INTERNATIONAL CONFERENCE ON COURT EXCELLENCE

JUDGE OF APPEAL

SINGAPORE

28 JANUARY 2016

SESSION 1 - PLENARY: LEADERSHIP FOR THE FUTURE

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Contents

FOCUSING ON THE RULE OF LAW ...... 6

The Rule of Law ...... 6

EFFICIENCY: TIMELY DISPOSAL OF CASES & CLEARING THE BACKLOG 9

INTERNATIONALISATION AND EDUCATION ...... 14

(A) Establishing a Global Dispute Resolution Hub ...... 15 (1) International Commercial Court...... 15 (2) Singapore International Arbitration Centre ...... 18 (3) Singapore International Mediation Centre ...... 19 (B) Education and Other Innovations ...... 20 (1) Singapore Judicial College ...... 20 (2) Sentencing Council...... 22 (3) Asian Business Law Institute ...... 22

CONCLUSION ...... 23

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INTRODUCTION

1 We are situated at an interesting point in world economic history which is moving eastward.1 China,2 India, and Japan bestride Asia geopolitically and economically. In Southeast Asia, the ASEAN3 Economic Community was recently launched.4 With a single market of 625 million people, it has a collective Gross Domestic Product (GDP) of US$2.6 trillion, which is the 3rd largest GDP in Asia.5

2 Singapore is strategically located at the heart of Asia. Within a 7-hour fly zone, one can get from Singapore Changi Airport to countries such as Australia, China, and India. For those of you who have travelled to be with us at this Conference, we warmly welcome you.

3 On a macro perspective, Singapore is one of Asia’s premier global cities.6 It is a transportation hub with a well-established port and airport, serves as a leading financial, commodities trading, and education hub, and has a vibrant nightlife scene with an annual Formula One (F1) night race. In sum, to borrow a term coined by an author John Kao, Singapore is an innovation nation.7

1 Kishore Mahbubani, “The New Asian Hemisphere: The Irresistible Shift of Global Power to the East” (PublicAffairs, Perseus Books Group, 2008) and “The Great Convergence: Asia, the West, and the Logic of One World” (PublicAffairs Books, Perseus Books Group, 2013). 2 Within the past 3 years, China has launched several strategic and economic initiatives, including the Asian Infrastructure Investment Bank (AIIB), the Xiangshan Forum on Regional Security, the Silk Road Economic Belt, and the Maritime Silk Road. Taken together, the Silk Road Economic Belt and Maritime Silk Road (nicknamed “One Belt, One Road”) involve 900 projects worth S$1.25 trillion (Michael Schuman, “An ambitious feat of diplomacy and engineering may not take the country where it wants to go”, Bloomberg, 25 Nov 2015). In this connection, the 3rd G-to-G project between China and Singapore in Chongqing, positions Singapore at one end of the “One Belt, One Road” project (, S. Rajaratnam Lecture, 27 Nov 2015). 3 ASEAN (Association of South East Asian Nations) includes Brunei, Cambodia, Indonesia, Laos, , Myanmar, the Philippines, Singapore, Thailand and Vietnam. 4 On 22 November 2015. 5 After China and Japan. If growth trends continue, ASEAN could be the world's fourth largest single market by 2030, after the European Union, the United States and China. 6 Compared to Tokyo, Singapore has more than twice as many regional headquarters: Joel Kotkin, “Size is not the Answer: The Changing Face of the Global City” (Civil Service College, Singapore, 2014). 7 “Innovation Nation” is the title of John Kao’s book, “Innovation Nation: How America is Losing its Innovation Edge, Why It Matters, and What We Can Do to Get It Back” (Free Press, 2007), which commends Singapore at pages 249 to 253. Singapore was the top-ranked country in Asia (7th in the world) for the Global Innovation Index 2015 (published by Cornell University, INSEAD, and the World Intellectual Property Organisation).

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4 How does the Singapore Judiciary feature in this quest? Let me start with a proposition which is quite pedestrian but which is sometimes overlooked. Whether it is the Government, the Judiciary, or for that matter any organisation, it is the people who run it who will make all the difference. Last year, we had a year-long celebration to mark our 50th birthday as a nation. The constant theme that emerged from all the speeches was this – we arrived at where we are now because we had leaders who had the vision, drive and determination and were focused on what they sought to achieve. Since independence, we have had four distinguished lawyers who have occupied the top office of our Judiciary. The challenges which each of them faced were not quite the same as we developed and progressed through the years as a nation though the central mission remained the same, which was the efficient and effective dispensation of justice. All four Chief Justices share the common attribute of being resolute in improving the system in which justice was dispensed by the courts.

5 It may be useful at this juncture to set out a brief biographical background on the four Chief Justices. Chief Justice was our first Asian Chief Justice;8 he was also the longest serving Chief Justice (spanning 27 years)9 in the entire Commonwealth. Chief Justice , who succeeded Chief Justice Wee, scaled the highest echelons of the legal, airline, and banking sectors on both sides of the Causeway, before being invited to helm the Judiciary in 1990 and he served until the age of 80.10 Chief Justice Yong was in turn succeeded by Chief Justice who has scored several firsts: he was the first person to be appointed as a of the Supreme Court in 1986, first local law graduate to be appointed the Attorney-General and Chief Justice of Singapore, and the first Asian jurist to be given the International Jurists Award11 recognising his outstanding contributions to the administration of justice.12 Our current Chief Justice , while in law practice was named

8 The first Asian to sit on Singapore’s High Court was Raja Musa bin Raja Haji Bot during the Japanese Occupation [John Koh, “The First Chief: Wee Chong Jin – a Judicial Portrait” (Academy Publishing, 2010) at page 15]. 9 From 1963 to 1990. 10 Hoo Sheau Peng et al, “Speeches and Judgments of Chief Justice Yong Pung How” (FT Law & Tax Asia Pacific, Pearson Professional Asia Pacific, 1996) at pages 3 to 6. 11 21 November 2009. He was also the first Singaporean and local law graduate to become an Honorary Bencher of the Honourable Society of Lincoln’s Inn, England. 12 Chao Hick Tin et al, “The Law in His Hands: A Tribute to Chief Justice Chan Sek Keong” (Academy Publishing, 2012) at pages 5 to 12, and 43 to 48 (especially page 44). See also Keng Yam, Speech by the at the Farewell Dinner for Former Chief Justice Dr

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as one of the world’s top 40 international arbitration lawyers.13 Having myself been on the bench since 1987, I consider it a distinct privilege and honour to have served under all the four Chief Justices, each with his own style of doing things but all with the same objective of ensuring that justice is delivered with due despatch to all who come before our courts with their disputes and cases.

