A0138050R

SLIC Take-home Exam 2016

A01308050R
HELENA WHALEN-BRIDGE
TUTORIAL GROUP 5
2363 WORDS
8 PAGES, INCLUDING COVER PAGE
SINGAPORE LAW IN CONTEXT TAKE-HOME EXAMINATION
2016

A0138050R
SLIC Take-home Exam 2016
With the introduction of alternative dispute resolution (ADR)
through the establishment of arbitration and mediation in the 1990s 1, the
development of the Singapores jurisprudence has been challenged as
more cases are resolved outside the formal legal system. The Chief
Justices (CJ) proposed new legal system of evaluative overviews and
advisory decisions seeks to remedy the loss of development of precedents
formed by case law. By increasing judicial oversight for all disputes, even
in ADR, the courts are enabled to weigh in on important legal issues and
bring in the legislative arm where necessary to develop statutory law. It
could be a force for good when parties are adverse to ADR, where the
court will be able to use this evaluative procedure to steer recalcitrant
parties directly towards ADR. However, I respectfully disagree with this
scheme because I foresee adverse impacts to the service of justice in our
legal system. It is likely that this system reduces the autonomy of
disputing party to resolve the dispute through ADR when the courts
could intervene on the basis of common law development. Furthermore,
it will erode access to justice for the citizens and increase the burden
state and legal resources when this new system of precedent is set in
place. I propose that we retain the existing system, and in order to
assuage the concerns of diminished law development, we could increase
avenues where the court systems are utilized in ADR so that they have
better access to the development of justice in that realm.

1 Lim Lei Theng and Joel Lee A Lawyers Introduction to Mediation

(1997) 9 Singapore Academy of Law Journal 100.
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SLIC Take-home Exam 2016
The proposed evaluative overview system could increase the
efficiency of ADR usage as Yong Pung How CJ intended in 1994. The
courts steering would further help filter dispute which best suit ADR or
litigation, and it would prevent cases where parties would unnecessarily
use litigation for the chance of earning higher settlements. In Episode 20,
Lock Han Chng Jonathan v Goh Jessiline [2008] 2 SLR 455 was a case
where a minor claim was brought all the way to the Court of Appeal. This
incurred excessive and unnecessary charges in litigation, which could
have been avoided if the parties sought alternative means of dispute
resolution. An occurrence of similar cases would be avoided, as parties
reluctant to use ADR would no longer have the ability to abuse the
process and time of the courts when the evaluative overview mandates
the means of dispute resolution optimal for their case.
Singapores legal system is not entirely opposed to shifts in judicial
precedents, and we have historically been adaptive to local needs.
Singapores legal system has been distinguished from British colonial
legal influence in the Application of English Law Act (enacted in 1993),
where in Section 3(1), British common law and equity rules were
received but Singapore re-enacted them as Singapore statutes in order to
minimize ambiguity2. According to the Practice Statement on Judicial
Precedent issued in 1994, Privy Council decisions which did not
adjudicate decisions of Singapore law are taken to be merely persuasive

