14 Apr 2023
Singapore’s commercial dispute resolution and ADR landscape: a vibrant and constantly adapting outlook.
By Sapna Jhangiani KC FCIArb C.Arb* and Colin Seow FCIArb FSIArb FACICA**
The latest noteworthy developments in the constantly evolving commercial dispute resolution and alternative dispute resolution (ADR) landscape in Singapore fall into two broad categories.
(a) Enduring reforms relating to the greater use of remote communication technology in the conduct of proceedings, as a result of the recent COVID-19 pandemic.
(b) Other enhancements to the procedural mechanisms available for resolving disputes including, in particular, a strong trend towards the increased promotion of ADR tools, which shows no signs of abating.
Greater Use of Remote Communication Technology
The Singapore International Mediation Centre (SIMC), on 18 May 2020, launched a SIMC COVID-19 Protocol to provide a “swift and inexpensive route” for commercial disputes to be resolved via online mediation.[1]
Likewise, in international arbitration, the Singapore International Arbitration Centre (SIAC) in August 2020 issued a guide titled “Taking Your Arbitration Remote” to promote more familiarity with remote hearings among arbitration users.[2] The issuance of the guide was a recognition that COVID-19 had exponentially increased the scale at which remote hearings became necessary, even though remote hearings have always been a feature in international arbitration.[3]
Complementary to the initiatives of the SIMC and SIAC, the COVID-19 (Temporary Measures) Act 2020 was passed in April 2020 and laid the necessary foundations for the more widespread use of remote communication technology (such as videoconferencing) in the conduct of court proceedings at all levels within the Singapore Judiciary.[4] On 1 April 2022, with the entry into force of the Courts (Civil and Criminal Justice) Reform Act 2021,[5] such measures were further incorporated as permanent features at the courts’ disposal in litigation proceedings.
Other significant developments
Just as online litigation, mediation and arbitration are gaining more ubiquity than ever before in Singapore, the procedural mechanisms by which disputes are resolved have undergone significant enhancements in recent times, and there is an increased focus on the promotion of amicable settlement and ADR practices to resolve disputes.
ADR-Related Features under New Court Rules
One of the more prominent enhancements in encouraging parties to employ amicable settlement and ADR practices was through the promulgation of two sets of new civil procedure rules, effective from 1 April 2022: the domestic Rules of Court 2021 and the Rules of Court 2021 of the Singapore International Commercial Court (SICC).[6] Both sets of rules were “the product of blue-sky thinking, informed by international best practices”, and designed to “modernise the civil justice landscape” in Singapore.[7]
Among the new features introduced by the new rules are the following:
Rules of Court 2021
(a) The imposition of a duty on a party “to consider amicable resolution of the party’s dispute before the commencement and during the course of any action or appeal”, including “to make an offer of amicable resolution before commencing the action unless the party has reasonable grounds not to do so”[8]. Furthermore, a party “must not reject an offer of amicable resolution unless the party has reasonable grounds to do so”.[9]
(b) The provision of a new power of court to order parties “to attempt to resolve the dispute by amicable resolution”, having regard to “the Ideals and all other relevant circumstances, including whether any of the parties have refused to attempt to resolve the dispute by amicable resolution”.[10]
(c) The prescription of substantial guidelines in practice directions to facilitate counsel’s professional duty to advise clients to consider ADR before the commencement and during the course of any action or appeal – namely mediation, neutral evaluation, expert determination and conciliation.[11]
SICC Rules of Court 2021
(d) An express stipulation that where parties are agreeable to ADR, the court may make directions to facilitate the parties’ attempt at ADR; and in the absence of such agreement, the court may “direct that [ADR] be reconsidered at a subsequent time” or “make any order necessary to facilitate the amicable resolution of the dispute”.[12]
(e) Where the case in the SICC is placed in the Technology, Infrastructure and Construction (TIC) List,[13] the imposition of a requirement that each party “must consider the use of [ADR]”[14]. Cases that are generally considered to be desirable to be placed in the TIC List include.[15]
i. any building or other construction dispute;
ii. any engineering dispute;
iii. any claim by or against any engineer, surveyor, accountant or other specialised adviser relating to any service provided by any of them;
iv. any claim relating to the design, supply or installation of any computer, any computer software or any related network system;
v. any claim relating to the quality of any goods sold or hired, or any work done, material supplied or service rendered, for any technology, infrastructure or construction project;
vi. any challenge to a decision of an arbitrator in any construction or engineering dispute (including any application for permission to appeal against any such decision, and any appeal against such decision).
