The Singapore Law Review

If you missed our Recruitment tea earlier today, you did not really miss anything (except the food part). You can still apply to become a member by submitting your application by 22 August 2007 (Wednesday), 5 pm. Read here for more details. (more…)

From the Chief Editor

A warm welcome to the new academic year and to those who have just joined us at the NUS Law Faculty, congratulations for having made it to law school. We at the Singapore Law Review (“SLR”) hope that perusing this first issue of the Juris Illuminae will be the perfect way to kick-start your year. As you might have noticed, Juris has taken on a new façade to provide for an easier and more fulfilling read. Colin Ng & Partners has also generously sponsored the newsletter this year and we look forward to closely working together with them in making Juris the choice platform for legal discourse and discussion.

This year promises to be an exciting one for the SLR. On the 20th of August, the SLR is conducting its annual Recruitment Tea and we would like to invite all budding writers and editors to attend. An organisation is, after all, only as good as its members. A scrumptious line-up of events, both old and new, is also in the works and we will release more details as the year progresses.

This issue of Juris examines the realm of alternative dispute resolution (“ADR”), in view of the fact that dispute resolution methods like mediation and arbitration are fast becoming popular substitutes to old-styled litigation and now often employed in mutual tandem. Within the folds are an introductory article for the uninitiated as well as interviews with Michael Hwang S.C., one of Singapore’s most well-known arbitrators and A/P Joel Lee, convenor of the negotiations course at the NUS Law Faculty. There is also a write-up on the NUS Peer Mediation Team and a discussion of pertinent problems facing enforceability of mediation clauses in commercial contracts. For a lighter read, we have included an interview with Prof. Thio Li-ann and Dr Tan Seow Hon on their transition from teacher-and-student to colleagues at the Faculty.

The Review is also actively inviting members to its Juris Writing Cell. Should you feel strongly about certain issues and wish to write and be published to a sizeable audience, please feel free to drop us a line.

With that, I wish you a great academic year ahead.

Jeth Lee

Read the Print Version of Juris here: Juris August 2007. (more…)

Arbitration:

The arbitrator looks into the legal rights and wrongs of a dispute and makes a decision. Once the arbitrator has arrived at a decision, it is binding on parties whether they agree with it or not.

Singapore International Arbitration Centre:
Established in 1991, SIAC serves as an independent, non-profit organization.

As an institution administering arbitration, SIAC mainly helps the parties in appointment of arbitrators when they cannot agree on an appointment, management of the financial and other practical aspects of arbitration and facilitation of the smooth progress of arbitration.

Mediation:

Singapore Mediation Centre:
Mediation – as opposed to arbitration and litigation – is a non-adversarial problemsolving process that does not involve declaring a winner or loser. The biggest advantage of mediation is that no one runs the risk of being imposed upon an adverse judgment.

Singapore Subordinate Courts Primary Dispute Resolution Centre:
Court-connected mediation refers to mediation which is held in court or conducted by a judicial officer or court official once legal proceedings have commenced. Apart from mediation under CDR, mediation may be employed within Pre-Trial Conferences. However, the majority of all court-based mediation is handled under CDR. The vast majority of cases in the Subordinate Courts undergo CDR.

Statistics:

1. In 1997 the civil jurisdiction of the Subordinate Courts was increased from S$100,000 to S$250,000. As the financial stakes in cases with claims between S$100,000 and S$250,000 are much higher than those in the other civil cases in the Subordinate Courts, particular effort was made to promote mediation in these cases.
2. More than 1000 matters – among which 80% are settled, and 72% within one working day - have been referred to the Singapore Mediation Centre for mediation.

Li Daming is a second year law student and an associate editor of SLR.

They were teacher and student and are now colleagues in NUS Faculty of Law. Feel awkward? Professor Thio Li-ann, “not at all, it has been a great pleasure to have my former students like her, become my present colleagues.” Dr Tan Seow Hon, “Other than when I initially found it hard to call her by her first name in the first few months, no.”

Tan An Qi finds out more about these two personalities who have both won the Excellent Teachers Awards (in different years), and evidently share profound respect for each other.
Q: Is legal philosophy more of law or is it more of philosophy?
Dr Tan Seow Hon: I have no witty answer, so instead, I shall thank you for
letting me make a pitch for my courses Jurisprudence and Introduction to Legal Theory.

I get students to think about fundamental questions about the enterprise of law, challenge students to rethink false givens and use divisive issues such as abortion to spark interest.

Surprisingly, Harvard professor Roberto Unger, who teaches jurisprudence, said that running up against the limits of philosophy is indispensable to our knowledge of it. I want students to engage not just their minds, but their hearts, and to come up with their own theory about the legal process.

Q: What has law got to do with politics?
Prof Thio Li-ann: This depends on the theory of law one might adopt – whether law is objective and independent of ‘subjective’ politics or whether politics
grounds law.

‘Politics’, which might be seen as ‘subjective’, can influence the content of law as well as how it is judicially interpreted. Why then might a politicized judiciary be objectionable but not a politicized Legislature? We might think that a political claim can be asserted e.g. through lobbying, but a legal claim or right should have a legal remedy e.g. as a justiciable entitlement. Let me ask you, what is the difference between the study of law and the study of political science, since the subject-matter of these disciplines overlap?

Q: How would you describe your experience in law school?
Tan: I was already interested in academia, and so worked hard. Although Jurisprudence in fourth year was the most meaningful thing that happened to me in
terms of academic courses, my strongest memory of was from a class in LLM. I
remember how difficult it was to express a view that was against the orthodoxy at
Harvard, and how the atmosphere created by classmates can be stifling and
nearly sneering, even though I believe I won the respect of the class in the end.
The best thing about holding a minority view in that class was how I began to
value doing my best to ensure that those who perceive themselves as dissenting
would be comfortable enough to speak up, which is very important when conducting
a class.