6 As I have said, Singapore is blessed to have Chief Justices of the highest distinction, who have successfully passed the leadership baton to their successors, and each of them strengthened the judiciary and contributed to the administration of justice in different ways. In my address today, I propose to consider the topics of leadership and court excellence by examining how the three former Chief Justices have led the way. It was through their efforts and leadership that we have managed to build a judiciary which has been rated by international rating agencies as among the top judiciaries globally. In brief, Chief Justice Wee laid the foundation by firmly establishing, in newly- independent Singapore, the Rule of Law14 as a fundamental tenet of our legal system. Chief Justice Yong brought us into an era of efficiency and Chief Justice Chan maintained and refined that efficiency. That said, the mission is far from over and we are not resting on our laurels. The job continues, and as we are discussing the more specific subject of “leadership for the future”, I will also look at the direction that we are now taking under the current Chief Justice, one that is characterised by a highly international outlook and a focus on judicial education.

7 Before proceeding further, I need to make a very important observation. Unlike many countries, we are small in terms of both size and population. Singapore can be likened to a sampan (skiff), and what propels a sampan may not be equally effective for larger vessels or countries. Thus the problems which a large country faces in terms of

Chan Sek Keong (19 November 2012, Singapore). 13 See Chambers Global Guide (2006), before his appointment as a Judicial Commissioner. 14 For a discussion of the importance of the rule of law, pluralism, and inclusive institutions, see Daron Acemoglu and James A. Robinson, “Why Nations Fail: The Origins of Power, Prosperity and Poverty” (Crown Publishers, Random House, 2012) at pages 308, and 325 to 332. See also Jeffrey Jowell et al, Rule of Law Symposium 2014: The Importance of the Rule of Law in Promoting Development (Academy Publishing, 2014), “In Conversation with the [Law] Minister” at page 198 (“I think [Singapore is] probably the only British colony to have taken British institutions, used them, adapted them, and have actually today made our institutions better than when we first had them. For example, our judiciary or our framework of laws and other institutions, and we had used that framework well, provided the governance, for us to go from US$500 per capita in 1965 to US$65,000 [in 2014] and with 1.8 or 2.0 per cent unemployment.”)

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administration of justice must necessarily be multifold times more complex or difficult than what we in Singapore would encounter. So in this forum, while I share our experiences with you,15 I also look forward to learning from you, those of you who come from larger jurisdictions, as to how you deal with problems relating to the judicial process. I am anxious to gain an insight into your experiences which will involve problems of a far larger scale. I turn now to Singapore’s efforts to advance the Rule of Law.

FOCUSING ON THE RULE OF LAW

The Rule of Law

8 From the very early days of our nationhood, our policy has always been to advance the observance of the Rule of Law. This policy is the bedrock of Singapore’s society and provides the framework for its proper functioning.16 It is always a matter of utmost importance to our society and its economic well-being. We also take the observance and enforcement of our laws seriously. No one is above the law and every person is subject to it. Almost 55 years ago, even before we became independent, the founding Prime Minister of Singapore, Mr , said:

“Our reputation for the rule of law has been and is a valuable economic asset, part of our capital, although an intangible one. It has brought to Singapore good returns from the MNCs, the OHQs, the banks, the financial institutions, and the flood of capital to buy up properties in Singapore. A country that has no rule of law, where the government acts capriciously is not a country wealthy men from other countries would sink money in real estate.”17

15 In this regard, it is apposite to consider what Singapore’s Prime Minister Lee Hsien Loong has to say: “We don’t pretend to be a city on a hill, or a light unto nations, holding ourselves out as an example which every other country ought to follow” (Lee Hsien Loong, S. Rajaratnam Lecture, 27 Nov 2015). 16 K Shanmugam, “The Rule of Law in Singapore”, Singapore Journal of Legal Studies [2012] 357, 357 and 365. 17 Speech to the National University of Singapore Law Students Society in 1962.

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9 How did Singapore’s culture of respect for the Rule of Law come to pass?18 It was the culmination of the sweat of the brow and ironclad resolve. Bringing this into sharper focus is Singapore’s economic milieu – we are a highly improbable city-state with neither natural resources nor a hinterland. Singapore is a tiny island. As a nascent nation in the 1960s with its umbilical cord cut from the Malayan Peninsula, the Rule of Law was forged amid racial riots and surging unemployment; the spectre of failure loomed large over the fledgling nation with its smorgasbord of races, religions, and languages.19

10 What brought Singapore to where we are today, apart from hard work on the part of all citizens concerned, is the will to enforce the law impartially, without fear or favour, and without regard to the standing or wealth of the individual. One of the earliest measures that Singapore took in its efforts to promote a clean and efficient public administration, and I use this term in the widest sense to include all necessary organs and institutions which exist in a modern state, was the enactment of the Prevention of Corruption Act in 1960.20 The political leadership set the tone. All relevant enforcement agencies such as the Corrupt Practices Investigation Bureau,21 Singapore Customs, Immigration & Checkpoints Authority and the Singapore Police Force acted in tandem to enforce the law. There was a steel fist in a velvet glove.

11 Throughout these fifty years, Singapore remains anchored and deeply committed to the Rule of Law as a foundational principle.22 While the term “Rule of Law” is not one that admits of a fixed or precise definition, one of its core ideas is that even powers conferred on various arms of government are subject to legal limits. However, it would

18 Singapore ranked first in Asia for the “Rule of Law” (Worldwide Governance Indicators (WGI) Project, 1996 to 2015). Singapore was also ranked first in Asia for “Legal Structure and Property Rights” in the Economic Freedom of the World 2015 Annual Report. In the World Bank Group’s publication “Doing Business 2016”, for “Enforcing Contracts”, Singapore was ranked first in the world. 19 Chan Sek Keong, “The Courts and the ‘Rule of Law’ in Singapore”, Singapore Journal of Legal Studies [2012] 209, 211. 20 In PERC’s (Political & Economic Risk Consultancy) 2014 Report on Corruption in Asia, Singapore was ranked the least corrupt of 16 major Asia-Pacific economies, a position Singapore has occupied since 1995. 21 An understated fact is that Singapore’s Corrupt Practices Investigation Bureau (CPIB) is the first anti-corruption commission in the world, and it was set up in 1952, a full thirteen years before Singapore gained its independence in 1965. 22 K Shanmugam, “The Rule of Law in Singapore”, Singapore Journal of Legal Studies [2012] 357, 358.

