

May I also take this opportunity to congratulate the Singapore International Arbitration Centre (“SIAC”) on its excellent results announced on 6 March 2019. In 2018, SIAC was ranked the 3rd most preferred arbitral institution in the world by the prestigious Queen Mary University of London and White & Case International Arbitration Survey. The survey findings show that SIAC is the most preferred arbitral institution based in Asia. The “Singapore” brand of arbitration excellence is certainly making its mark and SIArb will continue to play its part to ensuring its continued success.