mARCH 2012
www.lawyer-monthly.com Global Arbitration 23
Arbitration is effective on account of its flexibility, neutrality, finality, confidentiality and the enforceability of awards.
Richard Tan & Tan Chuan Thye
competitor. Most companies’ legislation addresses the converse situation where a minority shareholder wishes to exit the company and the majority wants to keep the minority in the company. Most joint venture agreements provide for put and call options to deal with this scenario so the arbitration in London will probably have to construe the particular options in this joint venture.
Q
Do laws and regulations differ for domestic companies as opposed to foreign companies?
Singapore’s arbitration legislation draws a distinction between domestic (the Arbitration Act) and international arbitrations (the International Arbitration Act). Parties can choose to have the Arbitration Act apply instead of the IAA but this is uncommon. If arbitral proceedings are governed by the Arbitration Act, the Singapore courts retain a higher degree of supervision over the conduct of the proceedings than they do over international arbitration proceedings. For example, parties may seek from the courts, leave to appeal an award in a domestic arbitration, whereas no appeal lies from international proceedings.
Q
How do you assist clients involved in arbitration? Is there any general advice you could offer clients to prevent the situation from escalating?
As much as it is counter intuitive, when first entering into a contractual relationship, consideration should be given to how disputes
should be handled. Multi-step clauses – discussion, mediation, then arbitration – often give time for tempers to cool and a realistic assessment of a case to be formed.
It is also the responsibility of the lawyers to
assess at an early stage not just the legal propositions but the material available to advance the client’s case. The latter is a complicated matter in a region where different languages and cultures exist in a business setting. It is important that the lawyers appreciate the nuances in expression and body language of potential witnesses. Equally, a sensible view needs to be taken as to whether the relationship between the parties is a long term one and the dispute is a blip, or the situation is one where the chances of future cooperation is fanciful. If the former is a possibility, one should explore mediation which has proven to take less time, is less antagonistic and is restorative of relationships. Within mediation in a broad sense, one can deploy ancillary options such as an expert legal or industry opinion, whether determinative or consultative, as aids to helping parties find a solution.
Q
Do you foresee the need for legislative change in 2012, if so, why?
The Singapore government has been very proactive in making legislative changes where necessary to ensure that the arbitration laws are up to date and consistent with best practices. Two proposed amendments to the International Arbitration Act demonstrate this. The first is to give legislative underpinning to the new provisions in the SIAC Rules and the ICC Rules whereby
Tan Chuan Thye - Partner Tel: +65 6389 3023
Email:
chuanthye.tan@stamfordlaw.com.sg
emergency arbitrators can render awards. Emergency relief is a welcome addition in institutional rules. It enables parties to seek relief prior to the constitution of the tribunal. The new provisions in the UNCITRAL Rules for interim relief are along the same lines.
The other proposed change is to remove the
asymmetry that only unsuccessful challenges to jurisdiction can be challenged in the High Court, i.e. where a tribunal dismisses a party’s challenge and determines that it does have jurisdiction to hear the dispute. There is no reason why a successful challenge to jurisdiction should not be challengeable. LM
CONTACT:
Richard Tan – Consultant Tel: +65 6389 3000
Email:
richard.tan@stamfordlaw.com.sg
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104 |
Page 105 |
Page 106 |
Page 107 |
Page 108 |
Page 109 |
Page 110 |
Page 111 |
Page 112 |
Page 113 |
Page 114