Law passed to regulate Significant Investments in Singapore Entities
The Significant Investments Review Bill (the "Bill") was recently passed by Parliament on 9 January 2024, and is expected to take effect in the first half of the year.
The Resilience of Singapore Arbitration Amidst the COVID-19 Pandemic
Swee Siang Boey, Chun Kai Yap and Suchitra Kumar discuss the ways in which international arbitration in Singapore has coped during the COVID-19 pandemic.
This contribution was originally published in the Asian Dispute Review.
This article explores the resilience and growth of arbitration in Singapore in the face of the COVID-19 pandemic. It focuses on (inter alia) the use and impact of remote hearings, steps taken by Singapore’s international arbitral institutions to increase its global outreach and its world rankings in international arbitration user surveys, growth in institutional arbitration filings, and reform proposals for legislation and arbitration rules.
Introduction
Amidst a global pandemic that has forever altered so many aspects of everyday life, arbitration in Singapore nonetheless remains as attractive a mode of dispute resolution as it was prior to the outbreak. Notwithstanding the devastating economic impact of COVID-19, which saw the Singapore economy contract by 5.8% in 2020 (its worst performance since gaining independence in 1965),1 positive developments in arbitration in Singapore (and indeed within the region) continued apace in 2020 and 2021.
Remote hearings
The onset of the pandemic brought with it unprecedented restrictions and change. Across the globe, governments imposed lockdowns and social distancing measures, and closed borders to foreign entrants. In Singapore, the government imposed a strict ‘circuit breaker’ lockdown to control the spread of the pandemic from April to June 2020. The subsequent easing of measures was implemented only gradually and with caution, in order to manage the spread of COVID-19.
Dispute resolution institutions in Singapore responded to these measures and made swift adaptations to their internal operations. Most notably, the infrastructure for remote hearings was promptly expanded to allow parties and arbitrators the option of conducting their hearings without the need for physical attendance. Physical hearings that did take place were also calibrated in such a manner as to ensure compliance with the requisite safe distancing measures. Singapore’s primary arbitration base, Maxwell Chambers, was proactive with its early investment in hybrid and virtual hearing solutions, providing state-of-the-art video and conference capabilities and seamless add-ons relating to interpretation, document
management and remote transcription.2
management and remote transcription.2
To facilitate the implementation of these digital capabilities, the Singapore International Arbitration Centre (SIAC) also sought special permission from the relevant authorities to maintain a limited cohort of staff in the office during the initial stages of the pandemic. The prompt implementation of remote hearing capabilities at the onset of COVID-19 (from as early as March 2020)3 paid off; the use of Maxwell Chambers’ now-popular virtual hearing feature is expected to be heavily utilised even in a post-pandemic world.
While arbitrations administered by the SIAC have always allowed for the use of remote hearing platforms (such as, for example, the conduct of preliminary meetings by way of tele- or video-conferencing, and the giving of some witness evidence remotely), the conditions caused by the pandemic have forced the conduct of proceedings to switch either fully or partially to virtual hearings. Rule 19.1 of the SIAC Rules 2016 (6th Edn) (SIAC Rules) confers broad discretion on arbitral tribunals to conduct hearings in the manner that they deem fit, requiring only that they “consult with the parties to ensure the fair, expeditious, economical and final resolution of the dispute”.
This provision empowers tribunals to conduct arbitration proceedings remotely whenever appropriate and has been useful in facilitating the move toward virtual hearings in the era of COVID-19.
To address the growing need for guidance concerning the conduct of virtual hearings and the use of non-physical means of communication during arbitration proceedings, the SIAC released, in August 2020, the SIAC Guides - Taking Your Arbitration Remote,4 the first in a series of guides created by the SIAC to assist all relevant parties (users, arbitrators, colleagues and stakeholders) in the conduct of arbitration cases. Taking Your Arbitration Remote sets out checklists and notes for users to ensure the proper conduct of virtual hearings.
These deal with important preliminary issues (such as costs, applicable laws, access to appropriate hardware and software, connectivity, the appropriate platform, confidentiality and data security); pre-hearing preparations (inter alia, number of participants, logistical arrangements, document accessibility, hearing etiquette and contingency plans); and matters that may arise on the day of the hearing. There are also useful appendices that seek to provide guidance on (1) choosing the right remote hearing platform, (2) remote hearing procedural orders and (3) remote hearing etiquette. These checklists and appendices assist parties with important legal and logistical matters in order to ensure that proceedings are conducted efficiently and in compliance with the necessary procedural considerations, and also serve to assist the SIAC’s users in navigating any technical difficulties.
