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Chief Justice Sundaresh Menon: Keynote address delivered at the Masterclass Programme for Commercial Judges in Asia
MASTERCLASS PROGRAMME FOR COMMERCIAL JUDGES IN ASIA
Keynote Address
“The Changing Face of Commercial Law: New Frontiers in an Asian Century”
Monday, 9 September 2024
The Honourable the Chief Justice Sundaresh Menon*
Supreme Court of Singapore
The Honourable the Chief Justice Professor Dr Muhammad Syarifuddin
The Honourable Vice Chief Justice Professor Dr Sunarto, Vice Chief Justice for Judicial Matters
The Honourable Vice Chief Justice Suharto, Vice Chief Justice for Non-Judicial Matters
Leadership of the Supreme Court of Indonesia
Retired Chief Justices James Allsop and Geoffrey Ma
The Honourable Judge Bambang Hery Mulyono, Head of the Judicial Training Centre of the Supreme Court of Indonesia
My fellow judges and colleagues from the Singapore Judiciary
Distinguished guests and participants in the inaugural Masterclass
Ladies and gentlemen
I. Introduction
1. Good morning. Let me begin by saying how delighted I am to be addressing you at this inaugural Masterclass Programme for Commercial Judges in Asia. The seeds of this Masterclass were sown when I was invited to this Judicial Training Centre here in Bogor last November to plant a commemorative tree. I was deeply touched by the generosity of my Indonesian colleagues. But I was also immediately struck by the thought that this would be an outstanding venue for judiciaries in the region to come together for a dedicated time of training, while also taking the time and the opportunity to renew old friendships and to make new ones. I explored these ideas with Chief Justice Syarifuddin and, when we spoke again in February this year, these ideas crystallised further. It is a testament to the solid bonds of trust and goodwill between our respective judiciaries that less than a year after those initial conversations, we are all gathered here at this inaugural Masterclass Programme for Commercial Judges in Asia. This would simply not have been possible without the immense hard work and dedication of all those who have exerted considerable effort to bring those early seeds to fruition.
2. This is a historic gathering of nearly 60 commercial judges from 16 jurisdictions. And we will spend four days dedicated to learning from each other in a number of areas of vital importance in commercial law. I do not believe that such a venture, of judges coming from a variety of backgrounds and traditions, both common law and civil law, has a precedent. I am truly delighted that we are here today in this shared endeavour to prepare for the many challenges that we all share in common.
3. Before embarking on my substantive remarks, I want to take a moment to thank a number of people. First, I acknowledge with deep gratitude the work of the steering committee comprising Justices Agung Sumanatha and Syamsul Maarif from the Supreme Court of Indonesia, and my colleagues Justices S Mohan and Philip Jeyaretnam from the Supreme Court of Singapore. They, and their respective teams, worked very hard to put together this programme and to realise our vision for the Masterclass. I would also like to express my heartfelt gratitude to all the trainers who worked extremely hard to ensure that all the training sessions would be of the highest calibre. Let me also mention the work done by my colleague, Judge Justin Yeo, and his team at the Singapore Judicial College, who coordinated the programme and have ensured that it will give us all plenty to take away. And, of course, none of us would be here without the outstanding generosity and hospitality of Judge Bambang Hery Mulyono and his team at the Judicial Training Centre, who have been such enthusiastic partners in working with us to put this programme together. Let me also thank each of you who have taken the time and travelled far to join us for this Masterclass. I hope you will leave Bogor feeling that this was time very well spent. But last and certainly not least, let me express my personal and heartfelt appreciation to Chief Justice Professor Dr Muhammad Syarifuddin, who readily embraced the idea, gave it his full support and generously agreed to host the inaugural run of the Masterclass. I am delighted that we have been able to convene in Bogor during Chief Justice Syarifuddin’s tenure and I very much hope that the Supreme Court of Indonesia will continue to play a pivotal role in future iterations of this Masterclass.
4. This Masterclass is directed primarily at commercial judges in Asia, and there is a reason for that choice. We are now almost a quarter of the way into what has been termed the “Asian Century”.(1) Of course, the realities of geopolitics and the global economy, the emergence of existential threats such as climate change and the breakdown of trust in institutions, not to mention crises like the COVID-19 pandemic, have all combined to make the picture far more complicated than a two-word label can convey.(2) But the importance of the Asia-Pacific region on the international stage cannot be denied. Asia and the Pacific are home to 60% of the world’s population,(3) and this region contributed nearly two-thirds of global growth in 2023.(4) That growth was driven by commercial activity, and this in turn has to be supported by robust legal frameworks that provide order, justice and a “currency of trust”. Counterparties to transactions who may be spread far and wide need this in order to engage in transnational commerce.(5) And commercial judges play a vital role in developing and administering these legal frameworks in a way that offers stability and predictability, while balancing principle and pragmatism. But, in our relentlessly dynamic world, that is not an easy task. Even in areas that might have once been relatively well-settled, new trends have emerged to change how business is done, and human ingenuity and innovation have generated a multitude of challenging legal, ethical and technical questions.
5. It is with all this in mind that I come to the subject of my address today – “The Changing Face of Commercial Law: New Frontiers in an Asian Century”.
