The Singapore Law Gazette

Ethics in International Arbitration as Practised (or not) in Singapore (Part 2)

What rules of ethics govern the conduct of Counsel in International Arbitrations seated in Singapore (and elsewhere)?

This is the continuation of the 3-part essay that commenced in the February¹Ethics in International Arbitration as Practised (or not) in Singapore (Part 1), 2026 issue of this Gazette.

Ethics of Counsel

1. Until recently, my guess would have been that the general view in Singapore was that, unlike in litigation, there are presently no binding rules of conduct imposed on Singapore Counsel who appear in domestic or international arbitration cases. Counsel who have not looked closely at the relevant legislation which I will set out in Parts 2 and 3 of this essay are likely to believe that, (a) unlike court Counsel, there is no general binding written code of ethics that Arbitration Counsel are required to observe unless all Parties to the Arbitration agree to adopt any such ethical rules e.g. by a consent order made by the Tribunal for a particular case, and (b) even if any particular code of ethics were agreed on by the Parties for their Arbitration, there are no rules to enforce or punish any unprofessional behaviour by Singapore Counsel in arbitrations (but I will discuss this aspect in Part 3 of this extended essay) .
2. There are official guidelines issued by respected International Arbitration bodies that set out certain rules and principles of ethical behaviour by Arbitration Counsel. However, none of these guidelines are binding unless the Parties to an Arbitration are willing to agree that their Counsel will adopt those guidelines in the Arbitration in question. So these guidelines have to be adopted by mutual agreement between the Parties in order to be binding.²Two rare exceptions would be the parties to an arbitration either under the LCIA Rules 2020 (see paragraph 5 below) or the ICDR Rules 2021 as these institutional rules do lay down prescriptive rules governing the conduct of Counsel appearing in arbitration conducted under the auspices of these institutions (see paragraphs 5 to 7 below).
3. The bodies that have issued such guidelines include:

1. 1. International Council for Commercial Arbitration (“ICCA”);
   2. International Bar Association (“IBA”); and
   3. Singapore Institute of Arbitrators (“SIArb”).

4. As far as I am able to ascertain from anecdotal evidence, it does not appear that these voluntary guidelines have been widely adopted. For example, I asked SIArb recently if they were aware of any actual Arbitration cases where their ethical guidelines have been adopted. I was informed that they were not aware of any such reported cases. Furthermore, these guidelines mentioned above largely comprise of motherhood statements and self-evident principles, and have no enforcement provisions, and such guidelines would be difficult to apply to the kinds of objectionable conduct discussed in Arbitration journals and literature which have actually occurred without any sanctions being imposed. Other international Counsel with whom I have discussed the ICCA and IBA Rules cited above have told me that their firms would be happy to include these voluntary ethical rules into the rules to be adopted by the Tribunals for their Arbitrations. However, their main worries that prevent them from doing so are:

1. 1. they do not want to be guinea pigs when there are few precedents about how these rules should be applied in practice; and
   2. while they would be happy to observe these model rules in the appropriate context in which they were written, they worry that their opponents might not interpret these rules in the same way, and some opponents may start to abuse the rules by invoking them as a weapon to delay and obstruct the smooth running of the Arbitration.

Position under the LCIA Rules 2020

5. Among the very few arbitral institutions that have adopted mandatory ethical guidelines is the London Court of International Arbitration (“LCIA”). LCIA has since late 2014 incorporated the following scheme (the citations below are from the latest edition of the LCIA Rules 2020).
   1. Each party shall ensure that all its authorised representatives have agreed to comply with the general guidelines contained in the Annex to the LCIA Rules, as a condition of such representation (Article 18.5 of the LCIA Rules 2020).
   2. The Annex lists specific forms of unethical conduct, e.g., (i) unfairly obstructing the Arbitration, (ii) making false statements to the Tribunal and (iii) knowingly procuring false evidence.
   3. An LCIA Tribunal may rule on the propriety of Counsel’s conduct in accordance with the Annex, either on its own initiative or upon a complaint by another party (Article 18.6 of the LCIA Rules 2020).
   4. If the complaint is upheld, the Tribunal may issue a written reprimand or a written caution as to future conduct in the Arbitration; and/or take any other measure necessary to act fairly and impartially and to avoid unnecessary delay and expense (Article 18.6 of the LCIA Rules 2020).
   5. An LCIA Tribunal is also expressly empowered to take the Parties’ and Counsel’s conduct into account when awarding costs (Article 28.4 of the LCIA Rules 2020).
6. I wrote to the LCIA a few years ago to inquire how often these rules have been invoked, and they told me that there were not many cases where a Party wanted to make a complaint concerning the behaviour of the other Party’s Counsel. The complaints which had been filed did not involve heinous breaches of ethics, and were resolved by either reprimands or apologies, but nothing more serious in terms of penalties. So one might say that the LCIA’s experience of these rules is a work-in-progress.