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be meaningless to speak of power being limited were there no recourse to determine whether, how, and in what circumstances those limits had been exceeded. Under Singapore’s system of government, which is based on the Westminster model, that task falls upon the Judiciary. Judges are entrusted with the task of ensuring that any exercise of state power is done within legal limits.23

12 This is not new law.24 I mentioned earlier that Chief Justice Wee was instrumental in the development of the Rule of Law in Singapore and this is apparent from a judgment that he penned on behalf of the Court of Appeal 27 years ago in Chng Suan Tze v Minister for Home Affairs and others and other appeals [1988] 2 SLR(R) 525.25 I will quote from the passage at [86]:

“… [T]he notion of a subjective or unfettered discretion is contrary to the rule of law. All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power. If therefore the Executive in exercising its discretion under an Act of Parliament has exceeded the four corners within which Parliament has decided it can exercise its discretion, such an exercise of discretion would be ultra vires the Act and a court of law must be able to hold it to be so. … It must be clear therefore that the boundaries of the decision maker’s jurisdiction as conferred by an Act of Parliament is a question solely for the courts to decide. …”

13 Under Chief Justice Wee’s steady leadership and firm hand on the tiller – and that of the Chief Justices who succeeded him – the Singapore Judiciary upheld and continues to uphold the Rule of Law.26 The judiciary is the co-equal of parliament,27 and Judges

23 See the recent Court of Appeal decision in Tan Seet Eng v Attorney-General and another matter [2015] SGCA 59 at [1]. 24 Tan Seet Eng v Attorney-General and another matter [2015] SGCA 59 at [2]. 25 The Court of Appeal included then-Justice Chan Sek Keong, who became Singapore’s Chief Justice in 2006. 26 John Koh, “The First Chief: Wee Chong Jin – a Judicial Portrait” (Academy Publishing, 2010) at pages vii, xiv (“Today, no serious-minded person would question that there is a rule of law in Singapore and the Judiciary is independent. This is very much the legacy of Wee Chong Jin and his brother judges”), and 13 (“As the Chief Justice, he steered the Judiciary through the turbulence and his era laid the foundation for the rule of law of modern Singapore”). 27 See Article 93 of the Singapore Constitution, and Mohammad Faizal bin Sabtu v Public Prosecutor (2012) 4 SLR 947 at [16]. See also John Koh, “The First Chief: Wee Chong Jin – a Judicial Portrait” (Academy Publishing, 2010) at pages 36 and 37.

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exercise their role without fear or favour.28 At its core, the Supreme Court’s leadership has played a pivotal part in advancing the Rule of Law, which is sacrosanct and provides a safe harbour and sanctuary for the people in Singapore. With the Rule of Law in place, citizens, residents and businessmen who transact in our country are assured that they may order their affairs according to defined and published standards, and that the commitment to those standards will not yield to private interests or whims. In this regard it is worth harkening back to the words with which Chief Justice Wee opened his decision in a criminal appeal case in 1973, Leong Mun Kwai v Public Prosecutor [1971–1973] SLR(R) 707 at [1]:

“I hope the day will never come when the guilt or innocence of any one in Singapore is decided by politics. The appellant’s guilt or his innocence on this charge is decided by the law of the land, by the courts and by the judges. No one, least of all I think a politician, is above the law and the law is not decided by politicians…”

14 Having laid the foundation for the Rule of Law, we focused next on ensuring a timely disposal of cases in the courts. This was a significant aspect of the work of Chief Justice Yong, and it was carried on by Chief Justice Chan after him.

EFFICIENCY: TIMELY DISPOSAL OF CASES & CLEARING THE BACKLOG

15 In the late eighties and early nineties, the albatross for the Singapore courts was delays in case disposal, due to the build-up over several decades. At the time, there were more than 10,000 inactive cases on the court register which the parties were content to leave alone. We were encumbered by 2,000 pending cases for which the waiting time would be at least 3 years before hearing dates could be assigned. And if there were to be any

28 Kevin YL Tan and Thio Li-Ann, “Singapore: 50 Constitutional Moments that Defined a Nation” (Marshall Cavendish, 2015) at page 208.

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follow-up appeals, the waiting time would be 2 to 3 years before the appeals could be heard.29

16 Singapore successfully broke the back of its backlog of cases in less than 3 years through determined case management. Today, the Supreme Court remains efficient in clearing its cases.30 For the past few years, the Supreme Court has consistently met all its set targets of achieving at least 90% compliance for the waiting periods in various court processes.31 Criminal trials are heard within 6 weeks from the final pre-trial conference or criminal case disclosure conference, while civil trials are heard within 8 weeks from the date of setting down. Criminal appeals to the Court of Appeal are heard within 8 weeks of receiving the last confirmation of the records of proceedings. Civil appeals to the Court of Appeal before 2 Judges and 3 or more Judges are heard within 15 and 19 weeks respectively from the date of notification to collect the records of proceedings.32

17 How did the courts clear the backlog of cases? Under Chief Justice Yong’s determined leadership,33 a comprehensive range of strategies was employed to tackle the backlog, and this was continued and fine-tuned by Chief Justice Chan:

(a) Jurisdictional Reforms (e.g. enlarging the District Courts’ jurisdictions);

(b) Procedural Reforms (e.g. updating the Rules of Court);

(c) Robust and Effective Case Management (e.g. Pre-Trial Conferences); and

(d) Other Measures (e.g. attracting quality Judges).

29 Chan Sek Keong, Welcome Address at the Third Roundtable Meeting of the Asia-Pacific Judicial Reform Forum (20 January 2009, Singapore) at [10]. Sundaresh Menon’s Keynote Speech, “Challenges to the Rule of Law for the Judiciary and the Profession with a Focus on Singapore”, World Bar Conference (4 September 2014, New Zealand) at [12]. 30 Supreme Court of Singapore’s Annual Report 2014/ 2015, “Justice Within Reach: Strengthening Our Global and Local Presence” at page 47. 31 Supreme Court of Singapore’s Annual Report 2014/ 2015, “Justice Within Reach: Strengthening Our Global and Local Presence” at page 48. 32 Supreme Court of Singapore’s Annual Report 2014/ 2015, “Justice Within Reach: Strengthening Our Global and Local Presence” at pages 47 and 48. 33 Lee Kuan Yew, “From Third World to First: The Singapore Story - 1965-2000” (Straits Times Press, 2000) at 245 to 249.

