Singapore: Growth As A Force In The Global Economy And The Multijurisdictional Litigation Challenge

Saturday, January 1, 2005 - 01:00

Editor: Mr. Sin, please tell our readers something about your background and professional experience.

Sin: I graduated from the National University of Singapore in 1987 and became a member of the Singapore Bar the following year. In 1993 I also qualified to practice in England & Wales. For close to 14 years, prior to joining Coudert Brothers, I practiced with a leading firm in Singapore. My primary practice in the past concerned the shipping industry, and from there I have moved into other areas, mostly client-driven. These include power and gas, the construction industry, oil trading and, most recently, a dispute involving a petrochemical plant. My experience has been very diverse.

Editor: Would you describe your dispute resolution practice? This includes both arbitration and litigation?

Sin: Yes. In Singapore, Coudert Brothers is an offshore firm, which means, we cannot engage in litigation before the Singapore courts. As far as local litigation is concerned, my responsibility is to instruct Singapore counsel, who make the formal appearance. There are no such restrictions so far as arbitration is concerned, whatever law governs the matter being handled. A substantial part of my practice is, accordingly, arbitration.

Editor: When a client comes to you with a dispute to handle, has the decision to proceed with an arbitration or litigation already been made?

Sin: It is very common for the contract underlying a dispute to include a provision dealing with dispute resolution and, indeed, specifying the forum, which might be Singapore or Hong Kong or even London or a Swiss venue. For that reason, when a matter comes to us, very often the choice of arbitration or litigation has already been made. If it has not been made, however, we are in a position to be able to analyze the issues and suggest appropriate avenues for their resolution.

Editor: Would you tell us about some of the cases you have handled?

Sin: Most recently, we were involved in an oil trading dispute between two of the largest traders in that market. The case involved a shipment of a very large quantity of oil which was contracted for prior to start of the Gulf War and shipped in April of 2003. If you recall, the fighting was very intense but ended rather quickly. The parties had entered into the contract with their own anticipation of when the war would start and how long it would last, and apparently their perceptions were rather different. One party was very surprised at how quickly hostilities came to an end, a fact that served to depress the price of oil rather precipitously and to render the contract price very unfavorable for the purchasers. When the cargo arrived in Singapore and was tendered for acceptance, the purchasers were faced with the prospect of a huge financial loss. At the time of delivery, however, there appeared to be some discrepancy in the quality of the cargo. The dispute then revolved around a very technical question as to whether the purchasers were entitled to reject the cargo. The sellers had the option to deliver 100,000 tons of oil, plus or minus 10%. which had been placed in ten separate tanks on the vessel. The quality of the oil for purposes of the purchasers' acceptance was to be judged on the basis of a composite sample, taken from all ten tanks. One tank turned out to be defective, and while the sellers had the right to leave it out of the delivery altogether, they insisted on mixing the substandard oil with the good. When it was tested a second time, and the purchasers rejected it, we went to arbitration. The arbitrators concluded that the purchasers' specifications had been so precise that the smallest discrepancy permitted them to reject the entire shipment. This was an excellent result for the purchasers and, of course, for our efforts in representing them.

Editor: Your experience in arbitration is extensive. Would you tell us about the ICC Rules and the Singapore International Arbitration Centre rules? Is there much difference between them?

Sin: Essentially there is very little difference between the two sets of rules. Both attempt to lay down some general guidelines as to how the arbitration is to be conducted. the role of the arbitrator, and so on. As a general matter, I think the ICC rules are somewhat more liberal in terms of the time in which to submit documents, make statements and the like. The SIAC rules mandate a tighter time frame in which to operate, but it is important to note that both regimes provide the arbitrator with considerable latitude on granting additional time to the parties. provided they can justify the need for additional time. The ICC rules, in addition, provide for the actual review of the award, which the SIAC does not do.

Editor: What about other arbitration regimes? How do they compare with the ICC and SIAC rules?

Sin: The Hong Kong International Arbitration Center follows rules that are very close to those of the SIAC. Malaysia has its own regional center for arbitration, which has its own rules. These are largely the same as the SIAC rules, but Malaysia suffers from the interference of the local courts in arbitration proceedings. In arbitration, this is a very negative factor.

