The Dispute Resolution Review: Singapore

Introduction to the dispute resolution framework

Singapore law is based on the principles of common law, similar to the legal systems of other commonwealth jurisdictions. In the more than 50 years since Singapore achieved full self rule and government from Great Britain, its legal system has undergone substantial legislative and procedural changes. The objective behind these changes was to streamline the legal system so that fair, efficient and cost-effective legal processes could be achieved. To date, this objective has been realised to a very large extent. The fine tuning of the legal system and processes in Singapore is a continuous process intended to keep the system abreast and in line with modern technological advances and an ever-changing legal landscape. At the time of writing, the public consultation on proposed reforms to the civil justice system has concluded and we anticipate the proposed reforms to the civil justice system to be introduced soon.

The Singapore court system consists of state courts, the Supreme Court and family justice courts. The state courts comprise magistrates' and district courts, which deal with civil claims where the quantum of a claim does not exceed S$60,000 and S$250,000 respectively. These courts also deal with criminal cases, for which offences carry a maximum of five years' imprisonment or a fine in magistrates' courts, and a maximum of 10 years' imprisonment or a fine in district courts.

With effect from 1 November 2019, where the quantum of a claim does not exceed S$20,000, the dispute may be tried before a small claims tribunal, which provides a quick and inexpensive forum for the resolution of small claims commonly arising between consumers and suppliers. The limit can be raised to S$30,000 if both parties agree and file a memorandum of consent online. Such claims must be filed within two years of the date of the claim arising.2 Lawyers are not permitted to represent parties in proceedings before small claims tribunals.

The Supreme Court consists of the High Court and the Court of Appeal. The High Court hears civil cases where the claim sum exceeds S$250,000, and appeals from the state courts. In addition, probate matters where the value of the estate exceeds S$5 million and ancillary matters in family proceedings where the value of assets are above S$1.5 million will be heard by the High Court. The High Court also hears capital criminal cases, such as prosecutions against murder and drug trafficking. At present, the Court of Appeal continues to hear appeals of both civil and criminal matters from the High Court. On 7 October 2019, the Singapore Ministry of Law announced that to maintain efficiency in court proceedings, a new appellate division of the High Court will be set up. The High Court will therefore consist of the General Division and the new Appellate Division. Appeals arising from a decision of the General Division will be distributed between the Appellate Division and the Court of Appeal. The Court of Appeal will hear all criminal appeals, prescribed categories of civil appeals3 and appeals that are made to the Court of Appeal under written law, while the Appellate Division will hear all civil appeals not allocated to the Court of Appeal.

The family justice courts hear the full suite of family-related matters, including divorce, family violence, youth court cases, adoption and guardianship, applications for deputyship under the Mental Capacity Act and probate and succession matters.

The year in review

i Covid-19-related legislation

Covid-19 has led to the government passing several covid-19-related laws. Most of the laws are primarily related to the Covid-19 (Temporary Measures) Act 2020 (Covid-19 Act).

Under the powers granted by the Covid-19 Act, the regulations were made for the purpose of preventing, protecting against, delaying or otherwise controlling the transmission of covid-19 in Singapore. The regulations can be found in the Covid-19 (Temporary Measures) (Control Order) Regulations 2020 (Control Order). As of 8 December 2020, the Control Order provides for regulations that mandate that individuals must wear a mask when outside their place of ordinary residence, except for in the specific scenarios listed under the Control Order. The Control Order also prohibits gatherings of more than five individuals except for certain events such as wedding solemnisations.

On the other hand, the primary provisions of the Covid-19 Act relate to temporary relief available to parties to contracts of a certain nature, as prescribed in the Covid-19 Act. Some of the relief measures include the prohibition of legal proceedings and the prohibition of applications to wind up allegedly insolvent companies. Most of the temporary relief provided by the Covid-19 Act expired on 19 October 2020. A further extension was granted up until 31 December 2020, providing certain temporary relief for event and tourism-related contracts.

ii Significant decisions in court

In Ooi Chhooi Ngoh Bibiana v. Chee Yoh Chuang (care of RSM Corporate Advisory Pte Ltd, as joint and several private trustees in bankruptcy of the bankruptcy estate of Freddie Koh Sin Chong, a bankrupt) and another,4 the Singapore Court of Appeal, when faced with the issue of whether a property held jointly by a bankrupt and a non-bankrupt ought to be sold, decided that the said property should be sold. In coming to its decision, the Court of Appeal conducted a balancing exercise, considering factors such as the prejudice that the creditors might face and prejudice to the non-bankrupt co-owners in finding feasible alternative accommodation.