Thio: Diligent and enthusiastic when it came to subjects I liked like administrative law, public international law and to the surprise of some, company law. I was not that good a student in terms of faithfully attending lectures etc… I was more focused on other pursuits of an enduring or eternal quality than the study of law. Indeed, much of my Second Year, where there are no exams, was spent punting on the Cherwell and attending folk-rock concerts either in Oxford or London with a fellow guitar-playing friend.

Memories of my undergraduate life are infused with a mix of pleasure and pain.

My criminal law tutorials with another Irish girl were conducted by a London barrister who used to come down on Friday night, suggesting that we go to the pub for class. Once, I was really bored and wanted to throw a distraction. We were studying rape or something and the details of the cases were not very savoury. My tutorial mate Pat was a raving feminist and I had not finished the reading list. So to distract my tutor, I said that I had not read all the cases because I was a girl and should not be exposed to such vulgarity. That set Pat off on a rant. Soon, time was up, the tutorial had ended.

Another vivid memory was my Trusts law classes with the famed Professor James Harris who was blind. He never switched on the lights in class and my tutorial mate, a mature American student, and I were too shy to ask him to. The classes were held in Winter term and I was always edging towards the window to get some light to read my notes. Dr. Harris was never a sympathetic tutor and once chastised me for not being prepared before I protested that I had spent the past 2 weeks in bed recovering from chicken-pox (being blind, he could neither see my scars nor my evident distress).

Q: Having gone so far in your academic pursuits, was it a natural path for you?
Tan: Naturally, if you love or care for something very much, you’d want to
impart your passion and share your thoughts, and teaching and writing allow that. I like Jurisprudence because it makes people think about what I think are the weightier matters of the law, because it makes us think about life.

Thio: Not at all. My primary goal was to practice as a corporate lawyer in London, but providentially, I ended up being a public law and international law academic in Singapore. But that’s a different and a long story which might be purchased by a blueberry muffin from Spinellis and a latte.

The function of a researcher, as someone once quipped, is to look in dark places and to shed light on what she sees there. Research wise, the subjects which interest me – public international law and constitutional law – are born of the same impulses and ideals which are the attempts to entrench and secure human dignity and good governance in an imperfect world.

Q: What was special about Prof Thio as your Public Law tutor?
Tan: After Prof Thio’s very first public law tutorial, I told one classmate I had
never seen anyone teach like that before. There was just something different and tireless about the way she taught. I guess the best way of complimenting her would be to say that she taught as if her life depended on it. I told myself that day that I was going to try my best to win the public law prize.

Well, what I thought of her is best summed up by the footnote tribute in a Law Review article I wrote as a student, which I understand inspired this article of yours.

Q: What was special about Dr Tan as a student in your Public Law class?
Thio: Dr. Tan was exceptional as a public law student and won the public law
prize, unsurprisingly. She stood head and shoulders above her classmates despite
her physically short stature. Her superior intellect was already evident as a young student. An original thinker; she dominated her public law tutorial with flashing eyes, forceful, cogent and clearly articulated opinions. In short, she kicked intellectual ass.

Aside from a few others like Burton Ong, I have not had a student since of her startling intellectual calibre and I still lament “Where have all the Tan Seow Hons gone?”

Dr Tan teaches Jurisprudence, International Commercial Litigation and Introduction to Legal Theory.

Prof Thio teaches Public Law and Public International Law.

An Qi is a second year law student and the Juris Editor.

Mr. Michael Hwang’s illustrious career in the law spans more than four decades. A former partner of leading law firm Allen & Gledhill, Mr. Hwang was a Judicial Commissioner of the Supreme Court of Singapore and was amongst the first 12 to be appointed to the rank of Senior Counsel. Mr. Hwang has also been cited as Asia’s top arbitrator by the Global Arbitration Review and has been listed by The International Who’s Who of Commercial Arbitration as Singapore’s leading lawyer for commercial arbitration expertise.

Q: What made you interested in arbitration?

When I was a Judicial Commissioner in 1991 - 92, of course that gave me the exposure to Judging and when I came back to practice in 1993, one of my partners suggested that it would be… One of my partners suggested that it would be good if I got involved in International Arbitration. Because you would remember at that time 1992… middle of 1992 the SIAC started, which was just following the International Arbitration Act. That was when everybody was just starting to get interested in Arbitration and with my Judicial experience, my partners thought that I might be suitable to get involved in that.

So I started to… First of all, I enrolled in the Chartered Institute of Arbitrators course. I took the exam and got my fellowship. So that was my basic academic grounding. Then after that I went abroad. There were courses offered by the International Chamber of Commerce in Paris and then one thing led to another and I got exposed to the world of International Arbitration and I took it up from there.

Q: You were one of the pioneer Arbitrators on SIAC’s panel?

Actually the SIAC panel at that time was not that meaningful because in the early days, being a fledgling organisation, the number of actual arbitrations that came through the SIAC or were lodged with the SIAC was not very great. So I was actually getting exposed to International Arbitration from either Ad Hoc Arbitrations - we can talk about what that means in a minute - or ICC arbitrations. I think the first truly international arbitration that I had was from an ICC arbitration. And that happened because the way that ICC works is that if they have a dispute between say a Western country and a country somewhere in Asia, they would very often try and look for an arbitrator from a neutral country who is familiar with the language of the arbitration. So since most international arbitrations are in English, people from Singapore are logical… high priority on the list to look for potential arbitrators. And so they asked me if I was interested in doing a case in India and so I said why not and that was the start of it.