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18 I will touch briefly on each of these strategies in turn.

(a) Jurisdictional Reforms

19 The caseload was re-distributed such that the High Court focused on the more complex cases. The other cases were transferred to the High Court Registrars and the Subordinate Courts of Singapore.34 To this end, the civil, criminal and matrimonial jurisdictions of the Magistrates and District Courts were enlarged to enable them to hear more cases.35 There was also a diversion of certain classes of cases to specialised adjudicatory bodies outside the court system, for example, the Financial Industry Disputes Resolution Centre.

(b) Procedural Reforms

20 Singapore progressively updated our Rules of Court to simplify the procedures and reduce delays in court. Between 1970 and 1989, Singapore amended the Rules of the Supreme Court36 thrice. However, from 1990 to February 2012, the Rules of the Supreme Court and, later, the Rules of Court were amended a total of 55 times.37

21 The Rules of Court were amended to mandate the filing of opening statements38 with a bundle of documents and authorities before the trial to identify the issues in dispute, using affidavits of evidence-in-chief for witnesses to reduce the time spent on examining witnesses in court, and introducing hearing fees39 and costs orders for delays

34 Now known as the State Courts of Singapore. 35 Tan Siong Thye, “Current Reforms in ASEAN Countries – Lessons and Experiences: Singapore’s Experience”, ASEAN Law Association, 10th General Assembly (17 October 2009, Hanoi, Vietnam) at [19]. 36 As it was known before 1996. 37 Foo Chee Hock, “Civil Case Management in Singapore: of Models, Measures and Justice”, 11th ASEAN Law Association General Assembly Conference (February 2012, Bali, Indonesia) at footnote 69. 38 Although Singapore was one of the early proponents of affidavits of evidence-in-chief, or what is more commonly known as witness statements in the common law world, this technique is no longer unique to Singapore [Chan Sek Keong, “Overcoming Backlogs”, 12th Conference of Chief Justices of Asia and the Pacific (4 June 2007, Hong Kong) at [35]]. 39 Hearing fees was introduced in 1993. This was aimed at controlling the use of court time due to a noticeable trend of longer and more prolific trials. By imposing a substantial daily fee for the use of court time, parties were compelled to economise on the use of court time. In the High Court, payment starts on the fourth trial date, at S$9,000 per day if the value of the claim exceeds S$1 million, and S$6,000 for cases of less than S$1 million in value. This practice ensures that most trials are disposed

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caused by a lawyer. 40 Cases were automatically discontinued if no steps were taken in the proceedings in the past 12 months.

(c) Robust and Effective Case Management

22 Another key strategy was to adopt a rigorous Judge-led case management system. While the progress of the cases pre-1990 was left largely to the parties or their lawyers, pre-trial conferences (“PTCs”) are now held to allow the court to narrow the issues in dispute, assess whether parties are ready for trial and to allocate trial dates. This minimises the number of cracked trials – that is, trials which are listed for hearing and for which judicial time has been set aside, but which are not proceeded with – and enables the court to better assess the trial’s duration.41 Our case management system continues to evolve, including having a differentiated case management approach where different internal case tracks are assigned for different case types.42 More recently, on Chief Justice Chan’s initiative, we have put in place a modified docket system with PTCs helmed by High Court Judges, thus ensuring that the cases receive dedicated attention from the outset, and ensuring also that the Judges have a degree of familiarity with their respective cases by the time these cases are heard.43

(d) Other Measures (e.g. Attracting Quality Judges)

23 Both Chief Justice Yong and Chief Justice Chan have fully embraced the use of technology to save time and costs. Electronic filing of court documents has undergone periodic upgrading ever since it was introduced in 2000, and the Digital Transcription System means that there is digital audio recording of all hearings in the Supreme Court, so that Judges no longer have to take copious notes of the proceedings. Both Chief Justices have also been highly supportive of efforts to take cases out of the court system of within 3 days. [Chan Sek Keong, “Overcoming Backlogs”, 12th Conference of Chief Justices of Asia and the Pacific (4 June 2007, Hong Kong) at [52]]. 40 Chan Sek Keong, “Overcoming Backlogs”, 12th Conference of Chief Justices of Asia and the Pacific (4 June 2007, Hong Kong) at [20]. 41 Tan Siong Thye, “Current Reforms in ASEAN Countries – Lessons and Experiences: Singapore’s Experience”, ASEAN Law Association, 10th General Assembly (17 October 2009, Hanoi, Vietnam) at [22]. 42 Tan Siong Thye, “Current Reforms in ASEAN Countries – Lessons and Experiences: Singapore’s Experience”, ASEAN Law Association, 10th General Assembly (17 October 2009, Hanoi, Vietnam) at [25]. 43 Sundaresh Menon, Response of the Chief Justice at the Opening of the Legal Year 2014 (Friday, 3 January 2014, Singapore) at [29].

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by encouraging parties to go for mediation. This mode of alternative dispute resolution – or, as Chief Justice Menon would call it, “appropriate” dispute resolution – is used frequently in family disputes, and the Primary Dispute Resolution Centre in the State Courts allows parties to go before a judge for a neutral evaluation of their dispute. Mediation is very much an accepted part of the landscape in Singapore.