The Singapore Court of Appeal in I-Admin (Singapore) Pte Ltd v. Hong Ying Ting and others5 adopted a modified approach in assessing breach of confidence claims such that once the first two requirements in Coco v. AN Clark (Engineers) Ltd 6 are met, an action for breach of confidence would be presumed. The said presumption is displaced, for instance, where the defendant came across the information by accident or was unaware of its confidential nature or believed there to be a strong public interest in disclosing it.

Quoine Pte Ltd v. B2C2 Ltd 7 was also a significant development, being the first Singapore Court of Appeal case that dealt with issues relating to contractual breach, mistake and trust in relation to cryptocurrency trading.

Finally, following on from the enactment of the Protection from Online Falsehoods and Manipulation Act 2019 (POFMA), the Singapore High Court in The Online Citizen Pte Ltd v. Attorney-General 8 and Singapore Democratic Party v. Attorney-General 9 were the first significant decisions on a key issue in POFMA relating to burden of proof. It remains to be seen how the Singapore Court of Appeal will decide on the aforesaid issue.

Court procedure

Civil procedure in Singapore is premised on the Supreme Court of Judicature Act, the State Courts Act, the Rules of Court, the Supreme Court Practice Directions, the State Courts Practice Directions and case law.

i Procedures and time frames

Apart from commencing an action in court, in a limited number of cases, claimants may find recourse at the Small Claims Tribunal (SCT). The SCT has jurisdiction to hear and determine claims relating to a dispute arising from any contract for the sale of goods or the provision of services, claims in tort in respect of damage caused to any property other than the tort of interference with enjoyment or use of place of residence, and claims relating to a dispute arising from any contract for the lease of residential premises not exceeding two years. Claims must be filed at the SCT within two years of the date on which the cause of action accrued. Parties are not legally represented before the SCT.

Most civil claims are commenced by either writ of summons or by originating summons, in the magistrates' court, district court or High Court, depending on the value of the claim. Proceedings are begun by writ of summons when there are likely to be substantial disputes of fact. A writ of summons must be endorsed with either a statement of claim or a concise statement of the nature of the claim made, or the relief or remedy required. The writ of summons must give sufficient information to enable the defendant to identify when the cause of action occurred. Within eight days of the writ being served, the plaintiff must file its memorandum of service.

The defendant has eight days from the date of service of the writ to make an appearance (21 days if service of the writ is out of jurisdiction), failing which the plaintiff may apply for judgment to be entered in default of appearance. The defendant then has 14 days after the expiration of the time to enter an appearance or 14 days after the date of service of the statement of claim, whichever is later, to file their defence and counterclaim (if any).

If the plaintiff is of the view that the defendant has no defence to the claim, they may decide at this point to make an application for summary judgment. An application for summary judgment must be accompanied by an affidavit containing all necessary evidence in support of the claim. The defendant has 14 days to file an affidavit opposing the summary judgment application, and the plaintiff has a final right of reply by way of an affidavit. The court may enter judgment for the whole or part of the claim to which the application relates, or grant the defendant conditional or unconditional leave to defend.

If the matter is to proceed to trial, the plaintiff will file its summons for directions. At the hearing for the summons for directions, the court will consider and make appropriate orders or directions to simplify and expedite proceedings, including setting timelines for the filing and exchanging of witness' affidavits of evidence-in-chief (AEICs), the period to set down the action for trial and an estimate of the length of the trial.

Not less than five days before the trial, the following must be filed: the originals of the AEICs, the bundle of documents that will be relied on and referred to by the parties, and the parties' opening statements (if the trial is in the High Court).

The Court takes an active role in encouraging parties to consider alternative dispute resolution (ADR) at an early stage.10 The Court may refer cases commenced in the state courts to an appropriate court dispute resolution or ADR process as it deems appropriate. In exercising its discretion as to costs, the Court may take into account the parties' conduct in relation to unreasonable refusal to engage in ADR, especially where ADR may save costs and achieve a quicker resolution of the disputes.11

For personal injury claims, non-injury motor accident claims, defamation actions and business-to-business debt claims, the State Courts Practice Directions prescribe pre-action protocols with which parties must comply, or risk costs being awarded against them.12

ii Class actions

Strictly speaking, the Singapore courts do not expressly recognise class actions. However, under Order 15 Rule 12 of the Rules of Court (O 15 R 12), where numerous persons have the same interest in any proceedings, proceedings may be begun by one or more person representing the others. A judgment or order in such a proceeding shall be binding on all persons being represented.

The Singapore Court of Appeal dealt with O 15 R 12 in the case of Koh Chong Chiah and others v. Treasure Resort Pte Ltd.13 In this case, the Court stated that O 15 R 12 operates in two stages: there must first be satisfaction of the jurisdictional stage, whereby it must be proven that the claimants have the same interest in the proceedings; then the court will turn to the second stage, which is discretionary, to determine whether the proceedings should continue as a representative action.