(a) I will first outline how changes affecting core commercial areas are transforming the realities of commercial law and practice today.
(b) I will then offer a vision of convergence between judiciaries across the Asia-Pacific region in key commercial areas, and consider how this could assist our legal systems in managing these changes.
(c) And I will conclude with an explanation of why I believe this Masterclass offers a unique value proposition for judicial education and exchange in our region in these times. While the Masterclass will not cover all the areas that I will touch on in this address, I assure you that we will closely watch developments in these and related areas to ensure that future iterations of the Masterclass will continue to dive deep into the most pressing issues confronting judges in our region.
II. The changing landscape of commercial law
6. Let me first outline three key changes that have come together to transform, and will continue to transform, the work of commercial lawyers and judges today:
(a) first, the climate crisis and mounting concerns regarding environmental damage;
(b) second, technological advancements and their inevitable impact on our legal systems; and
(c) third, the internationalisation of commercial activity.
A. Climate crisis and environmental damage
7. Let me say a few words about each of these, beginning with the looming climate crisis(6) and intensifying concerns over environmental damage, which will inevitably intersect with the law in new and evolving ways. Courts and other dispute resolution institutions are increasingly being confronted with disputes that relate directly or indirectly to climate change and environmental damage. People around the world have had to turn to the legal process to challenge the actions – or the inaction – of public and private sector entities in relation to the environment.(7) It has been reported that the volume of climate change cases across the world has more than doubled since 2017,(8) and research published this January estimated that polluting companies could be liable for up to trillions of dollars in damages from climate lawsuits.(9) Disputes like these are increasingly likely to arise in commercial contexts, and this will have significant implications for commercial practice. Judges and lawyers will need to gear up in order to be able to navigate the difficult issues these disputes will raise.
8. Let me illustrate this with reference to just two fields: arbitration and maritime law
i. Arbitration
9. Turning first to arbitration, I suggest that arbitral tribunals will play an increasingly prominent role in resolving disputes relating to environmental protection. In 2019, the International Chamber of Commerce (or “ICC”) noted that an average of three new environmental protection cases had been registered with the ICC each year since 2007, with up to six cases in some years; and that other arbitral institutions had reported similar statistics. The ICC also predicted that climate change-related disputes would increase exponentially in the years to come.(10)
10. Arbitration can be a powerful mechanism for enforcing environmental obligations, particularly in the context of investor-State dispute settlement.(11) It offers the advantages of relative flexibility – including the ability for the parties to appoint arbitrators with relevant expertise in environmental issues – and the benefit of the robust framework for the cross-border recognition and enforcement of awards that is afforded by the New York Convention.(12) But these developments have also raised questions about whether the traditional model of private arbitration should be adapted for climate change-related disputes, given that these typically have very strong public interest implications that extend far beyond the parties.(13) On the other hand, some have expressed concerns that the prospect of investors using treaty obligations to challenge State action might give rise to “regulatory chill”, where governments are deterred from taking robust and legitimate steps to regulate investments in the public interest.(14) Lawyers and judges will need to understand these nuanced perspectives in order to weigh in on these debates. And while the merits of arbitral awards on these issues would generally not come before the courts, judges who hear arbitration matters will need to keep abreast of developments in this field in order to maintain and deepen their subject-matter familiarity, which can often be essential to properly evaluate challenges to the recognition and enforcement of awards.
ii. Maritime Law
11. Another area where the increasing focus on climate change will affect commercial practice is maritime law. The international shipping industry is responsible for around 3% of global greenhouse gas emissions, and its emissions have risen by a fifth over the past decade.(15) Concerns over the impact of shipping activity on the marine environment have led to the adoption and amendment over the years of the International Maritime Organization (or “IMO”)’s International Convention for the Prevention of Pollution from Ships.(16) Last July, the IMO adopted a Revised Strategy on the reduction of greenhouse gas emissions, which establishes more ambitious targets – including the aim of reaching net-zero greenhouse gas emissions from international shipping by around 2050.(17) Targets such as these, and associated regulations, will no doubt shape how shipping companies conduct their business.(18)
12. Commercial actors will also feel the implications and effects of public international law developments in this sphere. In May, the International Tribunal for the Law of the Sea determined that greenhouse gas emissions constituted pollution of the marine environment under the United Nations Convention on the Law of the Sea (or “UNCLOS”), and that States Parties were under specific obligations to take all necessary measures to prevent, reduce and control marine pollution from greenhouse gas emissions. Notably, the Tribunal observed that a State’s UNCLOS obligations went beyond its climate change-related obligations under the Paris Agreement.(19)
13. These are examples drawn from just two areas of commercial law, but they underscore the significant impact that issues relating to climate change and environmental damage will have on commercial practice in the years to come.
14. In that light, I should comment briefly on why we decided not to include a module specifically on climate and environmental issues in this iteration of the Masterclass. This was primarily for two reasons. First, the pace at which this field is growing led us to think that it might be beneficial to let some time pass to afford us a better perspective on how this area might develop. Second, and more importantly, this being our inaugural programme, we were concerned that we would not be able to do justice to two very large and substantive topics that are rapidly developing – namely technology and the law, which we are covering, and climate and environmental law – while also covering core commercial areas such as arbitration, insolvency, intellectual property and maritime law. With our experience from running this inaugural programme, we will be better placed to consider how best to strike a balance between breadth, depth and time constraints, while also including a module specifically covering this rapidly developing sphere, in subsequent iterations of the Masterclass.
