Monthly Newsletter Issue 2: January 2019
Editorsʼ Foreword Dear Members, We hope 2019 has been going well so far! As you head into an increasingly hectic period of term, we hope to provide you with some digestible but pertinent content. Our theme for January is primarily focused on Alternative Dispute Resolution methods and its comparative benefits as opposed to Litigation. To that effect, we have Deputy Editor, Ronald Lee’s article titled “Singapore on the world stage for mediation”, which encapsulates the latest Singapore Convention on Mediation recently passed by the United Nations. Also, our Board of Advisor and partner of Dentons Rodyk & Davidson LLP, Ms Shobna Chandran shares her insight in our interview regarding the arbitration scene in Singapore, its benefits, a career in Arbitration and other germane career advice. Our latest addition to the newsletter team, Yu Jiaqi from the University of Oxford has also contributed a piece on improved legal support for vulnerable adults. As we head into the second half of the year, the society hopes that we can all stay strong, work hard and most importantly, build enduring friendships and enjoy university. Have a great year ahead. With Warmest Regards The UKSLSS Editorial Committee 2018/2019 Edwin Teong (Editor-In-Chief) Shermaine Lim (Managing Editor) Ronald Lee (Deputy Editor) Kimberley Ng (Design Director and Resident Writer) Yu Jiaqi (Resident Writer)
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Legal Tidbits
Singapore on the world stage for mediation By: Lee Jian Qing, Ronald, University of Bristol
What is happening? On 20th December 2018, the United Nations passed a new resolution called “The Singapore Convention on Mediation”. This treaty outlines the cross-border enforcement of agreements that have successfully underwent mediation. This is the first UN treaty named after Singapore and according to Singapore’s Minister for Law and Home Affairs K Shanmugam, the treaty “will further cement Singapore’s place on the world map for international dispute resolution.” Although some may argue that the naming of the convention is merely superficial, Mr Adrian Chan, senior partner at law firm Lee & Lee, says otherwise. He posits that “The naming of UN conventions is seldom arbitrary or cosmetic and it confers on our country a tremendous privilege, while also expressly acknowledging that we have arrived as a leading international dispute resolution centre, which has been our aspiration.” Why is it happening? This convention is meant to create a mechanism where judgements on cross-border disputes can be enforced. Considering the complexities involved with having to deal with different laws in varying jurisdictions, the convention is a welcome addition to the international stage and has received “overwhelming support” from the international community, as commented by Prof Alexander, who participated in the UN Commission on International Trade Law (UNCITRAL).
There may also be implications on the resolution of disputes that have stemmed from the One Belt One Road project - also known as the 21st Century Maritime Silk Road. Especially with the recent revelation that China appears to be pushing developing countries into a “debt trap”, using economic inducements to gain influence in target countries. For instance, countries such as Sri Lanka have been forced into debt-for-equity arrangements, with China taking over operations at the US$1.5 billion Hambantota Port, which it helped finance and build, after the government struggled to repay its debts. Given such circumstances, the mediation convention would play a significantly more crucial role in resolving cross-border disputes, simplifying the dispute resolution process, potentially reducing the cost and time involved. Concerns? Despite the positive outlook for the Singapore Convention, its success hinges on the number of signatories to the treaty. It is similar to the New York Convention, which recognises and enforces awards from arbitration settlements across borders in any country that has ratified it. The convention is due to be signed in August 2019. However, it remains to be seen how governments around the world will adapt their laws to be compatible with the Convention, if they do become signatories of the new treaty.