Whether an action should be commenced as a representative action under O 15 R 12 or as an ordinary action under O 15 R 4 of the Rules of Court largely depends on how similar the claims are as a matter of fact or law. The Court normally decides whether to proceed an action as a representative action as a matter of case management and whether proceeding as such will prejudice the defendant's defence. In a representative action under O 15 R 12, the represented persons are not obliged to discover documents related to the claim and the defendant will not be able to cross-examine or seek costs against the represented persons in the event that the defence is successful.

iii Representation in proceedings

Any natural person may begin and carry on legal proceedings in person.14 The general rule for a body corporate is that it may not begin or carry on legal proceedings other than by a solicitor.15 Likewise, a defendant to an action begun by writ that is a body corporate may not enter an appearance in the action or defend it other than by a solicitor.16

The court may, on an application by a company or limited liability partnership, give leave for an officer of the company or limited liability partnership to act on its behalf in any relevant matter or proceeding to which it is a party, if the court is satisfied that the officer has been duly authorised by the company or limited liability partnership to do so, and if it is appropriate to give such leave in the circumstances of the case.17

iv Service out of the jurisdiction

Documents can be served on persons outside Singapore, with the leave of court. Three major requirements must be met before leave will be granted for service out of the jurisdiction:

  1. the claim must come within the scope of at least one of the paragraphs of Order 11 Rule 1 of the Rules of Court;
  2. the claim must have a sufficient degree of merit; and
  3. Singapore must be the forum conveniens.

Service of an originating process out of Singapore should be by way of personal service as long as it does not contravene the law of the country in which service is effected. Where an originating process is to be served in Malaysia or Brunei, service by a private agent is valid.

v Enforcement of foreign judgments

A foreign judgment may be enforced at common law or by statutory enforcement.

Under common law, a foreign judgment will be recognised if it is the final and conclusive judgment of a court that, according to the private international law of Singapore, had jurisdiction to grant the judgment, and if there is no defence to its recognition. A defence to recognition may be where the foreign judgment would conflict with an earlier judgment in the forum, or where the foreign judgment had been obtained by fraud or in breach of principles of natural justice.

Two statutory regimes under which foreign judgments may be enforced are the Reciprocal Enforcement of Commonwealth Judgments Act (RECJA) and the Reciprocal Enforcement of Foreign Judgments Act (REFJA). A foreign judgment to which the RECJA or REFJA applies can be recognised and enforced in Singapore upon its registration, without the need for the underlying dispute to be re-litigated. The RECJA applies to judgments obtained from the superior courts in the United Kingdom and a number of Commonwealth countries. The REFJA applies to judgments given in foreign countries that afford reciprocal treatment to judgments given in Singapore. Non-monetary judgments cannot be enforced under the RECJA and REFJA. The RECJA is due to be repealed on a date stipulated by the Minister of Law, following the passing of the Reciprocal Enforcement of Commonwealth Judgments (Repeal) Act 2019 on 2 September 2019. The Reciprocal Enforcement of Foreign Judgments (Amendment) Act 2019 came into force on 3 October 2019 to expand the scope of the REFJA and in effect combine the REFJA and RECJA into one statutory regime for reciprocal enforcement of foreign judgments. With the new amendments, more types of judgments may be enforceable:

  1. non-monetary judgments, which would include freezing orders, injunctions and orders for specific performance;
  2. judgments not issued by superior courts;
  3. interlocutory judgments; and
  4. judicial settlements, consent judgments and consent orders.

In addition, the Choice of Court Agreements Act 2016 (CCAA) was enacted in April 2016 to implement the Hague Convention on Choice of Court Agreements (Hague Convention). The RECJA and REFJA will not apply to a foreign judgment that 'may be recognised or enforced' under the CCAA.

The CCAA applies where parties have entered into an exclusive choice of court agreement that designates a contracting state (i.e., a state that is a party to the Hague Convention) to hear their dispute, to the exclusion of the jurisdiction of any other courts. A party seeking to have a foreign judgment recognised and enforced in Singapore may apply for an order under Section 13(1) of the CCAA. Generally, a foreign judgment will be recognised and enforced if it has effect and is enforceable in the state in which the judgment originated, subject to mandatory and discretionary grounds for refusal.

vi Assistance to foreign courts

Singapore is a contracting state to the Hague Convention. Where parties have agreed upon a court of a contracting state as the exclusive choice of court for their dispute, the chosen court must hear the case when proceedings are brought before it. Any other court, including the Singapore courts, before which proceedings are brought must refuse to hear them. After the judgment is given, the successful party may apply to a court of a contracting state for its recognition and enforcement. The merits of the judgment may not be reviewed by another court of a contracting state and such other court will be bound by the findings of fact of the chosen court. In fact, the court may not refuse to recognise or enforce the judgment except in limited circumstances as set out in Article 9 of the Hague Convention.