B. Technological advancements
15. Let me now turn to the second key area of change, and one we will cover several aspects of in this Masterclass – that is, the rapid pace and dramatic scale of technological advancements. In particular, we are confronting developments in generative artificial intelligence (or “AI”) that have taken the world by storm since ChatGPT was launched publicly in November 2022.(20) The capabilities and sophistication of generative AI have grown dramatically in the relatively short period of time since then, and they will continue to grow. In April, it was reported that OpenAI and Meta would soon release new AI models that would be capable of reasoning and planning. These are important steps towards the advent of artificial general intelligence, which would further narrow the gap between man and machine.(21) What implications will this have for humanity?
16. While AI tools are not problem-free, they will bring about a paradigm shift in many aspects of commercial activity. The use of AI has already generated a host of legal issues in various areas, and I will mention just two examples – both in the field of intellectual property – which we are likely to explore further in future iterations of the Masterclass.
(a) The first is whether AI-generated output can be protected by intellectual property concepts such as copyright. For example, in Thaler v Perlmutter, a US District Court held that AI-generated visual art could not be protected by copyright, because the work lacked human authorship.(22) On the other hand, other courts, such as the Beijing Internet Court,(23) have taken a different view on this issue.
(b) The second is whether the training and use of AI systems infringes the intellectual property rights of other, human creators. Over the course of the past year, several newspapers in the US have filed copyright infringement lawsuits claiming that Microsoft and OpenAI had unlawfully copied millions of their articles to train their generative AI systems.(24) And the Guangzhou Internet Court has held that an AI-powered text-to-image generator infringed the copyright in the character “Ultraman” by generating images that were identical or substantially similar to “Ultraman” when prompts containing or related to “Ultraman” were entered.(25)
17. Other than developments in AI, technological advancements have also led to the proliferation of digital assets, such as cryptocurrencies and non-fungible tokens. These developments have raised questions as fundamental as whether these creatures of a virtual world should be recognised as having the legal status of “property”.(26) Beyond doctrinal questions, more immediate practical issues also arise from the nature of digital assets, such as – how they can be traced, and what powers the authorities have in respect of their seizure and forfeiture.
18. The interface between technology and the law is, as I have mentioned, a module in this Masterclass. And during this first day, we will consider not only some of these frontier issues in technology and the law, but will also explore how technology is likely to impact the way judges work; and, equally importantly, how technology can empower us to address the global access to justice crisis.
19. But such is the impact of technological advancements on every aspect of our lives that it is unlikely to leave any area of the law untouched. Commercial judges will need to be responsive to these developments, especially as they may be called upon to provide guidance and erect guardrails in areas that are not yet fully regulated by the state, but which nonetheless have significant implications for the conduct of commercial activity. When new commercial realities give rise to legal questions, and particularly where harm has been suffered, commercial parties will look to the courts for answers – and we have to be ready to respond.(27)
C. Internationalisation of commercial activity
20. I turn to the third key aspect of change – the internationalisation of commercial activity. This is not a new phenomenon. Since the end of the Second World War, globalisation has led to a dramatic expansion of transnational trade and commerce.(28) But this internationalisation has been accelerated by the ability of technology to transcend geographical and jurisdictional boundaries, such that today, our world is perhaps more economically, financially, socially and culturally interconnected than ever before. This is true not only at the level of nations, but also at the level of businesses and individuals.(29)
21. While internationalisation has shaped all areas of commercial law, it has had an especially significant impact in the field of cross-border insolvency. Cross-border enterprise and cross-border insolvency are, in many ways, two sides of the same coin. As businesses seek to establish their presence in multiple economies, commercial activity has become increasingly internationalised, which has also meant that the operations, transactions and assets of those businesses are increasingly spread across jurisdictions. Importantly, this has been the case not only for large multinational corporations, but also small and medium enterprises and even individuals, who are increasingly able to participate directly in the global economy.(30)
22. When these entities fall on hard times, restructuring and insolvency regimes assume central importance. These regimes are, at their core, concerned with recycling and reallocating capital to maximise the prospects of corporate recovery; and, if this is not possible, at least to maximise the realisation of value for stakeholders.(31) This endeavour of recycling and reallocating capital fairly and efficiently is further complicated when those businesses operate transnationally, and where, as a consequence, insolvency proceedings can be commenced in several different jurisdictions, all at the same time. In such cases, multiple jurisdictions may be confronted with different parts or facets of what is ultimately the same legal problem,(32) and the interaction of these different systems of law and procedure can give rise to difficult and thorny legal and practical issues, while also adversely affecting the prospects of rescue or even of recovery.
23. Taken together, the three changes that I have outlined will transform the landscape of commercial law in a way that cannot be avoided or reversed. And this process of dramatic change will continue for the foreseeable future. It follows that commercial lawyers and judges today are operating in a world that is quite different from that of their predecessors. And we will need to be prepared to meet and deal with the challenges that will be thrown up by those changes, if we are to survive and thrive in tomorrow’s world.