Position under the ICDR Rules 2021

7. The second example is the American Arbitration Association-International Centre for Dispute Resolution (“AAA-ICDR”). The ICDR Rules 2021 (which are usually adopted where non-US parties are parties to an ICDR arbitration) provide that a Party may be represented in an Arbitration, and the conduct of Party Representatives shall be in accordance with the ICDR Standards of Conduct for Parties and Representatives (Article 18 of the ICDR Rules 2021). Among the key provisions of the ICDR Standards of Conduct are the following rules.
   1. Party Representatives shall advise their clients and witnesses of the appropriate conduct that is expected of them during the proceedings.
   2. Parties shall not engage in harassing, threatening, or intimidating conduct toward AAA employees or Arbitrators/mediators.
   3. Parties shall refrain from using vulgar, profane, or inappropriate language.
   4. Parties shall not repeatedly file unmeritorious demands, or engage in other tactics that the AAA or an Arbitrator determines as frivolous, filed for purposes of harassment, or primarily intended to cause unnecessary delay or increased costs.
   5. Parties shall not threaten violence or other unlawful conduct; AAA will not tolerate any such threats and will forward them to law enforcement authorities.
8. The framework governing party representatives’ conduct under the ICDR is slightly different from that under the LCIA Rules. A Tribunal constituted under the ICDR Rules is not responsible for enforcing the ICDR Standards of Conduct. Under the ICDR Standards of Conduct, if any party or its representatives fail to abide by these guidelines, the ICDR may decline to further administer a particular case or caseload. In deciding whether to do so, the ICDR may take into account whether the party has been declared a vexatious litigant (or its equivalent) by any state or federal court.³The ICDR Standards of Conduct (see the Code of Ethics for Arbitrators in Commercial Disputes, the Code of Professional Responsibility for Arbitrators of Labour-Management Disputes, and the Model Standards of Conduct for Mediators, and the Standards of Conduct for Parties and Representatives) are silent on sanctions against the Partiesfor breaches of these standards. Rather, in the event of a breach of these rules, they reserve their right to “decline to further administer a particular case or caseload”.
9. That said, the ICDR Rules empower the Tribunal to allocate costs, draw adverse inferences, and take such additional steps as are necessary to protect the efficiency and integrity of the Arbitration (Article 22(8) of the ICDR Rules 2021).