Until recently, there were diverging views as to whether the Singapore court had the power to grant Mareva injunctions in support of foreign proceedings.18 That was until the Court of Appeal, in the case of Bi Xiaoqiong (in her personal capacity and as trustee of the Xiao Qiong Bi Trust and the Alisa Wu Irrevocable Trust) v. China Medical Technologies, Inc (in liquidation) and another,19 confirmed that the Singapore court has the power to grant a Mareva injunction in support of foreign proceedings subject to two prerequisites: that the Court has in personam jurisdiction over the defendant in question; and that the plaintiff must have a reasonable accrued cause of action against the defendant in Singapore. The Court of Appeal further clarified that the cause of action on which the injunction is premised need not terminate in a judgment in Singapore in order for the Singapore courts to grant a Mareva injunction.

vii Access to court files

Members of the public can search for information maintained by the Supreme Court Registry without leave of court upon payment. To search, inspect or copy any document filed in the Registry, a request to inspect documents can be made by way of an application to court stating the reasons for the request. Upon approval from the court and payment of the prescribed fee, members of the public can inspect the documents and may retain a soft copy if they so wish.

viii Litigation funding

Singapore currently does not provide for third-party funding in litigation. However, the Civil Law (Amendment) Act 2017 has been passed, providing for third-party funding in arbitration-related proceedings. The Civil Law (Amendment) Act 2017 declares that no person is, under the law of Singapore, liable for any conduct of it being maintenance or champerty, except when it is contrary to public policy or otherwise illegal.

Despite the apparent flexibility now afforded to litigation parties for third-party funding, they are to be done within the ambit of the provisions provided under Singapore law. Section 5B of the Civil Law Act,20 read with the Civil Law (Third-Party Funding) Regulations 2017, provides that only prescribed dispute resolution proceedings, being those related to international arbitration proceedings, may be funded by a qualifying third-party funder. The Civil Law (Third-Party Funding) Regulations 2017 even provide for the qualifications for being a qualifying third-party funder. In addition to the above, those who are interested in third-party funding should also bear in mind the guidelines issued by the Singapore Institute of Arbitrators, the Singapore International Arbitration Centre (SIAC) and the Law Society of Singapore.

Since the amendments that allow third-party funding in arbitration-related proceedings, the Singapore Ministry of Law is now considering steps to extend the framework of third-party funding for both international and domestic arbitration proceedings, and for certain prescribed proceedings in the Singapore International Commercial Court, including mediation proceedings arising out of or in any way connected with such proceedings.21

Legal practice

i Conflicts of interest and Chinese walls

Legal practitioners are subject to the Legal Profession Act22 and the Legal Profession (Professional Conduct) Rules 2015. Duties of loyalty and confidentiality are owed to each of a solicitor's clients before, during and after his or her engagement.

Where a solicitor intends to act for two or more parties and a diversity of interests exists or may reasonably be expected to exist between them, he or she must communicate to the parties how their interests diverge or may diverge. Where one party may be disadvantaged in the transaction, the solicitor must explain that party's position before the transaction. Solicitors must advise each party to obtain independent legal advice. Otherwise, written confirmation or a record detailing that the party has declined independent legal advice must be sought and obtained.

Throughout the course of the retainer for the matter, the solicitor must be vigilant and inform each party of a conflict or potential conflict that arises. If the solicitor has difficulty dealing with a party's diverging interests, he or she must cease to act, unless he or she ceases to act for all other relevant parties and all other relevant parties have given their informed consent in writing for the solicitor to continue to act in the matter.

The court of three judges in Law Society of Singapore v. Ezekiel Peter Latimer23 set out guiding principles in cases involving conflicts of interest: misconduct arising from a conflict of interest is reprehensible because it entails a grievous violation of a lawyer's duty of unflinching and undivided loyalty to a client. This duty is a 'foundational responsibility on which the integrity of the legal profession and the public interest in securing proper legal representation depend'. In view of the trust and confidence that is reposed by a lay client in his or her solicitor, sanctions on misconduct are required to be imposed to uphold public confidence in the legal profession where there has been misconduct that tends to compromise the interests of a client. Three categories of conflicts were identified:

  1. category 1 cases: where a solicitor has preferred his or her own interests over that of the client. The misconduct in such cases is presumptively more serious and deserving of a more severe sanction than the other categories of conflicts of interest;
  2. category 2A cases: where a solicitor acts for multiple parties with diverging interests and prefers the interest of one party over another; and
  3. category 2B cases: where a solicitor's concurrent representation of clients with conflicting interests would have given rise to a potential conflict of interests but the interests of either client would not in fact have been subordinated to those of the other.