Editor: And the Singapore courts? Singapore is a common law jurisdiction?

Sin: Singapore has been a common law jurisdiction from its colonial days. The system is based on the English system, and, by and large. English precedents are followed. In recent years, we have tended to follow developments in the Australian legal system, which is somewhat more forward than the English system.

Editor: Singapore has become one of the great hubs of the global economy. Please tell us about the ability of the Singapore courts to address complex commercial law cases utilizing the laws of multiple jurisdictions. Do you find the high reputation of the Singapore courts well deserved?

Sin: The Singapore courts have no difficulty in dealing with multijurisdictional disputes involving complex fact patterns and governed by foreign law. The courts have extensive experience in applying the principles of foreign law, foreign legal precedents and so on. In this, Singapore is very similar to the English courts, which are frequently called upon to apply foreign law to disputes they hear. There are times when this can lead the courts into unusual situations. Some ten years ago or so, a dispute involving funds in Singapore bank accounts was heard here. The money was alleged to belong to a very high ranking officer of an international oil company, and public opinion compelled the foreign government which owned the oil company to intervene. The point is that the court was being asked to accept a long-standing custom and practice in Indonesia whereby an officer of a state company would be expected to receive certain compensation to supplement his official income. In accord with such a practice, it was contended that this compensation did not constitute bribes but was part and parcel of the officer's salary.

Editor: As you know, our publication is running a series of interviews with Coudert partners on the challenges of multijurisdictional litigation - where litigation on the same issue is proceeding almost simultaneously in a number of jurisdictions. Have you encountered this in your practice?

Sin: Yes. we have had considerable experience in this area. Singapore, as you note, is one of the centers of the global economy, and our office here is frequently handling matters that are also being handled by our colleagues in New York, London, Hong Kong and elsewhere. Just this year we were engaged in a case concerning injunctive relief on the same set of facts and involving the same parties in Singapore and New York.

Editor: These are, for example, situations where one team of Coudert lawyers is appearing in Singapore, another in Shanghai and a third in London, all on behalf of the same client and addressing the same issues?

Sin: Yes, this is quite common. Among other things, a pursuit of jurisdictional advantage may be underway.

Editor: And how do the courts resolve which court is the appropriate forum?

Sin: That depends on the nature of the dispute and where the case has the closest connections. And, of course, on the legal strategy and the skill of the lawyers in applying it. We may attempt to resist the multijurisdictional attack. We may try to stay or suspend one set of the proceedings in an effort to keep the matter in the jurisdiction most favorable to our client.

Editor: There is a considerable body of jurisprudence concerning forum non conveniens in the common law tradition. Please tell us how this has evolved in the courts before which you practice.

Sin: The courts in Singapore will apply the principle of forum non conveniens in precisely the way the English courts would. Although there are rules which govern where an action is to be brought, there are situations where the location is not convenient for witnesses or for one of the parties. If one of the parties makes an adequate showing of inconvenience, the principle of forum non conveniens permits the judge to decline to hear the matter, or to transfer the matter to another court, notwithstanding the fact that the court of first instance is an appropriate court to hear it. Needless to say, where multijurisdictional litigation is underway, recourse to the principle of forum non conveniens is frequent.

Editor: Coudert Brothers has a presence in some 27 cities across the world. Please tell us how this global network of practitioners coordinates its efforts to meet the multijurisdictional litigation challenge.

Sin: Even as we speak, I am scheduled to call our Paris office to coordinate a multijurisdictional dispute that is currently underway. The ability to call upon the resources of a global network of lawyers is an extraordinary asset. The client might be litigating in Singapore and London, but the fact-gathering efforts, the preparation of witnesses and the review of all the issues for the client's principal officers might have to take place in New York or Paris. We have the ability to call upon Coudert Brothers practitioners in all of these places, and in this age of multijurisdictional litigation, we are quick to do so.

A firm with a global network of practitioners, like Coudert, is almost certainly going to be adept at dealing with the challenges of multijurisdictional litigation. That is one of our selling points with clients: we have offices and operations in a great many countries, and, as a consequence, we are able to meet our clients' global needs.