Keynote Speech by Minister for Culture, Community and Youth, and Second Minister for Law Edwin Tong SC, at 20th Asian Law Institute (ASLI) Annual Conference
31 May 2023 Posted in [Speeches]
Dr. Velliana Tanaya
Chairperson of the Board of Governors of the Asian Law Institute (ASLI)
Professor Masami Okino
Deputy Chairperson of the Board of Governors of ASLI
Professor Andrew Simester
Dean of the Faculty of Law of the National University of Singapore
Associate Professors Kelry Loi and Wee Meng Seng
Co-Directors of ASLI
Members of ASLI
Ladies and Gentlemen
1. Good morning to all of you.
2. It is a real pleasure to join you here, at this very key milestone occasion – the 20th ASLI Conference.
ASLI’s Achievements in the Last 20 Years
3. ASLI was launched by several leading Asian law schools in 2003 – 20 years ago. The aim is to foster Asian legal scholarship, and to facilitate greater interaction amongst legal scholars in Asia, as well as legal scholars outside of Asia, but working on Asian law.
4. It is an institute on Asian law, created in Asia, by Asian law schools, but with a very clear eye on a global ambition, which is to be the best in Asian Law in the world.
5. In this regard, ASLI has achieved a lot in the last 20 years.
(1) It started with 16 founding members, but now has 69 member institutions from ASEAN, Australia, Canada, China, India, Japan, South Korea, and several other jurisdictions.
(2) The Asian Journal of Comparative Law, which it initiated in 2006, is now the legal forum for research and discussion of the law and legal systems in Asia.
(3) Its Annual Conference is the largest conference on Asian law, bringing together Asian law experts from around the world, to share ideas, exchange thinking, talk about the connections that we might have between different legal systems and different jurisdictions, but having a commonality in wanting to promote trade commerce along the way.
(4) There are many more, but I will not go into them one by one. I think you know them better than I do
6. I just wanted to add to the comments of the speakers earlier, that it is so great to be back in person. Because much as you can do and achieve a lot by Zoom, there is not much that you can achieve on Zoom by way of social interaction. A lot of what we do is not just about thought leadership and scholarly exchange, but also about building networks, friendships, camaraderie across the different law schools that are part of the membership of ASLI. I think it is this deeper personal connection that will lend itself to collaboration and cooperation, subsequently.
Importance of Asian Law Research
7. The understanding of Asian laws and legal systems is very important. I don’t say this just because this is ASLI, and I am Asian.
8. Let me give you some statistics from the perspective of how the law is very much interdependent with the flow of trade.
(1) Asia today, is one of the fastest growing regions in the world. It is projected to grow 5% faster than other developed economies by the end of 2023.
(2) China, India, Japan, and South Korea are now major economies in the world.
(3) ASEAN, if you take it together as a bloc, is the 5th largest economy in the world, and is on track to become the 4th largest in the world by 2030.
(4) ASEAN is the one region which has seen increasing growth of foreign direct investments (FDIs) over the last couple of years, COVID notwithstanding. This tells you that the headroom for growth is going to continue at a much faster pace.
(5) Asia is also part of many bilateral and plurilateral free trade agreements, which encourage trade across borders and facilitates cross-border multi-jurisdictional transactions. For example, the Regional Comprehensive Economic Partnership (RCEP) – a free trade agreement among the Asia-Pacific nations, is now the largest free trade agreement in the world.
9. Given all these activities, and more, it is important for businesses to understand the legal systems and the laws that they need to operate in. The laws reflect the local, perhaps cultural, nuances of each jurisdiction. We all come from different backgrounds and our laws must reflect that.
10. As I had shared with Dr Tanaya earlier, whilst I come from a common law jurisdiction and I had practiced common law for many years as a litigator, there are similar principles that we can apply.
(1) I had done arbitrations where the governing law is civil law, for instance, Indonesian Civil Code. The commonalities and principles will not be too different.
(2) I think the conference is really an occasion and a platform for ASLI to highlight the commonalities and similarities more than there might be differences.
Focus of Speech
11. This year’s conference topic - “Inclusivity and Diversity in the Context of Asian Law”, is particularly important.
12. Asia, and in particular Southeast Asia, is very diverse. Southeast Asia is probably the most diverse region in the world, whether if you look at language, religion, or ethnicity.
