Chief Justice Sundaresh Menon: Opening Address at the ASEAN Arbitration Day

I. Introduction

1. Good morning. Let me first thank my friend Justice Pongdej Wanichkittikul for that extremely kind introduction, and also extend my congratulations, and deep gratitude, for the work that he has done in working together with Chief Justice Adisak Tantiwong to ensure the success of this General Assembly and all the related events. And I also take this opportunity to wish him and the ALA Thailand National Committee well for all that lies ahead. 

2. It is a privilege for me to deliver the opening address at this year’s ASEAN Arbitration Day. Over the course of today, you will consider a number of important issues, including the enforcement of arbitral awards, the setting and observance of standards in arbitration practice, and the harmonisation of arbitration practice and law within ASEAN. Let me offer a few thoughts to set those discussions in context, and then offer a suggestion for how we in ASEAN might carry this work forward together.

II. The need for convergence in arbitration

3. I want to begin with convergence, and I want to explain why convergence, or harmonisation, as it is described in the conference programme, matters at all. Indeed, in my view, convergence serves at least three critical functions.

4. First, it reduces considerably the scope for forum shopping. Where courts take markedly different approaches to arbitration agreements, jurisdictional objections, due process challenges or enforcement, the parties may be incentivised to manoeuvre for the most favourable forum, approaching it from a purely tactical perspective. This can give rise to satellite litigation, delay and uncertainty, while significantly ramping up costs. Convergence helps narrow the differences that may be exploited in this way, and it helps ensure that arbitration remains a means for the efficient resolution of disputes, rather than becoming yet another battleground.

5. Second, convergence facilitates enforcement. The value of arbitration lies ultimately in securing a decision that can be monetised, that can be translated into practical relief. If courts diverge too widely on the grounds on which recognition and enforcement may be refused, this can undermine the whole process of arbitration. 

6. Conversely, and perhaps most fundamentally, convergence strengthens confidence in the arbitral process itself. As I have said elsewhere, “nothing can be as corrosive of confidence in the arbitral process than the prospect of endless litigation with the attendant risk of inconsistent outcomes”.⁽¹⁾ Discordant results undercut the integrity of the transnational system of commercial justice.⁽²⁾ And that point bears emphasis, because arbitration can only function well if the parties trust that the process will not unravel after the award has been made, and it is convergence that sustains that confidence by making outcomes more predictable.

III. Efforts at promoting convergence in arbitration

7. Fortunately, the importance of convergence has long been recognised, and substantial efforts have already been made, perhaps in no area of the law more than in arbitration law. These efforts may be grouped under three broad heads.

8. The first is the development of a common legal architecture through international instruments. The New York Convention and the UNCITRAL Model Law have together supplied the foundations of modern international arbitration practice. Together, they have aligned most national laws around a few core principles: that arbitration agreements should generally be upheld; that arbitral tribunals may rule on their own jurisdiction; that courts should intervene only within defined and typically narrow limits; and that awards should be enforced subject only to narrow and well-established exceptions. As I have suggested, I think arbitration offers one of the clearest examples of convergence within the transnational system of commercial justice. But the value of these efforts in developing these international instruments depends very heavily on national courts taking broadly convergent approaches to the interpretation and application of these instruments.

9. This leads to the second point, which is that happily, most national courts do take a supportive and appropriately restrained role when arbitration awards come before them. In this way, they too have contributed to convergence by upholding arbitration awards and agreements, respecting the tribunal’s competence to rule on its own jurisdiction by giving due defence to their rulings, by upholding and recognising the validity of awards, and by intervening only on limited and principled grounds.

10. The third is the continuing emergence of common procedures and institutional practices which have done much to bridge differences between legal traditions. These include institutional rules, soft law instruments and model clauses which cover areas such as the taking of evidence,⁽³⁾ the organisation of arbitration proceedings,⁽⁴⁾ and norms on the conduct of counsel and arbitrators.⁽⁵⁾

IV. Singapore’s experience

11. Against that backdrop, let me offer a few observations, drawing on Singapore’s experience. Singapore’s development as a seat of international arbitration has been inseparable from our commitment to the wider project of legal convergence. The strength of our arbitration ecosystem rests in significant part on the consistent choices that we have made to align ourselves with internationally accepted practices. Convergence, in that sense, is not just incidental to the ecosystem we have built. Instead, it is one of its foundations. Parties choose Singapore as a seat in large measure because they can be confident that the governing legal framework and the approach the courts will take to the interpretation and application of that framework will be very much in line with international standards and will even help to develop those standards. As a result, an award rendered in Singapore will likely be the outcome of a process that is well understood and respected in most other jurisdictions.