Q: Numerous publications have cited you as a top arbitrator and arbitration specialist. Do you have any interesting cases or experiences that you would like to share with us?

Because in International Arbitration… You are very often dealing with people you don’t know. Never mind about the parties, because Judges also don’t know the parties. But arbitrators very often don’t know the counsel, the counsel don’t know each other so its not like when you come into the Singapore Courts where the players know each other and there is a certain expectation from each other and therefore you can get a lot of unexpected situations which may or may not be planned in advance but do happen in ways that they don’t happen in court hearings. So let’s take an example. We have a case between a Multinational company which has a building contract with a party in Country X and the seat of the arbitration, which means the place of arbitration, was Singapore. The multinational company appoints a British QC as its arbitrator. The party from Country X appoints a lawyer from Country X and then the two arbitrators appoint me as the chair. We were sitting in Singapore and on one side we have a QC from London. On the other side you’ve got a very senior lawyer from Country X. And halfway through the case the lawyer from Country X applies for an adjournment. So we say no, you are not going to have an adjournment and then he makes another application and then we deny that application again and I think he makes a third application and we deny that third application. And then he says that well you are obviously biased against me and I apply to remove all of you.

Q: Were there any particular reasons why you rejected the particular applications?

We decided that the applications were without merit. They were procedural applications. And at that point the counsel then said that since you are clearly biased we refuse to take part in this arbitration anymore and we are going home. And so we said you can go home but as far as we are concerned, this tribunal is properly constituted and we will carry on with the case. And the counsel from Country X then said that well you should not carry on the case when we are not present. But we said that’s the way arbitrations go. If you choose to walk out, you have to take the consequences. So he said that in that case I’m telling my arbitrator to go home with me. Because he had nominated this arbitrator you see. So we had a word with this arbitrator and said that your duty is to the process. You have undertaken to carry out this arbitration and the rules of arbitration say that if one party walks out, the other party carries on. And if they don’t like it, they can set aside our award, but the process must carry on. Unfortunately, we were not able to convince the Arbitrator from Country X who took a different view of things and said that if the party who appoints me doesn’t want me anymore, I don’t feel that I can stay on. So he had a completely different view of what his duty was. And I can tell you that the other party had actually reserved their right to sue him because there is an issue of an arbitrator who abandons an arbitration. There is a contractual obligation to see it through to the end. You walk away and it’s a breach of contract. So that’s a situation that you will very rarely see in court, if at all.

Q: So do you think that this is a drawback of arbitration. The parties can just say that look I want to go home.

Put it this way, this is just one of the occupational hazards of arbitration. International arbitration in particular. Like I said it comes from the fact that people don’t know each other and so sometimes people think that they can get away with liberties if you want to look at it one way. Another way of looking at it is to say that people have come with very different expectations of what the process means and they don’t necessarily want to play the game by the rules which they think that somebody else has made, which they are not used to. So for example the counsel from Country X said that I cannot understand a tribunal that still wants to hang on to a case when one of the parties does not want them anymore. That may be a point of view. That is not the law of arbitration as I understand it but that was a point of view that he expressed.

Q: You were a Judicial Commissioner before becoming an arbitrator. What is the difference between the role of a Judge and an arbitrator?

Following on with what I have just said to you, when you are a Judge, you have the advantage of the authority of the state. So on the one hand you are entitled to a certain amount of respect from the parties by virtue of your office. You also have power over the counsel who appear before you because they are officers of your court. So if they misbehave, there are sanctions against those officers of the court. Which is why you don’t get situations like the one I described with the counsel from Country X happening. Or very rarely. It has been known to happen, especially in the sub courts. Sometimes some counsel get a little over-excited and walk out. But generally speaking that is quite rare and if they do, they are subject to the disciplinary process. From the other point of view, parties who come before a Judge also expect that because a Judge is a public officer he is unlikely to have a bias towards either of the parties. And therefore he will be… we presume his independence and his impartiality. For an arbitrator, there isn’t that same in built presumption that the arbitrator is impartial and independent. And that’s the first thing that every arbitrator needs to declare and sometimes prove. Because the parties don’t know him. Or the counsel don’t know him. And the parties will not know whether or not this particular arbitrator may in some indirect way have a connection with one of the parties because arbitrators tend to be lawyers in private practice and if you are in private practice, you have clients. And somewhere along the line, one of your clients may actually be related to the parties which are in the dispute. Of course sometimes arbitrators are civil servants. There is another problem because sometimes civil servants are nominated as arbitrators by government agencies and then there is an issue of whether they are independent of the government that has appointed them. Because they are civil servants and possibly presumed to have some kind of dependency on the government. So maybe the safest are University professors!

So that’s a fairly basic difference between arbitrators and Judges. Judges can command authority and respect for their independence. Whereas arbitrators probably have to earn both the respect as well as the acceptance of their independence. Because very often you have challenges. You have challenges to arbitrators much more than you have to Judges. It is very rare that anybody says that I want to remove a Judge because he is biased or has the appearance of bias. But it is not uncommon for challenges to be made to arbitrators because somebody knows something in his or her background that leads them to question whether or not they are biased or have the appearance of bias. Actual bias is quite rare. For actual bias you can only tell after he has actually demonstrated it in the course of the hearing. What is more common is to say that we know Mr. X has a connection with one of the parties in some way. Therefore he should step down. Then either he agrees or he doesn’t agree and many arbitrators take the view that if there is any question about they’re independence and there is an unhappy party, they would rather just step down without argument simply because they don’t think that it is good for the process or good for the institution that they carry on as an arbitrator against somebody who is questioning their independence or neutrality. There’s another school of thought which says that: No, you should not always give way to challenges which are without merit. If (a) you do think that you can be independent and impartial and (b) you can demonstrate that to any reasonable third party then you are failing in your duty if you step down. Because you are depriving the other party of his choice of arbitrator. So there are these issues that arise that don’t arise in court cases.