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Legal Tidbits
Spotlight on Data Protection By: Kimberley Ng, University of Bristol
Data has become an increasingly valuable resource in this digital age. Touted as the new currency of global trade and cloud computing, this has led to online storage of large amounts of information, making it vulnerable to potential data theft. Thus, with the rise of collecting, applying and sharing of personal data, it is equally important that such information is safeguarded against cyber breaches and attacks. What is happening For Singapore, reforms will be made to the Personal Data Protection Act (PDPA) pertaining to the use and disclosure of NRIC numbers in 2019. Though steps are being taken to tackle the problem of securing online data, the looming threat of cyber attacks still exists. Technology giants such as Amazon and Facebook have had their defences breached by cyber attackers previously, proving that nobody is truly safe from the tyranny of cyber crimes. As millions of Internet of Things (IoT) go online in schools, hospitals, public services and multiple industries, cyber security experts are bracing themselves for potential attacks to steal or take control of data. Thus, with the surge of data theft occurrences, and the relative importance of such data, there is an urgent need to rise against such attacks in the future. Potential issues In this digital era, the cyber sphere can be regarded as the fourth ground for a potential war. This increases fear and uncertainty as it is difficult to ascertain
when attacks would take place, and there is no complete guarantee against cyberattacks. A major complication encountered by authorities is that such attacks are often cross-border, which hampers prosecution and identification of the perpetrator in another jurisdiction. Furthermore, the lack of a global standard in data protection and law enforcement makes punishing perpetrators difficult even if they are caught. To combat cyber crime, a combination of sophisticated tools and adequate preparedness is necessary. The Cyber Security Agency (CSA) in Singapore have refined their tools for better data protection, with the development of artificial intelligence (AI) and machine learning-enabled security programmes to defend against malware, even if it is encrypted. The proactive approach to air gap government computers and servers is a step towards tightening security and avoiding defence breaches. Moving On? While such initiatives to deter cyber attacks is a step in the right direction, one must not forget that such steps are mostly reactive in nature as the threat has not been fully eradicated. It is also useful for individuals to exercise a degree of personal responsibility by exercising discretion when giving out personal information. In the same vein, the law needs to be updated to reflect the current happenings of the changing landscape. Hence, policies must strike a balance between enabling the appropriate use of data for business purposes and addressing societal concerns regarding privacy and security.
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Legal Tidbits
Improved Legal Support for Vulnerable Adults By: Yu Jiaqi, University of Oxford
What is happening In order to provide social workers with better support in their process of assessing the well-being of vulnerable adults with uncooperative family members, the Vulnerable Adults Act (VAA) came into force on 19th December 2019. For clarity, a vulnerable adult is legally defined as an individual aged 18 or older who, because of a physical or mental infirmity, disability or incapacity, cannot protect himself from harm. Passed in Parliament in May 2018, the act grants the Ministry of Social and Family Development (MSF) adult protection officers or approved welfare officers the ability to apply for court orders from the family court if the vulnerable adult is experiencing or at risk of experiencing abuse, neglect and self-neglect. These include “prohibiting a person from communicating with or visiting a vulnerable adult” and “granting the vulnerable adult the right of exclusive occupation of specific premises”. An MSF adult protection officer can also apply for a placement order to relocate the vulnerable adult to a temporary shelter. Once the application is made, a family court judge can call for family members to make representations in order to rule on the necessity of the court order. Prior to this act, such options were not available to MSF officers, and cases involving vulnerable adults were instead handled by the Adult Protective Service established in 2015 by the MSF.
Significance The introduction of the VAA could suggest increasing efforts by MSF to provide support for the social service sector in Singapore, which arguably has not received as much attention and resources as it deserves. This is followed up with endeavours by MSF to provide more specialised training to MSF officers on case assessments, interventions, and VAA protocol. It also includes collaborative initiatives with medical professionals, social service agencies, the police and the courts to develop standard operating procedures and assessment guides for cases involving vulnerable adults. The VAA is seen to be particularly beneficial for cases of abuse of vulnerable adults with family members who are uncontactable or are reluctant to work with social workers. As such, social workers would be able to render help to the victims without having to deadlock with their caregivers. However, some have acknowledged the act’s intrusive nature in invoking court orders. It has been stressed that there is a need for a delicate balance between looking out for the best interests of the vulnerable adult, and also respecting his/her personal wishes. Given that the act is still in its nascent stages of implementation, more time is needed before it can be seen if it will truly improve the lives of vulnerable adults.
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Features
Shobna Chandran Partner, Dentons Rodyk & Davidson LLP, Litigation and Dispute Resolution By: Edwin Teong, University of Bristol
Thank you very much for taking time off your busy schedule to attend this interview. Firstly, congratulations on being recognised in Singapore Business Review’s list of most influential lawyers aged 40 and on your recent appointment to the Young Members Group Executive Committee (Chartered Institute of Arbitrators, Singapore Branch), as well as the Law Society’s inaugural Women In Practice Sub-Committee.
Tips on preparing for a career in Arbitration On the preliminary differences between Litigation and Arbitration Q1) From a lawyer’s perspective, how does an arbitration case differ from a litigation case? A: Amidst the differences, 4 stand out more prominently. I. Flexibility Firstly and most prominently, arbitration is intended to be truly international and to that end, has to cater for parties that come from both the civil law system and the common law system. In order to afford parties efficiency and speedy resolution of disputes, it needs to be flexible rather than enforce dogmatic procedural rules, as is the characteristic of domestic court systems of some jurisdictions.