24 While robust and effective case management and using advanced technology doubtless improves productivity, that is not all there is to it. Ultimately, to borrow a military maxim, there has to be boots on the ground. In early 1991, there were only 8 Judges on the Supreme Court Bench. Thereafter a determined effort was made to attract capable individuals with sound knowledge of the law, a good analytical mind and the right judicial temperament, to join the Bench. The Bench membership accordingly increased over time. We now have a total of 14 Judges, 5 Senior Judges, 10 Judicial Commissioners and 12 International Judges, blending a rich diversity of talents and backgrounds with a deep and shared commitment to excellence.44 Among other things, steps were taken to ensure that judicial remunerations are competitive.45

25 Embracing the above holistic measures, the Singapore courts have ensured a timely disposal of its cases. While it was not easy to clear the backlog, what we have learned from experience is that once a system is in place, it only needs careful monitoring and incremental improvements to keep pace with the socio-economic and technological developments.46

26 I pause here with the caveat that judicial reform must not be at the expense of sacrificing the quality of justice – both substantive and procedural justice – such as rationality in decision-making, equal protection, fairness and impartiality, and due

44 Sundaresh Menon, Response of the Chief Justice at the Opening of the Legal Year 2016 (Monday, 11 January 2016, Singapore) at [6]. 45 See Yong Pung How, “Opening Address by the President of the ”, The Singapore Conference: Leading the Law and Lawyers Into the New Millennium (Butterworths Asia and the Singapore Academy of Law, 2000) at page viii. See also Chan Sek Keong, “Overcoming Backlogs”, 12th Conference of Chief Justices of Asia and the Pacific (4 June 2007, Hong Kong) at [29]. 46 Chan Sek Keong, “Pursuing Efficiency and Achieving Court Excellence – The Singapore Experience”, 14th Conference of Chief Justices of Asia and the Pacific (12 to 16 June 2011, Seoul, South Korea) at [6].

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process.47 We must achieve an optimal equilibrium between just outcomes and timeliness, and endeavour to reach an exquisite balance between the two contesting aphorisms: “justice delayed is justice denied” and “justice hurried is justice buried”.48 This brings to mind the following observations made by Chief Justice Chan:

“(W)hile statistics and numbers are important analytical tools to measure performance, they do not necessarily deliver justice in the sense of right outcomes. Favourable statistics are an indicator of progress but do not a justice system make. It is Judges who ultimately make or break a justice system.49 (emphasis added)

27 I might mention at this juncture an innovation put in place by Chief Justice Menon shortly after he was sworn in. This was the establishment of a new office in the Supreme Court called the Chief Executive. The Chief Executive oversees the operational and administrative aspects of the court’s work, which formerly came within the purview of the Registrar. With this change, the Registrar can focus on supervising the management of cases in the Registry.

INTERNATIONALISATION AND EDUCATION

28 As I said earlier, we may look back on the progress of Singapore’s Judiciary with a justifiable sense of satisfaction, but we are well aware that we cannot rest on our laurels. Under Chief Justice Menon, we have begun to look in earnest beyond our shores with a view to establishing Singapore as a Global Dispute Resolution Hub, with a complete suite of dispute resolution offerings such as the Singapore International Commercial Court (SICC), Singapore International Arbitration Centre (SIAC), and the Singapore International Mediation Centre (SIMC).

47 Chan Sek Keong, Welcome Address at the Third Roundtable Meeting of the Asia-Pacific Judicial Reform Forum (20 January 2009, Singapore) at [18]. 48 Chan Sek Keong, Welcome Address at the Third Roundtable Meeting of the Asia-Pacific Judicial Reform Forum (20 January 2009, Singapore) at [18]. 49 Chan Sek Keong, Welcome Address at the Third Roundtable Meeting of the Asia-Pacific Judicial Reform Forum (20 January 2009, Singapore) at [17].

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(A) Establishing a Global Dispute Resolution Hub

(1) Singapore International Commercial Court

29 In January 2013, Chief Justice Menon sounded the call that it was time for Singapore to establish an international commercial court as a division within the Supreme Court to address the needs of the international litigants who do not want to resort to arbitration and yet wish to have their disputes heard by a court with members of the relevant background. With the increase in globalisation and trade in Asia, the demand for international commercial dispute resolution services is expected to rise in the region. By the beginning of 2015 the Singapore International Commercial Court was duly established (“SICC”).50 Founded on the parties’ consent, the SICC51 is poised52 as a flagship to ride the twin tidal forces of state sovereignty and globalisation.53

30 The SICC leverages on Singapore’s trust premium that is undergirded by its firm adherence to the rule of law, political stability, pro-business reputation, neutral venue, and strategic geographical location in Asia. Building on the strong foundations of Singapore’s Supreme Court and extant legal system, the SICC offers parties an attractive and specially modified litigation process that marries the flexibility of the

50 Sundaresh Menon, “International Commercial Courts: Towards a Transnational System of Dispute Resolution”, Opening Lecture for the DIFC Courts Lecture Series 2015 (20 January 2015, Dubai, UAE) at [6], [15], [17], and [21] to [23]. 51 From its inception, the SICC was envisaged as a forum dedicated to handling only international commercial disputes: Denise Wong, “The Rise of the International Commercial Court: What is it and Will it Work?”, (2014) 33(2) Civil Justice Quarterly 205, 214 and 206 (“[The SICC] is stunning in its ambition and its potential impact on the global dispute resolution scene”). Singapore’s Minister for Law, Mr K Shanmugam, noted that while SICC is regarded as a one-stop venue for disputes in Asia, Singapore should continue to position itself as a dispute resolution hub for a global audience. See Nuraisha Teng, “Singapore International Commercial Court (SICC) as Asia’s Dispute Resolution Hub”, The Establishment Post, 8 January 2015, http://www.establishmentpost.com/singapore- international-commercial-court-sicc-asias-dispute-resolution-hub/#ixzz3tJ0Cqjki (last accessed on 25 January 2016). 52 Damien P. Horigan, “From Abu Dhabi to Singapore: The Rise of International Commercial Courts” at page 4 (“The SICC seems to fill an important gap in Asian dispute resolution. Accordingly, it will likely be a success story”). 53 Sundaresh Menon, “International Commercial Courts: Towards a Transnational System of Dispute Resolution”, Opening Lecture for the DIFC Courts Lecture Series 2015 (20 January 2015, Dubai, UAE) at [8(e)].

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arbitral process54 with familiar features of an independent, international judiciary and an appeal mechanism.

31 As part of the Supreme Court, the SICC will develop interstitially jurisprudence that is consanguine with Singapore’s domestic jurisprudence. At the same time, the SICC aims to provide a platform for cross-pollination – and the emergence of unique processes – based on the jurisprudence, procedures, and best practices of the common and civil law jurisdictions.55

32 At the heart of the SICC is a world-class bench of Judges including specialist commercial Judges from the Supreme Court of Singapore56 and International Judges who are eminent jurists with relevant expertise hailing from diverse geographical backgrounds of both civil law and common law traditions.57 Thus, the parties, counsel and Judges in a case before the SICC may all come from different jurisdictions. Such diversity enhances the international flavour of the SICC and is particularly invaluable, given the plurality of legal systems within Asia.