Category 2A cases presumptively involve both greater harm and culpability than category 2B cases by virtue of the actual subordination and undermining of at least one client's interests.

ii Money laundering, proceeds of crime and funds related to terrorism

There are several statutory provisions that impose an obligation on legal practitioners to protect against money laundering and financing of terrorism. Generally, where a legal practitioner knows or has reasonable grounds to suspect that any property may be directly or indirectly connected to a criminal activity, or a client may be engaged in money laundering or the financing of terrorism, the legal practitioner is required to file a suspicious transaction report to the Suspicious Transaction Reporting Office as soon as reasonably practicable. The failure to make a suspicious transaction report may constitute an offence and disciplinary proceedings may be taken against the legal practitioner.

Legal practitioners are also required to perform customer due diligence measures as prescribed in the Legal Profession (Prevention of Money Laundering and Financing of Terrorism) Rules, such as identifying and verifying the identity of a client. Additionally, all documents relating to each matter and material obtained from customer due diligence measures must be kept for at least five years after the completion of the matter. The Council of the Law Society of Singapore has the powers to carry out an inspection either on its own motion or upon receiving a complaint, to ensure that the rules for prevention of money laundering and financing of terrorism are being complied with.

iii Data protection

The Personal Data Protection Act 2012 (PDPA) is the main source of data protection law in Singapore. The scope of the PDPA is wide: it governs the collection, use and disclosure of individuals' personal data by organisations, including storage and processing of data. Personal data is defined as any data, whether accurate or not, about an individual who can be identified from that data, or from that data and other information to which the organisation has or is likely to have access, whether stored electronically or non-electronically.

Organisations are required to develop and implement policies and processes to meet the following obligations of the PDPA:

  1. Under the consent obligation, an organisation may only collect, use or disclose personal data for purposes for which an individual has given his or her consent. The individual may withdraw his or her consent at any time with reasonable notice. An amendment to the PDPA was passed in November 2020 in response to Singapore's evolving digital economy needs. The amendment will provide exceptions to the consent obligation for local businesses to use consumer data without consent in advance for a limited number of purposes, including the use, collection or disclosure of data for legitimate interests and for business improvement.24 In addition, individuals who have provided personal data to an organisation for the purposes of entering into an agreement with the organisation will be deemed to have consented to the collection, use and disclosure of such personal data where it is reasonably necessary for the purposes of fulfilling the contract.25 The amendment also introduces 'deemed consent by notification': organisations may use or disclose personal data provided they have notified the individual of the new use of personal data, have provided the individual with a reasonable opt-out period and have conducted an assessment to determine that the new use is not likely to have an adverse effect on the individual.26
  2. Under the purpose limitation obligation, an organisation may collect, use or disclose personal data about an individual only for the purposes that a reasonable person would consider appropriate in the circumstances, and for which the individual has given consent.
  3. Under the notification obligation, organisations are required to inform individuals of the purposes for which they are intending to collect, use or disclose their personal data on or before such collection, use or disclosure of personal data.
  4. Under the access and correction obligation, organisations are required to provide upon request by an individual the personal data of that individual, and information about the ways in which his or her personal data has been or may have been used or disclosed by an organisation within a year of the date of the request.
  5. Under the accuracy obligation, organisations are required to make a reasonable effort to ensure that personal data collected by them or on their behalf is accurate and complete if it is likely to be used by the organisation to make a decision that affects the individual to whom the personal data relates, or if it is likely to be disclosed to another organisation.
  6. Under the protection obligation, organisations must protect personal data in their possession or under their control by making reasonable security arrangements to prevent unauthorised access, collection, use, disclosure, copying, modification, disposal or similar risks. Many breaches of the PDPA have involved organisations' ignorance of the protection obligation and the failure to take adequate or proactive steps to protect personal data.
  7. Under the retention limitation obligation, organisations are required to cease to retain their documents containing personal data when it is reasonable to assume that the purpose for which that personal data was collected is no longer being served by retention of the personal data and retention is no longer necessary for legal or business purposes.
  8. Under the transfer limitation obligation, if organisations are transferring personal data to a country or territory outside Singapore, they must do so in accordance with the requirements under the PDPA to ensure the standard of protection of the personal data will be comparable to that under the PDPA.
  9. Under the openness obligation, organisations are to make information about their data protection policies, practices and complaints process available on request.

The PDPA also requires that every organisation designate an individual (known as the data protection officer) to oversee the practices and policies of the organisation, and who is responsible for ensuring that the organisation complies with the PDPA. The importance of the role of the data protection officer has been stressed by the Personal Data Protection Commission (PDPC); failure to appoint one is a breach of the PDPA.

