Opening Address by Minister for Culture, Community and Youth, and Second Minister for Law, Edwin Tong SC at “ADR = Appropriate Dispute Resolution” – The Singapore Experience and Japan Perspective
6 Jul 2023 Posted in [Speeches]
- Friends from SIAC, SIMC, SICC – Gloria, Kevin, Wee Meng, Laurence, and friends of SIAC, SIMC, SICC, good afternoon to all of you. I would like to just give a shout-out to Mr Hiroyuki Tezuka, Ms Masako Takahata, and so many others who are here joining us this afternoon.
- This is yet another event by our three flagship dispute resolution institutions from Singapore, and I believe that it is the first time that we are having such a joint event outside of Singapore.
- I am very glad that they have made Japan, and in particular, Tokyo, one of their first stops.
- I was last here in Tokyo two years ago, for the Olympics, and I came back again for the Paralympics. It is, of course, very different from what it is today in terms of the vibe, the vibrancy, and what we see on the streets. I think the general sense of optimism has slowly returned, and in a big way, to Japan.
- I am here mainly to attend meetings organised by Japan’s Ministry of Justice, who is looking at connecting the ASEAN Justice Ministers to the G7 Justice Ministers, with Japan being the only Asian country in the G7, playing a role as a bridge between ASEAN and the G7.
- One of the points I discussed with His Excellency, Minister for Justice, Saito Ken, was that Singapore and Japan have different legal systems – Japan has a civil law tradition, whereas Singapore has a common law tradition.
- Nonetheless, the fundamental tenets and the key philosophies that underpin how we see justice, how we create access to justice, and how we look at justice as a tool to enhance our society, and build the economy are actually very similar.
8.I would add that, in fact, one of the items that we almost completely coincide on, in terms of thinking and in terms of our approach, has been on ADR, which I will talk about in a moment.
- Certainly, the approach to mediation has been one very common trend. I remember that I was in Kyoto visiting the JIMC pre-Covid. I think JIMC-Kyoto has one of the most ideal settings to do a mediation. After all, when you get to Kyoto, you just feel a sense of calm and relaxation. That is half the battle won when you try to mediate a complex, complicated dispute.
- Today’s special event is titled ADR. ADR, as you saw on the screen earlier, is not what we believe, and previously have heard. It is not “alternative dispute resolution”, but rather, “appropriate dispute resolution”.
- Let me break down my speech into two main parts.
(a) 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.
(b) 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.
Appropriate Dispute Resolution
- First, on ADR. Why “appropriate”, and not “alternative”? Well, we have all learned, or at least I did, in law school, that ADR means “alternative dispute resolution”. It means everything else other than going to court and to litigation.
- But I would say ADR, really, in a nutshell, and certainly in today’s context, refers to an alternative dispute resolution because it really is an alternative way of resolving disputes outside of the courtroom, stemming from a desire by the parties to resolve disputes more efficiently, cost effectively, and perhaps more importantly, to have greater control over the modality of the resolution, so that the impact is not just on the case itself, but can also take into account broader considerations.
(a) For example, if you went into court for litigation, very often, your decision, win or lose, is driven by the legal considerations around the legal issue that the court is concerned with.
(b) But when you are going to try and resolve by mediation, you can take into account a whole host of other factors, extra-legal factors as well, such as the length of relationship, the amount of other projects that you might have, and maybe even non-legal considerations – like goodwill, whether we can do more work together, and whether we can have different deals in a different arena in the future as part of the arrangement.
(c) So, it is really more “appropriate” rather than “alternative”. This desire hasn’t changed.
- I was told when preparing for this speech, that the phrase “ADR” was coined almost a thousand years ago, to be precise, in and around 1066. You might wonder why are we talking about a way of resolving disputes in the year of William the Conqueror, who was known for not resolving disputes in any other way besides conquering?
- I would say that “appropriate” is really the right word to use, because indeed, in some cases, going into court, having a public trial, resolving it in the most public forum to feel vindicated is one of the ways which could perhaps be the most appropriate.
- As some of you know, I was a disputes lawyer in private practice for close to 25 years before I joined the government back in 2018. It has been five years almost to the day, although in some ways it feels a bit longer than that.
- What clients want, at the end of the day is not an answer to the legal problem. What they want is the solution to their problem.
(a) The solution that fixes not just the legal question, but also matters of strategy, business reputation, and longevity of the relationship.
(b) These are all factors that, when your client comes to you to ask for assistance, to ask for guidance on what to do, on how we resolve the dispute, these are all factors that really will be topmost on your mind. Not so much, which legal principle can resolve this case for me in the best possible way.
- Therefore, they do not care whether it is litigation or arbitration or mediation, as long as it achieves the outcomes they want, quickly, efficiently, cost efficiently, and where possible, preserves the relationship.