33 The SICC and its counterparts elsewhere – such as London’s Commercial Court,58 United States District Court for the Southern District of New York, Dubai International

54 , “Commercial Courts and International Arbitration – Competitors or Partners”, Clayton Utz and University of Sydney International Arbitration Lecture (11 November 2014, Sydney). He considered SICC’s likely impact on the Singapore International Arbitration Centre’s (SIAC) work and reach, and concluded that SICC and SIAC will not be competing players in a zero- sum game, pointing by way of example to the increasing caseload of London’s Commercial Court alongside the strong and steady growth of the London arbitration market. See also Sundaresh Menon, “International Commercial Courts: Towards a Transnational System of Dispute Resolution”, Opening Lecture for the DIFC Courts Lecture Series 2015 (20 January 2015, Dubai, UAE) at [10] and [56] (“Ultimately, I believe that the SICC, the DIFCC and international commercial arbitration constitute different but complementary tools in the dispute resolution toolbox”). 55 Sundaresh Menon, “International Commercial Courts: Towards a Transnational System of Dispute Resolution”, Opening Lecture for the DIFC Courts Lecture Series 2015 (20 January 2015, Dubai, UAE) at [29]. 56 Including Senior Judge Chan Sek Keong, the former Chief Justice of Singapore. 57 Sundaresh Menon, Response of the Chief Justice at the Opening of the Legal Year 2014 (Friday, 3 January 2014, Singapore) at [22]. 58 The English High Court has recently set up a specialist Financial List with effect from 1 October 2015, for claims that require particular expertise in the financial markets, or raise issues of general importance to the financial markets, or are above £50 million or its foreign currency equivalent. Judges will be drawn from the established expertise of the Chancery Court and the Commercial Court. In addition to the new Financial List, a new pilot scheme for financial markets ‘test cases’ has been introduced for a two-year period; this pilot scheme allows an early determination of issues of general importance to the financial markets, even where there is no live dispute.

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Financial Centre Courts,59 Qatar International Court and Dispute Resolution Centre, and the Abu Dhabi Global Market Courts – likely herald the dawn of a “global judiciary”60 of a network61 of international62 commercial courts,63 laying the foundation for an international lex mercatoria.64 This may in turn lead to law eventually becoming part of the modern superstructure of global commerce.65

34 The SICC is also envisaged to have a positive multiplier effect in symbiotically strengthening the ecosystem of banks, insurance firms, and other financial institutions in Singapore. It will hopefully catalyse more mergers and acquisitions and the registration of new businesses in Singapore, thereby enhancing Singapore’s status as the “Delaware of South East Asia”.66

59 Michael Hwang, “The Courts of the Dubai International Finance Centre – A Common Law Island in a Civil Law Ocean” (1 Nov 2008): http://difccourts.ae/the-courts-of-the-dubai-international- finance-centre-a-common-law-island-in-a-civil-law-ocean/ (last accessed on 25 January 2016) 60 John Koh, “The First Chief: Wee Chong Jin – a Judicial Portrait” (Academy Publishing, 2010) at page 35 (alluding to a “global judiciary”). See also Jeffrey Golden, “We Need a World Financial Court with Specialist Judges” (9 September 2009, Financial Times). 61 See Sundaresh Menon, Response of the Chief Justice at the Opening of the Legal Year 2016 (Monday, 11 January 2016, Singapore) at [25]. 62 For a survey of other types of international courts such as the European Court of Justice, European Court of Human Rights, and International Criminal Court, see Cesare P.R. Romano, “Can You Hear Me Now? The Case for Extending the International Judicial Network”, Chicago Journal of International Law (Vol. 9, No. 2, 2009) 233, 251 to 256. See also Cesare P.R. Romano, “The Proliferation of International Judicial Bodies: The Pieces of the Puzzle”, NYU Journal of International Law and Politics (Vol. 31, 1999), 709, 711 to 723. It took almost three decades for the European Court of Justice and the European Court of Human Rights to take off: Cesare P.R. Romano et al, “Trial and Error in International Judicialization”, The Oxford University Press Handbook of International Adjudication (Oxford University Press, 2014), 111, 133. 63 I should say that this is not actually something new; there is historical precedent in the form of special commercial courts in Europe, until their abolition in parts of Europe (e.g. the Netherlands, Spain, Germany, and Italy) in the late 19th century. Having said that, to a civil or commercial litigator, the concept of an international court is foreign and the creation of a new paradigm is necessary: Denise Wong, “The Rise of the International Commercial Court: What is it and Will it Work?”, (2014) 33(2) Civil Justice Quarterly 205 at 207. 64 Sundaresh Menon, “International Commercial Courts: Towards a Transnational System of Dispute Resolution”, Opening Lecture for the DIFC Courts Lecture Series 2015 (20 January 2015, Dubai, UAE) at [29], [55], [61] and [67(d)]. 65 Sundaresh Menon, “International Commercial Courts: Towards a Transnational System of Dispute Resolution”, Opening Lecture for the DIFC Courts Lecture Series 2015 (20 January 2015, Dubai, UAE) at [67(d)]. 66 https://www.digitalnewsasia.com/insights/the-delaware-model-and-why-singapore-is-kicking-butt (last accessed on 25 January 2016). It is a symbiotic relationship, for example, the Delaware Court of Chancery handles many matters related to corporate law because numerous American corporations are legally incorporated in Delaware.

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35 The SICC commenced hearing its first case in November 2015 which concerned a S$1.1 billion (US$800 million) dispute arising between Australian, Indonesian and Singaporean commercial interests. The trial, which addresses a discrete set of issues, has been concluded, and a decision on those issues will be handed down in due course. The coram, beside a judge from Singapore, also included a judge from UK and Hong Kong.

36 I am confident that the SICC is well-placed to unfurl its sails to catch the winds of the rising demand for international commercial dispute resolution services, and be on the crest of globalisation. I turn next to the Singapore International Arbitration Centre.

(2) Singapore International Arbitration Centre

37 Singapore is the third most preferred seat of arbitration in the world, and is the premier centre in Asia.67 The Singapore International Arbitration Centre’s (“SIAC”)68 active caseload as at 1 October 2015 was about 600 cases;69 the average value of an SIAC dispute was S$23.65 million in 2014 and the total value of disputes heard was S$5.04 billion.70 More than 80% of SIAC’s caseload is international.71 I would suggest that the SIAC has been a success.