13. With that diversity in culture and language and so on in Asia, so too will be its legal systems.
14. So today, I thought I would share my thoughts on three broad points:
(1) First, the implications of the diverse legal systems in Asia on trade and business,
(2) Second, how the convergence of laws in Asia can be critical to addressing the challenges that we face, particularly today, where nations are a lot more inward-looking. We now come across new vocabulary like “reshoring” or “friend-shoring”, which is really a different way of saying, “Let’s look after our friends”, at the expense of multilateralism and looking outwards.
(3) Finally, let me close with the role that I think ASLI can play. I know that your remit is broad, but let me just focus on one or two areas, that I think you can play a big role in shaping the harmonisation of the different legal systems around Asia. How we can bring together different legal systems, not only for scholarly purposes, but to ultimately benefit practice, benefit the economy, and grow the trade around the world and in this region.
Implications of Diverse Legal Systems in Asia on Trade and Business
15. Let me start with the diverse legal systems on trade and businesses.
16. We all know that law follows business. That is why I took some care to cite to you some of the numbers that we see in Asia and Southeast Asia about FDIs coming in, and generally the optimism and the level of economic activity that is going on in this part of the world.
17. Trade and business activities rely on the law to support and facilitate them. It is only through having a clear legal system that we know when we make an investment., that investment will be governed by rule of law, and that contracts can be upheld, and agreements enforced.
18. But when activities become increasingly cross-border, across different jurisdictions, and with events happening in one part of the world today, being able to almost immediately impact another part of the world, the global marketplace has become much smaller, but also increasingly busy and a lot more complex.
19. The complexity is compounded for businesses trying to navigate these diverse legal systems and the different regulatory regimes in Asia, not to mention the cultural nuances, and how one might apply those laws, depending on the local nuances. All of that is very important to appreciate, not just for businesses, but also for scholars, and practitioners.
20. Therefore, businesses do need to keep up with, not just the way in which business can be done, but also with the social, political and economic developments in these other countries.
21. Some challenges experienced by businesses will include:
(1) The need to appreciate and understand how these varying laws in different jurisdictions might apply.
(a) It might seem very clear that we have a contractual principle. Common law looks at it one way, and civil law looks at it one way. There is commonality to it.
(b) But how is it enforced? In what circumstances can it be enforced? What are some of the local peculiarities that can apply to this? What are some of the exceptions to the general position?
(2) Second, businesses will also need to grapple with new, emerging areas.
(a) For example, just take a look at the way in which business is done today, compared to when I was still in university studying contract law.
(b) We are entering very quickly, if not already in, the digital economy. Businesses might face uncertainty as to the application, and perhaps the interoperability, of electronic transactions across borders, and the extent to which existing laws are capable of applying to new inventions, new modalities of doing business, and also new types of business activities.
(3) Finally, as with every transaction and business throughout the trade, you have to think about how you might resolve disputes when they do inevitably arise.
(a) Businesses will be concerned if the dispute resolution systems and regimes in different jurisdictions operate differently, with perhaps different outcomes.
(b) You also wonder whether, if you succeed in the litigation or in an arbitration, that might be enforceable across the different jurisdictions, and the extent to which you can then ensure that your judgment or your award does not just become a paper.
22. The question that I think we have to look at is: how can we make the laws and legal systems more accessible for businesses operating in and transacting with Asia, and intra-Asia as well?
Legal Convergence and Singapore’s Experience
23. This brings me to my next point on legal convergence.
24. Convergence, I think, is one way in which we can make the navigation of legal systems easier for businesses in Asia.
25. Businesses, at the end of the day, are not really interested in what the law says. They just want to know how to grow their business.
(1) In fact, when I was in practice, every time I tell my clients what the law is, they switch off. They just want to know what the solutions are; they leave the law to the lawyers and the scholars.
(2) Their focus really is how can I grow my business? How can I transact? How can I do it safely without having my investments suddenly taken down, or my disputes not fairly resolved.
26. So this understanding will be very important. It will help us to improve market access across different jurisdictions, and consequently, make Asia a more attractive business proposition and business destination.
27. After all, if we can succeed in in attracting more investments into Asia, more people will feel safe to set up the global headquarters in Asia, and more MNCs will come into Asia to operate to develop the business interests. Overall, there will be tremendous value.
28. How do we achieve this?
29. Allow me to share Singapore’s experience, and what we have been doing. It may not be the same for every country, and different countries every might have their own approach. None of them are wrong answers, but let me share Singapore’s perspective.