(a) This outcome, as I said, differs from case to case.
(b) I mentioned litigation. Some other cases may be more appropriate for arbitration where you have a fully ventilated, adversarial situation, but kept confidential, so that matters of trade secrets, matters that are confidential don't have to be revealed in a public setting.
(c) There is no one-size-fits-all to resolving disputes, which is why I believe this question of alternative dispute resolution is perhaps most appropriate.
- It has precisely been Singapore’s approach to try to provide parties with a full range, a toolbox, or rather a suite of items in the toolbox, which they can choose to fix their disputes.
- Our approach has fundamentally been one of choice - how do we give the parties that choice?
(a) Choice not just of the modality of the resolution of the dispute, but also in the way in which you adopt the rules, which rules you want to follow, what forum you want to use, which arbitrator, which mediator, and so on.
(b) These tools often can be standalone, can exist by themselves, or they can be in a combination.
(c) You will hear a lot more this afternoon about protocols like arb-med-arb and lit-med-lit, and any other permutation and combination that is limited only by our imagination.
The Singapore Experience
- Second, let me say a few words about the Singapore experience – how we have seen it, how we have shaped it, culminating in where we are today, and what are some of our priorities?
- First, whilst the title says the Singapore experience, I actually think it is not so much the Singapore experience, but rather, the international experience.
(a) For us to aspire to be as we are, in wanting to be one of the world's hubs for dispute resolution internationally, it cannot be the Singapore experience. It cannot be our experience or our ideals or our thinking on this foisted on parties.
(b) Rather, it has got to be something that is reactive to the market. It has to be market driven. It has got to, especially in areas of commerce, be reactive to the market practices – what is it that the business people want? How do we want to resolve the disputes? We have got to keep a strong finger on the pulse to ascertain that.
- When I say the international experience, and not the Singapore experience, it is because we do not ourselves always come up with new policies and initiatives just on our own. We learn very much from other countries, which is why occasions like this, where we have a bilateral or even a multilateral platform to discuss ideas, exchange thinking – what is the latest development? How do you see it? All that is very important for us.
- My country, Singapore, is small country. We do a lot of trade externally, we import more than 90% of what we consume, so there is a big volume, transactions-wise.
(a) When I last looked at our numbers, more than half of our business dealings amongst people, inflow and outflow, deal with people from civil law countries – countries that perhaps have a jurisprudence and legal system that is very different from ours in Singapore, but at the same time, important because our business people deal with their counterparts in those countries.
(b) It is important that we also adapt and our systems, our processes, our forums, our platforms, have to adapt to be able to resolve disputes in these systems as well.
- We regularly seek feedback from international thought leaders, experts and practitioners, and occasions like today are a great one for you to help us shape that thinking. Tell us what’s happening in your jurisdiction. Tell us about some of the trends that you see.
- We have leaders in the field sitting on our boards, our courts and our panels. They have been very generous, very kind, unstinting in sharing their experiences and expertise with us.
- Our policies and our initiatives are really a culmination of all these different learning points – a result of all these efforts, policies, and initiatives that even if we were the first to implement, a lot of the ideas come from occasions like this.
- For example, Maxwell Chambers. Those of you who have visited Maxwell Chambers will know that we spent some time upgrading, retrofitting an older building so it looks nice, both on the outside as well as on the inside.
(a) We do it because we know that one of the features of where someone might choose to host an arbitration, what an arbitrator might do, having to spend three, four or five weeks on end at a location, is you want to have a place that works well, and feels comfortable.
(b) It is natural to want to make sure that this is looked after well, so Maxwell Chambers was born.
- The other reason for Maxwell Chambers is we wanted it to be a home for all thought leaders in dispute resolution to coexist in one place. You have ICC, AAA-ICDR, WIPO, IPOS – all these thought leaders in different areas.
(a) You would be amazed at how much collaboration happens because someone happens to bump into another person on the way to lunch, on the way into work, and ideas form
(b) That is really the reason why we put together Maxwell Chambers.
(c) It is the first in the world to be an integrated dispute resolution complex, comprising international dispute resolution institutions, like I mentioned, as well as top-class purpose-built hearing facilities.
- Other advancements include SIAC’s early dismissal of claims and defences. This is really a reaction to what parties are telling us. Matters can be disposed of quickly, clearly, saving time and cost, and more importantly, allowing the project in some cases get back on the road. That is very useful, and we have done that.
- We have also had SIAC and SIMC incorporate an arb-med-arb protocol, which I am sure you will hear from my colleagues at SIAC and SIMC later.
- All of these I underscored were a result of us engaging with our relevant stakeholders, understanding the landscape, the dynamics of the parties, and what they wanted out of dispute resolution.