38 In this connection, Singapore is fortunate to have a Supreme Court that has developed a very pro-arbitration jurisprudence.72 The Singapore courts have given full effect to party autonomy, kept intervention with arbitration proceedings to a minimum,73 and consistently supported the finality of awards from arbitrations. In this regard, I would

67 K Shanmugam, 26th LawAsia Conference (29 Oct 2013, Singapore) at [9]. See also White & Case’s International Arbitration Survey: Choices in International Arbitration (2010). 68 The SIAC was established in July 1991. 69 http://www.siac.org.sg/component/content/category/64-why-siac (last accessed on 25 January 2016). 70 , Litigation Conference (16 Mar 2015, Singapore) at [14]. 71 Indranee Rajah, Litigation Conference (16 Mar 2015, Singapore) at [14]. In 2014, the SIAC received cases from parties from 58 jurisdictions. The SIAC has an international panel of over 380 independent arbitrators from more than 32 different jurisdictions; 204 of those experts are based in the Asian region. 72 K Shanmugam, 26th LawAsia Conference (29 Oct 2013, Singapore) at [13(c)]. 73 Foo Chee Hock, “Civil Case Management in Singapore: of Models, Measures and Justice”, 11th ASEAN Law Association General Assembly Conference (February 2012, Bali, Indonesia) at pages 12 and 13.

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just add that the present Chief Justice is very arbitration-savvy,74 being also formerly the deputy chairman of SIAC.

39 The SIAC is housed at Maxwell Chambers, the world’s first integrated dispute resolution complex with best-of-class hearing facilities.75 Maxwell Chambers is also the home of the Singapore International Mediation Centre, to which I will now turn.

(3) Singapore International Mediation Centre

40 The Singapore International Mediation Centre (“SIMC”) was launched in November 2014. The SIMC76 is an independent, not-for-profit institution that aims to provide world-class mediation services to meet the needs of parties in cross-border commercial disputes. The SIMC maintains a panel of over 65 international mediators from 14 jurisdictions who are experienced in cross-border dispute resolution.77

41 The Working Group formed to examine the need for the establishment of the International Commercial Mediation,78 envisaged that the SIMC would provide a broad and novel array of dispute resolution services, including:

(a) A Deal-Making Service: A mediator would interface at the deal-making stage of negotiations to support the parties when any major deal is contemplated.

74 Chief Justice Sundaresh Menon was named by Chambers Global Guide as being among the world’s top 40 international arbitration lawyers in 2006, before his appointment as a Judicial Commissioner. He was also the recipient of Global Arbitration Review’s “Best Lecture or Speech Award for 2012” for his keynote address at the Opening of the International Council for Commercial Arbitration (Singapore) 2012; the Chair of GAR’s Editorial Board described the Chief Justice’s keynote speech titled “International Arbitration: The Coming of the New Age for Asia (and Elsewhere)” as “game changing”. This was the first GAR award presented to Singapore. 75 Foo Chee Hock, “Civil Case Management in Singapore: of Models, Measures and Justice”, 11th ASEAN Law Association General Assembly Conference (February 2012, Bali, Indonesia) at pages 12 and 13. Maxwell Chambers has 14 custom-designed and fully equipped hearing rooms and 12 preparation rooms. 76 SIMC mediators are required to be independently certified by the Singapore International Mediation Institute (SIMI), an independent professional body that requires its certified mediators to be competent in dealing with cross-cultural mediation and to publish a digest of feedback gathered from recent mediations. 77 George Lim SC and Eunice Chua, “Mediation Goes Global in Singapore”, http://simc.com.sg/mediation-goes-global-in-singapore/ (last accessed on 25 January 2016). 78 See Executive Summary of the Working Group’s Recommendations (29 November 2013) at page 3. The Working Group comprises both international and local experts.

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(b) Post-Merger Facilitation: Similar to deal-making, a mediator would be engaged to maximise cooperation and mutual benefit from mergers, as well as for conflict prevention and avoidance purposes;

(c) Dispute Process Design Service: The SIMC could assist users to develop appropriate processes to effectively manage disputes. This could include establishing Dispute Boards to monitor projects, encourage dispute avoidance, and assist in dispute resolution.

42 There is also an “Arb-Med-Arb” process which is jointly offered by the SIAC and SIMC. This process will be particularly useful to a case where a dispute, having been referred to arbitration, is thereafter thought by the arbitrator or the parties to be suitable for mediation. If parties are able to settle their dispute through mediation, their mediated settlement may be recorded as a consent award. If parties are unable to settle their dispute through mediation, they may continue with the arbitration proceedings. The SIAC-SIMC Arb-Med-Arb Protocol combines mediation’s cost-effectiveness, flexibility, and party-autonomy with arbitration’s finality and enforceability into a seamless and convenient procedure for the commercial parties’ benefit.

(B) Education and Other Innovations

43 I will touch briefly on 3 other initiatives by Chief Justice Menon: (1) the Singapore Judicial College, (2) the Sentencing Council, and the (3) Asian Business Law Institute.

(1) Singapore Judicial College

44 The main factor behind the establishment of the Singapore Judicial College was a desire to institutionalise and pull together the various ad hoc judicial education programs that had been developed over time.

45 It was thought that the time has come for the learning processes of judges from all courts to be formalised because Judges today face a vastly different operating climate, including serving a more sophisticated population, increasingly complex legal issues

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that are often inter-disciplinary and trans-border in nature, and the growing trend of litigants in person.79 In this environment, the need for on-going training and education for Judges to continually sharpen the saw has become an imperative.80

46 After a period of study and careful consideration, the Singapore Judicial College (“the College”) was formally launched in January 2015 to develop and manage these efforts.81 Established under the auspices of the Supreme Court of Singapore, the College is dedicated to training and developing Judges and Judicial Officers. The College consists of a Local wing, an International wing, and an empirical judicial research laboratory.82 The College had introduced many programmes since its inception last year: the Local wing has already conducted more than 30 courses and seminars for judges and judicial officers in our Supreme Court and lower courts, while the International wing has organised several events both in Singapore and abroad, with the majority of these events being multi-day affairs. The broad areas of topics covered by the College include bench skills, judicial ethics, social awareness, technology and sciences, and legal development. It has planned a full programme for the current year. I can say that exciting training times are ahead.