III. A vision of convergence
24. How, then, should we manage these changes? I suggest that the increasingly transnational nature of commercial law, and of the changes that are transforming our operating environment, calls for responses from the broader transnational system of commercial justice.
25. Let me elaborate. On previous occasions, I have argued that such a transnational system has been taking shape organically over the course of the last several decades, and this is so notwithstanding the absence of any centralised regulating or directing authority. I have argued that this has been driven largely by the need to facilitate the efficient and effective resolution of international commercial disputes.(33) One key characteristic of this transnational system is convergence between different legal systems, including between their judiciaries. Let me be clear: convergence does not mean uniformity of laws or approaches. Rather, it is a mindset of striving for awareness of developments in similar areas of law in other jurisdictions and then, wherever possible, of choosing to take broadly consistent approaches. The short point is that if we are to adapt and respond effectively to issues that increasingly transcend jurisdictional boundaries, we simply have to avoid operating in jurisdictional siloes, and instead embrace an enlightened transnational outlook to the problems that we all share in common.
26. Such convergence can be especially important in the Asia-Pacific region because of the considerable variance and heterogeneity of the laws found here. Our region is home to a mixture of common and civil law systems, and these different legal traditions are often further fused with varied local customs and conventions.(34) The ensuing fragmentation of commercial laws, procedures and regulations that operate across jurisdictions increases uncertainty and raises business risks and transaction costs, which can dampen the growth of cross-border trade, investment and business activity in the region.(35)
27. I reiterate that convergence does not entail an endeavour to achieve total uniformity or to develop a supranational body of commercial law. That simply would not be possible, because the laws of different jurisdictions must account for legitimate differences in their domestic legal systems, and their national interests and circumstances.(36) But differences are not always necessary or desirable, and some degree of harmonisation or collaboration will often be beneficial in securing overall coherence and predictability, and in minimising the practical difficulties raised by transnational legal issues. Meaningful convergence, in this sense, can be tremendously beneficial in key commercial areas. I return here to three of the areas I have already touched on: cross-border insolvency, arbitration, and technology.
A. Cross-border insolvency
28. Beginning with cross-border insolvency, there is a compelling case for insolvency courts to adopt the pragmatic approach of “modified universalism”, under which courts in jurisdictions where ancillary proceedings have been filed should – as far as is consistent with justice and their own public policy – strive to coordinate with the court in the jurisdiction managing the main insolvency proceedings. This will help ensure that the insolvent entity’s assets are distributed to its creditors under a managed and coherent scheme.(37)
29. This goal has been advanced with the emergence of international instruments like the UNCITRAL Model Law on Cross-Border Insolvency, which provide a useful framework for securing the orderly resolution of such cases. However, the scope and effect of these instruments in practice will depend on how they – or legislation based upon them – are interpreted and applied by you, meaning the courts in each jurisdiction.(38) The goal of convergence would be greatly advanced if courts in different jurisdictions were to take harmonised and broadly consistent substantive approaches to managing cross-border insolvencies. Notably, the Model Law itself acknowledges its international origin, and emphasises the need to promote consistency in its application, as considerations that are relevant when interpreting its provisions.(39) When national courts adopt interpretations of its provisions that are broadly harmonious with those of other jurisdictions, and which are aligned with the purpose of the Model Law,(40) they make a valuable contribution to achieving and maintaining coherence in the transnational system of commercial justice by producing outcomes that are predictable and stable.
30. Convergence in cross-border insolvency and restructuring matters is also significantly facilitated by various procedural and institutional mechanisms, such as court-to-court communication and cooperation. The Guidelines(41) and Modalities(42) developed by the Judicial Insolvency Network (or “JIN”) provide useful models for this kind of collaboration. And the JIN itself, which held its fifth Conference in Singapore in June, continues to offer an excellent platform for judicial thought leadership and direct engagement across jurisdictions on the particular issues that arise in cross-border insolvency and restructuring.(43)
B. Arbitration
31. I turn next to arbitration. The courts have an important role to play in strengthening arbitration as an alternative mode of dispute resolution that complements the role of litigation in the transnational system.(44) But the interaction between litigation and arbitration raises a range of questions relating to how jurisdiction should be allocated between courts and arbitral tribunals; how the courts should approach the recognition and enforcement of arbitral awards; and what standards the courts should apply when assessing the conduct of arbitration. When courts in different jurisdictions answer these questions in broadly consistent ways, they not only support arbitral institutions, but also contribute to maintaining the coherence of the broader transnational system.