And that’s one aspect of it. There’s a lot of difference between running a court case and running an arbitration and we can discuss that separately If you want.

Q: What are the advantages of arbitration over litigation?

You can cut through a lot of the rules of court which may not be the best way of resolving a particular dispute. In practice, one of the most important differences is the extent of what in court we call the discovery of documents and what in arbitration tends to be called now document production or disclosure of documents. The criteria for discovery in court proceedings is relevance. Either directly relevant to the issues or if not immediately relevant then relevant in the sense that it can lead you to a chain of inquiry which will lead you to something that is directly relevant. A classic example would be minutes of a meeting of certain people who are involved in the case. You don’t know what happened in the meeting. You have a suspicion that something relevant to the case was discussed. So you say that if you show me those minutes, even though I don’t know whether they are relevant or not, but if you show me, that might lead me…. If I look at those minutes and I see something that they discuss, that would enable me to follow a trail. And courts are supposed to accommodate that kind of request. So discovery can take quite a long time. And can be very extensive if you use that kind of a test. In arbitration, we don’t follow that principle as a matter of course, although some arbitrators would if they want to, apply that principle. But generally speaking, in international arbitration, particularly from those arbitrators and counsel from a civil law tradition, they don’t believe in this kind of common law principle of discovery and so what has happened now in international arbitration is that in order to accommodate a middle ground between common lawyers and civil lawyers who are coming together in the same arbitration, we tend to use a code called the International Bar Association (IBA) rules on the taking of evidence in international arbitration. In those rules we have a very economical test or a very stringent test for the production of documents. Basically on a need to know basis. And so which cuts down the scope of discovery quite considerably. So in general terms, in arbitration, if you apply the IBA rules then really you have to satisfy the tribunal that not only is the document relevant, but the document is material to the outcome of the case. So it really is going to make a difference to the way the case is going to be decided. Either for you or against the other party. So, its because the test is more stringent, you tend to get less documents from the arbitration equivalent of discovery and thereby the time and the expense is supposed to be reduced. That’s just one example. But its one of the most important examples. The other thing about arbitration compared to court proceedings is that you can generally be more flexible. If you look at the rules of court, you can see that there are several hundreds of rules of court and the rules of court are rather thick. IF you look at the rules of any SIAC for example, the new version having just come out, it is very thin. It’s a booklet. So you can see that there are many less rules in arbitration than there are when you go through court. But you find that there are many arbitrators that still borrow rules of court where there is no specific rule laid down in the SIAC rules or they can make up rules of their own. So it allows an arbitrator to customise the procedures for a particular arbitration according to how he thinks it is the most efficient way of dealing with it. Whereas under the rules of court, a court case has to proceed in a certain way and certain procedures have to be observed.

Give you another very important difference, in court every witness has to come one by one. One after the other. In arbitration, it is quite common now to put two witnesses from opposing sides together and ask them to give evidence together. And I have done it with 10 people in the room. With 12 people in the room giving evidence in the same time. You cannot do that in a court room. But you can do that in arbitration.

Q: Does this explain why parties prefer arbitration to the courts?

Well it depends. Some lawyers are very nervous when you tell them to change the way that they work because they are not used to it. They were trained in a particular way. They get they’re results by using all the techniques that are available to them. All the rules that they think they have got used. That they think that are their own weapons, their forensic weapons to achieve the end that they need for their clients. But we try and educate them. They can get to the same place. Maybe not in the same way but hopefully without injustice to their client.

Q: What is the role of the courts in the arbitration process? Do you think that the courts should have more or less supervisory powers over arbitrations?

The courts should stay out of the arbitration process except to assist the functioning of the process. They have a clearly defined function at the beginning and at the end of the process.

The beginning: if there is a challenge to the jurisdiction of the arbitrator. That gets dealt with first by the tribunal itself. But there is usually an appeal to the court. So the court can determine at the beginning whether or not the tribunal can carry on with the case. If you get past that hurdle, then the court should stay out of the process until after the tribunal has finished its work and produced its award. Then the court can look at the award and set it aside or not set it aside according to the criteria which in Singapore is set out in Article 34 of the Model Law and s. 34 of the International Arbitration Act but in between they should let the tribunal get on with its work unless there is a need to assist the tribunal in executing its orders. So for example, if there is some kind of a mandatory order from the tribunal directing someone to do or stop doing something the tribunal cannot send anybody to jail. Cannot enforce sanctions on its own. So you can take that order and go to the high court and get the high court to confirm the order so that if they violate that order, it becomes a violation of a court order and sanctions will then be imposed. So they can assist the work of the tribunal in that way. OR they can assist a party who needs urgent interim relief in order to keep the process on track. So getting for example, interim injunctions against one party running away or salting away the subject matter of the claim or destroying the subject matter of the claim. You need an injunction. Again, the tribunal has no power to impose an injunction on anybody. So you go to the court and ask them: can you help us. The tribunal has made an order but the tribunal’s order has no teeth. So can you please put some teeth into the tribunal’s order. Or we have time to go to the tribunal because the tribunal sometimes has three people in different parts of the world. So if you want urgent relief, you may not be able to get it. So you run to the court first and say look we can’t get the tribunal together can you urgently give us a Mareva injunction or an injunction lets say to stop a vessel from moving or to stop a party from moving money out of a bank account. Something like that. Once you have done that, we will get the tribunal to carry on. So its only to assist the work of the tribunal and to protect the rights of the parties in being able to see the fruits of their arbitration. If they win the case, they don’t want to find that in between the whole arbitration has been a waste of time because the other party has done something to destroy the… to deprive the other party of the fruits of its victory.