79 Sundaresh Menon, Message from the Chief Justice, Singapore Judicial College website, http://www.supremecourt.gov.sg/sjc/about-us/message-from-the-chief-justice (last accessed on 25 January 2016). 80 On a broader canvas, this is in line with Singapore’s “SkillsFuture” training programme, which is a national movement to provide with the opportunities to develop their fullest potential throughout life. 81 Before this College was established, a Board of Judicial Learning was set up in 2013. See Chao Hick Tin, “The Education and Training of Judges and the Implications of the Development of the ASEAN-China Free Trade Area” at [7]. 82 The Local wing oversees the needs of the Singapore Judiciary, from induction to continuing education to research and developmental programmes. The Local wing works closely with the High Court, Family Justice Courts and the State Courts to map out a suite of training opportunities for registration by the whole of the judiciary. The International wing offers Singapore as a forum of judicial training that encompasses induction training, core competencies development (such as judging, judicial ethics, case management, use of technology and judicial administration), recent developments on areas of legal interest, and useful inter-disciplinary studies. The College also serves as an empirical judicial research laboratory with the aim of serving as a test bed for innovation in judicial studies and practices. The empirical research will allow new or existing practices in the courts to be tested and validated.

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(2) Sentencing Council

47 Apart from my role as a Judge of Appeal in the Supreme Court of Singapore, I have the privilege of chairing the Sentencing Council (the “Council”) which was established in March 2013.83 The Chief Justice is an ex-officio member of the Council. Quintessentially, the Council is an initiative “by the Judges, for the Judges”.84

48 Unlike some other jurisdictions where sentencing panels or councils function in a non- judicial capacity with a focus on data collection and on sentencing trends and practices, our Sentencing Council – which is constituted entirely of judges and judicial officers – seeks to identify areas that would benefit from judicial pronouncements at an appellate level.85

49 The Council aims to enhance consistency in sentencing by identifying areas in which a judgment containing sentencing guidelines might promote coherence or consistency in sentencing.86 Appeals in these areas may then be assigned for hearing before a specially constituted panel of three judges, with a view to them issuing guideline judgments. As the jurisprudence of these three-judge panels builds up over time, this will no doubt contribute towards consistency and clarity in our sentencing practice.87

(3) Asian Business Law Institute

50 Exactly one week ago, on 21 January 2016, the Asian Business Law Institute (“the Institute”) was launched.88 This is the first such Institute in Asia. It is part of the

83 Before this Council was established, then-Chief Justice Chan Sek Keong set up the Sentencing and Bail Review Panel in 2006. 84 Chao Hick Tin, “The Art of Sentencing – An Appellate Court’s Perspective”, Sentencing Conference 2014: Trends, Tools & Technology at [3]. 85 Sundaresh Menon, Opening Address for the Sentencing Conference 2014: Trends, Tools & Technology (9 October 2014, Singapore) at [27]. 86 This would complement the various modern sentencing tools and processes in place at the State Courts such as the JURIST (Jurist Resource and Information System), START (Sentencing Tariff and Research Tool), and SIR (Sentencing Information & Research Repository) systems, all of which support judicial officers in discharging their sentencing functions. 87 Sundaresh Menon, Opening Address for the Sentencing Conference 2014: Trends, Tools & Technology (9 October 2014, Singapore) at [27]. 88 The Institute was launched at a legal convergence conference titled “Doing Business Across Asia: Legal Convergence in an Asian Century” (21 January 2016, Singapore), which was organised by the Singapore Academy of Law.

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Singapore Academy of Law. The Institute’s remit is to promote the convergence of commercial frameworks and substantive business law in Asia.89

51 The recent confluence of events – the Trans-Pacific Partnership agreement, the ASEAN Economic Community, China’s “One Belt, One Road” initiative, and Singapore’s plans to help local enterprises to internationalise – is a testament to the need for greater coherence in commercial law across Asia.

52 Given the considerable heterogeneity among Asian legal systems, the Institute aims to establish common legal norms and practices to overcome regional differences and pave the way for freer trade and commerce. The Institute will consult with a wide range of stakeholders so that multiple interests are taken on board, including businesses, legal practitioners and in-house counsel, academia, the judiciary, governments, and local, regional and international institutions. Research projects are designed to culminate in tangible and concrete policy recommendations and legal tools that would be practically suited for the Asian context. The Institute’s projects in the first few years are likely to be to harmonise rules on recognising and enforcing foreign judgments in Asia, the convergence of data privacy laws, and to develop a document on Definitions, General Principles and Model Rules for contracts in cross-border transactions in Asia.90

CONCLUSION

53 Let me conclude by reiterating that all reforms or innovations must be with the aim of enhancing justice. Justice should not be sacrificed at the altar of efficiency. There is also no standard “silver bullet” to judicial reform. The challenges facing our courts, and

89 Sundaresh Menon, “International Commercial Courts: Towards a Transnational System of Dispute Resolution”, Opening Lecture for the DIFC Courts Lecture Series 2015 (20 January 2015, Dubai, UAE) at [8]. 90 Sundaresh Menon, Keynote Address at the Launch of the Asian Business Law Institute (21 January 2016, Singapore). See also and Paul Tan, “Singapore Law: 50 Years in the Making” (Academy Publishing, 2015) at pages 877 to 878 (“In the next leap forward for Singapore law, whether as a thought leader in certain areas of law or in a bid for harmonisation, there is a need to reach out and consider foreign cases. In this vein, Singapore has signalled an ambition to seek an integration or convergence of the transnational commercial laws of the Southeast Asian countries. Again, this will expose Singapore law to other jurisdictions, which will in turn enhance its standing and relevance in the resolution of cases abroad, where relevant”).

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the will and resources we can bring to bear to deal with them, are completely contextual in time and place.91 That said, by sharing and imbibing our collective experiences, we do not have to re-invent the wheel. It is through such congenial exchanges that our judiciaries can strive towards a Judicial Shangri-La.

54 I have provided but a very brief summary of some of the significant steps that our Judiciary has taken. If I may reiterate a point I made earlier, our experience shows that, difficult as it may be to galvanise an organisation into reform, once the initial efforts have been made and momentum has been generated, things become easier and the changes required become smaller and more incremental. Now that we have established a functioning and efficient system, we are able to cast our gaze beyond our shores to the international commercial arena.

55 Thank you for your attention. I wish all attendees a fruitful day ahead.

91 Chan Sek Keong, Welcome Address at the Third Roundtable Meeting of the Asia-Pacific Judicial Reform Forum (20 January 2009, Singapore).

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