30. First, Singapore is a legal and dispute resolution hub.
(1) It is governed by the rule of law. It is open and transparent. English is the language of choice. We have neutrality. We have a place that you can feel safe coming in to resolve your disputes.
(2) Ensuring that our domestic legal frameworks and the principles remain very much in sync with global developments is very important for us.
(3) My Ministry takes constant care to study developments in other jurisdictions. We work with our economic agencies in Singapore, both in Singapore as well as those located overseas, to understand the trends.
(a) When people are transacting Bitcoin, is that going to be a growing trend? When people are doing e-commerce, what are some of the new technologies?
(b) We always look at that in the context of what can we do in our own local domestic frameworks.
31. One other way of doing this, is to remain very much clubbed into a multilateral international legal framework. Let me illustrate this with a few examples on where Singapore has seen the need to be a first mover in taking part in these legal conventions internationally.
32. One example is electronic commerce.
(1) In 1998, we were amongst the first countries to enact legislation based on the UNCITRAL Model Law on Electronic Commerce. Ee realised and recognised that growth area some decades ago, and we took care to be plugged into the international framework.
(2) In 2006, we were one of the first countries to become a Party to the United Nations Convention on the Use of Electronic Communications in International Contracts. Again, recognising that the pen and paper modality will not always apply and may be outmoded soon.
(3) In 2021, we were the second country to adopt the 2017 UNCITRAL Model Law on Electronic Transferable Records, again, in the same way.
(4) In the end, these instruments helped us stay resilient in the midst of the COVID-19 pandemic, by enabling transactions to move very quickly online, with the assurance that these online transactions will be recognised, not just in Singapore, but also internationally as well.
33. We were also the first, together with Fiji, to adopt the Singapore Convention on Mediation.
(1) The Singapore Convention provides for a harmonised uniform framework for the enforcement of international commercial mediated settlement agreements. It is something that we are very proud of in Singapore.
(2) We saw an opening there because mediation has always been a part of Asian dispute resolution, whether formally or informally. And one of the barriers to the quicker adoption of mediation is the enforceability of mediated agreements.
(3) the reason why arbitration took off was really because parties knew that they could enter into arbitrations in different jurisdictions, and their arbitral awards will be enforced under the New York Convention. The New York Convention was a real growth engine for arbitration.
(4) We want the Singapore Convention to have the same goal, to have parties to sign the Convention, so that every user in that jurisdiction can then enter into mediation with the assurance that they can enforce the mediated settlement agreement.
(5) These instruments provide legal certainty for businesses, and in turn, help us to achieve a more conducive legal environment for international trade and investment. Coming to Singapore will not be a big hurdle for them. That has been our philosophy. This same philosophy can apply across Asia. If much of Asia is part of the Convention, then the barrier to entry for businesses thinking about setting up in Asia will be reduced.
34. Second, we work with other countries to develop legal harmonisation instruments, and ensure that they are progressive, and inclusive as well.
35. To that end, we have increased our participation in multilateral institutions dedicated to the work of modernising and harmonising laws, to facilitate cross-border trade and commerce. Let me give you a few examples.
(1) Singapore has been a Member of the United Nations Commission on International Trade Laws (UNCITRAL) since 1971.
(2) In 2014, we became a member of the Hague Conference on Private International Law.
(3) Most recently, in March this year, we became a member of the International Institute for the Unification of Private Law (UNIDROIT).
36. These are very important international institutions with much legal heritage in history.
(1) They play a big role in ensuring that we continue to honour and treasure multilateralism, which as I mentioned at the outset today, is much more challenging, as countries and businesses begin to look a lot more inwards.
(2) These institutions help to bridge the diverse legal traditions and systems. They come together each year with conferences in the UN and in other parts of the world, to talk about how we, with our different legal systems, can find common ground, and ways to harmonise across common standards and rules.
37. Singapore is committed to actively participating in these institutions, playing our part in contributing and shaping the way in which these systems can be better harmonized.
38. Third, we have sought to promote and foster greater legal convergence in Asia.
(1) For example, we raise awareness of international harmonisation instruments amongst other Asian countries.
(2) I used to joke that, while in practice, I market my firm. And now in my role in the ministry, I still do the same thing. I spend quite some time travelling, visiting other jurisdictions, meeting with my counterparts, to market the Singapore legal system.
(3) I talk about what we can do together collaboratively, across Asia. I talk about the very same issues that I speak to you about this morning - about how we can, even with our different legal systems, still find common ground. There is in fact, a lot more common ground across the different legal systems and jurisdictions, than we might care to imagine.