I come back to my earlier case as an example. See when the counsel from Country X walked out, he went back to his country and he then started an action in the High Court of Country X and asked for all sorts of orders against the tribunal. Now I told you in the beginning that the place of arbitration was Singapore. So under arbitration law, my tribunal will only be subject to an order of a Singapore Court. If he didn’t like what we were doing he could’ve have gone to a Singapore Court and if the Singapore Court has seen fit to do something to us which it would not have because the Singapore Court is well aware of the principles that I have just said. Once we have jurisdiction, and there was no challenge to our jurisdiction, then good or bad, we do our work to the end unless you challenge us. If you challenge to remove, then fine, somebody will hear that challenge. But other than that, you just have to let the tribunal do its work to the end and if you think that the tribunal has done its work badly and it’s a ground for setting aside, then the court will set it aside. Or the court in Country X will not recognise it under the New York Convention. Because either you set it aside in Singapore because that was the place where the arbitration was heard or if there is no setting aside there and the winner takes the award back to Country X and tries to enforce it, then you can resist enforcement on the same grounds. But this particular party decided to go back to Country X and take out an action in the Supreme Court to make all sorts of orders against the tribunal to stop hearing the case. So that kind of shows you that courts in other countries don’t quite understand what the rules of the game are.

Q: How was the issue resolved then?

The case is still going on in the courts of Country X. I was just told that…

Q: You said that the tribunal has no teeth and the courts may have to assist. I understand that enforcement of awards may be a difficulty… Is that a real problem?

Not in the majority of cases. The majority of the cases are where the parties have contractual disputes and there is usually a claim for money and there’s just an issue to be decided: who is right and who is wrong. And people would wait for the result of that. Interim measures are only necessary where somebody tries to change the status quo of the subject matter of the dispute halfway through the arbitration. Then panic buttons get pressed. Because one party says that there is no point in me going on with this arbitration if what I am claiming is no longer there at the end of the arbitration because he has taken it away or he has destroyed it or he has converted it into something else. Suppose there is a dispute about who is entitled to a piece of land. As you may know, as between vendor and purchaser, a purchaser who has signed a contract for the sale of land is entitled to insist on specific performance, which means that he is entitled to say that I want this particular piece of land. And if halfway through the case if before the end of the case, the seller who disputes that he is liable, because he thinks that the contract has been broken or has been terminated and then he tries to re-sell it to somebody else, then the buyer is very likely to want an injunction to stop that from happening until after the case is decided and we know who is right and who is wrong. Then he will be asking for an interim injunction. From somebody. He can either ask it from the tribunal. Then the question is whether or not the tribunal’s order will be obeyed by the other party. And if the buyer thinks that the seller will not obey the order of the tribunal or simply says that I will sell first and argue with you later. And if you want you can sue me for damages but as far as I am concerned I am going to sell the land tomorrow. Then the buyer may need to get some kind of an order that will physically restrain the seller from doing what he threatens to do rather than punishing him after the act has been done. And that in most cases can only be done in a court. Because the court can say that I order specific performance or I grant an interim injunction to say that you cannot transfer this property while this case is going on. And if you do violate this order you go to jail. The tribunal can’t say that.

Q: What advice do you have for law students and young lawyers who aspire to specialise in arbitration? For instance, how long should one practice as counsel before moving on to serve as an arbitrator?

I suppose that it is not really a choice of the lawyer concerned because to be an arbitrator you have to be appointed an arbitrator. I think realistically first of all your question should be how does a young lawyer break into the world of arbitration. Especially international arbitration. Because there are two parts. If you want to be involved in domestic arbitration. That is a completely different career path than if you want to be involved in international arbitration. Domestic arbitration is not normally, how should I put it, a career choice in itself. People don’t usually say that I want to become a domestic arbitration practitioner. What they say is that I am interested in construction law. If you are interested in construction law, you have to understand domestic arbitration because most of the construction cases are resolved by arbitration and if they are between local parties, then it will be domestic arbitration. Of course if one of the parties is international, then it may be international arbitration and it is usually international for the bigger projects that the foreign party may very well want to have a mixed panel including some foreign arbitrators rather than just domestic. But if you are just doing domestic construction law, then it is not that you want to become an arbitrator or an arbitration practitioner for the sake of it. You do it because it is just ancillary to doing construction law. Whereas if you want to do international arbitration, then the range of topics is very very wide. It is not so much that you choose topics, you start thinking about being an arbitration lawyer rather than a court lawyer. If you are a court lawyer, then you will still primarily start working in domestic litigation. Most litigation is domestic. So you have to learn your trade. You have to learn your trade by doing simple things like debt collection, maybe some accident cases. Normal contractual disputes. And then after a while you will get cases with an international element. Then you will understand what international commercial litigation is about and you start understanding certain principles that are only applicable for international disputes. So private international law becomes very important. Forum non conveniens becomes very important. Which you don’t have to get involved in If you are just doing domestic litigation and hire purchase disputes or banking claims. It is probably not a bad idea to start in litigation anyway because certain of the skills that you need for international arbitration are better learnt in a court context. For example cross-examination. It is a skill that maybe only comes with doing court cases. So you have to understand what court cross-examination is about in the first place before you can adapt that technique to international arbitration. If you don’t know what court cross-examination is like, you tend not to be so efficient in cross-examination in arbitration. Even though in arbitration, you will not be given the same latitude. Counsel will not be given the same latitude because in court, our judges will give you one day - two days to cross-examine one witness. Sometimes more. In arbitration, it is very rare where the tribunal is going to allow you more than one day and we usually very much encouraging you to finish off a witness in half a day because normally arbitrations are fixed for five days. Even for very big amounts. If you ask for ten days they are already starting to question as to whether you are really preparing your case in an efficient way and whether you are stretching things out beyond what is necessary.

