Singapore: Effective ecosystems of arbitration

Singapore: Effective ecosystems of arbitration -
Key developments since 2021 and what to expect moving ahead

In the 2021 International Arbitration Survey, Singapore was jointly placed with London as the most popular arbitral seat in the world, and was ranked the most preferred seat in the Asia-Pacific region. This boosts Singapore’s reputation as a pre-eminent dispute resolution hub and is no doubt a result of Singapore’s strong political and judicial support towards international arbitration and the dispute resolution ecosystems that complement it.

This entails continuous innovation and adept adaptation. We discuss the latest changes and the landscape ahead.

Singapore’s thriving arbitration landscape

Singapore is a party to the 1958 New York Convention and is home to a full suite of acclaimed dispute resolution institutions. Apart from our trusted Singapore courts, local institutions include the Singapore International Arbitration Centre (“SIAC”), the sector-specific Singapore Chamber of Maritime Arbitration and the Singapore International Mediation Centre (“SIMC”).

Prominent international arbitral institutions have also established offices in Singapore, including the International Chamber of Commerce (“ICC”), the International Centre for Dispute Resolution and the Permanent Court of Arbitration and the World Intellectual Property Organization Arbitration and Mediation Centre. Each boasts an extensive panel of renowned international experts. Most of these institutions have offices at Maxwell Chambers Suites, part of Singapore’s flagship state-of-the-art dispute resolution complex Maxwell Chambers. Maxwell Chambers’ offerings cater to every dispute resolution need. The full suite of services, from remote transcription and interpretation services, integrated document management to fully-digital hearing solutions, ensure effective and efficient hearings for international parties, regardless of where they are located. We now speak less of the “agreed bundle” but more of the “E-bundle”.

Institutional arbitrations have increased over the years, reflecting the high regard that the international community has towards Singapore. In 2020, SIAC case filings alone crossed the symbolic 1,000 case threshold, with 1,080 new case filings. This represents a 125% increase from the cases filed in 2019. 94% of those cases were international cases from over 60 jurisdictions. Separately, the ICC reported that Singapore was the most preferred seat of arbitration in Asia for disputes adjudicated under its umbrella. An increasing number of investor-state disputes have been adjudicated in Singapore, including several high profile cases such as Republic of India v Vedanta Resources [2021] 2 SLR 354, Swissbourgh Diamond Mines (Pty) Ltd v Kingdom of Lesotho [2019] 1 SLR 263, Lao Holdings NV v Government of the Lao People’s Democratic Republic [2021] 5 SLR 228 and CNX v CNY [2022] SGHC 53.

Complementing the strength of arbitration institutions is the growing number of arbitration practitioners in Singapore. Organisations like the Chartered Institute of Arbitrators and the Singapore Institute of Arbitrators provide continual training for arbitrators, mediators and adjudicators. The wealth of top-class arbitration practices in Singapore ensures that there is ready access to both distinguished arbitrators and counsel from civil and common law traditions for parties seeking to resolve disputes in Singapore.

In this ecosystem, the dispute resolution tools complement each other. One of which is the Arb-Med-Arb mechanism offered by the SIAC and SIMC, which supports the arbitral process in Singapore. This mechanism provides for a dispute to first be referred to arbitration before mediation is attempted. If mediation is successful, then that mediated settlement may be recorded by the arbitral tribunal in the form of a consent award.

Mediation itself, as a dispute resolution tool, has also increased in prominence since the introduction of the Singapore Convention on Mediation (“Singapore Convention”) in 2019. Before the Singapore Convention, an often-cited challenge to the use of mediation was the lack of an efficient and harmonised framework for cross-border enforcement of settlement agreements resulting from mediation. The Singapore Convention creates a uniform and efficient framework for enforcement of international settlement agreements resulting from mediation. Mediation is expected to grow in popularity as more countries adopt the Model Law on International Commercial Mediation.

With the high volume of international commercial arbitration and constant exposure to an array of arbitrators and counsel from both civil and common law backgrounds, the practice of arbitration in itself is evolving into something akin to a third legal tradition in Singapore. This is the result of a culmination of practitioners exposed to the practices and intricacies from both civil and common law within arbitration proceedings. Practitioners in Singapore, regardless of their background, are hence developing expertise and familiarity across the legal traditions. This will further enhance Singapore’s competitive edge in arbitration.

Continued political and judicial support for arbitration

The Singapore government and judiciary also play an integral role in this ecosystem. Years of arbitration-friendly policymaking from the Singapore government and a judiciary that respects and supports arbitration has enhanced Singapore’s status as a leading arbitration location. Government policies include the liberalisation of legal services and advantageous tax incentives, and a demonstrable willingness to strengthen existing legislative frameworks to strengthen Singapore’s arbitration regime.

The Singapore courts continue to subscribe to the principle of minimal curial intervention. Singapore’s apex court, the Court of Appeal, has recently shared that a perusal of the published decisions of the Singapore court would show that, over the past 20 years, only about 20% of applications to set aside arbitral awards have been allowed. This attests to the fact that the Singapore courts will not lightly set aside awards. However, in an appropriate case based on clearly articulated principles, case law has shown that the Singapore courts will not hesitate to intervene.

