SINGAPORE ACADEMY OF LAW The Singapore Academy of Law (the “Academy”) is a body created by statute. It is the umbrella body of the legal profession in Singapore and its members include all legal practitioners, the Judiciary, the Legal Service, in-house legal counsel and faculty members of law schools. The work of the Academy is focused on three key areas: supporting the growth and development of the Legal Industry; building up the intellectual capital of the legal profession by enhancing /HJDO.QRZOHGJHDQGLPSURYLQJWKHHIÀFLHQF\RI legal practice through Legal Technology. Editors Jeffrey Jowell, J Christopher Thomas, Jan van Zyl Smit Rule of Law Symposium 2014 RULE OF LAW SYMPOSIUM 2014 The Importance of the Rule of Law in Promoting Development Editors Professor Sir Jeffrey Jowell QC Mr J Christopher Thomas QC Dr Jan van Zyl Smit 2015 Academy Publishing is a division of the Singapore Academy of Law. 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All enquiries seeking such permission should be addressed to: Director, Academy Publishing Singapore Academy of Law 1 Supreme Court Lane, Level 6 Singapore 178879 Tel No: (+65) 6332 4388ġ Fax No: (+65) 6334 4940 E-mail: [email protected] CONTENTS Page About the Contributors vii Introduction xiii Acknowledgments xxiii THE RULE OF LAW AND DEVELOPMENT The Rule of Law: A Practical and Universal Concept 3 by Professor Sir Jeffrey Jowell QC The Force That Turns the Virtuous Circle: Rule of Law, Socio-Economic Development and the Post-2015 Agenda 11 by Nick Booth The Rule of Law in Development 29 by Christopher Stephens THE RULE OF LAW IN BUSINESS AND FINANCE Rule of Law in Business and Finance: Development and Human Rights Issues 45 by Professor Robert McCorquodale Development, the Rule of Law and Business 60 by Professor David Kinley Challenges Facing Business and Finance Institutions: The Rule of Law Seen Through the Eyes of Business 70 by Lee Ming Chua THE RULE OF LAW AND FOREIGN INVESTMENT International Investment Law and the Rule of Law 81 by Professor Stephan W Schill v vi Contents Page The Rule of Law, Investment Treaties, and Economic Growth: Mapping Normative and Empirical Questions 103 by N Jansen Calamita The Rule of Law and Foreign Investment: Treaty Contexts and the Rule of Law 129 by Professor Locknie Hsu JUDICIAL PERSPECTIVES ON THE RULE OF LAW AND DEVELOPMENT Lord Phillips of Worth Matravers 153 Former President of the United Kingdom Supreme Court Chief Justice Geoffrey Ma 159 Chief Justice of Hong Kong Chief Justice Sundaresh Menon 165 Chief Justice of Singapore KEYNOTE ADDRESS The Importance of the Rule of Law in Current Global Challenges 177 by Ambassador Patricia O’Brien IN CONVERSATION WITH THE MINISTER Mr K Shanmugam 191 Minister for Foreign Affairs and Minister for Law, Singapore CLOSING ADDRESS The Rule of Law – “Killer App” or Open Source Software? 203 by Lionel Yee SC ABOUT THE CONTRIBUTORS Mr Nick Booth is Programme Advisor for Governance, Conflict Prevention, Access to Justice and Human Rights at UNDP’s Bangkok Regional Hub. He was previously advisor on rule of law issues in UNDP Vietnam (2008–2012) and the UN peacekeeping mission in Kosovo (2001–2007). His most recent publication is “The UN and Governance in Middle-Income Countries: a Vietnam Case Study” in Randall Peerenboom and Tom Ginsburg (eds), Law and Development of Middle-Income Countries (Cambridge University Press 2014). A barrister by profession, with law degrees from Cambridge and Oxford Universities, he practised law for 12 years in the UK and US before joining the UN. Mr N Jansen Calamita is Director of the Investment Treaty Forum at the British Institute of International and Comparative Law. He concurrently holds the position of lecturer in the University of Birmingham Law School. Mr Calamita has served in the Office of the Legal Adviser in the US Department of State and as a Legal Officer in the UNCITRAL Secretariat. He continues to counsel governments on matters relating to the law of foreign investment and international dispute resolution issues. His research is in general public