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We are pleased to launch the 2019 edition of our Asia Pacific Guide to Privilege.
Businesses are increasingly faced with multi-jurisdictional disputes where evidence rarely falls within the borders of a single country and complex legal privilege issues often surface when dealing with communications across multiple jurisdictions.
Compiled by our network of Herbert Smith Freehills lawyers and trusted local counsel, the updated Guide takes account of the latest developments across Asia Pacific and covers 21 jurisdictions.
Many enforcement actions either emanate from or involve long-arm jurisdictions outside Asia and span across many jurisdictions in Asia. Given for example the English Bribery Act’s broad jurisdiction and extra-territorial reach coupled with aggressive enforcement agencies, clients around Asia ought to understand how the authorities in England will apply the law of privilege, in addition to how the law is applied across Asia. Moreover, although English case law is persuasive in most common law jurisdictions, legal advice privilege is an area in which a number of common law jurisdictions, such as Australia, Hong Kong and Singapore, have chosen to depart from English case law. Given the spotlight on these issues, we have added a new chapter on England & Wales and a related comparative question in each of the other 20 chapters across Asia-Pacific.
We hope that this comprehensive Guide will be useful particularly to multinational companies who operate numerous subsidiaries across borders.
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We are soon to have a new international regime for the enforcement of mediated settlement agreements.
The UN Convention on International Settlement Agreements Resulting from Mediation, which will be known as the Singapore Convention, was approved in June 2018 by UNCITRAL (the United Nations Commission on International Trade Law). It is expected to be open for signature from 1 August 2019 and will come into force upon ratification by at least three contracting States.
The Convention will oblige contracting States (except in specified limited circumstances) to recognise international settlement agreements resulting from mediation in commercial disputes, either to enforce the agreement or allow it to be invoked as a defence to a claim (that is, either as a sword or a shield).
It is hoped that the Singapore Convention will achieve for mediation what the New York Convention has for international arbitration, encouraging a greater global acceptance of mediation as a credible and reliable dispute resolution mechanism in international commerce.
For more detail on the Convention, and commentary on how likely it is to achieve that aim, see the article by Jan O’Neill (Professional Support Lawyer, London) recently published on the Practical Law Dispute Resolution Blog, here.
In Rakna Arakshaka Lanka Ltd (“RALL“) v Avant Garde Maritime Services (Private) Limited (“AGMS“)  SGHC 78, the Singapore High Court dismissed an application to set aside an award on jurisdiction, on the basis that the applicant had failed to challenge the tribunal’s preliminary ruling on jurisdiction within the deadline stipulated under section 10(3) of the International Arbitration Act (“IAA“) and Article 16(3) of the UNCITRAL Model Law. The decision provides guidance on the distinction between active and passive remedies in the context of applicable deadlines when seeking to set aside an award on grounds of jurisdiction, and resisting enforcement on the same basis. Continue reading
On 26 June, at the 51st session of UNCITRAL, final drafts for a Convention on the Enforcement of Mediation Settlements and corresponding Model Law were approved. This paves the way for adoption by UNCITRAL’s Commission later this year. It is understood that the Convention will be called the Singapore Mediation Convention and will be signed at a ceremony in Singapore in 2019. The Convention must then be ratified by at least three member states to come into force.
Approval of the drafts represents the culmination of several years’ work by UNCITRAL Working Group II. Its aim has been to implement an international regime for the enforcement of mediated settlements broadly akin to the 1958 New York Convention for the enforcement of arbitral awards. This will increase the attraction of mediation for international parties, with all its well-known cost efficiencies and other potential benefits.
The initiative stems from a concern that the use of mediation to resolve international disputes has been impeded by the fact that, unless a settlement reached via mediation is in the context of a pending arbitration and can be converted into an arbitral award, parties can only enforce it in the same way as any other contract. In an international context, this can involve potentially difficult (and usually lengthy) processes to obtain a court judgment and then enforce it in a foreign jurisdiction.
