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Initiatives To Develop Singapore As A Legal Hub Add in library

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Question:

(a) Compare and contrast arbitration and litigation. Explain why arbitration may be preferred by the disputing parties in certain situations.

Describe and discuss two (2) real-life situations in which arbitration was a preferred means of dispute resolution. You can review and research into online and other publicly available sources of information relating to such scenarios.

(b) Recommend an arbitration venue (and identify a specific arbitration centre in that venue) in Asia. Provide reasons to support your recommendation. You can conduct additional research to supplement the notes in the textbook and study guide.

(c) In 2014, the Singapore International Mediation Centre (SIMC) was established and a Bill was passed in the Singapore parliament to set up the Singapore International Commercial Court (SICC).

Discuss and analyse three (3) key reasons why there may be a growing demand by the international businesss community for such venues. You should review and research into online and other publicly available sources of information for your analysis.
 
 

Answer:

(a) Due to growth in the trade there is also increase in the number of disputes. This also includes foreign parties involved in the disputed and hence the traditional method litigation through courts does not give satisfactory results. It is said that the parties from other countries face the litigation process in the other national courts as a difficult system as they are not familiar with it. The litigation process is said to be a time consuming and costly system. Litigation is conducted in home country and the foreign parties claim that the home country gives benefit of doubt to its nationals which do not make the whole dispute resolution method fair. It is also accompanied with various social, political and cultural factors. Ultimately it is said that litigation does not give the desired result and so not an appropriate method of resolving dispute. Due to this the people go for another alternative method for dispute resolution. One alternative resolution is arbitration. This is a private method of resolution of dispute used by parties. The parties choose this method as it consists of one or more arbitrators who form an impartial tribunal. The parties to be on a safe side enter a clause in the agreement to choose arbitration as a mode for dispute resolution before signing the contract. This is done so that this mode will be taken if and when a dispute arises between the parties. Arbitration is chosen over litigation because it gives the parties an option to adopt the procedural framework which both the parties can adopt. There is no partiality or discrimination on the basis of different culture, language or legal and geographical background.(Spooner & Moseley, ).

Arbitration has also been used in the case of A. Bianchi S.R.L. v. Bilumen Lighting Ltd., 1990, where there was a dispute between Bianchi and Bilumen with regard to exclusive right to collect, trade and allocate its products in Canada and the United States. In the agreement between the parties there was arbitration clause to be used in case of any dispute. Bianchi went for the judicial proceedings for claim for damages due to breach of contract. The proceedings went and the judgment was made. But Bilumen filed a motion for discharge of the action, directing to the arbitration clause. Bianchi said it to be tact to get away with the decision made by the court. The court held that invoking the arbitration clause of the agreement and all the steps taken in judicial proceedings shall not rescind the arbitration procedure and hence referred the parties to arbitration (UNCITL, 1997).

In another case of Vanol Far East Marketing Pte. Ltd. v. Hin Leong Trading Pte. Ltd., 1996, the claimant had a contract for delivery of fuel at Yosu, South Korea. The delivery vessel had more loading than was allowed and hence the claimant entreated demurrage. The request was made but the same was discharged in arbitration. The claimant applied for leave to appeal to the High Court. As per Section 5(2) of the International Arbitration Act, 1994 the High Court gave its decision by stating that the place where the major part of contract took place and the place is the subject matter of the dispute are associated with Yosu, Korea. Therefore, in this case the adjudication is of international level and thereafter the High Court rejected the application for leave to appeal.

(b) The arbitration venue which I recommend in Asia is in Singapore. It is governed by two separate legal regimes pursuant to the Arbitration Act or the International Arbitration Act. The Arbitration Act is for domestic arbitrations and for those cases where the place of arbitration is Singapore. The International Arbitration Act is applicable to both international arbitrations as well as non-international arbitrations where there is written agreement eneters between the parties. This is stated in Part II of the International Arbitration Act and the Model Law to apply. The arbitration center for Singapore is the Singapore International Arbitration Centre (“SIAC”). This is the main arbitration organization of Singapore. It provides hearing and support services to the people. It is geographically at a very good location making it easy for people to approach it. Also technically it is very sound and people in Singapore have a lot of confidence in it being an independent neutral third-country on the legal system and culture of the center. The SIAC has a fast arbitration procedure, there is high confidentiality and the center has been given additional powers to take decisions. Singapore arbitration has been recognized by the New York Convention. The fee structure compared to many Asian countries is low in Singapore. Therefore, these factors make Singapore International Arbitration Centre as the most appropriate venue for arbitration in the whole Asia (Brown, 2011).

(c) SIMC and SICC shall be the choice of venue by business community for legal facilities and resolve local and worldwide commercial arguments. There are many reasons for the business community to choose the same. The first reason is that SIMC provides case management and organization services. It also helps in getting a deal by providing mediation services and making the parties understand the whole process. The second reason for the choice of SICc would be that under SICC the parties shall have the option for confidentiality in their case. Though in general the cases take place in the open courts but when there is no major connection of the case with Singapore and where the parties want so then the court shall apply such measures as required in order to maintain confidentiality.  The third reason for demand for such institutions is that the judgments made by SICC can also be enforced in other jurisdiction by opting for mutual implementation provisions, or by opting for a shared law act on the ruling debt. These institutions are milestone in the legal services and resolution of local and worldwide commercial arguments (Baker & Mckenzie, 2014).

 

References:

Spooner G. & Moseley A., Why arbitration? Why Singapore?. Retrieved from https://www.lawgazette.com.sg/2001-8/Aug01-focus3.html

UNCITL, (1997), Arbitration Database. Retrieved from https://interarb.com/vl/p967779490

UNCITL, (1996), Arbitration Database. Retrieved from https://interarb.com/clout/clout209

Mayer B., (2011), Asia’s Arbitration Centres - Hong Kong, China and Singapore. Retrieved from https://www.mayerbrown.com/files/Publication/

Baker & Mckenzie, (2014), Initiatives To Develop Singapore As A Legal Hub - the Singapore International Mediation Centre and the Singapore International Commercial Court. Retrieved from https://www.bakermckenzie.com/files/Publication/
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