At the time of writing (October 2021), the Singapore government has declared COVID-19 as endemic and that it is no longer pursuing a ‘COVID zero’ strategy. With the pandemic continuing to loom large for the foreseeable future, therefore, it appears that remote hearings will be here to stay for quite a while yet. Arbitration users have grown accustomed to remote hearings and will rightly expect arbitral institutions to be able to support such hearings.
International outreach
Singapore has not allowed the pandemic to slow down its substantial efforts to facilitate and expand its international outreach for arbitration.
In April 2020, owing to prevailing government restrictions that prevented the conduct of physical seminars, the SIAC launched a webinar series on international arbitration. Since then, more than 100 webinars have been conducted, some of which have been in partnership with other reputable arbitral institutions, such as the New York International Arbitration Center (NYIAC), the Indian Council of Arbitration (ICA) and the China International Economic and Trade Arbitration Commission (CIETAC).5
Another notable international initiative has been a joint statement issued by 13 arbitral institutions (including the SIAC) in April 2020. In an effort to boost commercial confidence in arbitration as a viable means of dispute resolution, these institutions shared their joint commitment to ensuring that arbitration remains a stable means of dispute resolution amidst an unstable global situation, through collaboration and the use of digital technologies.6 December 2020 was also a notable month for the SIAC because it opened a representative office for the Americas in New York - its fifth representative office overall and the first outside Asia.7
This significant development underscored the point that the SIAC is an international player and not only a regional one, capable of competing with more established arbitral institutions globally.
In May 2020, Maxwell Chambers entered into an International Arbitration Centre Alliance (the Alliance) with Arbitration Place of Toronto and Ottawa and the International Dispute Resolution Centre of London. The Alliance allows for the pooling of manpower and technical expertise between these institutions for the purposes of promoting expediency and minimising recurrent challenges to the conduct of foreign hearings remotely, such as time zone differences and scheduling issues. For example, member institutions are able to tap into the facilities of their allied institutions, if and when required by their users, thereby allowing the latter to attend at a facility closest to them. This accords much more convenience to users in the relevant jurisdictions as it obviates the need to travel long distances to attend arbitration hearings. The Alliance also allows member institutions to offer hybrid and even fully remote arrangements routinely.8
Legislative review
As part of its continuous push to build on its reputation as a global dispute resolution hub, Singapore regularly reviews and enhances legislation relevant to arbitration. This process has continued uninterrupted during the pandemic. The International Arbitration Act (Cap 143A, 2002 Rev Ed) (IAA) was recently amended by the introduction of two new provisions that came into force on 1 December 2020: ss 9B (to provide for a default mode of appointing arbitral tribunals in multi-party arbitrations) and 12(1)(j) (to enhance the powers of tribunals and the courts to enforce the obligation of confidentiality).
The Ministry of Law has indicated that a slew of other legislative amendments remain under consideration, including proposals to allow parties to (1) appeal to the court on a question of law arising out of an arbitral award, provided that they have agreed to opt into such a mechanism, and (2) agree to waive or limit the grounds for annulling an award.9
Continued growth
In 2020, 1,080 case filings were made with the SIAC - a record high which marked the first time that the number of case filings had exceeded 1,000. The total quantum in dispute in these cases amounted to US$8.49 billion (SG$ 11.25 billion), representing a 4.9% increase from 2019. Additionally, parties from 60 jurisdictions (both civil and common law) chose to arbitrate at the SIAC in 2020, underscoring its position as a premier international arbitral institution.
In May 2021, it was announced in the Queen Mary University of London and White & Case 2021 International Arbitration Survey (2021 QMUL Survey)10 that the SIAC ranked as the most preferred arbitral institution in the Asia-Pacific, and second among the world’s top five arbitral institutions.11 This was an improvement from the SIAC’s previous positions in QMUL surveys - in 2018, it was ranked as the third most preferred arbitral institution globally12 and, in 2014, as the fourth most preferred.13
This steady growth has not gone unnoticed:14 it has been noted that Singapore’s world-class facilities, professional expertise and, most importantly, well-planned response to and prompt handling of the uncharted waters presented by COVID-19, has spurred its rise as a preferred arbitration hub.15
The 2021 QMUL Survey highlighted in stark terms the impact of COVID-19 on the manner in which arbitration hearings are now conducted. In particular, 72% of respondents to that survey indicated that they had made use of virtual hearing options, which was in stark contrast to the 62% who reported that they had never used such technology in 2018. Interestingly, 25% of respondents indicated that they would be willing to forgo in-person hearings entirely, while 79% expressed the view that they would rather proceed with virtual hearings than postpone their hearings for in-person sessions.16 These results suggest that, while most arbitration users have not voluntarily opted for remote hearings, having been forced by the logistical difficulties and restrictions relating to in-person hearings during the pandemic, they have generally warmed over time to the idea of arbitral proceedings being conducted remotely.