Witness Preparation

10. One outstanding question that does involve the Courts remains open: viz. whether a certain ruling made by the Singapore Courts applies equally to Arbitration Counsel who are members of the Singapore Bar -. This question arises from the way in which certain Counsel had prepared Witness Statements. In Ernest Ferdinand Perez De La Sala v Compañia De Navegación Palomar, SA (“De La Sala”).⁴(2018) SGCA 16, at (138)-(140). For two commentaries on this case, see “Group Witness Preparation – Psychology Matters” by Alvin Chen and Gan Jhia Huei (Singapore Law Gazette July 2019) and “Truth Be Told” by Alvin Chen and Nisha Francine Rajoo (Singapore Law Gazette September 2020) The Singapore Court of Appeal hearing that case laid down three rules governing this process in the following terms.
    1. The solicitor cannot coach or train witnesses, and the preparation of witnesses must not allow other persons, including the solicitor, to actually supplant or supplement the witness’s own evidence.
    2. Even if the first rule is observed, the preparation should not be too lengthy or repetitive.
    3. Witness preparation should not be done in groups.
11. I have doubts which are expressed in the following questions.
    1. Whether a failure to comply with the De La Sala principles would constitute misconduct capable of giving rise to a formal complaint against the relevant Counsel ( who must be a Singapore Advocate and Solicitor) to the Law Society of Singapore which in turn will refer it to the Chairperson of the Inquiry Panel (Sections 85(1)(a) and 85(1A) constituted under Section 85 of the Legal Profession Act 1966) before the Inquiry Committee for disciplinary action, notwithstanding that the breach occurred in the context of Arbitration rather than Court proceedings?
    2. Whether the De La Sala principles are actually forensic guidelines rather than ethical guidelines, meaning that the Court of Appeal was broadcasting to the profession that Witness Statements given in breach of these guidelines (if the evidence comes to light) will be regarded by Singapore Courts as less worthy of belief than Witness Statements taken in compliance with these guidelines (but it was not laying down mandatory directions as to Counsel’s ethical duties)?
    3. Did the Court of Appeal intend these principles to arbitration cases heard in Singapore? If so, whether the De La Sala principles intended to apply only to Counsel who are Advocates and Solicitors at the Singapore Bar (“Singaporean Counsel”) arguing Arbitration cases in Singapore. If they do, then there would be an imbalance in the guidelines for non-Singaporean Counsel, who would not be bound by these guidelines, and accordingly different rules of witness preparation may apply to Singaporean Counsel as opposed to foreign Counsel acting in Singapore-seated Arbitrations. If such a situation were to occur, then there would be an inequality of arms between the two sets of opposing Counsel. A further question arises whether these principles also apply to Singaporean Counsel arguing International Arbitration cases outside Singapore (see Part 3 of this extended essay).
12. As an Arbitrator, my practical solution to the dilemma is that, where I am sitting as Arbitrator in a Singapore-seated Tribunal, I try to persuade my fellow Arbitrators to raise the following question at the first Case Management Conference: “Do parties want the Tribunal to adopt the relevant rules and principles from De La Sala in the preparation of witnesses?” And I have so far been successful in persuading my fellow arbitrators to put this question to Counsel. Of course, where foreign counsel are involved, the Tribunal would have to explain to those Counsel (especially those not practising at the Singapore Bar) what the De La Sala principles are. This practice that I adopt has been explained in an afternote to an article written by me in the Singapore Arbitration Journal.⁵See Michael Hwang SC & Adriana Uson Ong, “Continuing the Discourse on Party-Representative Ethics in International Arbitration” (2019) 1 SIArb J 37. The afternote appears at page 52. In my own experience, the results of this question put to the Parties’ counsel at the first Case Management Conference have been mixed. A small majority have agreed not to apply the De La Sala principles, but in a couple of cases both parties have agreed to adopt them. Thankfully, we have not had any actual controversies when Counsel who had previously agreed to apply the De La Sala principles have then engaged in arguments at the Evidentiary Hearing as to whether there has been an actual breach of those principles in the course of the Arbitration (but the opportunity for an argument on this point in mid-hearing can never be ruled out, which could seriously impact on the progress of the Evidentiary Hearing).