12. Our commitment to convergence is reflected, first, in our legislative framework. The International Arbitration Act 1994 gives effect to the UNCITRAL Model Law and the New York Convention, and it reflects a deliberate choice to align our arbitration law with internationally accepted standards. That choice signalled, from an early stage, Singapore’s intention to operate within, and to contribute to, the common architecture of international arbitration.

13. It is reflected, second, in the work of our arbitral institutions. Arbitral institutions shape expectations, develop procedural norms and influence practice across jurisdictions. Through its rules, case administration and engagement with the wider international arbitration community, the Singapore International Arbitration Centre, or SIAC, has contributed to the development of standards that are understood and applied well beyond our shores. For example, the SIAC was the first Asian arbitration institution to offer an emergency arbitration procedure, under which an emergency arbitrator may be appointed to hear applications for urgent interim relief prior to the constitution of the tribunal.⁽⁶⁾  Innovations such as these have had the effect of strengthening arbitration as a whole, and at the same time, of reinforcing Singapore’s standing as an international arbitration seat.

14. And third, our commitment to convergence is reflected in our jurisprudence. Our courts have sought to support arbitration through what is sometimes described as a pro-arbitration stance. I do not like that term because I think it can be misunderstood. It does not mean that our courts will uphold an award at any cost. What it means rather is that the courts will only intervene where intervention is justified, and that itself is narrow and pro-arbitration, because that is the spirit of the international instruments that we are applying. And that is what it takes to be mindful of the choice that the parties have made to resolve their disputes through arbitration. The court’s task is not to re-hear the merits. It is to ensure that the arbitral process has remained within the bounds of jurisdiction, fairness and public policy, while giving due weight to finality and party autonomy. 

15. Our courts have also supported convergence in other ways, for example by recognising the doctrine of transnational issue estoppel. It should be obvious to all of us that the constant relitigation of the same dispute undermines confidence in the arbitral process, and one way that our courts have addressed this is by recognising that, where the court of the seat jurisdiction has already determined certain issues going to the validity of an arbitral award, that decision may give rise to a transnational issue estoppel, precluding the same parties from re-litigating those issues before the Singapore enforcement court.⁽⁷⁾ This reflects a broader point: courts can contribute to convergence by developing substantive law doctrines that reduce duplication, discourage fragmentation and promote coherence in the resolution of transnational disputes.

V. ASEAN – a forum of arbitration judges

16. Singapore’s experience suggests that building a robust arbitration ecosystem and advancing convergence are not separate ambitions. They are two aspects of the same enterprise. And for ASEAN, the next logical step is to deepen the channels of judicial dialogue among us, so that shared principles are progressively reflected not only in our legislative rules and laws, but also in the way our courts engage with one another.

17. To that end, let me offer one suggestion for your consideration: the establishment of an ASEAN Arbitration Judges Forum. Such a forum could bring together judges who routinely deal with arbitration-related matters throughout ASEAN, including applications for stays, interim measures, setting aside, and the recognition and enforcement of awards. The Forum could meet regularly to discuss significant developments, to update one another of legal developments in their own jurisdictions and to learn from one another's experiences and provide a platform for periodic engagement with regional practitioners. In this, we would be drawing on the experience that we have already had in great success in areas such as insolvency and intellectual property, where regular dialogue first among judges throughout ASEAN, and then periodically with leading practitioners in those areas, has proved its value. I hope this might provide a useful starting point for a conversation about how we might deepen cooperation in support of arbitration across ASEAN.

VI. Conclusion

18. It remains for me to thank Chief Justice Adisak and the organisers once again for bringing us together, and for the considerable thought and effort that have plainly gone into curating the programme that is ahead of us. I wish you all a most productive and rewarding conference. Thank you.