Individuals have a right of private action against organisations that are in breach of the obligations in the PDPA, but enforcement of the PDPA is largely a complaint-based regime involving the PDPC's exercise of its powers conferred by the PDPA. If an organisation is found in breach of the PDPA, it may be fined up to S$1 million. The PDPC also has the power to make directions, give warnings, make advisory notices and accept undertakings from organisations to take a certain course of action.

The PDPA establishes the national Do Not Call Registry. Individuals may register their local telephone numbers to opt out of receiving telemarketing calls or text messages.

The main authority administering and enforcing the PDPA is the PDPC, which issues advisory guidelines to supplement and aid the interpretation of the PDPA. Since September 2019, stricter guidelines were put in place to protect the personal data of Singaporeans. Organisations are barred from the collection, use and disclosure of National Registration Identity Card (NRIC) numbers, including collecting a full number or making a copy of an NRIC. Organisations may still legally request sight of an individual's NRIC to verify the person's age or identity, as long as no personal data is retained.

Documents and the protection of privilege

i Privilege

Generally, there are two kinds of privilege in Singapore between solicitor and client: legal advice privilege and litigation privilege.

Legal advice privilege is generally governed by Section 128 of the Evidence Act, which provides that nothing shall be disclosed that was given to an advocate or solicitor in the course of his or her employment. The rules that apply with regard to legal advice privilege extend to in-house lawyers by virtue of the recent amendments to the Evidence Act. It must be noted that there are circumstances in which privilege does not operate where communications are made in furtherance of an illegal purpose and where a solicitor becomes aware of a crime or fraud after engagement.

Litigation privilege is relied upon to protect information provided for the purpose of pending or anticipated court proceedings.

ii Production of documents

Under Singapore law, a party to a court proceeding is under an obligation to make and serve on the other party a list of the documents that are or have been in their possession, custody or power. The list of documents has to be verified by an affidavit. The documents that may be ordered to be discovered are documents on which the other party relies or will rely, and documents that could affect his or her own case, adversely affect another party's case or support another party's case. This obligation to continue to give discovery remains until the conclusion of proceedings. Parties must also be aware that it is the duty of a litigant to preserve documents relevant to proceedings. Destroying documents could result in detrimental circumstances such as dismissal of the action or striking out the defence.

If a party is not satisfied with the documents provided in discovery, it may make an application under the Rules of Court for a document that the other party has or has not had in his or her possession, custody or power. This is often referred to as a request or application for specific discovery. In this regard, this could be broader than the general discovery obligations referred to in the preceding paragraph given that a party can seek a document that may lead to a line of inquiry which provides information that adversely affects its own case or the other party's case, or supports the other party's case. Even so, the court may find that the discovery is not necessary for disposing fairly of the cause or matter, or for saving costs.

The rules governing e-discovery are not set out in the Rules of Court, but are set out in the practice directions produced by the Singapore courts. The practice directions provide for parties to consider using e-discovery when a claim or counterclaim exceeds S$1 million, where the documents discoverable exceed 2,000 pages, or where the documents discoverable substantially comprise electronic mail or electronic documents.

Alternatives to litigation

i Arbitration

A common alternative to litigation is arbitration, because it is a private method of dispute resolution, thus allowing for procedural flexibility and confidentiality of proceedings. However, there has recently been concern that arbitration is getting increasingly expensive.

The SIAC is the main arbitration institution in Singapore and administers most cases under the SIAC Rules adopted by the parties in their arbitration agreement, or the UNCITRAL arbitration rules. The costs of the arbitration operate on an ad valorem system, where it is calculated based on the value of the claim.

Depending on whether an arbitration is international or domestic, the International Arbitration Act or the Arbitration Act will apply. Domestic arbitrations refer to arbitrations between local parties that do not have any international elements. One of the main distinctions between the two regimes lies in the degree of court intervention in the arbitral process. The general rule is that there can be no appeal against an award issued in an international arbitration. The only recourse is an application to set aside the arbitral award. On the other hand, where domestic arbitrations are concerned, a party may appeal an award on a question of law arising out of the award by agreement of the parties or leave of court. An application to appeal an arbitral award must be brought within 28 days of the date of the award. On appeal, the court may confirm, vary or remit the award to the tribunal in whole or in part, for reconsideration in light of the court's determination, or set aside the award in whole or in part. Notwithstanding that, parties may agree to exclude their rights to appeal.

The arbitral award may, by leave of the High Court or a judge thereof, be enforced in the same manner as a judgment or order to the same effect and, where leave is so given, a judgment may be entered in terms of the award. Being a contracting state to the New York Convention allows for ease of enforcement of arbitral awards internationally. Foreign arbitral awards are recognised in the same way as domestic awards, as long as the award was made in a country that is also a party to the New York Convention.

