IBA Annual Conference 2017, ICC Sydney
The International Bar Association (“IBA”) was established in 1947 to be the world’s leading organisation for legal practitioners, bar associations, and law societies. It seeks to influence the development of international law reform and shape the future of the legal profession globally. To this end, an annual conference is organized to discuss global legal issues and trends.
This year’s IBA annual conference took place at ICC Sydney from 8 October 2017 to 13 October 2017. Situated at the ICC Sydney beside the picturesque Cockle Bay and a stone’s throw away from the Central Business District, the venue was ideal. I was privileged to be able to attend the conference through the generous sponsorship of the Law Society of Singapore.
The conference boasted an attendance of more than 4,000 lawyers from about 130 countries. Unsurprisingly, the abundance of legal experience that each delegate had meant there were more than 200 sessions scheduled throughout the week-long conference on diverse areas of law. I was therefore grateful for the orientation programme, which reinforced a simple message for new attendees like myself: maintain the courage and curiosity to have meaningful conversations with other participants from different countries and backgrounds so as to form lasting friendships and networks.
True enough, I found myself over the next few days meeting lawyers from all over the world. Each would have interesting stories to tell about their journey in the law and the legal developments taking place in their countries.
The opening ceremony of the conference featured various performances showcasing the cultural diversity of Australia. My personal highlight was a performance by the Wuruniri Aboriginal dance group, which presented the heritage and traditions of Australia’s Aboriginal people through a dance performance. Other performers also included the Sydney Lawyers Orchestra, Yantri & Gavi (a pianist and didgeridoo duo), and the Australian Girls’ Choir.
Following the opening ceremony, delegates were treated to a ferry ride across the Darling Harbour to Luna Park, an amusement park on the north shore of the harbour, where further networking activities took place over fresh seafood and wine.
The conference began proper on Monday morning. Several sessions featured prominent Singapore lawyers as facilitators and speakers discussing areas of law in which rapid developments were taking place both in Singapore and across the world.
Three areas stood out in particular where Singapore is concerned: (a) shipping and insolvency; (b) third party funding; and (c) international arbitration.
Shipping and Insolvency
The session entitled “Avoiding that sinking feeling: navigating shipping insolvencies” addressed issues arising from the confluence of the insolvency and shipping spheres. While the initiation of insolvency proceedings against companies typically results in courts granting a stay on all legal proceedings against companies so that the winding up process takes place in an orderly fashion, shipping law permits ship arrests for maritime liens. A key question that arose was whether ship arrests are wrongful when they take place after insolvency proceedings have been commenced against their owner companies or their parent companies.
The session was well attended by many shipping and insolvency practitioners across the world, and featured Mr Edwin Tong SC as a panelist. Unsurprisingly, a key topic discussed was the insolvency of Hanjin Shipping Co. Ltd (“Hanjin”), the largest shipping company in Korea, where the initiation of Korean insolvency proceedings led to numerous Hanjin vessels being arrested across the world and in Korea itself. Singapore saw its fair share of this massive cross-border insolvency, which resulted in the landmark decision of Re Taisoo Suk (as foreign representative of Hanjin Shipping Co Ltd)  5 SLR 787. In that case, the Singapore court granted an application through its inherent powers for (a) Hanjin’s Korean rehabilitation proceedings to be recognized; (b) all pending, contingent or fresh proceedings against Hanjin to be restrained; and (c) all present proceedings against Hanjin to be stayed.
The panelist from Korea was especially engaging and provided much insight into the reasons for why Hanjin failed to avoid insolvency proceedings and why its smaller competitor, Hyundai Merchant Marine (“Hyundai”), managed to remain a viable going concern. A key reason for Hanjin’s insolvency was attributed to the reluctance of Hanjin’s majority shareholders to give up control of Hanjin so new financing could be raised, and Hanjin’s majority shareholders spending too much time negotiating with Hanjin’s creditors. In contrast, Hyundai’s shareholders agreed to capital reduction and moved swiftly to restructure Hyundai’s debt, thus obtaining a critical first mover advantage vis-à-vis Hanjin. As a result, while insolvency proceedings were commenced against Hanjin, the same did not happen for Hyundai, indicating the need for lawyers to be highly attuned to the commercial aspects of insolvency work to assist clients with staving off insolvency.
Third Party Funding
The next significant session was entitled “Sell your judgment/award! Third-party funding for litigation and arbitration proceedings, including funding of enforcement of judgments and arbitral awards”. Singapore’s recent legislative amendments to allow third party funding for arbitration proceedings and decision in Re Vanguard Energy Pte Ltd  4 SLR 597 did not go unnoticed and were discussed alongside developments in Hong Kong and Canada.
A common consensus emerged that while litigation funding was previously frowned upon, it is increasingly seen as being beneficial to their legal sectors in promoting access to justice. A panelists from a litigation funder remarked that litigation funders would typically only fund a case which would give rise to damages as a remedy, but not specific performance or injunctions; litigation funders were interested primarily in the proceeds of the litigation. The learning point from this was that allowing greater scope for litigation funding may not necessarily open the floodgates for litigation as feared, but instead, could promote the bringing of legitimate claims to the Court which would not be otherwise brought.
Pertinently, an in-house counsel from Saipem S.p.A from another session discussing litigation in the natural resources sector shared his experience in an ICSID proceeding where instead of seeking litigation funding, his company brought legal proceedings against a State through a contingency fee arrangement. The resultant judgment, Saipem S.p.A. v. The People’s Republic of Bangladesh, ICSID Case No. ARB/05/07, was ground-breaking in holding that judgments of a court may amount to acts of expropriation if an arbitral award was invalidated by a national court on less than justified grounds.
Given that Singapore law firms are presently prohibited from entering into contingency fee arrangements vide r 18 of the Legal Profession (Professional Conduct) Rules 2015, Singapore law firms would not have been able to attract the kind of work from Saipem S.p.A. The abovementioned example provides the Singapore legal community with food for thought as to whether the viability of contingency fee arrangements for Singapore law firms should be reconsidered in light of its potential to improve Singapore’s international competitiveness as a legal hub.
The third significant session I attended was entitled “Changes in national law and their role for promoting alternative dispute resolution (ADR)”. Ms Koh Swee Yen from Singapore chaired the session, which was an extremely interactive one where delegates discussed various areas of developments in alternative dispute resolution.
It was heartening during the discussions to note that Singapore’s efforts to market the Singapore International Commercial Court has borne fruit as delegates from various countries were aware of the initiative. In this context, the group viewed the development of international courts as bringing greater competition against arbitral tribunals as speedier, cheaper and more reliable forums to resolve commercial disputes.
Of significance is India’s initiative to pass section 29A of the Arbitration and Conciliation Act 2015, which requires all arbitrations in India to be completed within 12 months with a one-time extension of 6 months permitted subject to the consent of the parties. Thereafter, court approval would be required for a further time extension for the completion of the arbitration, and the arbitrator’s fees would also be reduced if the arbitration’s completion were delayed. Anecdotally, Indian lawyers seem to be divided on this initiative due to the hard timelines which they now have to meet, but almost all acknowledge that the legislation has helped to improve the speed by which disputes in India are resolved.
There is much to be learnt from the collective wisdom of the global legal community, of which Singapore plays a significant role by virtue of her status as a regional hub for legal work. But the conference also shows how countries across the world are constantly looking to the future and making improvements to their respective systems. To stay ahead of the game, it is imperative that the Singapore legal profession continues to work together to ensure Singapore remains at the forefront of legal innovation. The continued presence of Singapore-qualified lawyers at the IBA is one way of furthering this aim.