Confidentiality

13. Another issue concerns confidentiality. Under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act 1992 (“CDTSCA”), individuals have a statutory duty to make a disclosure or complaint when they have reasonable grounds to suspect that someone has committed a serious offence under the Act (“Serious Crimes”). Such disclosure must be made to the Suspicious Transaction Reporting Office of the Commercial Affairs Department (“CAD”), a department under the Singapore Police Force.
14. But what happens when an Arbitration Counsel or Arbitrator gains such knowledge of possible Serious Crimes in the course of Arbitration proceedings? Can such information be disclosed without breaching the duty of confidentiality?
15. This issue was discussed in the High Court case of AAY v AAZ,⁶(2011) 1 SLR 1093. The case is fully discussed in an article written by me and Nicholas Thio “A Contextual Approach to the Obligation of Confidentiality in Singapore: An Analysis of the Decision of the Singapore High Court in AAY v AAZ”, Arbitration International (2012) volume 28, issue 2 pages 225 – 242. For a fuller discussion of the problems of Confidentiality in Arbitration, see: Michael Hwang SC “Defining the Indefinable: Practical Problems of Confidentiality in Arbitration” in “Selected Essays in Dispute Resolution”, (2018, SIAC Publishing), 316 – 405. a case in which I was involved as Counsel. I believe that this was the first decision in Singapore which comprehensively considered the common law jurisprudence on the implied obligation of confidentiality in Arbitration and exceptions to that obligation. In that case, AAZ (for whom I acted) commenced an Arbitration (as Claimant) against three of its former senior employees for, inter alia, damages for conspiracy. AAZ obtained a Partial Award on liability against AAY (as Respondents), with damages to be settled in a second phase of the Arbitration to determine the amount of damages payable by the 3 Respondents to the Claimant. AAZ’s President and CEO (without my prior knowledge) then made a disclosure and complaint to the Commercial Affairs Department (“CAD”) of the Criminal Investigation Department, believing he had reasonable grounds to suspect that the Plaintiffs had committed “Serious Offences” (as defined under the CDTSCA). Accordingly, he not only had the right, but a statutory obligation to report the offence(s) to the appropriate authorities. The question then arose as to whether the defendant had breached the implied common law duty of confidentiality by disclosing materials relating to the Arbitration to the CAD as AAY sued AAZ in the High Court of Singapore for a declaration that the Arbitration was at an end owing to breach of the common law of confidentiality in Arbitration.
16. An interesting fact in that case (which affected the legal outcome) was that the Parties had adopted the UNCITRAL Model Law as the procedural rules, instead of institutional rules or the UNCITRAL Arbitration Rules. As the Model Law does not provide for confidentiality, the Court proceeded to examine the common law jurisprudence on the implied obligation of confidentiality in Arbitration. Chan Seng Onn J then concluded that, so long as an Arbitration is seated in Singapore, “confidentiality will apply as a substantive rule of arbitration law…[derived] from the common law”.⁷AAY v AAZ, at (55).
17. AAZ (as Defendant in the High Court) justified its disclosure by relying on its good faith disclosure, which it argued was given immunity under Section 45(7) of the CDTSCA (then Section 39(6)) for any purported breach of confidentiality. The court eventually decided that the Plaintiffs’ conduct did not fall within the scope of CDTSCA because the Act did not apply to the facts of this case. However, the disclosure to the CAD was a justified common law exception to the common law doctrine of confidentiality on the grounds of public interest (in the prima facie commission of serious criminal offences). But more relevant to our present discussion would be Section 45(5) (then Section 39(4)), which exempts certain legal professionals from the duty to make disclosure where the information is subject to legal privilege. This exemption extends to:

1. 1. an Advocate and Solicitor, or an interpreter or other person who works under his supervision;
   2. a Legal Counsel acting as such for his or her employer, or an interpreter or other person who works under the supervision of the legal counsel; and
   3. an Arbitrator.

18. When the case was decided, the provision was narrower, and applied only to Advocates and Solicitors, and persons working under their supervision. I had, at that time, raised with my contact in the Ministry of Law my concern that Arbitrators were not covered by the exemption. The law has since been amended to expressly include Arbitrators in the class of exemptions mentioned above and would theoretically be treated as coming under the mandatory duties of disclosure of possible “Serious Crimes” (as defined in the CDTSCA) without being able to claim any kind of legally recognized privilege⁸Section 45(5)(c)_. Arbitration Counsel who are admitted to the Singapore Bar would likewise fall within the category of Advocates and Solicitors, and are therefore covered by the same immunity, but not (by implication) foreign Counsel who are not Singapore Advocates and Solicitors, so there might be an imbalance of obligations.
19. A further question arises as to whether a foreign Counsel practising Arbitration in Singapore is also exempt under this section. The answer would likely be straightforward if the foreign Counsel works under the supervision of a Singapore Advocate and Solicitor, but the question remains less clear otherwise.
20. Another relevant rule is the Legal Profession (Professional Conduct) Rules 2015. Rule 4 sets out 8 general ethical principles. Among others, a legal practitioner must act honourably and with integrity towards any Tribunal before which they appear, their clients, the public, and other members of the profession. Importantly, the duty of a legal practitioner to the Court (or Tribunal) takes precedence over the duty owed to the client. This raises a related question: would disclosing information to the relevant authorities concerning a possible criminal offence committed by Party A obtained by a Counsel acting in the Arbitration for Party B which he/she receives from Party’s A witnesses or Counsel (either by reading or listening to documents and evidence presented in the Arbitration) amount to a breach of the common law duty of confidentiality? This question has already been answered in principle by the High Court in AAY v AAZ although the Court did not find the CTDSCA applicable in that case, but rather based its decision on the common law exception as the governing legal principle, because the police report to the CAD clearly disclosed prima facie evidence of other criminal offences, which is accepted at common law as a valid exception to the doctrine of confidentiality⁹AAY v AAZ (supra) at paragraph 144, where Chan Seng Onn J accepted that the Defendant’s report to the CAD was in the public interest (which was an exception to Confidentiality at common law).. Indeed, that exception has been identified by different English Courts differently, sometimes as “public interest”¹⁰London and Leeds Estates Ltd v Pariba Ltd (1995) 1EGLR 102 at 109 and John Foster Emmott v Michael Wilson & Partners Ltd (No. 2) (2008) EWCA Civ. 184 at 130 or the narrower definition of “in the interests of justice”¹¹Ali Shipping Corp v Shipyard Trogir (1999) 1 W.L.R. 314 at 327 and 328
21. I say this because legal privilege applies only to information that a lawyer receives from his/her own client. In Arbitration hearings, each counsel will receive information from the other party. There is no privilege applicable in respect of information acquired from sources other than the Counsel’s own client. Technically, each Counsel is still subject to the disclosure obligations under the CDTSCA in respect of information obtained during evidentiary procedures (such as document production and hearings) or from submissions made by the other party.