Singapore welcomed third-party funding for international arbitration in Singapore in early 2017 and it appears to be an area for growth and expansion in the next few years. The primary sources of legislation and regulations include the Civil Law Act and the Civil Law (Third-Party Funding) Regulations 2017. Riding on the trend of third-party funding, the Singapore Ministry of Law is taking steps to extend third-party funding to domestic arbitration, certain proceedings in the Singapore International Commercial Court and mediations connected with these proceedings.

When negotiating a third-party funding contract, the funder should take reasonable steps to ensure that it has met the requirements as a qualifying third-party funder as set out in the Regulations, advised the party interested in funding to obtain independent legal advice on the terms of the contract and satisfied itself that there are no circumstances arising from the funding that might give rise to any foreseeable conflict of interest.

Between 26 June 2019 and 21 August 2019, the Singapore Ministry of Law conducted a public consultation to seek feedback on the proposed amendments to the International Arbitration Act (IAA). The proposals involve amendments to the following:27

  1. introducing a default mode of appointment of arbitrators in multi-party situations;
  2. recognition that an arbitral tribunal and the High Court have powers to enforce obligations of confidentiality in an arbitration;
  3. allowing parties to, by agreement, request the arbitrator to decide on jurisdiction at the preliminary stage;
  4. allowing parties to appeal to the High Court on a question of law arising out of an award made in the proceedings provided parties have agreed to opt in to this mechanism;
  5. allowing parties to agree to waive or limit the annulment grounds under the Model Law and the IAA; and
  6. providing that the Court shall have power to order costs in certain arbitral proceedings.

We expect amendments with respect to the first two proposals following the First Reading of the International Arbitration (Amendment) Bill on 1 September 2020. The Ministry of Law is still studying the remaining proposals.

On 5 October 2020, the Ministry of Law had announced that it will be introducing the Insolvency Restructuring and Dissolution (Amendment) Bill28 to provide a simplified insolvency programme to assist micro and small companies that require support to restructure their debts in light of the covid-19 pandemic.

ii Mediation

Mediation is an integral part of the legal system in Singapore. The use of mediation is fast gaining traction at a time when parties are increasingly looking beyond the traditional adversarial (and expensive) court-based model to resolve their disputes.

The courts encourage parties to consider ADR, including mediation, at the earliest possible stage. Mediation services are provided for free at the state courts for claims filed with the magistrates' courts, pursuant to the State Courts Practice Directions.

The Singapore Mediation Centre, which was set up in 2014, provides commercial mediation services and deals with most types of disputes, including cross-border commercial disputes.

The recent push for mediation as a dispute resolution mechanism of choice is evident from the introduction of the Mediation Act 2017. The Mediation Act seeks to promote, encourage and facilitate the resolution of disputes by mediation. Prior to the Mediation Act, a party seeking to enforce a mediated settlement agreement had to do so by instituting court proceedings, incurring costs and losing time in the process. Under the Singapore Mediation Act, mediated settlement agreements entered into in Singapore can be recorded and enforced as an order of court.

Singapore achieved another milestone in its journey to become the leading dispute resolution hub in Asia when it hosted, and signed, the Singapore Convention on Mediation (Singapore Convention) on 7 August 2019. The Singapore Convention, also known as the United Nations Convention on International Settlement Agreements Resulting from Mediation, establishes a harmonised legal framework for international mediated settlement agreements. Under the Singapore Convention, parties may enforce and invoke international settlement agreements resulting from mediation across borders in another contracting state. To date, the Singapore Convention has been signed by 53 states (as at 2 September 2020), including the US, China, India and South Korea. The Singapore Convention entered into force on 12 September 2020 and has been ratified by six countries, including Singapore, Qatar and Saudi Arabia.

The State Courts Centre for Dispute Resolution has offered mediation by court-appointed mediators through online videoconferencing since February 2018. From 27 March 2020, as part of safe distancing methods to curb local transmission of covid-19, mediation by virtual conferencing became the default option.29

Regarding correspondence confidentiality in mediation, the Singapore High Court has stated, in Jumaiah bte Amir v. Salim bin Abdul Rashid:

Correspondence between parties in mediation is confidential and made without prejudice. To retain that confidentiality and to encourage such mediations, the court should therefore not delve into correspondence exchanged in the mediation process unless it is necessary, for example, to determine whether an agreement has been reached or if parties had agreed to disclose such communications.30

iii Other forms of dispute resolution

Neutral evaluation and neutral determination are private processes where parties can refer their dispute to a 'neutral', who will provide a summary evaluation of the dispute or a temporary determination for the matter. The neutral will be a neutral third party appointed by the President of the Law Society of Singapore from the panel of neutrals, which consists of experienced lawyers. The benefits of neutral evaluation and neutral determination are that they are speedier and more cost-efficient than litigation or arbitration. In addition, the result is not permanent, thus parties can subsequently assert their rights through formal dispute resolution methods. An evaluation is the opinion of the neutral and is not binding on parties except for a costs decision, while a determination will be binding on parties until the dispute if finally determined by an arbitrator, or a court or other body of competent jurisdiction.