39. All of you know that, which is why you are here. You all probably know this area than I do. So I leave you to discuss this, and come up with a solution as to how we can achieve that multilateralism with greater force in the coming years.
40. This brings me to the last point on what I think ASLI can play a bigger role in.
41. The uniqueness of Asian jurisprudence is its diversity and pluralism. That is born from the fact that we have so many languages and cultures. We go back a long way. Our heritage and traditions are strong. We speak different languages, practice different religions, all of which shape the laws that we see today across Asia.
42. If we are to promote legal convergence, and bridge differences, then it will be important for everyone to come together, whether you are a policy-maker, practitioner, or academic, to understand each other’s systems, to understand the commonalities, and to find ways in which we can bridge the systems and find the common ground.
43. I believe ASLI is very well-poised to do this. I think that in the next phase of growth, ASLI can continue to do what you are very good at which is to conduct deep research, develop and exchange views, help legal scholars to understand varying legal systems across the different Asian jurisdictions. That reservoir of scholarly thinking and exchange is going to be important. In fact, it is going to be the bedrock and foundation on which we can then build on harmonizing systems across Asia.
44. But I also think that you can continue to do a little bit more of bringing the academic insights to the wider legal and business community in different countries.
45. I made a point earlier about how businesses are really interested in the bottom line, not so much what the law says. So you have got to make this thinking accessible, in a form that is easy to digest, and allows them to quickly understand what are some of the challenges of moving their business into a different jurisdiction or transacting with another entity across borders. These businesses are the ones who will need to know, so that they can then leverage the laws, and in turn, grow their business, and benefit the economy.
46. On this note, I am very happy to see that, ASLI and the Centre for Asian Legal Studies has strengthened the Asian Journal of Comparative Law, which I mentioned earlier.
(1) The Journal is now regarded as a leader in the fields of Asian legal studies and comparative law.
(2) The publisher – Cambridge University Press – views it as one of its most promising journals. I think that is no coincidence, between this view, and some of the stats I cited earlier about the confluence of the importance of Asia.
47. All of these represent a very good start and a strong foundation.
48. The next step is really to get the learnings out there, in a more accessible and digestible way. I would hazard to guess that most business people will not pore over academic journals. A lot of learning is put out in papers. But the question is, how do we transfer this into the business community?
49. As I conclude, let me go back to the theme of this conference - inclusivity and diversity.
50. We are all very diverse, particularly in Asia. How do we ensure that we can find a system that is inclusive? If you harmonise in a way, which does not sit well or resonate with some jurisdictions and leaves them feeling left out, then we are not going to find that harmonization. It will not work well. It will not be sustainable.
51. Let me give you another example. This is a science example to all of us, non-science students, myself included.
(1) The reason why metal alloys, which are combinations, are stronger than pure metals is really because of the diversity - the different sizes of its atoms and their bonds.
52. That is the same way in which we can look at the Asian legal system. We all come from different countries with different legal traditions and legal systems, our emphasis might be different. But I think our commonality of wanting the legal system to promote trade, business, commerce, across our countries, across Asia, is a common strong platform. We can leverage that and use this diversity as a strength.
53. There is a strength in recognizing that diversity. But it will be a challenge to make everyone feel inclusive, withstand economic headwinds that are coming our way, and the tensions around the world as well.
54. But if we can put this together, with ASLI leading this initiative, Asia, for the next 20 years and beyond, will be a tremendous proposition for many businesses. After all, that is one of the objectives of legal scholarship – to help us grow businesses, drive the economy, and bring overall benefits to the society in Asia.
55. On that note, I leave you with an exciting program ahead of you. I just want to leave you with one emphasis and one suggestion.
(1) The one emphasis is to have fun, grow your networks, because these are the engines that will help us to promote cross border harmonisation.
(2) The one suggestion is to pick up on what Prof Andrew Simester said earlier. We have a diversity of food offerings that is probably second to none, if I may say so with pride. Besides the Botanic Gardens that has been very richly blessed with the UNESCO World Heritage status, the one other UNESCO recognition that we have got in Singapore is for food. We have been recognised as having an intangible cultural heritage for our hawker food. So when you walk around the Botanic Gardens, and you feel a little peckish after that, just pop by the hawker centre, and you can enjoy two pieces of UNESCO heritage at the same time.
56. Thank you very much.
Last updated on 31 May 2023