Forthcoming developments
A number of forthcoming developments that will affect Singapore arbitration have recently been announced. These include revisions to the SIAC Rules that are expected to be released in late 2021. The SIAC has announced that the next (7th) edition of the SIAC Rules will introduce “state-of-theart revisions” designed to serve better the parties who agree to arbitrate under the auspices of the SIAC. The amendments are expected to address (inter alia) expedited and emergency arbitration procedures and the consolidation of claims, and to reflect recent developments in international arbitration rules.17
Further, on 21 June 2021, the Singapore Ministry of Law announced that the third-party funding (TPF) framework will be extended to cover domestic arbitrations, court proceedings arising from or connected with domestic arbitrations, proceedings commenced in the Singapore International Commercial Court (SICC) and appeals therefrom, and mediation proceedings relating to any of the these matters.18 Prior to the announcement, TPF had, since 2017, only been permitted for international arbitration proceedings and related court and mediation proceedings. Market reaction to this news has been positive, with third-party funders having, also since 2017, set up a local presence in Singapore and businesses having expressed a keen interest in exploring alternative disputes-financing arrangements.
Conclusion
Arbitration as an alternative dispute resolution mechanism continues to be attractive for commercial parties, and Singapore has taken active measures to build on its good reputation as a seat for international arbitrations, even in the midst of the upheaval wrought by the worldwide pandemic. It has become increasingly common for businesses (particularly those keen on ensuring confidentiality in their disputes) to include arbitration clauses in their agreements. The COVID-19 pandemic has not blunted this trend; instead, it appears to have accelerated the continued rise of arbitration in Singapore.
The developments discussed in this article are testament to Singapore’s continued drive to position itself as the seat of choice for parties seeking to resolve disputes via arbitration. The resilience and initiative of Singapore’s arbitral institutions in the midst of a severe global pandemic augurs well for the road ahead. Singapore arbitration practitioners have every reason to be optimistic of further growth.
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References
1 Ovais Subhani, Singapore economy shrinks 5.8% in 2020 after
contraction eases to 3.8% in Q4: Flash data, The Straits Times (4
January 2021), available at https://www.straitstimes.com/business/
economy/singapore-economy-shrinks-58-in-2020-after-contractioneases-to-38-in-q4-flash-data (accessed 10 October 2021).
2 Maxwell Chambers, Hybrid and Virtual Hearings, available at https://
www.maxwellchambers.com/2020/06/24/hybrid-and-virtual-hearings/
(accessed 10 October 2021). See also Rachel Tan Xi’en, Does a
Right to a Physical Hearing Exist in International Arbitration? in The
ICCA Reports, available at https://cdn.arbitration-icca.org/s3fs-public/
document/media_document/Singapore-Right-to-a-Physical-HearingReport.pdf, p 12 (accessed 10 October 2021).
3 KC Vijayan, Maxwell Chambers turns to virtual hearings amid
Covid-19, The Straits Times (19 October 2020), available at https://
www.straitstimes.com/singapore/maxwell-chambers-turns-to-virtualhearings-amid-covid-19 (accessed 10 October 2021).
4 SIAC Secretariat, SIAC Guides - Taking Your Arbitration Remote
(August 2020), available at https://www.siac.org.sg/images/stories/
documents/siac_guides/SIAC%20Guides%20-%20Taking%20
Your%20Arbitration%20Remote%20(August%202020).pdf (accessed
10 October 2021).
5 SIAC, SIAC International Arbitration Webinar Series 2020, available
at https://www.siac.org.sg/2013-09-18-01-57-20/2013-09-22-01-20-
47/siac-international-arbitration-webinar-series-2020 (accessed 10
October 2021) and SIAC International Arbitration Webinar Series
2021, available at https://www.siac.org.sg/2013-09-18-01-57-20/2013-
09-22-01-20-47/siac-international-arbitration-webinar-series-2021
(accessed 10 October 2021).