The hearing process tends to be much more reduced in arbitration. Because you reduce the discovery process. So to a certain extent, the arbitration process is more distilled. I don’t want to say less rigorous, but its more distilled. You try and focus on the real issue. Ok we see the disputes we’ll hear you. To a certain extent we will hear the other party to a certain extent. But we are not going to track every little issue to the nth degree and we are not going to have this luxury to cross-examine this witness for many hours simply to show that he is not telling the truth. In court you do a lot of that. You try and destroy a witnesses’ credibility for the sake of it. So there are a lot of questions which are asked which are not directly relevant to the issue but are justified on the grounds that you want to demonstrate that the witness is a liar. In arbitration you call that an indulgence. Because most of the cases don’t turn on credibility as such. Its just a question of who has the better case than the other side. And its usually a question based mostly on documents. It is international commercial arbitration. Commerce generates a lot of documents. When you have a lot of documents, especially contemporaneous documents, documents tend to speak for themselves and people who try and explain documents are usually giving what we call revisionist theories and trying to alter the words of the documents which really speak for themselves.

Q: We understand that you were appointed the Deputy Chief Justice of the Dubai International Finance Centre Courts in 2005. How has your experience there been thus far?

Well we are still in the early days of the court, so it is a work-in-progress. As of day, I would have heard one full case. I have just delivered a judgment last week in Dubai. There is a second case that is progressing through and I have heard some of it. I have heard a number of applications for ex parte injunctions which effectively are the beginning and the end of a case. Because what happens is that they have a very proactive financial authority there. Their equivalent of our MAS which is very vigilant in trying to stop what they perceive to be frauds or scams that invoke the name of the Dubai International Financial Centre. So whenever they see anybody pretending that they have a connection with the DIFC when they don’t, then they will take action to try and shut these people down. To close down their websites in particular. They see themselves as enforcers and they want to use the courts for their enforcement actions. That’s actually not common here. MAS does not take that same profile or same stance. I am not saying who’s right and who’s wrong. I am just telling you that this is why there are a number of applications. Possibly because this is a financial centre which is still nascent and therefore needs to fight very hard to protect its reputation. That wants to be seen that it is operating to its highest standards and therefore any monkey business will be dealt with very swiftly. Whereas in Singapore, we now are very well established and we don’t need to be so proactive and can wait until some real damage is caused before prosecutorial action is taken. But they try and do a lot of pre-emptive actions. So that has generated a certain amount of court activity. But the workload of the court will increase in direct proportion to the physical growth of the area. Right now, I don’t even think that a tenth of the area has been developed. But in three or four years, the whole area that is the jurisdiction of the DIFC will be completed and it will have 40 - 50,000 people who will be working and living there and it will just be a community. It will be a mini-township with a very high factor of commercial activity taking place. There are bound to be a lot of cases that will require resolution in court for one reason or another. Right now, not a lot of buildings have been built. Not all the tenants have moved in. Just a limited amount of commercial activity going on. But there will be eventually… It will be a full community. There will be offices, hotels, apartments and all the activities associated with that. So although our court I think was set up primarily to deal with financial cases, I think that we will have to cope with all kinds of disputes.

Q: Do you think it’s a valid concern that arbitration may stunt the development of case law?

Well if you mean by that that arbitration has lesser jurisprudence; that is partly correct. But the most well known arbitral institutions with one of the largest caseloads is the International Chamber of Commerce (ICC). The ICC has published a collection of its arbitral awards in what we call a sanitised version. And it stretches over many volumes. So there is quite a lot of jurisprudence which is quoted from ICC records even though arbitration is meant to be confidential. In Singapore, arbitrations are generally confidential, even though the laws are not very specific about the exact nature and extent of confidentiality. I actually have a case in the high court next week which is going to turn on that question. But, once you have a case that gets out of arbitration and into the courts for enforcement: You have an award that needs to be enforced by the court, then the prima facie rule is that that is public and we have a lot of jurisprudence from the High Court of Singapore, which is a major contributor to international arbitration jurisprudence because we are a model law country. The model law is adopted by many countries. Every new country that wants to change its arbitration law, well 95% of them adopt the Model Law. So our decisions on the Model Law are very important for the development of international arbitration law. There is the ability under our International Arbitration Act for one party or the other to ask for a gag order on a case. But from memory, I think there is a limit. It remains embargoed for I think ten years. Up to ten years. You can check that if you like. I don’t have that in front of me. So, there is blanket secrecy about arbitration and therefore principles do develop.

Your question was stunting the growth of case law. Again, theoretically it is possible to reconcile confidentiality with publication of case reports. But that depends on the institution. I told you ICC, although ICC theoretically respects confidentiality they have for many years been publishing. Usually with the parties consent. I have to say that it is usually with the parties consent. And then with sanitisation, meaning that you can’t identify the party.