The Litigation-Mediation-Litigation Framework between the SICC and SIMC
More recently on 12 January 2023, the SICC launched a mediation-friendly initiative in collaboration with the SIMC, known as the litigation-mediation-litigation (“LML”) framework. [16] Under the framework, parties may by agreement adopt the LML Protocol, such that if SICC proceedings are commenced, parties can expect the grant of a case management stay to enable them to attempt mediation of their dispute with the SIMC. Any mediated settlement agreement arrived at may accordingly be recorded as an order of the SICC. The LML framework is the latest addition to Singapore’s suite of “mixed mode” or “hybrid” commercial dispute resolution mechanisms [17]alongside similar arbitration-mediation-arbitration (AMA) frameworks already in place, such as the Arb-Med-Arb protocol launched by the SIAC and SIMC in 2014.[18]
Developments in International Arbitration
The same day the LML framework was established, the SICC and SIAC also separately launched a SICC model jurisdiction clause to aid parties in designating the SICC as the supervisory court to hear any application made under the International Arbitration Act 1994 (IAA), where appropriate (currently there is no automatic designation of the SICC as the court to hear IAA applications for a Singapore-seated arbitration). This brought about an update to the SIAC model clause to include the following recommended SICC model jurisdiction clause, signifying a landmark cooperation between Singapore’s international commercial court and foremost international arbitration centre:[19]
“[In respect of any court proceedings in Singapore commenced under the International Arbitration Act 1994 in relation to the arbitration, the parties agree (a) to commence such proceedings before the Singapore International Commercial Court (“the SICC”); and (b) in any event, that such proceedings shall be heard and adjudicated by the SICC.]”
In the space concerning Singapore’s arbitration law reform, the IAA underwent significant legislative amendments on 1 December 2020 to introduce two of several proposals the Ministry of Law had consulted on with stakeholders the year before:
(a) First, a new section 9B was enacted in the IAA providing a default mode of appointment of arbitrators in multi-party arbitrations, so that parties’ failure to agree on joint nominations in such arbitrations will not prevent the arbitral tribunal from being constituted expeditiously.[20]
(b) Second, a new section 12(1)(j) was inserted in the IAA to provide explicit statutory recognition of the powers of the arbitral tribunal and the General Division of the High Court in safeguarding and enforcing confidentiality obligations in accordance with the law.[21]
At least two other key proposals explored in the consultation are still being studied by the Ministry of Law, namely: (a) allowing appeals to the General Division of the High Court arising out of arbitral awards on questions of law where parties have agreed to opt into such a mechanism (currently this is only provided for in domestic arbitration); and (b) allowing parties to waive or limit the setting-aside grounds prescribed in the UNCITRAL Model Law on International Commercial Arbitration or the IAA.[22]
Where Singapore’s arbitration jurisprudence is concerned, one of the more significant developments within the past quarter of 2023 was the landmark judgment handed down by the Court of Appeal in Anupam Mittal v Westbridge Ventures II Investment Holdings [2023] SGCA 1. There, the Court of Appeal held that any question arising pre-award concerning the arbitrability of a dispute is “in the first instance, determined by the law that governs the arbitration agreement” and “where a dispute may be arbitrable under the law of the arbitration agreement but Singapore law as the law of the seat considers that dispute to be non-arbitrable, the arbitration would not be able to proceed”[23]. The decision underscores the importance of ascertaining the proper governing law of an arbitration agreement[24] where the arbitrability of a matter is in dispute.
Conclusion
Change remains a constant in Singapore’s commercial dispute resolution and ADR landscape, as the Judiciary and stakeholders continue to strive to inject new innovative offerings and perspectives into the arena.
For instance, the Honourable Chief Justice Sundaresh Menon announced at the 2023 Opening of the Legal Year that a Commercial Practice Panel had been established within the Judiciary “to undertake a periodic review of our practices and identify areas for reform so that we may fortify our position as one of the leading commercial courts in the world”[25]. In similar vein, it may not be long before the SIAC launches the anticipated revised edition of its arbitration rules, having formally commenced the review of the existing SIAC Rules 2016 in 2020[26]. Finally, as “mixed mode” LML and AMA frameworks take hold ashore, the SIMC’s parallel pursuit of similar collaborations abroad – such as the SIMC-Shenzhen Court of International Arbitration mediation-arbitration protocol launched in late 2022[27] – will continue to encourage disputants towards mediation, alongside the budding Singapore Convention on Mediation which has had a significant impact in raising awareness of mediation[28].
There is much to look forward to amidst a sustained vibrant outlook in the evolution of Singapore’s commercial dispute resolution and ADR landscape post-pandemic. Dispute resolution practitioners will do well continuing to stay abreast of new developments in this space.
About the authors:
Sapna Jhangiani KC FCIArb C.Arb is Chair of Ciarb Singapore Branch. Sapna has over two decades’ experience as Counsel or arbitrator in complex commercial disputes seated in diverse jurisdictions. She has practised in London, New York, Dubai and Singapore and is dual-qualified as an English barrister, and an advocate and solicitor of the Supreme Court of Singapore. Sapna is currently International Legal Counsel at the Attorney-General’s Chambers, Singapore, alongside which she maintains a practice as arbitrator and mediator. Sapna was named by Asia Law Business Journal as one of the top 15 female lawyers in Asia.