The key difference between civil law systems and common law systems is the role of the codified text in the former, as well as the judge led, more inquisitorial approach that is a hallmark of the civil law systems. Common law systems are characterised by what is commonly known as the adversarial system where counsel take the lead in presenting a case and its merits, with the Judge’s role to receive the information and make a decision based on what has been presented. As foreshadowed above, flexibility comes in as arbitration procedures are more flexible and can be tailored by the respective arbitrators to suit the needs of the specific case. Unlike the rules of court, which are strictly adhered to in interlocutory proceedings for litigation, arbitration allows for flexibility in terms of leeway given to tailor the best possible procedure for the case. For example, the International Bar Association (‘IBA’) rules on Taking of Evidence in International Arbitration imposes an obligation to consult parties earliest possible with a view to ‘efficient, economical and fair’ determination of cases. By way of illustration, in the Singapore International Arbitration Centre (‘SIAC’) Investment Arbitration rules, Article 16.2 states that while the Tribunal is required to consider the ‘relevance, materiality and admissibility of all evidence’, it is not ‘required to apply the rules of evidence of any applicable law’ in such determinations. These ‘rules’ provide baseline standards, which act as a code of conduct or guideline that can be used flexibly to ensure swift determination of cases. 5
II. Effectiveness - Swift determination and cost-saving On that note, as mentioned, another difference which enhances the appeal of arbitration, is its effectiveness. This is in terms of swift determination and cost-savings, which appeals greatly to banks and large multinational corporations (MNCs). Litigation, on the other hand, could take as long as 10 years in certain jurisdictions and even in jurisdictions like Singapore would range between 18 months to 2 years (without any appeals). In the arbitration context, expedited procedures have been introduced to allow fast tracking of certain claims. For example under the SIAC 2016 Rules, parties may refer smaller quantum claims under SGD 6, 000,000 to expedited proceedings (which result in an award within 6 months from the appointment of the Tribunal). Realising that parties may require urgent relief before the appointment of a Tribunal (which therefore necessitates court intervention), another procedural innovation introduced was the emergency arbitrator. This was introduced in 2010 in the SIAC Rules, and shortly thereafter the other major institutions followed suit. Another cost-saving mechanism that should be highlighted is the SIAC-SMC Arb-Med-Arb procedure. The seamless interaction between these ADR institutions allows for a party that has commenced arbitration to mediate the dispute early on with the counter-party and return to the exact point in the arbitration where parties left off, if the mediation is unsuccessful. III. Confidentiality Also, litigation and arbitration differ in the degree of confidentiality availed in arbitration. Arbitration proceedings are generally confidential. However, for matters that go to court, these are not kept confidential. These judgments are published on databases, law reports and court proceedings may be publicised by the media. This central tenet of confidentiality is also reflected in the institutional rules.
For instance, Rule 30.1 of the London Court of International Arbitration rules stipulate that parties by virtue of entering arbitration proceedings ‘undertake as a general principle’ to keep confidential ‘all awards in the arbitration’ materials ‘created for the purpose of the arbitration’ and all other documents produced by another party in the proceedings ‘not otherwise in the public domain’. The principle of confidentiality is also adopted by the SIAC in Rule 39 of the SIAC rules 2016. IV. Enforceability in other jurisdictions For court cases, enforcement depends on whether or not the jurisdiction in which enforcement is sought has a reciprocal enforcement arrangement with Singapore and/or has ratified the Hague Convention. On the other hand, arbitral awards are much more easily enforced, in theory at least, by way of the New York Convention. Q2) We routinely hear of the advantages of arbitration in offering flexibility, privacy, expertise and cost-savings. Heading into the future, to what extent do you think arbitration could challenge the courts’ primacy as the institution of resolving legal disputes? A: Yes I think so. Over the last 12 years of my career at the commercial bar, I have seen sophisticated clients such as banks and multinational corporations adopting arbitration for their cross border contracts and disputes, and as a result, courts are seeing less high value, cross border and international commercial disputes. This may be changing slightly in view of the Singapore International Commercial Court (SICC) which has a full bench of international judges to hear international disputes and in which foreign counsel may also appear. However, a potential flip side to more cases being arbitrated is a dearth of court jurisprudence as arbitration cases are often confidential. Another effect is the amount and number of opportunities for oral advocacy that are available in arbitration. There are generally much lesser opportunities for advocacy in arbitration as interlocutory matters are often settled by written submissions. 6
The oral advocacy usually features at the final hearing (which in most cases will not last beyond 2 weeks). Having said that, arbitration allows lawyers to be exposed to different advocacy styles, and tactics in interacting with their international counterparts as parties often come from different legal traditions, backgrounds and systems and therefore vary significantly in these respects.
