Roundtable discussion – “The Future of Dispute Resolution in Asia: the challenges and opportunities which lie ahead”

5 January 2015

In a lively and interactive session attended by about 80 participants, a panel of experts comprising Ng Jern-Fei (Essex Court Chambers), Koh Swee Yen (WongPartnership), Eunice Chua (Singapore International Mediation Centre) and Delphine Ho (Supreme Court of Singapore) discussed the changes to the dispute resolution landscape in Asia brought about by the establishment of the Singapore International Commercial Court (“SICC”) and the Singapore International Mediation Centre (“SIMC”), as well as the relationships between these two new institutions and the Singapore International Arbitration Centre (“SIAC”).

The roundtable, which was held under Chatham House Rules and moderated by Jern-Fei, centred on the following questions submitted by participants and panelists:

  1. To what extent will the SICC be complimentary to the SIAC and to what extent will the SICC be in competition with the SIAC?
  2. The international enforceability of SICC judgments remains a key challenge. Would this pose a real challenge to the SICC’s success?
  3. There is a perceived demographic problem with the current international arbitration set-up. What more can be done to increase the involvement of young practitioners in arbitration (and perhaps also litigation), whether as arbitrators or as arbitration counsel?
  4. SIAC and SIMC have collaborated to offer an arb-med-arb service – how is this different from med-arb and other existing options for the arbitrator to also sit as mediator or conciliator? Is med-arb a good thing?
  5. Cultural differences are sometimes a challenge to mediators and arbitrators in dealing with parties from different cultures in Asia. How could such cultural differences be overcome?

It was observed that the advent of the SICC and SIMC gave users more choices for dispute resolution and enhanced the status of Singapore as an international dispute resolution hub. Although the SICC and SIAC could arguably be perceived as competitors in that a user of the SICC’s services would not use the SIAC’s services, they could also be viewed as companions because there were various factors that differentiated their service offerings. For example, arbitration at SIAC would have the benefit of an arbitral award that may be enforceable under the New York Convention, whereas litigation at SICC would result in a court judgment which may not be enforceable in as many jurisdictions. Other aspects unique to arbitration at SIAC would include choice of arbitrator, choice of procedure and finality. However, it was noted that more cost and time conscious parties who were satisfied with a Singapore court judgment, would like to have their decision-makers appointed for them, and would like the option of an appeal, may choose the services of the SICC.

Many members of the audience agreed that there was much to be done and that could be done to increase the involvement of young practitioners in arbitration (and also litigation). For example, arbitral institutions could play a role in appointing younger arbitrators for less complex and lower-value matters that needed to be resolved on shorter timelines; young practitioners could also be given opportunities to publish articles and speak at conferences in order to build their profile. Arbitration practitioners could further play a part in allowing younger counsel speaking opportunities, such as making the opening statement. Nevertheless, it was recognised that very often clients preferred older and established names and perhaps more effort would be needed to create awareness about the competencies of younger practitioners and to help them market their services.

The SIAC-SIMC arb-med-arb service was generally welcomed as a positive offering that would help to reduce the hefty amount of time and costs involved in an arbitration. As mediation was a process which could help parties to understand their own and each other’s cases better as well as clarify or reduce the number of issues in dispute, even if mediation did not produce a full settlement of the dispute between the parties, more often than not the time spent in arbitration after mediation would be significantly reduced.

The SIAC-SIMC arb-med-arb service would overcome the problem of conflict of interest and constraining free and frank sharing during mediation that were recognised problems with med-arb where the mediator also sat as the arbitrator. Unless parties agreed otherwise, the mediator and arbitrator would generally be separate persons independently appointed by SIAC and SIMC. These were professional institutions that were experts in their fields and that could aid in the selection of the most appropriate mediator and arbitrator for the type of dispute at hand as well as ensure that the arbitration and mediation component were both efficiently and sensitively managed. It was also noted that the SIAC-SIMC arb-med-arb protocol ensured that parties would not be put to any added inconvenience by having two separate institutions administer the arb-med-arb service – in fact, parties would only be required to pay fees to one body and would enjoy a seamless transfer of their case between the two organisations according to the protocol.

It was recognised that culture often posed challenges not only in mediation and arbitration but also in litigation. There was no easy answer to overcoming cultural differences although some suggestions included having a supervisory body administer a common code of ethics or conduct, as well as providing more training and education.

The evening concluded with a drinks reception which provided further opportunities for further conversation.

SIMC would like to thank the Singapore Academy of Law, Essex Court Chambers, YSIAC and Supreme Court for being a part of this very successful evening.