SIAC have not yet done so on a large basis. But you see that now and again, SIAC will publish a sort of summarised reports of cases, for this very point. So that people are aware of developments and decisions by arbitral tribunals. As I said jurisprudence comes in two levels. The arbitration tribunal’s own decision: Which in many cases are actually not that significant or important in terms of developing arbitration law. They might be significant in developing the substantive law of the dispute. So if the case let us say is about Bills of Lading, it might contribute to the law of Bills of Lading. It may not have an arbitration point at all. And to that extent, yes, maybe the law of Bills of Lading may be deprived. But that is made up for if the Institution administering the arbitration says that this case is useful, it has many cases on Bills of Lading. Somehow we should make it known. And they take it upon themselves to edit it and either publish it in some report or other or in their own reports. So there is no universal answer to your answer. It is not a black and white answer either way.

Rajaram Vikram Raja is a second year law student and an associate editor of SLR.

The NUS Law School Peer Mediation Team was initially formed as a prelude to the ultimate goal of forming Singapore’s first student-based Peer Mediation Clinical Programme. From the modest membership of 3 law students during its inception in 2004, our team now boasts a total of approximately 20 dedicated individuals who actively participate in our Mediation and Conflict Resolution programmes and workshops targeting the Singaporean youth. Assisting the students is As/P Lim Lei Theng, a brilliant litigator and experienced mediator, who has graciously offered her time to conduct courses and training sessions for both the student-facilitators and participants of our workshops.

Our guiding principle is that our programme participants should walk away from the course having in mind a systematic analytical frame-work which can be used when he/she faces a conflict situation. Unlike other commercially available Mediation Courses, our Workshops are designed to be highly interactive. Instead of lengthy lectures and monologues, our focus is to allow our facilitators, who are young law students, to engage our participants in various discussions/dialogues on real issues that they would face in every facet of their daily lives.

To date, we have conducted numerous workshops and garnered vast experience in bringing the concept of conflict resolution to students across the spectrum of the student population – ranging from pre-secondary level to tertiary level. We appreciate that different participants require different styles of teaching and different goals to be achieved. We therefore try our best to customise our workshops to their specific needs.

Our more recent activities include the Hwa Chong Institution Mediation Programme (2007) and the Singapore Polytechnic Conflict Resolution Workshop (2007). Furthermore, the team also works closely with the Ministry of Community Development Youth and Sports, having successfully conducted the inaugural Singapore Boys’ Home Conflict Resolution Programme which saw our dedicated facilitators providing guidance to troubled teens and to better prepare them when they rejoin society.

The team is currently undergoing major restructuring as efforts are being made to bring our activities under the auspices of a new Law School Mediation Clinical Programme.

Kevin Ho is a fourth year law student and programme coordinator of the Peer Mediation Team.

Mediation clauses which were once deemed unenforceable as agreements to agree may have been given a new breath of life by recent case developments.

With alternative dispute resolution’s surging popularity in recent years, particularly with regard to its cost saving and non-adversarial methodology, it is now commonplace to find mandatory dispute resolution clauses in standard commercial contracts. While it used to be the case that arbitration was the poison of choice for parties who wished to delay or circumvent litigation, other forms of dispute resolution such as mediation have gained a name for themselves with their high rates of success and admirable ability to preserve fragile commercial relationships.

Where arbitration requires parties to submit to an arbitral award that lies out of their hands, mediation affords them an opportunity to rework their agreement with the luxury of hindsight that they did not have at the point of contracting. As such, many commercial contracts employ multi-tiered dispute resolution clauses which stipulate that only upon submission to mediation (or some other form of dispute resolution be that as the case may) and subsequent failure of the mediation process will parties submit themselves to arbitration. Consequently, the same applies to litigation – it should only be resorted to upon completion of the arbitral process.

A problem arises when a dispute surfaces close to a contractual time-bar for litigation and an aggrieved party wishes to expedite the process by by-passing mediation and going straight to arbitration, contrary to stipulations within the multi-tiered clause. As a mediator is but a neutral facilitator and a resolution can only be reached if agreed upon by the parties, it is the general view of the courts that a mediation clause is, unlike an arbitration clause, merely an agreement to agree and unenforceable per well-established principles of contract law.

Notwithstanding, some academics and practitioners have propounded that mediation clauses are in essence a binding agreement between the parties to subject themselves to a process and the outcome is unimportant. It also appears that with the growing advantages that dispute resolution provides, courts around the world have opened up to the proposition that some mediation clauses, if couched in sufficiently certain terms and adherent to a set mediation process, may indeed be enforceable.

In Hooper Bailie Associated Ltd. v. Natcon Group Ltd., the Supreme Court of New South Wales stayed an arbitration that one party sought to resume in breach of a mediation agreement until conclusion of the mediation process. Ten years on, the landmark case of Cable & Wireless plc. v. IBM United Kingdom Ltd., a 2002 Queen’s Bench Division judgment, was the first in which an English court enforced an agreement to mediate. Since then, Cable & Wireless has witnessed several references in similar English cases and even garnered approval abroad with the Hong Kong High Court hearing Hyundai Engineering and Construction Co. Ltd. v. Vigour Ltd. Although the High Court decision in Hyundai was later overturned by the Court of Appeal in 2005, the reasoning in Cable & Wireless was never doubted and hence leaves wide-open the door to possibilities of more like-minded judgments in the future.

