Q: How will your time at the Supreme Court of Singapore and the Singapore International Commercial Court (SICC) inform your work at Helmsman?
A: In my nine years with the Supreme Court, I had the opportunity of being involved in a number of projects and roles within the court. These include my work in the Court of Appeal/Appellate Division Registry, as well as in the Secretariat of the Rules of Court Working Party. These have given me an invaluable insight into the processes and policies, as well as the operations, of the court. My day-to-day management of cases in the companies, insolvency, trusts and arbitration cluster has also given me a keen familiarity with the procedural rules and, more importantly, how the court may be inclined to apply the rules in different scenarios.
As for the SICC, I was very fortunate to be part of the team involved in the establishment of the court, and the continual development of the SICC’s practice and procedure. As the Deputy Divisional Registrar of the SICC, I oversaw the processes, operations and management of cases in the court. I was also closely involved in the drafting and implementation of the SICC Rules 2021 which came into operation on 1 April 2022. I have had to consider how the SICC is positioned among the various other competing and complementary fora for cross-border commercial disputes, which required me to understand each of their respective features, advantages and disadvantages. It was also important for me to keep up with the trends in international dispute resolution, to ensure that the SICC remained progressive, with procedures compatible with, and responsive to, the fast-changing needs and realities of international commerce.
My experience in both the Supreme Court and the SICC have been very helpful in my commercial disputes practice with Helmsman, particularly in advising and acting for clients involved in court proceedings or contemplating the appropriate forum for the adjudication of their commercial disputes.
Q: Why is the SICC, which you were involved in establishing, so important?
A: The SICC was established in 2015 to complement the then-existing dispute resolution options that Singapore had to offer. Commercial disputes exist across a wide spectrum, and consequently have different needs and requirements. The SICC provides an alternative to arbitration in the types of international and commercial disputes which litigation in an international court may be better placed to address.
Unlike arbitrators, who derive their jurisdiction entirely from the consent of the parties to the arbitration, the SICC has coercive jurisdiction to join third parties to proceedings, or to consolidate related disputes into a single set of proceedings. This avoids multiplicity of proceedings and the risk of inconsistent findings which may result from the refusal of parties to be joined or to participate in consolidated proceedings in arbitration. Further, unlike in arbitration, where a decision is subject to limited review, parties to SICC proceedings have a right of appeal to the Court of Appeal on the substantive merits of the case, although they retain the option of excluding or limiting their right of appeal by agreement.
Specific features of the SICC have been designed to provide particular advantages to businesses for the resolution of their cross-border commercial disputes. These include the SICC’s world-class bench, which includes eminent international jurists from both common law and civil law traditions, greater leeway for parties to be represented by foreign lawyers of their choice, simplified and flexible procedures which may be tailored to suit the particular needs of the parties and the dispute, and judge-led case management by the coram, who will make a final determination on the merits of the case.
It has been observed that international commercial courts are “a careful marriage between litigation and arbitration” and that “the result is bespoke commercial courts characterised by stature, excellence and efficiency”. The SICC is one such court and since its establishment has gone from strength to strength, with a significant number of published judgments under its belt.
Q: Tell us about the commercial disputes landscape in APAC at the moment – what trends are you seeing?
A: The rapid development of technology in the past decade has shaped the modern commercial world – from how people do business, to the types of businesses they do. Similarly, recent technological advances have caused seismic shifts in the way that the legal profession functions, as well as the types of disputes that arise.
Data has become significantly cheaper and easier to generate electronically, store and share. This has expanded the universe of potential evidence that may be available in any given dispute. Evidence in today’s disputes may be found everywhere, including in the form of emails, text messages, call logs, GPS location data, metadata, and more. Big data techniques are being used in technology-assisted review tools which offer lawyers in the common law world a more efficient way of conducting electronic discovery. The pandemic has also hastened the shift to a modernised and robust procedural framework, incorporating virtual hearings and the acceptance of electronic signatures and attestations as part and parcel of the ordinary processes for dispute resolution.
Technology disputes have also been emerging with increasing frequency and variety in recent years. These include disputes involving digital assets, the platforms and exchanges for transacting and dealing with such assets, and the new digital economy. Questions relating to the nature of digital assets, tracing these assets, identifying ownership and control, restraining dealings of these assets and valuing these assets have arisen and will continue to arise. As authorities in the different jurisdictions move to introduce regulatory frameworks for digital assets, regulatory disputes have also started taking on more prominence. Lawyers will have to grapple with, and courts/tribunals will have to consider and decide, how, if at all, conventional legal principles may (and should) be adapted and applied to resolve the novel issues thrown up by the constantly evolving technology landscape.