32. Take, for instance, how the courts have facilitated the enforcement of arbitral awards by developing and applying doctrines that prevent the relitigation of disputes over the validity of those awards. In the recent Deutsche Telekom case, the Singapore Court of Appeal held that the doctrine of transnational issue estoppel should be applied by a Singapore enforcement court – subject to considerations of domestic public policy – when determining whether preclusive effect should be given to a prior decision of the seat court on the validity of an arbitral award. In applying the doctrine in this context, we observed that this appropriately respected the parties’ choice of the arbitral seat as the jurisdiction and system of law that would regulate most matters concerning the arbitration, and we refused to allow the party resisting enforcement of the award to relitigate issues before us that had been dealt with before the seat court.(45)
33. When the courts support arbitration in ways like these, they demonstrate a form of collaboration with arbitral tribunals that safeguards the legitimate place of arbitration in the transnational system. And if courts across jurisdictions apply broadly similar tools for preventing relitigation and facilitating enforcement, they can achieve convergence in the way that disputes over the validity of arbitral awards are managed and resolved. This, in turn, enables the transnational system as a whole to deliver outcomes that accord with commercial expectations of finality, certainty and fairness.(46)
C. Legal responses to new technologies
34. Let me touch finally on technology. Many of the issues raised by the technological advancements that I mentioned earlier are novel and difficult, and they transcend jurisdictional boundaries. As we navigate this uncertain territory, it will be especially important for domestic courts to look abroad at developments taking place elsewhere, and to consider how their foreign counterparts have responded to these developments. It might also be desirable for different jurisdictions ultimately to strive to offer generally consistent – or at least compatible – answers to fundamental questions such as whether cryptocurrencies and other digital assets should be treated as forms of property, as well as solutions to practical issues such as the tracing and forfeiture of such assets. Indeed, steps towards convergence have already been taken in an organic way, when the courts have referred to the decisions of their foreign counterparts on similar issues. For instance, in relation to whether cryptocurrencies are a form of property, the courts in New Zealand, Hong Kong and Singapore have walked a generally common path.(47)
35. Collaboration and convergence between jurisdictions would go a long way in enabling the courts to offer clear, coherent and principled answers to commercial actors who deal with these new technologies. This is also why platforms for international judicial exchange – such as the Meetings of Chief Justices and Judges in Charge of Technology, and indeed this Masterclass – are so valuable.
IV. The unique value proposition of the Masterclass
36. This brings me to the final part of my address, on the unique value proposition of the Masterclass. I suggest that the Masterclass has at least four distinctive features that make it a particularly important platform for judicial education and exchange in our region.
37. The first is its scope. The Masterclass identifies five of the areas that are of core commercial concern to most, if not all, judiciaries. These are areas that commercial judges today must have a firm grounding in, especially if we are to respond effectively to the challenges that will arise from the changing landscape of commercial law that I have outlined. It is also envisioned, as I have said, that future iterations of the Masterclass will cover cutting-edge commercial law topics within each of these areas in their own time, while also adding new areas of critical importance, so that the content of the Masterclass remains timely and relevant.
38. The second feature of the Masterclass is its methodology. It is an intensive multi-day course that allows for a deep dive into each of the topics identified. It also brings together an eminent faculty of experts on various aspects of commercial law, each of whom will have rich perspectives and insights to share. The Masterclass therefore promises to deliver high-quality judicial education and training, as well as opportunities for in-depth dialogue and discussion on these areas of importance.
39. The third feature of the Masterclass is you – its participants. I mentioned earlier that the Asia-Pacific region is home to a mixture of common and civil law systems, and this is reflected in the combination of common and civil law judges present here today. It is also reflected in the partnership between the Supreme Court of Indonesia and the Supreme Court of Singapore in organising this Masterclass. Notwithstanding our different legal traditions, we face many of the same issues and share similar aims – including the core aim of ensuring that our respective judicial systems deal with important commercial issues efficiently, effectively and fairly. I therefore particularly encourage you to take every opportunity to interact with your fellow participants to understand one another’s perspectives; to reflect on what we can learn from each other; and, above all, to make good friendships.
40. The fourth feature is the network that the Masterclass aims to establish. I have spoken of the importance of international collaboration and exchange, and the Masterclass provides a platform for precisely that. Beyond these four days, I very much hope that the working relationships that you develop here will endure for years to come. These relationships are important not only in their own right, but also because they provide a valuable resource for continued learning and a strong foundation for further engagement between your judiciaries and legal systems.
V. Conclusion
41. It is the combination of these features that makes the Masterclass, I think, very special indeed. In these times of change and challenge, it is more important than ever that we choose to come together to gain a better understanding of, and think collectively about, the critical issues we all face. And on that note, I close by once again thanking Chief Justice Syarifuddin and the Supreme Court of Indonesia for their generous hospitality and the superb way in which we have worked together to bring this programme to fruition. I wish you all a fruitful and fulfilling four days ahead.
42. Thank you very much.
* I am deeply grateful to my colleagues, Assistant Registrars Tan Ee Kuan, Wee Yen Jean and Bryan Ching, for all their assistance in the research for and preparation of this address.
(1) See, for example: Asian Development Bank, “Asia 2050: Realizing the Asian Century” (August 2011); Jeongmin Seong and Jonathan Woetzel, “We’ve entered the Asian Century and there is no turning back”, World Economic Forum (11 October 2019); and Neville Lai Yunshek and Wai-Hong Tang, “Why we can expect the return of the ‘Asian Century’ amid weak global economic forecasts”, World Economic Forum (8 January 2024): https://www.weforum.org/agenda/2024/01/asian-century-weak-global-economic-forecasts.