On her experience in Arbitration and career advice Q3) Could you tell us a little about your experience in arbitration, and what drew you to the practice in the past years? A: Entering the field was not really planned. I was involved in my first arbitration case in 2008, as a 2nd year associate on a team handling a 800 million dollar matter. We acted for an Indian conglomerate against another ASEAN conglomerate regarding telecom matters that stretched three and a half years. This roughly coincided with the point in time where Singapore was actively incorporating arbitration as an Alternative Dispute Resolution (‘ADR’) method. Alongside this matter, I had a number of other international arbitration cases with a range of institutional rules, seated in Singapore and elsewhere. After this initial taste of arbitration, my practice has largely been dominated by international arbitration alongside my active commercial litigation practice. Over time, I also picked up experience in the regulatory and cross border investigations space particularly for banks and MNCs, as a result of working in 2 global firms. Taking the banking sector, for example, I am able to service them holistically – from commercial litigation, arbitration in relation to their projects in other jurisdictions, restructuring and insolvency related matters and last but not least, on cross border regulatory advisory and investigations work streams. The legal market is transforming quickly and it is crucial for us lawyers to keep pace, and to be in a position to understand industries and sectors in depth. It is only when we truly and
deeply understand our clients and the sectors that they operate in, and the challenges that they face can we become their trusted advisors. Q4) In your experience, was there any case which has served as a test of your skills? If so, what lessons did you learn from it? A: The recent case of VTB Bank (Public Joint Stock Company) v Anan Group (Singapore) Pte Ltd [2018] SGHC 250 is a notable one for me. It helped hone my advocacy skills. This was a case concerning a confluence of arbitration and insolvency laws. We acted for the Plaintiff, VTB Bank to enforce, by way of a statutory demand, a debt of US$250 million. Although there was an arbitration clause in the underlying contract, we successfully applied to wind up the debtor company, as it did not have a genuine substantial and bona fide defence to the statutory demand. The High Court in its judgment applied the tried and tested Metalform Asia Pte Ltd v Holland Leedon Pte Ltd [2007] 2 SLR(R) 268 (Metalform) threshold, and decided in our client’s favour, winding the debtor company up. Q5) In your opinion, what skills or prerequisites are required for an excellent arbitration / disputes lawyer? A: I think the following skills are required:I. Oral advocacy II. Clear and concise written communication. Be thorough and cover all points. III. Map out the strategy from the start, which requires constantly assessing and re-assessing a case as circumstances and facts change. IV. One must be always on frontfoot; prepared to drive the case forward aggressively in the client’s best interest. V. Prepare, prepare and be over-prepared. There is no substitute for hard work. 7
On Singapore’s success in Arbitration Q6) What are the factors that contribute to Singapore’s success in arbitration? I feel these are the following reasons that contribute to Singapore’s success. i. Singapore Inc has done a great job at galvanising all forces to make Singapore a regional and Asian arbitration hub. We are currently the top seat in the region, and among the world’s 5 preferred seats for arbitration - the next step in the journey is to become the top global seat. The steady inflow of cases and the significant increase in SIAC’s case-load from as far as the USA is testament to this fact. The courts are also pro-arbitration and do their best to ensure that arbitration agreements are enforced, and in this regard deliver swift decisions that are well reasoned and highly respected and regarded across the commonwealth. The infrastructure here - both the physical facilities and the high quality legal talent including top notch local and international firms is another draw for international clients to arbitrate here. ii. The Legislature is active and quick to remove initial bottlenecks once they are identified. For example, the legislature moved quickly in relation to third party funding in arbitration (once the decision was made to allow it) and also clarified the law to ensure that orders by emergency arbitrators would be enforceable in the same way that arbitral awards are under the New York Convention.
On Fintech and regulatory work According to a Straits Times article (Everything you need to know to join the Fintech industry, 2nd July 2018), the relevance of Fintech is underscored by Singapore achieving a record of US$229.1 million (S$309.8 million) worth of Fintech funding last year.
