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Justice Philip Jeyaretnam: Keynote Address delivered at the LawAsia and Law Society of Singapore Alternative Dispute Resolution Conference 2025
LawAsia and Law Society of Singapore Alternative Dispute Resolution Conference 2025
26 May 2025
Keynote Address on Appropriate Dispute Resolution
The Honourable Justice Philip Jeyaretnam
Judge
Supreme Court of Singapore
President, Singapore International Commercial Court
1. I start with a point about nomenclature. This conference is titled “Alternative Dispute Resolution”. In my view, it is more helpful to speak of Appropriate Dispute Resolution. This is for two reasons. The first is that Alternative suggests an opposition to Primary. It is true that the resolution of disputes in court could be described as the primary mode in the sense that it is courts which declare and develop the law, as well as courts which ultimately have to enforce arbitration awards or mediated settlements. But this is better understood and pictured as an anchoring role, where the courts enable different modes of dispute resolution to flourish generally, and more specifically to be brought into play when and where appropriate. Secondly, it is better to think in terms of “appropriate” because this gives us better insight into how the different modes should be connected, with pathways back and forth between them that parties may journey along en route to the final outcome of a matter.
2. The word “appropriate” is important because there are many kinds of dispute. What the appropriate method of dispute resolution is differs between different types of dispute or even between different parts or aspects of a single dispute. Let me offer a simple way of situating and categorizing disputes. Leaving aside disputes that involve criminal law or regulatory or administrative functions of the state, disputes broadly speaking divide into the personal and the commercial. In each of these there is a difference between disputes that arise within a continuing relationship that will not end with the resolution of the dispute and those that are one-off, where the participants may not see each other again. Disputes subdivide further according to two dimensions: their complexity and their value. The dispute resolution mechanisms that are appropriate vary according to where the dispute is situated in terms of each of these four characteristics, namely:
(a) whether a dispute is personal or commercial;
(b) whether it occurs within a long-term relationship;
(c) how complex it is; and
(d) how much is at stake.
3. Yesterday this conference discussed the topic of Ethics in AI in the Dispute Resolution Process. How AI tools should be employed to facilitate dispute resolution will likewise depend on the type and nature of the dispute. We already see the use of AI-driven algorithms for the resolution of customer complaints or for disputes between buyers and sellers on online platforms. Today the conference includes discussion of sustainable careers in ADR for young lawyers. Again, young lawyers should consider their careers with the categorisation of disputes that I have outlined in mind. Successful careers can be built on handling high volumes of smaller disputes that have common elements and arise in a particular field of activity. A path can also be charted in the realm of complex one-off “bet-the-company” disputes. The strategy for a young lawyer to follow will differ between these two fields.
4. The theme of my short address is that independent professionals have a crucial role in making sure that parties can achieve quality justice within a reasonable time and at reasonable cost. This sounds like an impossible dream – can we really tick all three boxes of fast, good and affordable?
5. My argument is that we must at least try to do so. I will speak first about institutions. It is important that the needs of justice - both domestically and transnationally - are effectively served. For this to happen successfully there must be multiple avenues and modalities that fit together and complement each other. In Singapore, different institutions focus on different aspects of dispute resolution, spanning community tribunals at one end to the Singapore International Commercial Court at the other. Specific institutions focus on different modalities, such as interim adjudication for building and construction cases, mediation or arbitration. But there are cross-over pathways and intersections between the different institutions. Procedural flexibility and the availability of different appropriate dispute resolution methods are critical. These are the key features of Singapore’s modern-day approach to dispute resolution. Given the limited time, I will restrict myself to highlighting three examples, namely the use of early and continuous case management, the establishment of a new scheme called INTEGRAF and the introduction of the express track.
6. I should add that I will mostly address the category of one-off commercial cases that have some complexity and quite a lot at stake. There is not enough time to go into the justice needs of other types of dispute.
7. After I have done that, I will make some remarks concerning a second area. I will speak about the individual practitioner who seeks to advise his or her client and achieve the best outcome for their client in the circumstances. Here I will make one key point, namely that the lawyer’s obligation to facilitate and promote the expeditious and cost-effective resolution of the dispute is both critically important and fully reconcilable with the lawyer’s duty to do his or her best for the client.
8. I begin then with key features of institutional design. My first point is the importance of case management. It is the essential tool for expeditious and economical resolution of disputes. The SICC is the paradigm example of close and continuous judge-led case management. Matters in the SICC are heard by Singapore judges specialised in commercial law as well as international judges, who come from both civil and common law jurisdictions. Judges are docketed to cases soon after filing. They bring a flexible and adaptable approach to case management, keeping front and centre what fits the dispute in front of them best. Early, close and continuous judge-led case management combines with party choice to make procedures responsive to the context of individual disputes.
9. This kind of case management would be equally important in arbitration. Arbitrators should take the time and make the effort early on in proceedings to consider with counsel the procedures and processes best suited to that dispute. They have the power and discretion to do this.
10. I now turn to my second point about institutional design. This relates to how parties may choose the best ways (plural) to resolve different parts of their dispute. Different parts of a dispute may be better resolved by different modes of dispute resolution. As I elaborate later, lawyers for the parties are under an ethical duty to guide their clients towards the most cost-effective and expeditious methods of dispute resolution. But like their clients the lawyers may be too caught up in the minutiae of the dispute to identify appropriate alternatives in a timely way.