(2) See Bilahari Kausikan, “Will the 21st Century Be Asian?”, The State of Asia Address 2023 (21 November 2023).
(3) See United Nations, Economic and Social Commission for Asia and the Pacific, “Asia-Pacific Population and Development Report 2023” (2023) (ST/ESCAP/3112) at p 2.
(4) See International Monetary Fund, “Regional Economic Outlook: Asia and Pacific: Steady Growth Amid Diverging Prospects” (April 2024) at p 1.
(5) See Sundaresh Menon CJ, “The Role of an Effective and Efficient Judiciary in Promoting Economic Development – The Singapore Perspective”, speech to the Brunei Judiciary (4 July 2024) (“Speech to the Brunei Judiciary”) at para 34; and Sundaresh Menon CJ, “Transnational Commercial Law and the Development of the Modern-Day Lex Mercatoria”, lecture to the National Judges College, Beijing (29 November 2023) (“NJC Lecture”) at para 6.
(6) The United Nations’ Intergovernmental Panel on Climate Change (“IPCC”) has said that there is “a rapidly closing window of opportunity to secure a liveable and sustainable future for all”: Climate Change 2023: Synthesis Report, Contribution of Working Groups I, II and III to the Sixth Assessment Report of the IPCC (2023) at p 24.
(7) See, for example, the following climate change-related disputes before the courts: Vereniging Milieudefensie and others v Royal Dutch Shell plc (Judgment of 26 May 2021) ECLI:NL:RBDHA:2021:5339 (a decision of the Hague District Court which held that Shell had an obligation to reduce carbon dioxide emissions from the Shell group’s business operations and products by 45% by the end of 2030, relative to 2019 levels); Michael John Smith v Fonterra Co-operative Group Limited and others [2024] NZSC 5 (a decision of the Supreme Court of New Zealand which allowed tortious claims against certain greenhouse gas emitters based on public nuisance, negligence, and a proposed “climate system damage tort”, to proceed to trial); M K Ranjitsinh and others v Union of India and others (Writ Petition (Civil) No 838 of 2019) [2024] INSC 280 (a decision of the Supreme Court of India which held that the Indian Constitution assures the right to a healthy environment and the right to be free from the adverse effects of climate change); and Verein KlimaSeniorinnen Schweiz and others v Switzerland [2024] ECHR 304 (a decision of the European Court of Human Rights which held that Switzerland had breached its obligations under Article 8 of the European Convention on Human Rights by not doing enough to mitigate climate change). See also Sundaresh Menon CJ, opening remarks at the Singapore Academy of Law Annual Lecture 2024 (19 July 2024) at para 7(c); Speech to the Brunei Judiciary at para 28; and Sundaresh Menon CJ, “The Role of the Judiciary in a Changing World”, Supreme Court of India Day 1st Annual Lecture (4 February 2023) at para 9.
(8) See Michael Burger and Maria Antonia Tigre, Global Climate Litigation Report: 2023 Status Review, United Nations Environment Programme and Sabin Center for Climate Change Law, Columbia University (June 2023) (“Global Climate Litigation Report”) at p 12 (noting that the total number of climate change cases had increased from 884 in 2017 to 2,180 in 2022).
(9) See Thom Wetzer, Rupert Stuart-Smith and Arjuna Dibley, “Climate risk assessments must engage with the law” (11 January 2024) 383(6679) Science 152.
(10) See International Chamber of Commerce, Commission on Arbitration and ADR, “Resolving Climate Change Related Disputes through Arbitration and ADR” (2019) (“ICC Report”) at paras 3.8 and 3.9.
(11) See, for example: Peter A Allard v The Government of Barbados, PCA Case No 2012-06, Award (27 June 2016) at [3] and [244] (where the arbitral tribunal held that states could in principle owe obligations to take reasonable action to prevent environmental damage); Burlington Resources Inc v Republic of Ecuador, ICSID Case No ARB/08/5, Decision on Counterclaims (7 February 2017) at [52], [889], [1075(i)] and [1099] (where the tribunal allowed Ecuador’s counterclaim for soil and groundwater pollution around oil production facilities, and ordered the corporation that had invested in those facilities to pay damages in excess of US$39 million for breaching Ecuadorian environmental laws); and David Aven v The Republic of Costa Rica, Case No UNCT/15/3, Final Award (18 September 2018) at [738] and [742] (where the tribunal held that an investor could in principle be liable for breaching international legal obligations relating to environmental protection).
(12) See the ICC Report at para 4.3.
(13) See the ICC Report at para 5.66; and Sundaresh Menon CJ, “Arbitration and the Transnational System of Commercial Justice: Charting the Path Forward”, keynote address at the 25th Annual International Bar Association Arbitration Day (23 February 2024) (“Arbitration and the TSCJ”) at para 31.
