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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