Q1) As Fintech is both relatively new and an emerging market of clients, could you tell us more about your work in Fintech, more specifically what work lawyers do in relation to Fintech? A: Fintech can be further compartmentalised into Fintech and cryptocurrency. There is also scope for cyber security related work in this sector. These are all upcoming areas that are new and innovative. The laws are nascent and the regulations constantly evolving. For cryptocurrency, the anonymity causes difficulty in ascertaining liability and tracking down liable parties. A related issue is that these currencies may also be manipulated for fraudulent purposes such as money laundering. Dentons is the leading firm in Fintech-related work as we work closely with our clients in this space to provide holistic solutions. We are the firm that has done the most number of Initial Coin Offerings (“ICOs”) to date. On the cyber front, we acted for Integrated Health Information Systems (IHIS) that was involved in the most large scale hack of data in Singapore. Q2) Fintech is not directly regulated under legislation and is instead protected within the ambit of other regulations such as those which are stipulated in the Banking Act, Finance Companies Act or the Insurance Act. Do you think traditional laws are adequate in governing Fintech given its growing emergence vis a vis the rise of Artificial Intelligence, which may function as the medium to which Fintech operates? A: Definitely not. Traditional laws are crafted in a way to cover matters and risks that are currently known. The cryptocurrency space is new and constantly changing. However while the laws must afford protection and therefore be broad to catch as many permutations as possible, they cannot be too broad such that they become vague and uncertain. To keep pace with the changing Fintech landscape is therefore key, and our regulators are doing a wonderful job balancing the competing interests.
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Q3) Besides laws and financial regulations, how can Singapore better poise itself to utilising Fintech given the inertia to using contactless payment? A: Singapore is doing a lot, certainly more than many other jurisdictions. The question is how do we enhance it further i.e. giving certainty for operators with enough protection and recourse for users? This delicate balancing exercise is not an easy one to resolve, but certainly this constant tension will increasingly dominate the discourse on regulations in this space.
On career advice 5 general tips 1. Mindset is important, be prepared for constant change given the rapid pace of globalisation and technology to be ahead of the game. For example, banks and companies are gradually expecting more holistic solutions from lawyers who understand their industry, sector and challenges, as mentioned above. 2. Be prepared to take on new experiences and be resilient. Most of us, having come from relatively sheltered backgrounds and environments, may be happy to stay within the confines of what is familiar and within our comfort zones. However, personally, every experience (including difficult and negative ones) has inherent value and teaching points both for myself and the people I work with. For myself, after hearings, I will sit down with my team to discuss what went well and more importantly, what can be improved and how improvements can be implemented. 3. Take charge of your own career. You cannot wait for the boss(es) to hand hold you. This requires initiative to plan, seek opportunities, find the right mentor, and carve out a niche for yourself, having in mind your unique skill set and experience. Most importantly, find your passion or a reason to wake up to work everyday. It is absolutely essential to find this passion as it is that passion that will keep you going on the difficult days.
4. Be genuine and true to yourself. To reiterate, it is important for you to find your true calling and place in the system, and follow your instinct in this regard. 5. Remember the false binary – corporate or litigation. All roads lead to Rome. There are many pathways in law. We should leverage what we are naturally gifted at, while strengthening our areas of weakness. Just learn as much as possible from every case, matter, transaction, experience and person that you come into contact with. Q1) You have had a decorated career transitioning from a Justice Law Clerk (‘JLC’) to private practice and then from local private practice to international firms. What made you decide to have a change in your career path? A: I will touch on my transition from JLC to private practice and then from local private practice to international firms. i. From a JLC to private practice – I learnt and gained tremendously from my experience as a JLC, assisting Judges and understanding the judicial thinking and seeing different advocacy styles and what worked and what didn’t. After that though, I felt that the best place to gain technical skills (especially at the junior level) would be in private practice. ii. Local private practice to international firms – I appreciated that the legal landscape in Singapore was changing, when international firms came in and were offered QFLPs and then eventually FLAs to practice in Singapore. That was a golden opportunity to get access to the best legal talent, and resources internationally, and also experience working across borders and practices – while sitting in the comfort of Singapore. I personally felt that the experience also helped me holistically particular on the soft skills such as effective communication across cultures, business development and networking and people management.
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Q2) Would you have walked the same path if given the chance to start your career again? Why? A: Yes I would. Many of us assume that careers happen. Yes, as I said earlier, 80% of one’s career must be carefully tailored and planned. But the rest of it is largely due to circumstances, situations and the kindness of people who come into contact with, and who mentor you. I would not change the path I took because every single opportunity, from being a Justice Law Clerk (and being mentored by the Judges), to working at Drew and Napier with Davinder Singh S.C (who trained me up well and imparted to me most of the technical legal skills I have today), magic circle firms such as Allen & Overy and subsequently, Clifford Chance (which broadened my horizons and gave me international exposure), have enriched me and made me the lawyer I am today. These experiences, as a whole, have moulded me into a more holistic practitioner and have set me up for my current position as a Partner in the disputes team at Dentons Rodyk, which is part of Dentons, the world’s largest law firm (where I continue to be mentored by one of the greats at the Bar, Philip Jeyaretnam S.C.). Sometimes you do need a bit of divine intervention and the right people to get you to where you were meant to be, and to do what you were destined to do. I must say that I have been very fortunate on that front.
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