(14) See Kyla Tienhaara, “Regulatory Chill in a Warming World: The Threat to Climate Policy Posed by Investor-State Dispute Settlement” (2017) 7(2) Transnational Environmental Law 229; and Amanda Lees, Wilson Antoon, Erin Eckhoff and Jack McNally, “Suitability of ISDS for Societal Challenges”, Global Arbitration Review (14 January 2022): https://globalarbitrationreview.com/guide/the-guide-investment-treaty-protection-and-enforcement/first-edition/article/suitability-of-isds-societal-challenges. For example, in Ethyl Corporation v The Government of Canada, NAFTA/UNCITRAL Case, Award on Jurisdiction (24 June 1998), Canada reversed a ban on a petrol additive in order to settle a dispute arising from the ban; and in Vattenfall AB and others v Federal Republic of Germany, ICSID Case No ARB/09/6, Award (11 March 2011), investors challenged Hamburg’s environmental protection restrictions on their water use permits, and Hamburg eased those restrictions in order to settle the dispute.See also the Global Climate Litigation Report at p 71 (which noted that claims by foreign investors, seeking compensation for the detriment caused to them by State measures pursuing climate objectives, might hinder national mitigation efforts).
(15) See United Nations Conference on Trade and Development, “Review of Maritime Transport 2023: Towards a Green and Just Transition” (2023) (“UNCTAD Review of Maritime Transport”) at pp xiii and xxiii.
(16) See International Maritime Organization, Conventions, “International Convention for the Prevention of Pollution from Ships (MARPOL)” (adopted in 1973 and entered into force on 2 October 1983).
(17) See the UNCTAD Review of Maritime Transport at pp 63–64.
(18) See Willy C Shih, “Climate Regulations Are About to Disrupt Global Shipping”, Harvard Business Review (21 October 2022): https://hbr.org/2022/10/climate-regulations-are-about-to-disrupt-global-shipping.
(19) See the Advisory Opinion of the International Tribunal for the Law of the Sea in Case No 31 of 2024 (21 May 2024), issued in response to the Request for an Advisory Opinion Submitted by the Commission of Small Island States on Climate Change and International Law, at paras 222–224 and 441.
(20) See Bernard Marr, “A Short History of ChatGPT: How We Got To Where We Are Today”, Forbes (19 May 2023): https://www.forbes.com/sites/bernardmarr/2023/05/19/a-short-history-of-chatgpt-how-we-got-to-where-we-are-today.
(21) See Madhumita Murgia and Cristina Criddle, “OpenAI and Meta ready new AI models capable of ‘reasoning’”, Financial Times (10 April 2024): https://www.ft.com/content/78834fd4-c4d1-4bab-bc40-a64ad9d65e0d.
(22) See Stephen Thaler v Shira Perlmutter and The United States Copyright Office [2023] No. 22-CV-384-1564-BAH (decision of the US District Court for the District of Columbia). Dr Thaler’s appeal is currently pending before the US Court of Appeals for the District of Columbia Circuit.
(23) See Li v Liu, Beijing Internet Court Civil Judgment (2023) Jing 0491 Min Chu No 11279 (which held that an AI-generated image could be protected by copyright as it met the requirements of originality and reflected the AI software user’s original intellectual investment, in the form of the prompts and parameters he had selected and his selection of the final image).
(24) See Edward Helmore, “Microsoft asks to dismiss New York Times’s ‘doomsday’ copyright lawsuit”, The Guardian (7 March 2024): https://www.theguardian.com/technology/2024/mar/06/microsoft-dismiss-ai-new-york-times-lawsuit; and Blake Brittain, “US newspapers sue OpenAI for copyright infringement over AI training”, Reuters (1 May 2024): https://www.reuters.com/legal/us-newspapers-sue-openai-copyright-infringement-over-ai-training-2024-04-30.
(25) See Shanghai Character License Administrative Co Ltd, Guangzhou Internet Court (2024) Yue 0192 Min Chu 113.
(26) See, for example: Quoine Pte Ltd v B2C2 Ltd [2020] 2 SLR 20 (where the Singapore Court of Appeal opined that “[t]here may be much to commend the view that cryptocurrencies should be capable of assimilation into the general concepts of property”); Ruscoe v Cryptopia Ltd (in liquidation) [2020] 2 NZLR 809 at [77]–[84] (where the New Zealand High Court held that cryptocurrencies are a form of property that can be held on trust); Re Gatecoin Limited (in liquidation) [2023] HKCFI 914 (where the Hong Kong Court of First Instance held that cryptocurrency is “property” and is capable of being held on trust under Hong Kong law); and ByBit Fintech Ltd v Ho Kai Xin and others [2023] 5 SLR 1748 at [4], [34]–[36] and [42]–[44] (where the General Division of the High Court in Singapore held that crypto assets give rise to incorporeal rights of property recognisable by the common law as things in action that are enforceable in court).
(27) See Speech to the Brunei Judiciary at para 7.
(28) See the NJC Lecture at para 6; and Sundaresh Menon CJ, “The Transnational System of Commercial Justice and the Place of International Commercial Courts”, lecture in Bahrain (9 May 2023) (“Bahrain Lecture”) at para 8.
(29) See Sundaresh Menon CJ, “Introduction: Justice in a Globalised Age” in Transnational Commercial Disputes in an Age of Anti-Globalism and Pandemic (Sundaresh Menon and Anselmo Reyes (eds)) (Hart Publishing, 2022) at pp 1 and 7–8.