Outlook and conclusions

Singapore is striving towards becoming a leading hub for the resolution of cross-border disputes and the provider of legal solutions to international parties in Southeast Asia. Parties seeking to resolve their disputes in Singapore are presented with a choice of dispute resolution forums including the Singapore International Commercial Court, the SIAC and the Singapore International Mediation Centre.

Singapore is a party to the New York Convention, Singapore Convention and Hague Convention on Choice of Court Agreements. It seeks to be a centre where legal solutions not only have to be quick and efficient but also effective in terms of result.

Users of Singapore's legal framework should strive to be well advised not only of the procedures in the local court system but also of the wide variety of solutions that are on offer.

Footnotes

1 Subramanian Pillai, See Tow Soo Ling and Venetia Tan are partners at CNPLaw LLP. The authors would like to thank and acknowledge Lim Shu-Yi and Ervin Roe, who are associates at CNPLaw LLP, for their invaluable assistance in the preparation of this chapter.

2 Sections 2(1) and 5(3) of the Small Claims Tribunal Act.

3 The prescribed categories will be stated in the upcoming Sixth Schedule of the SCJA.

4 Ooi Chhooi Ngoh Bibiana v. Chee Yoh Chuang (care of RSM Corporate Advisory Pte Ltd, as joint and several private trustees in bankruptcy of the bankruptcy estate of Freddie Koh Sin Chong, a bankrupt) and another [2020] SGCA 83.

5 I-Admin (Singapore) Pte Ltd v. Hong Ying Ting and others [2020] SGCA 32.

6 Coco v. AN Clark (Engineers) Ltd [1969] RPC 41.

7 Quoine Pte Ltd v. B2C2 Ltd [2020] SGCA(I) 02.

8 The Online Citizen Pte Ltd v. Attorney-General [2020] SGHC 36.

9 Singapore Democratic Party v. Attorney-General [2020] SGHC 25.

10 Paragraph 35B of the Supreme Court Practice Directions and paragraph 35 of the State Court Practice Directions.

11 Order 59 Rule 5(c) of the Rules of Court (Cap 322) and paragraph 35B of the Supreme Court Practice Directions.

12 Paragraphs 37, 38 and 143 of the State Court Practice Directions.

13 Koh Chong Chiah and others v. Treasure Resort Pte Ltd [2013] 4 SLR 1204.

14 Rules of Court Order 5 Rule 6(1).

15 Rules of Court Order 5 Rule 6(2).

16 Rules of Court Order 12 Rule 1(2).

17 Rules of Court Order 1 Rule 9(2).

18 See Petroval SA v. Stainby Overseas Ltd and ors [2008] 3 SLR(R) 856 and Multi-Code Electronics Industries (M) Sdn Bhd and anor v. Toh Chun Toh Gordon and ors [2008] 1 SLR(R) 1000.

19 Bi Xiaoqiong (in her personal capacity and as trustee of the Xiao Qiong Bi Trust and the Alisa Wu Irrevocable Trust) v. China Medical Technologies, Inc (in liquidation) and another, [2019] SGCA 50.

20 Section 5B of the Civil Law Act (Cap 43, Rev Ed 1999).

21 Paragraph 7 of the Public Consultation on Conditional Fee Agreements in Singapore: https://app.mlaw.gov.sg/news/public-consultations/public-consultation-on-conditional-fee-agreements-in-singapore.

22 Legal Profession Act (Cap 161).

23 Law Society of Singapore v. Ezekiel Peter Latimer [2019] 4 SLR 1427.

24 Personal Data Protection (Amendment) Bill, Section 8.

25 Personal Data Protection (Amendment) Bill, Section 6.

26 Personal Data Protection (Amendment) Bill, Section 7.

27 Paragraphs 4–18, Public Consultation on Proposed Amendments to the International Arbitration Act: https://app.mlaw.gov.sg/news/press-releases/public-consultation-on-proposed-amendments-to-the-international-arbitration-act.

29 Registrar's Circular 5 of 2020.

30 Jumaiah bte Amir v. Salim bin Abdul Rashid [2019] SGHC 63.

Get unlimited access to all The Law Reviews content