Rule 59(3)(e) of the SIAC Rules

22. This is where the choice of Arbitration Rules becomes significant. The SIAC Rules 2025 contain express confidentiality provisions and exceptions.¹²Rule 59, SIAC Rules 2025. Pursuant to Rule 59, all parties, including the SIAC, have a continuing obligation to treat all matters relating to the proceedings (including the existence of the Arbitration) as confidential. Disclosure to third parties may only be made with the prior written consent of the Parties to the Arbitration, unless such disclosure is, among other conditions, made:

1. 1. for the purpose of making an application to any competent court of any jurisdiction to challenge or enforce the award;
   2. pursuant to the order of, or a subpoena issued by, a court of competent jurisdiction;
   3. for the purpose of pursuing or enforcing a legal right or claim;
   4. in compliance with the provisions of the laws of any jurisdiction which are binding on the party making the disclosure or the request or requirement of any regulatory body or other authority;
   5. pursuant to an order by the Tribunal on application by a party with proper notice to the parties (emphasis added); or
   6. for the purpose of any application under these Rules.

(Rule 59.3 of the SIAC Rules 2025)

23. To address unethical behaviour by Arbitration Counsel, I have written articles suggesting that Arbitration Institutions should amend their rules on confidentiality to permit the Tribunal or a party to lodge a complaint with the relevant Bar Association against the Counsel in question, without breaching the duty of confidentiality¹³(”A New Approach to Regulating Counsel Conduct in International Arbitration” in “Selected Essays on Dispute Resolution” by Michael Hwang SC (at 101- 112, 117), “Continuing the Discourse on Party-Representation Ethics in International Arbitration” Singapore Arbitration Journal Volume 1 (November 2019) 37 at 47 – 51. These articles seem to have fallen on deaf ears.
24. However, a recent (and closer) look at Rule 59.3(e) shows that its language is broad enough to allow a party to request that the Tribunal lift confidentiality over certain information (e.g., the opposing party’s Counsel’s conduct during the arbitral hearings) in order to file a complaint with the relevant Bar Association.
25. Rule 59.3(e) is not new; it mirrors Rule 39.2(e) of the SIAC Rules 2016 and, even before that, this same rule existed in the SIAC Rules 2010 and 2013 as Rule 35.2(f). John Choong, Mark Mangan and Nicholas Lingard in their Guide to the SIAC Arbitration Rules (2018) explained that sub-paragraph (e) was added to the SIAC Rules “in recognition of the difficulties a closed list of exceptions may cause”.¹⁴John Choong et al., A Guide to the SIAC Arbitration Rules 2nd Edition (OUP, 2018) 301. Even the English Arbitration Act 1996, which was drafted by a learned Committee led by Lord Saville declined to set out an exhaustive list of all the possible exceptions to confidentiality of information in arbitration because the Committee stated candidly: “The list of exceptions is never closed”. This paragraph confers on the Tribunal a residual discretion, upon application by a party, to permit the disclosure of confidential information not otherwise covered by the preceding paragraphs. So it would appear that the answer could lie with the Tribunal rather than the SIAC, and (based on the commentary above) Rule 59.3(e) of the SIAC Rules 2025 may have been used to cover precisely the possibility of reporting an unethical Arbitration Counsel’s professional misconduct to an appropriate third party.
26. I will explore the possible role of Rule 59.3(e) in enabling complaints against unethical behaviour by Arbitration Counsel to be made to an appropriate party in the final part of this extended essay in next month’s Gazette.

[To be continued in Part 3 of this extended essay]