11. This brings me a new scheme that parties can adopt as an example of what might be called collaborative dispute resolution. This scheme is called INTEGRAF. It is run by the Singapore Mediation Centre, but it is not limited to mediation. It concerns the whole life of a dispute. The SICC has a pilot collaboration with SMC for this scheme.
12. INTEGRAF provides parties with guidance to unbundle complex disputes by applying the most appropriate dispute resolution mechanism drawn from the full suite of ADR options – whether arbitration, mediation, neutral evaluation, interim adjudication, or indeed litigation, to the whole or part of a dispute. Parties may avail themselves of the services of a neutral professional whose duty is to help them resolve their disputes in an effective, efficacious and economical manner. In the ebb and flow of commercial relationships that have broken down, adopting INTEGRAF helps preserve relationships between multiple stakeholders and encourages parties to find a mutually beneficial path forward.
13. INTEGRAF can be likened to having a professional “signalperson”. The signalperson’s role is to act objectively in the interests of the project by directing parties to the appropriate tracks for resolving disputes that arise in the course of the project. The signalperson assesses disputes as they arise and channels parties to what in his or her assessment is the most appropriate mode of dispute resolution for that dispute. For example, in the context of construction projects, such a person could channel bilateral disputes to an arbitrator, while funnelling multiparty disputes to a court that readily accommodates such multiparty disputes such as the SICC. Some disputes are very complex. They have many facets. They often involve numerous claims and counterclaims. Consequently, they are difficult to resolve fairly and efficiently by one mode alone. For such disputes, the possibility of mediating certain aspects of a dispute while leaving others to be fully litigated is truly beneficial. Take a technically complex construction dispute where there are contractual aspects, defects aspects, and delay aspects. It is sensible to hive parts of the dispute off for other modes of dispute resolution. Thus, one aspect of a construction dispute might be numerous defects claims, but what counts as a defect may also involve an element of contractual interpretation. It makes sense for the court to interpret the contract and then delegate to an evaluator or assessor the task of answering the question of what are in fact defects against the court’s interpretation.
14. My third point is that if there are gaps these should be filled, with a view to giving parties a full range of options. A well-designed system will have cost-effective expeditious methods for resolving disputes of differing levels of complexity. Traditionally, there has not really been an appropriate method designed for commercial disputes that are not too complex but also not routine or straightforward. Summary judgment is only given where there are no triable issues of fact or law. Where facts are not disputed, originating applications may be suitable to resolve such questions as the proper interpretation of a contract. What about cases where there are factual disputes such that summary judgment could not be obtained but those factual disputes can be determined with only a few days of hearing? To manage such cases more effectively and bring them to resolution earlier, the General Division last year introduced the Express Track.
15. The Express track is an opt-in scheme for matters where the trial would take not more than four days. By adopting streamlined processes for interlocutory matters, such as allowing paper hearings and limiting appeals, matters will conclude within 9 months of being placed on the express track. By conclude, I mean that the first instance decision will have been made within 9 months. There could still be an appeal from that decision of course. I reiterate that this scheme is not compulsory but voluntary.
16. The voluntary nature of the Express Track scheme gives me a good segue to the duties of professionals when serving their clients. Counsel should look actively at the most appropriate method of dispute resolution. One that achieves speed, affordability and quality justice within the budget of the client and which is proportionate to what is at stake in the dispute.
17. Some aspects of the lawyer’s obligation to achieve an expeditious and economical outcome have been enshrined in the Legal Professional Conduct) Rules 2015 such as:
(a) “The duty to assist in the administration of justice”: PCR 9(1)(a).
(b) The duty to act “in a manner which maintains the fairness, integrity and efficiency” of proceedings before any court or tribunal: PCR 9(1)(e).
(c) The duty to advise the client on ADR: PCR 17(2)(e)(ii).
18. I fully appreciate that there are three countervailing pressures. The first is the general economic pressure that lawyers face and that in a generalised and often unconscious way leads to overlawyering, which in turn may lead to higher costs. The second is the “arms race” which opposing litigants may get into, resulting in less cost discipline being exerted by the client. The third is where specific clients consider delay to be to their advantage and instruct lawyers to delay proceedings as much as they can.
19. Obviously, lawyers’ duty to the administration of justice applies regardless of these pressures. One important part of being a good lawyer is to remain mindful of that obligation. However, I want to make a further point. Lawyers who organise their practices around the principle of striving for fast, affordable and high quality justice for their clients will have a competitive advantage. They will also earn the respect not only of their peers but also of the courts and tribunals they appear before. A reputation for being a conscientious “officer of the court” will help all that lawyer’s clients too.
20. There is of course much, much more that can be said about how to design institutions, how to incentivise good collaborative conduct and how to encourage lawyers to fulfil their professional obligations. However, as always time is short. In conclusion, I would like to reiterate and emphasise the crucial role of professionals - both those who adjudicate disputes like judges and arbitrators and those who represent litigants in those disputes like lawyers. This conference offers an important opportunity to discuss these roles and to do so with the involvement of professionals from numerous jurisdictions. Multi- and cross-jurisdictional experience and perspective will be of great value for these discussions, and I wish you a productive day together.
2025/05/28
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