Although the said judgments are but a few stacked against a long history of conservative opposition, it is hoped that in time to come, especially in Singapore where such cases are scarce and there remains little precedent binding our courts, the shackles are lifted and the mediation process may be able to find its wings.

Jeth Lee is a third year law student and the Chief Editor of SLR.

Associate Professor Joel Lee co-trained the first batch of mediators for the Singapore Mediation Center (SMC). He is one of the principal mediators on its team. He is also involved in conducting mediation workshops and consultation work. In addition, he serves as Associate Editor of the Asian Journal of Mediation.

Q. Why do you believe so firmly in the efficacy of mediation as a form of dispute resolution?
JL: Mediation suits my nature. A part of me believes in talking through issues and solving problems through reasoned discussion. I believe that we can agree to disagree, and learn to disagree without being disagreeable. In reality, both parties to a dispute often have valid concerns and arguments. The key to smooth dispute resolution is being able to appreciate and understand the validity of a viewpoint that is different from yours. Mediation calls for a shift in our thinking. It calls for us to move from a paradigm of a dualistic, exclusive dichotomy to an attitude which embraces continuum thinking because arguably, no one side has a monopoly of truth.

Q. What are the challenges you have faced conducting mediation classes?
JL: My biggest challenge is the adversarial mindset that my 4th year students bring with them on the first day of class. The attitude required for mediation is so different from that required in litigation that it takes legally trained students by surprise. My first task is to help them break out of their limited win-win mentality and make them aware that litigation isn’t the only way to solve problems.

Q. Tell us about the rewarding moments you have experienced while conducting mediation classes.
JL: I enjoy conducting mediation classes immensely. Lessons are conducted in a highly interactive and hands-on manner. Lectures form but a small component of classes – I encourage my students to engage in role-playing scenarios which enable them to apply their skills in an immediate and practical manner. My teaching philosophy is that if you’re having fun, you’re learning, and my classes reflect this ethos.

Ruth Yeo is a second year law student and an associate editor of SLR

Your client agrees to buy some tugboats, to be built by a certain date. The shipbuilder fails to finish on time. Advise your client.

Your first response might be, “Sue for breach of contract!” The scenario above isn’t simply an exam hypothetical but comes from a real-life commercial dispute that was resolved outside the courtroom, with help from the Singapore International Arbitration Centre (SIAC). In recent years, alternative dispute resolution (ADR) has gained momentum, making inroads into even textbook cases like the one above which traditionally have been resolved via litigation.

ADR includes negotiation, mediation and arbitration. Negotiation consists of interactions between disputants, with a view to reaching a mutually acceptable outcome. Mediation is similar, except for the added presence of a neutral usually assuming a facilitative role. In arbitration, the neutral (the ‘arbitrator’) decides in one party’s favour. As with litigation, the decision is binding on the parties; unlike litigation, arbitration is less formal (e.g. the Evidence Act does not apply).

Compelling evidence suggests that ADR is in vogue. In the past 7 years, the SIAC has administered over 490 cases. Similarly, as of 1 April 2006, more than 1,200 cases had been referred to the Singapore Mediation Centre; 75% of all mediated cases were settled.

ADR has pervaded many other areas of social life. Since the Primary Dispute Resolution Centre was set up in 1994, over 48,300 matters have been mediated, with 94.6% success. The Family and Juvenile Courts and the Small Claims Tribunal have embraced ADR. At the grassroots, Community Mediation Centres assist with community and family disputes. Many other organizations also offer ADR services, such as the Law Society and CASE. All signs point towards an incipient ‘ADR culture’.

The rising popularity of ADR is hardly surprising. Litigation is costly, protracted, adversarial affair, fought out in the rarified atmosphere of a courtroom, and under the glare of media publicity. By contrast, ADR is relatively inexpensive, efficient and confidential, and emphasises party autonomy and cooperation. The Supreme Court, for instance, has saved over $18 million and 2,832 court days because of ADR.

More significant is the story left untold by statistics. In our avowedly Asian society, where business and personal ties often crisscross, and saving ‘face’ is inseparably part of the social dynamic, ADR enables parties to work out disagreements amicably. Rather than jeopardizing relationships, as litigation tends to do, ADR preserves valuable social capital, and provides opportunities for long-term synergy.

Granted, ADR is not always the preferred choice. Parties may favour the ironclad authority of a court judgment. The still-open question of the enforceability of mediation clauses may deter potential takers. Moreover, since our court system is efficient and affordable, disputants may be unwilling to attempt ADR. ADR also requires that parties act in good faith, or it risks being abused as a delaying tactic in a war of attrition.

Nonetheless, these qualifications merely suggest that the flourishing of an ‘ADR culture’ is contingent not on institutions, but on people’s attitudes. Lawyers and their clients must approach ADR with a bona fide desire to seek mutual understanding and agreement. Where possible, old paradigms like positional bargaining should be rejected. Lawyers should be prepared to acquire new skill sets (as negotiators and mediators).

Above all, lawyers must be conscious of when going to court would not best serve their clients’ interests. An ‘ADR culture’ will have truly taken root when our response to a dispute isn’t that immortal line, “See you in court!”, but rather, “Let’s work this out together.”

Zhong Zewei is a second year law student and an associate editor of SLR.

We just received confirmation yesterday … Contrary to all our posters and flyers, the SLR Recruitment tea is confirmed to be held at SR 5-2 on 20 August 2007 at 1045. Hope to see you there!

For year ones and visitors who are still getting used to the school premises, SR 5-2 is on the Fifth Level of Block B of the NUS Law Faculty at Bukit Timah Campus. This is the same building where your lectures and classes for law are held.