(a) How we get feedback sometimes might simply be from mumbling or frustration - which hopefully we see less of, but it is still very important to us, and we pick it up sometimes.
(b) We understand sometimes that it is not expressed in the most direct of ways, but we pick it up and we learn from that, and we take it seriously.
(c) We do our best to address inconveniences so that parties will feel that the choice they want to make will be their choice, and not constrained by other factors.
- We are honoured and very privileged to have benefited from the wise counsel of our friends from around the world, including many in Japan, right here. I believe that in fact, all of us in a forum like this will benefit from an open dialogue and conversation. We have not been able to do this in person face-to-face for a couple of years now.
- I think that extra advantage that this occasion gives us beyond just the exchange of information and understanding thought leadership is the networking, which I think is equally, if not, perhaps more important for occasions like this.
(a) Network, build relations, build friends.
(b) You never know when you will need a friend from a different jurisdiction, to deal with an arbitration, or when you have a question about mediation.
(c) It is easier to pick up a phone or send an email to someone you have had coffee with or had dinner with or met at a forum, at an occasion like this.
Partnership between Singapore and Japan
- That brings me to my last point – what Singapore and Japan can do more of, and can do together.
- We are very fortunate that our two countries enjoy long-standing and multifaceted relationship with a strong suite of cooperation across a wide range of different domains.
- We have also stepped up our legal cooperation in recent years more formally. For example, in 2021, when I was last here for the Olympics, my Ministry signed a Memorandum of Cooperation with Japan’s Ministry of Justice to cooperate on matters of mutual interests, including international commercial dispute resolution, and also enhancing people-to-people exchange in the legal sector.
(a) The aim quite clearly, is to better support businesses that operate both in Japan and Singapore, either with each other, or out of Japan or Singapore, with other countries, and open up more opportunities for legal and dispute resolution sectors in both countries.
(b) After all, legal services follow commerce, follow the economy, and follow industry developments.
- I am very happy to know that our institutions and our people have already started to collaborate with one another.
- Most recently, SIMC and JIMC came together to train 17 highly experienced practitioners in international mediation, with each bringing their perspective to the table.
(a) I am very happy to see that today, SIMC will be adding another 17 specialists to its multinational, multicultural, multilinguistic, and multidisciplinary panel.
(b) It is the sheer diversity and the depth of experience, coming from different backgrounds, that allows our panel to be able to serve the needs of the business community.
(c) It is one thing to be very knowledgeable about the law, but it's another to be well-experienced in the culture of doing business, sometimes something that is not even expressed in words, sometimes just reading the body language, and how the two parties engage. In the hands of an experienced mediator, it makes a world of difference.
(d) These 17 mediators, I am glad to say, would be able to support mediations, especially those with a stronger Japanese element because you know that cultural nuance the best.
(e) My heartiest, warmest congratulations to all of you for being part of this specialist accredited panel and being a partner with us at SIMC in making sure that mediation presents itself as a serious, viable alternative dispute resolution, and I use the word “alternative” in this case.
- As I conclude, our partnerships can be stronger. One way to level that up is to build that trust. If we trust one another, we are open, and we are inclusive in our approach. That, as I said just now, starts with putting a face to a name, building networks on occasions like this.
- I would like to invite all of you, on this note, to attend the Singapore Convention Week from 28th August to 1st September, so please mark that down in your diary.
(a) We have been having the Singapore Convention Week without fail, almost every year since we had the Singapore Convention on Mediation, so it is an opportunity.
(b) I assure you that it is going to be a fun-filled programme with lots of events, and lots of people. You can attend different forums and different platforms, depending on your interest areas.
(c) It is an opportunity to meet with fellow practitioners from all over the world, and really start forming that relationship.
- We have a booth in the foyer just outside if you are keen to find out more about Singapore Convention Week. My colleagues will be there welcoming you, talking about the Convention, explaining the programme, and if you wish, you can also get a bottle of kaya as well.
(a) The Singaporeans are laughing at me because kaya is one of the most famous Singaporean jams. It is a blend of coconut milk and egg made into a puree. You have it on your toast with some butter. It is the classic Singaporean breakfast.
(b) We have a couple of sample bottles out there, if stocks are still lasting, so please help yourself to one.
- As I wrap up, thanks for listening to me. I would have liked to stay on to chat with you a bit more, but I have got to get back to the ASEAN-Japan Justice Ministers’ Meeting.
(a) We are having a dialogue and closing of the session.
(b) I want to make sure I lend my weight to the statements that we will publish at the end of it to foster and cement the relationship that we so cherish between ASEAN and Japan.
- On that note, thank you again once again for being here, for being part of the partnership with SIMC, and I look forward to welcoming you in Singapore. Thank you.
Last updated on 8 July 2023