Key developments 

Recent developments have also contributed to Singapore’s arbitration landscape. The Regional Comprehensive Economic Partnership (“RCEP”), which is a free trade agreement ratified by 10 countries (namely, Australia, Brunei, Cambodia, China, Japan, Laos, New Zealand, Singapore, Thailand, and Vietnam), entered into force on 1 January 2022. Other signatory states include South Korea, Myanmar, Malaysia and Indonesia. Article 10.18 of the RCEP provides a process for member States to enter into discussions regarding investor-state dispute settlement (“ISDS”) within the next 2 years. ISDS arbitrations under the RCEP will be a space to watch.

The Singapore-Indonesia bilateral investment treaty also entered into force on 9 March 2021. New procedural rights introduced include the right of an investor to comment on the tribunal’s award. A disputing investor now has the right to request a review of the tribunal’s draft award, and to submit comments to the tribunal.

It is undeniable that the Singapore courts also play a role in supporting the arbitrations. The courts have made sophisticated contributions to the jurisprudence on arbitration, and are well poised to deal with practical realities and developments in international commercial arbitration.

Recently, there have been some interesting issues of law decided by the Singapore courts for the first time. This is borne out by several recent judgments from the Singapore courts, who have ruled on a wide variety of issues, ranging from enforcement of awards in ‘misnomer’ situations (i.e., where a party has been incorrectly named in an award), the law to apply at the pre-award stage to determine subject-matter arbitrability (an issue that appeared to have not been considered by any Commonwealth court), and the specific contours of the rules of natural justice.

Singapore’s dispute resolution institutions have made inroads internationally. The SIMC and the International Centre for Settlement of Investment Disputes (“ICSID”) has for instance entered a cooperation agreement, which provides for the use of SIMC’s facilities and services for mediation proceedings conducted under ICSID’s auspices. This complements the use of mediation to settle investor-state disputes and reinforces Singapore’s position as an international dispute resolution hub.

Singapore’s Ministry of Law is in the midst of considering the following legislative amendments to Singapore’s International Arbitration Act 1994 (“IAA”):

• Allowing tribunals to decide jurisdictional issues at the preliminary stage of the proceedings if requested by all parties. This could encourage the rapid resolution of jurisdictional issues, as well as time and cost savings in proceedings.

• Allowing parties to arbitral proceedings to appeal to the High Court on a question of law arising out of an award made in the proceedings, provided parties have agreed to opt in to this mechanism.

These proposed amendments come in the wake of other recent legislative amendments:

• The third party funding regime in Singapore was expanded to cover both international and domestic arbitrations and related court and mediation proceedings, so as to strengthen Singapore’s position as an international commercial dispute resolution hub. Conditional fee agreements will also be allowed for arbitration proceedings. These changes will interest parties who want to resolve disputes in Singapore but refrain from doing so due to costs.

• The IAA was amended to strengthen the existing legal framework for arbitration and enhance Singapore’s standing as an international arbitration hub. These amendments include (i) providing a default mode of appointment of arbitrators in multi-party arbitrations where the parties’ agreement does not specify the procedure that would apply for such appointments; and (ii) a section explicitly recognising the powers of the tribunal and the High Court to enforce obligations of confidentiality, which are typically important to parties in arbitration. These amendments came into effect on 1 December 2020.

The world is one’s oyster; and this is ever true for the arbitration community. Singapore’s global outlook and quick pace of innovation reflects her desire to enhance her competitive edge. In the final analysis, we are optimistic that Singapore’s effective arbitration ecosystem makes it well-poised to succeed.

With supportive courts, well-oiled facilities, expert witness expertise and experienced counsel, Singapore is positioned to grow from strength to strength.

About Dentons Rodyk 

Dentons is the world's largest law firm, delivering quality and value to clients around the globe. Dentons is a leader on the Acritas Global Elite Brand Index, a BTI Client Service 30 Award winner and recognised by prominent business and legal publications for its innovations in client service, including founding Nextlaw Labs and the Nextlaw Global Referral Network. Dentons' polycentric approach and world-class talent challenge the status quo to advance client interests in the communities in which we live and work.

Dentons Rodyk & Davidson LLP is a limited liability partnership registered in Singapore with Registration No. T07LL0439G, and a member of Dentons' global legal practice.

Writers’ information 

Lawrence Teh
Senior Partner
Global Co-Head of Dentons’ International Arbitration Group

Mark Seah
Senior Partner
Co-Head of Commercial Litigation Practice

Kia Jeng Koh
Senior Partner
Co-Head of Construction and Restructuring Insolvency & Bankruptcy Practice

Huai Yuan Chia
Partner (Litigation & Dispute Resolution, Singapore)
Business Development Lead for Thailand and Vietnam

The writers are grateful for the assistance rendered by Practice Trainee Wei Teng Lee in the preparation of this article.