Whilst problems of enforcement of mediated settlements have been sparse in practice (certainly compared to court judgments or arbitral awards), the Convention will no doubt add credibility to mediation as an international dispute resolution process. It will also make mediation particularly well suited to cross-border disputes. At the Global Pound Conference series, delegates in Asia, Africa, the Middle East and Latin America all revealed a desire for legislation or conventions to promote the recognition and enforcement of settlements. This may reflect the varied and complex legal and political frameworks in these regions. Many of those surveyed manage businesses and disputes across several borders, where legal regimes can vary from stable, tested and familiar to those that are only a decade old. The call for regulation and certainty is even more critical as the pace of development intensifies through new trade treaties and investment, and massive initiatives such as the Belt and Road. The Convention and Model Law look set to respond well to this demand and may hail an inflection point for the use of mediation in these developing regions.
Materials approved on 26 June have not yet been made available on the relevant UNCITRAL webpage. However they will in due course be posted on this page, which currently contains the most recent drafts (from February 2018) together with other details of the initiative.
There has been a significant increase in interest in, and the use of, cryptocurrencies in recent times. Cryptocurrencies are essentially de-centralised virtual currencies, which are not linked to any particular country, nor regulated by any central bank or monetary authority.
In late December 2017, the Singapore International Commercial Court (SICC) decided that the nation’s first dispute involving cryptocurrency merits a full trial. While this case does not involve questions of the legality of cryptocurrency itself, it involves issues relating to the manner in which such cryptocurrencies are traded. Continue reading
In its recent decision in Rappo v. Accent Delight International Ltd and another  SGCA 27, the Singapore Court of Appeal considered the distinction and relationship between the doctrines of forum election and forum non conveniens. Notably, the Court also considered whether the potential availability of the Singapore International Commercial Court (“SICC“) represents a relevant consideration in determining whether Singapore is an appropriate forum. Continue reading
In the recent decision of Wee Shuo Woon v HT S.R.L  SGCA 23, the Court of Appeal considered whether evidence which had been made available on WikiLeaks as a result of the Respondent's ("HT S.R.L."') computer systems being hacked had lost its confidential and legally privileged status.
The decision, which has taken on added significance in the wake of recent global cyber-attacks, indicates that the Singapore courts will be slow to admit evidence obtained as a result of such incidents. In particular, the Court held that the equity in favour of restraining the use of privileged documents was even stronger in the case of documents obtained in a cyber-attack than in the case of those obtained by virtue of a party's innocent mistake. The order to exclude such evidence was upheld.
In the recent decision of Wilson Taylor Asia Pacific Pte Ltd v Dyna-Jet Pte Ltd  SGCA 32, the Singapore Court of Appeal confirmed that the Singapore courts will enforce a dispute resolution clause which gives only one party the option to arbitrate. The court also clarified the requirements and threshold for a stay of proceedings to be granted under section 6 of the Singapore International Arbitration Act ("IAA").
The Nanjing Intermediate People's Court in Jiangsu Province, China ("Nanjing Court") recently issued a ruling recognising and enforcing a default judgment granted by the High Court of Singapore ("Singapore Judgment") based on the reciprocity principle.
Although permitted under the PRC Civil Procedure Law, PRC courts have rarely, if ever, recognised and enforced foreign judgments on the reciprocity principle. While it is still too early to predict whether the ruling will see wider application, it is a positive attempt towards applying the reciprocity principle in the context of recognising and enforcing foreign judgments in China.
On 1 February 2017, the Supreme Court of Singapore and the United States Bankruptcy Court for the District of Delaware announced that they will formally implement the Guidelines for Communication and Cooperation between Courts in Cross-border Insolvency Matters ("Guidelines").
The Guidelines function as a framework setting out best practice on how to facilitate the processes and procedures of cooperation and communication between courts. Whilst they do not deal with substantive legal matters, the potential impact of a well-structured framework for coordination cannot be underestimated, particularly in complex cross-border insolvency matters.