In early November, the Singapore Parliament tabled a bill to allow for conditional fee arrangements (CFAs) in select legal proceedings. According to the Straits Times, the bill proposes amendments to the Legal Profession Act which will provide a framework for lawyers to enter into conditional fee agreements with their clients in certain proceedings.
The newspaper added that as a start, these include international and domestic arbitration proceedings, certain proceedings in the Singapore International Commercial Court (SICC), and related court and mediation proceedings. If the bill were to be passed, “no win, no fee” agreements between lawyers and clients will be allowed for the first time in Singapore.
This would be an “important change,” according to two partners at Ashurst, office managing partner Rob Palmer, and Michael Weatherley. “While the bill has yet to be passed, we believe that this amendment will be welcomed by both solicitors and clients alike. In particular, the introduction of CFAs will provide financially distressed businesses and individuals with the opportunity and incentive to pursue meritorious claims, and also level the playing field between solicitors in Singapore and their counterparts in other jurisdictions where CFAs are already utilised,” they say.
Such arrangements where solicitors receive partial or full payment of their legal fees, but only in “specified circumstances,” for example, where a claim succeeds, are distinguished from contingency fee agreements say the lawyers, “which typically enable a solicitor to share in an agreed percentage of the sum recovered by the client, with no direct correlation to the work done.”
This announcement comes as an additional boost to Singapore’s arbitration scene, which appears to be moving from strength to strength. A 2021 report from the Singapore International Arbitration Centre (SIAC) says that last year, a record 1,080 cases involving claim amounts totalling S$11.25 billion ($8.49 billion) were filed with the centre. What’s more, this number represents a 125 percent increase in the caseload filed with SIAC in 2021.
Also this year, Singapore, along with London, was ranked as the most popular seat to conduct international arbitration according to an International Arbitration Survey by the Queen Mary University of London and White & Case.
As Singapore continues full steam ahead with its arbitration ambitions, the supportive political climate and hard work of lawyers has not gone unnoticed — but is there room for improvement?
Palmer and Weatherley say all segments of the arbitration community, from users, counsel, institutions to judiciary and regulators are working hard to continue to refine processes and encourage transparency to maintain Singapore’s reputation, while also promoting diversity “particularly in arbitrator selection processes.”
This willingness to adapt has served the Singapore arbitration market well — particularly as COVID-19 turns pre-pandemic processes on their head.
“The COVID-19 pandemic has undoubtedly accelerated the prevalence of virtual arbitration in the region,” Palmer and Weatherley say of the impact of the past two years, noting that more users in Asia are now turning to remote hearings, “which consequently also facilitates the appointment of arbitrators from outside the region.”
The lawyers believe that this is a long-term change and do not expect to see the use of virtual arbitration going away anytime soon. “Rather, it is likely to gain further traction amongst users as parties and institutions become more familiar with the various tools available and become accustomed to the often-significant time and cost savings,” they note.
This has also resulted in regulatory changes to accommodate the new normal. “Arbitral rules have also been permanently amended to reflect this reality – including, for example, the ICC Rules and the IBA Rules on the Taking of Evidence in International Arbitration, which both now expressly highlight the tribunal’s discretion to order that an evidentiary hearing be conducted remotely. We expect other institutions like the SIAC to follow suit in upcoming rule revisions,” Palmer and Weatherley say.
One other change is the increased interplay between arbitration and insolvency. “Given the economic impact of COVID-19, many businesses in Asia have turned to arbitration to resolve disputes related to cross-border insolvency. We are also seeing increased resort to third-party funding arrangements in arbitration as more companies face liquidity crises in the midst of this volatile economic environment,” the lawyers add.
Not getting complacent may be Singapore’s secret weapon when it comes to advancing the city’s reputation and regulatory framework to support its arbitration allure. Looking ahead into the future, the lawyers say that Singapore has all the fundamentals in place to keep it ahead in arbitration — but they say a hunger to strive for more remains critical.
“Singapore’s fundamentals as a seat – including its cutting-edge arbitration framework, highly competent and impartial judiciary, neutrality and political stability – will not change anytime soon,” say Palmer and Weatherley. “Provided it maintains its relentless pursuit of continuous improvement – including in the areas identified above – we foresee arbitration in Singapore remaining one of, if not the, most preferred fora inter-nationally for resolving cross-border disputes.”