6 ICC, Arbitral Institutions COVID-19 Joint Statement, available at
https://iccwbo.org/publication/arbitral-institutions-joint-statement-inthe-wake-of-the-covid-19-outbreak/ (accessed 10 October 2021).
7 SIAC, SIAC Opens Office in New York and Announced New Record
Caseload (3 December 2020), available at https://www.siac.org.
sg/69-siac-news/684-siac-opens-office-in-new-york-and-announcesnew-record-caseload (accessed 10 October 2021).
8 Note 3 above.
9 Ministry of Law, Second Reading Speech by Second Minister for
Law, Mr Edwin Tong, on the International Arbitration (Amendment)
Bill (5 October 2020), available at https://www.mlaw.gov.sg/news/
parliamentary-speeches/2020-10-05-second-reading-speech-by-2medwin-tong-on-international-arbitration-amendment-bill (accessed 10
October 2021).
10 Queen Mary University of London & White & Case, 2021 International
Arbitration Survey: Adapting arbitration to a changing world,
available at http://www.arbitration.qmul.ac.uk/media/arbitration/docs/
LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf
(accessed 10 October 2021).
11 SIAC, SIAC is Most Preferred Arbitral Institution in Asia-Pacific and
2nd in the World (7 May 2021), available at https://www.siac.org.
sg/69-siac-news/708-siac-is-most-preferred-arbitral-institution-in-asiapacific-and-2nd-in-the-world# (accessed 10 October 2021),
12 Queen Mary University of London & White & Case, 2018 International
Arbitration Survey: The Evolution of International Arbitration, available
at http://www.arbitration.qmul.ac.uk/media/arbitration/docs/2018-
International-Arbitration-Survey---The-Evolution-of-InternationalArbitration-(2).PDF (accessed 10 October 2021).
13 Queen Mary University of London & White & Case, 2015 International
Arbitration Survey: Improvements and Innovations in International
Arbitration, available at http://www.arbitration.qmul.ac.uk/media/
arbitration/docs/2015_International_Arbitration_Survey.pdf (accessed
10 October 2021).
14 2021 QMUL Survey (note 10 above), p 10.
15 KC Vijayan, Singapore clinches top spot as preferred arbitration hub
for first time: Survey, The Straits Times (19 October 2020), available
at https://www.straitstimes.com/singapore/courts-crime/singaporeclinches-top-spot-as-preferred-arbitration-hub-for-first-time (accessed
10 October 2021).
16 Note 10 above, p 3.
17 SIAC, SIAC Announces Commencement of Revisions for SIAC
Arbitration Rules, available at https://www.siac.org.sg/our-rules/69-
siac-news/436-siac-announces-commencement-of-revisions-for-siacarbitration-rules (accessed 10 October 2021).
18 Ministry of Law, Third-Party Funding to be Permitted for More
Categories of Legal Proceedings in Singapore (21 June 2021),
available at https://www.mlaw.gov.sg/news/press-releases/2021-06-
21-third-party-funding-framework-permitted-for-more-categories-oflegal-preceedings-in-singapore (accessed 10 October 2021).
Code of Conduct for Leasing of Retail Premises to take effect from 1 February 2024
Following from the passing of the Lease Agreements for Retail Premises Bill which mandates compliance with the Code of Conduct for Leasing of Retail Premises in Singapore ("Code") for qualifying leases of retail premises earlier this year, the Lease Agreements for Retail Premises Act ("Act') is expected to take effect from 1 February 2024.
![Confidentiality of arbitration proceedings may not always be protected - The Republic of India v Deutsche Telkom AG [2023] SGCA(I) 4](/media/0ymfpldt/dispute_resolution-gi-882372772-cropped.jpg?anchor=center&mode=crop&width=10&height=7&rnd=132880988268300000)
Confidentiality of arbitration proceedings may not always be protected - The Republic of India v Deutsche Telkom AG [2023] SGCA(I) 4
In general, arbitration proceedings are confidential. Arbitration-related cases which end up in the courts often are reported only after the names of parties have been anonymised, and it is quite common for a sealing order to be issued on the court file, so as to preserve the confidential nature of the arbitration. In the recent case of The Republic of India v Deutsche Telkom AG [2023] SGCA(I) 4, the Singapore Court of Appeal ("CA") considered an application for a sealing order.