international law and the international law of investment. Mr Chua Lee Ming is a Judicial Commissioner of the Supreme Court of Singapore. He was the General Counsel of GIC Pte Ltd (formerly known as Government of Singapore Investment Corporation Pte Ltd) from 1998 to August 2014. He was admitted as an advocate and solicitor of the Supreme Court of Singapore in 1984 and served in Singapore’s judicial and legal service from 1984 to 1990. He then practised as a litigator with Lee & Lee before joining GIC Pte Ltd in 1998. Mr Chua served as one of two Vice-Presidents of the Singapore Corporate Counsel Association until February 2015. He also serves on the LawNet Management Committee, Singapore Academy of Law, and the Singapore Management University’s School of Law Advisory Board. Professor Locknie Hsu is a Professor and former Associate Dean at the School of Law, Singapore Management University. She received her legal training from the National University of Singapore and Harvard University, and is a member of the Singapore Bar. Locknie specialises in international vii viii About the Contributors trade and investment law and dispute settlement, and has published widely in these areas. She is also Chairperson of the Trade and Investment Group of the ASEAN Law Association and co-rapporteur of the Committee on Sustainable Development and the Green Economy in International Trade Law of the International Law Association. Professor Hsu teaches Trade and Investment Law and Contract Law, and has received five teaching awards at SMU. Professor Sir Jeffrey Jowell KCMG QC is the Director of the Bingham Centre for the Rule of Law, an independent research centre within the British Institute of International and Comparative Law in London. A leading authority on public law, he has successfully combined a distinguished academic career with a legal practice at the Bar. Previously Dean of the Faculty of Law and a Vice Provost of University College London, he has assisted in drafting many national constitutions and served on a number of public bodies including as the UK’s member on The Council of Europe’s Commision for Democracy Through Law (“The Venice Commission”). He was knighted in 2011 “for services to human rights, democracy and the rule of law”. Professor David Kinley holds the Chair in Human Rights Law at University of Sydney and an Academic Panel member of Doughty Street Chambers in London. His particular expertise is in human rights and the global economy, having worked for more than 20 years with governments, international agencies, law firms, corporations and NGOs in the field. He is the author of a number of books and is currently working on a new book entitled An Awkward Intimacy: Why Human Rights and Finance must Learn to Love Each Other, and a new research project proposing the establishment of a new human right to freedom from corruption. Chief Justice Geoffrey Ma Tao-li GBM was appointed Chief Justice of the Hong Kong Court of Final Appeal on 1 September 2010. Chief Justice Ma joined the Hong Kong Judiciary as Judge of the Court of First Instance of the High Court in 2001. He was appointed Justice of Appeal of the Court of Appeal of the High Court in 2002, and Chief Judge of the High Court in 2003. Chief Justice Ma graduated with a Bachelor of Laws degree from Birmingham University in 1977. He completed his Bar Finals in 1978. He was called to the English Bar (Gray’s Inn) in 1978, the Hong Kong Bar in 1980, the Bar of the State of Victoria in Australia in 1983 and the Bar of Singapore in 1990. He was appointed Queen’s Counsel in 1993 About the Contributors ix and made an Honorary Bencher of Gray’s Inn in 2004. He was admitted to the degree of Doctor of Laws (honoris causa) by the University of Birmingham in 2011. He was awarded the Grand Bauhinia Medal by the Hong Kong Government in June 2012 and was conferred an Honorary Fellowship by Harris Manchester College of the University of Oxford in November 2012. Professor Robert McCorquodale is the Director of the British Institute of International and Comparative Law in London.