(30) See Judicial Commissioner Kannan Ramesh (as he then was), “Cross-Border Insolvencies: A New Paradigm”, speech at the International Association of Insolvency Regulators’ 2016 Annual Conference and General Meeting (6 September 2016) at paras 3–8.
(31) See Sundaresh Menon CJ, “The Future of Cross-Border Insolvency: Some Thoughts on a Framework Fit for a Flattening World”, keynote address at the 18th Annual Conference of the International Insolvency Institute (25 September 2018) (“Future of Cross-Border Insolvency”) at paras 3–5; and Speech to the Brunei Judiciary at para 21.
(32) See Future of Cross-Border Insolvency at para 4.
(33) See, for example: Sundaresh Menon CJ, “The Law of Commerce in the 21st Century: Transnational Commercial Justice Amidst the Wax and Wane of Globalisation”, lecture hosted by the University of Western Australia Law School and the Supreme Court of Western Australia (27 July 2022) at paras 17 and 45; the Bahrain Lecture at paras 18 and 30; Sundaresh Menon CJ, “International Collaboration in the Transnational System of Commercial Justice”, speech to the Indonesian Judiciary (7 November 2023) at para 2; and the NJC Lecture at para 3.
(34) See Sundaresh Menon CJ, “Transnational Commercial Law: Realities, Challenges and A Call for Meaningful Convergence”, keynote address at the 26th LAWASIA Conference and the 15th Biennial Conference of Chief Justices of Asia and the Pacific (27 October 2013) (“LAWASIA Address”) at para 40; Sundaresh Menon CJ, “Doing Business Across Asia: Legal Convergence in an Asian Century”, keynote address (21 January 2016) at paras 5–7; Sundaresh Menon CJ, “The Settlement of International Commercial Disputes: Alternative Dispute Resolution, Commercial Courts and the Convergence of Commercial Laws”, lecture to the National Judges College (29 August 2019) at para 38; and the NJC Lecture at para 24.
(35) See the NJC Lecture at para 24; and the LAWASIA Address at paras 41–43.
(36) See the NJC Lecture at para 24; and the LAWASIA Address at para 45.
(37) See the Speech to the Brunei Judiciary at para 21; the Bahrain Lecture at paras 26, 38 and 42; and Future of Cross-Border Insolvency at para 18.
(38) See the Speech to the Brunei Judiciary at para 22; and the NJC Lecture at paras 20–21.
(39) See Art 8 of the Model Law (which provides that “[i]n the interpretation of this Law, regard is to be had to its international origin and to the need to promote uniformity in its application and the observance of good faith”).
(40) For example, in Ascentra Holdings, Inc (in official liquidation) and others v SPGK Pte Ltd [2023] 2 SLR 421 (at [32]–[46] and [64]–[92]), the Singapore Court of Appeal interpreted the term “foreign proceeding” in Art 2(h) of the Model Law, as enacted in Singapore, as not being limited to foreign proceedings involving companies that were insolvent or in severe financial distress. Accordingly, the solvent liquidation of the company in this case was recognised as a foreign main proceeding in Singapore. In arriving at this conclusion, the Court of Appeal noted that this interpretation was consistent with the overall purpose of the Model Law, one of the fundamental objects of which was to prevent creditors from rushing to satisfy their claims against a debtor company in a particular jurisdiction. This rationale for according recognition to foreign proceedings was engaged regardless of whether the proceedings were based on the solvency or insolvency of the company in question. The Court of Appeal also noted that this interpretation was broadly harmonious with the approaches taken in the US, the UK, Australia and New Zealand.
(41) Judicial Insolvency Network, Guidelines for Communication and Cooperation between Courts in Cross-Border Insolvency Matters (2016): https://www.jin-global.org/content/jin/pdf/Guidelines-for-Communication-and-Cooperation-in-Cross-Border-Insolvency.pdf.
(42) Judicial Insolvency Network, Modalities of Court-to-Court Communication (2019): https://www.jin-global.org/content/jin/pdf/Modalities_for_court-to-court_communication.pdf.
(43) See SG Courts, “Media Release: Judicial Insolvency Network held its 5th Conference in Singapore on 12 and 13 June 2024” (1 August 2024): https://www.judiciary.gov.sg/news-and-resources/news/news-details/media-release--judicial-insolvency-network-held-its-5th-conference-in-singapore-on-12-and-13-june-2024.
(44) See Arbitration and the TSCJ at paras 3–4.
(45) See The Republic of India v Deutsche Telekom AG [2024] 1 SLR 56 at [4], [96]–[99], [174]–[178], [180] and [193].
(46) See Arbitration and the TSCJ at para 10.
(47) See footnote 26 above. For example, in Re Gatecoin Limited (in liquidation) [2023] HKCFI 914 at [48]–[59], the Hong Kong Court of First Instance referred to decisions from a range of jurisdictions on the proprietary nature of cryptocurrencies, including the Singapore Court of Appeal’s decision in Quoine Pte Ltd v B2C2 Ltd [2020] 2 SLR 20 and the New Zealand High Court’s decision in Ruscoe v Cryptopia Ltd (in liquidation) [2020] 2 NZLR 809.
2024/09/10
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