Colin Seow FCIArb FSIArb FACICA has more than 12 years of judicial and adjudicatory experience in the Singapore Judicial Service dealing with a broad spectrum of commercial disputes. Colin has served as a delegate to a Working Group of the Hague Conference on Private International Law (HCCH), and was involved in the implementation of international treaty obligations relating to cross-border dispute resolution in Singapore.
Further information on Ciarb Singapore Branch.
* Barrister; Advocate and Solicitor of the Supreme Court of Singapore; International Legal Counsel, Attorney-General’s Chambers, Singapore; Independent Arbitrator and Mediator.
** Advocate and Solicitor of the Supreme Court of Singapore; Solicitor in England and Wales, Independent Arbitrator and Mediator. Colin Seow Chambers LLC (www.colinseowchambers.com).
[1] See http://simc.com.sg/simc-covid-19-protocol/.
[2] See https://siac.org.sg/siac-guides. See also Swee Siang Boey, Chun Kai Yap & Suchitra Kumar, “The Resilience of Singapore Arbitration Amidst the COVID-19 Pandemic” (2021) 23(4) Asian Dispute Review 172.
[3] See https://siac.org.sg/release-of-the-siac-guides-taking-your-arbitration-remote.
[4] See section 28 of the COVID-19 (Temporary Measures) Act 2020; see also The Standing International Forum of Commercial Courts, “Delivering justice during the COVID-19 pandemic and the future use of technology” (29 May 2020), Annex A at pp 35-38 (available online at https://sifocc.org/resources/resources-2/).
[5] See, eg, section 52 of the Courts (Civil and Criminal Justice) Reform Act 2021, amending section 8A of the Supreme Court of Judicature Act 1969.
[6] The SICC Rules of Court 2021 was further enhanced on 1 October 2022 with the inclusion of new Order 23A, to introduce new processes in the SICC relating to corporate insolvency, restructuring or dissolution proceedings that are international and commercial in nature.
[7] Chief Justice Sundaresh Menon, “Address at the Opening of the Legal Year 2022” (10 January 2022) at [14]-[19] (available online at https://www.judiciary.gov.sg/news-and-resources/news/news-details/chief-justice-sundaresh-menon-address-at-the-opening-of-the-legal-year-2022).
[8] See Order 5 Rule 1(1) and (2) of the Rules of Court 2021.
[9] See Order 5 Rule 1(4) of the Rules of Court 2021.
[10] See Order 5 Rule 3(1) and (2) of the Rules of Court 2021. The “Ideals” referred to are set out in Order 3 Rule 1(2) of the Rules of Court 2021, namely “fair access to justice”, “expeditious proceedings”, “cost-effect work proportionate to the nature and importance of the action, the complexity of the claim as well as the difficulty or novelty of the issues and questions it raises, and the amount or value of the claim”, “efficient use of court resources” and “fair and practical results suited to the needs of the parties”.
[11] See paragraph 53 and Appendix D to the Supreme Court Practice Directions 2021 (available online at https://www.judiciary.gov.sg/news-and-resources/practice-directions/supreme-court-practice-directions).
[12] See Order 9 Rule 5(1) and (2) of the SICC Rules of Court 2021.
[13] See Order 28 Rule 3 of the SICC Rules of Court 2021. For more information and explanation about the TIC List, see https://www.sicc.gov.sg/the-technology-infrastructure-and-construction-list.
[14] See Order 28 Rule 11(1) of the SICC Rules of Court 2021.
[15] See Order 28 Rule 2(3) of the SICC Rules of Court 2021.
[16] See https://www.sicc.gov.sg/litigation-mediation-litigation-framework.
[17] See Speech by Second Minister for Law Edwin Tong SC at “Appropriate Dispute Resolution: The Singapore Way” (12 January 2023) (available online at https://www.mlaw.gov.sg/news/speeches/2023-01-12-speech-2m-edwin-tong-appropriate-dispute-resolution-singapore-way/).
[18] The SIMC also has a similar AMA framework in place with the Singapore Chamber of Maritime Arbitration.
[19] See https://siac.org.sg/siac-model-clauses.
[20] See Singapore Parl Debates, Vol 95, Sitting No 7 (5 October 2020).
[21] Ibid.
[22] Ibid.
[23] See Anupam Mittal v Westbridge Ventures II Investment Holdings [2023] SGCA 1 at [55].
[24] As formulated by the High Court in BCY v BCZ [2017] 3 SLR 357, followed in subsequent court decisions, and referred to by the Court of Appeal in Anupam Mittal v Westbridge Ventures II Investment Holdings [2023] SGCA 1 at [62].
[25] Chief Justice Sundaresh Menon, “Response delivered at the Opening of the Legal Year 2023” (9 January 2023) at [13] (available online at https://www.judiciary.gov.sg/news-and-resources/news/news-details/chief-justice-sundaresh-menon-response-delivered-at-the-opening-of-the-legal-year-2023).
[26] See https://siac.org.sg/siac-announces-commencement-of-revisions-for-siac-arbitration-rules.
[28] United Nations Convention on International Settlement Agreements resulting from Mediation. See https://www.singaporeconvention.org/.