2 Andrew BL Phang, The Reception of English Law in Kevin YL Tan (ed),

Essays in Singapore Legal History (Singapore: Marshall-Cavendish &
Singapore Academy of Law, 2004) 10.
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SLIC Take-home Exam 2016
authorities for our courts3. The doctrine of judicial precedent enhances
the certainty of the law when previous case law can be relied on to
determine the outcome of the case at hand 4. In the same vein, advisory
decisions can be integrated to be a persuasive authority, much like how
Singapore turns to foreign jurisdictions for guidance. The system of
judicial precedent will be augmented by the introduction of advisory
decisions with persuasive authority. Even in legislative readings, critical
issues that had only been discussed in ADR could be brought up for
consideration in Parliament. This would probably be done in the same
manner where case law is used as evidence in second readings for new
bills and amendments. The advisory decisions would be used to highlight
the demand for the development of new statutory provisions to fill the
gaps for the benefit of Singapores legal system.
The current system of ADR seems to circumvent the system of
formal justice, yet we must consider whose definition of justice we must
uphold. According to Friedman5, the principles of what is right varies by
the stakeholders involved in the legal system, and there is considerable
stratification of whose definition of justice is higher. At times, injustice to
some groups can occur if there is no consensus on what is right. It is in
the CJs interest to forward the legal systems definition of justice so that
3 Walter Woon, The Doctrine of Judicial Precedent in Kevin YL Tan (ed),
The Singapore Legal System, 2 ed (Singapore: Singapore University
Press, 1999) Chapter 8, 319.
4 Ibid. 305.
5 Lawrence M Friedman, The Legal System: A Social Science Perspective
(New York: Russell Sage, 1975) 17.
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SLIC Take-home Exam 2016
the judicial arm can continue to make law through the courts. His belief
reflects the understanding that the courts are the best avenues of
meeting the best rewards and punishments, even beyond ADR. While it
can be argued that there is no precedential value coming from ADR, it
still serves the purpose of justice for the disputing parties. We must
consider the function of justice not solely defined by the formal legal
system, but also for that of the client. Disputing parties may not agree
that their case should be heard in court for the policy reasons of
increasing the contributions to local case law. If it is the agenda and the
ultimate goal of the courts to continue developing common law, this new
system runs the risk of overstepping its bounds and mandating that a
case be brought to court against the wishes of the disputing parties. This
would be in direct competition with the fundamental rights of access to
justice. Common citizens should be entitled to find the best avenue of
achieving justice without excessive intervention from the courts.
The disputing parties interests may be self-serving in the sense
that they want to find their own equitable outcomes rather letting their
case be an example for developing local jurisprudence. Nevertheless, we
should maintain fairness and justice for the disputing parties who have to
deal with the outcomes of the settlement. Just outcomes may be best
achieved through mediation, negotiation or arbitration because there is
less reliance on legal principles in ADR. This works to ADRs strengths,
as the flexibility is appropriate where creative solutions can be devised.
The rigidity of court precedents generally do not plague ADR, and this is
to the credit of mediators and arbitrators who can sensitively balance the
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SLIC Take-home Exam 2016
needs of the parties equitably. According to Episode 19, there is arguably
greater flexibility in the law, and formal court justice may not be suited
for some family and commercial conflicts.
A few of the greatest strengths of ADR in mediation, negotiation
and arbitration is its non-adversarial nature. Keeping disputes from the
scrutiny of the courts is the precise reason why ADR is preferred for
most

civil

cases.

The

anonymity

of

arbitration

would

likely

be

compromised if sensitive cases are vetted through the courts first. While
the CJ is not entirely clear on how the evaluative process looks like, it is
likely that confidential issues would be brought up for review, even within
the advisory decisions. Furthermore, alternative dispute resolution
mechanisms do not necessarily contest legal issues, and are used when
there is a need to preserve the relationship of the parties. Where
emotional matters, especially in family cases, courts do not have the
necessary sensitivities to the circumstances of disputing parties. They
have to follow the set means of settling the dispute through precedents of
case law. If we are to consider the three forms of ADR which already
mandates the sensitivities of lawyers to look into non-adversarial
alternatives, having this additional layer in the court system would
detract from these principles. The call for amicable dispute resolution is
embodied by ADR 3.06, where alternative avenues of dispute settlement
should be explored before reaching the stage of adversarial litigation. By
letting the courts determine what is best resolved through litigation,
6 Joel Lee ADR and Mediation in Tang, Hor & Koh (eds), The Practice of
Law (Singapore: Lexis Nexis, 2011) 84.
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SLIC Take-home Exam 2016
some cases which are sensitive can no longer be resolved without public
scrutiny in our open court system. Ultimately, this would damage the
intention of maintaining a non-litigious society in the fabric of Singapore
when there is such a push for the courts intervention in ADR.
In our legal system, there are already avenues where the court still
retains its role in alternative dispute resolution. For example, the
Subordinate Courts provide mediation through courts dispute resolution
(CDR) system which is free of charge for litigants 7 who have to resolve
civil matters. Even in Family Court disputes 8, there are Resolution Judges
to handle cases between parties with the sensitivities of the law in mind.
Even within the realm of commercial disputes, there is the Industrial
Arbitration Court, where judges would preside over cases of industrial
relevance. All these avenues are already lauded successes, which help to
alleviate the burden of the court. Such an introduction could be viewed
as an additional layer of bureaucracy in the legal system and would hold
up the resolution of disputes. It would only undermine the legislative
intent to use ADR for disputes which could be settled out of the formal
court system.
The implementation of the evaluative overview and advisory system
will undermine the principles of keeping access to justice affordable for
the common masses, if more cases are pushed towards litigation. Such a
system would diminish the legitimacy of ADR, even if it is the more cost7 Lawrence Boo The Framework and Practice of ADR in Singapore 3.
8 Ibid.
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SLIC Take-home Exam 2016
effective option. Some highlighted cases of legal significance be pushed
towards litigation, which would then raise the costs to the parties
involved. Litigation fees are significantly higher than that of mediation,
negotiation and arbitration. In these civil trials, the losing party would
also have to incur the costs of their opponents as well. Such a new
system will also likely have implications on the cost to state resources
because the frameworks would have to be set up and institutionalized.
Court costs would then transfer to the disputing parties, regardless of
their choice in consulting the court. Additional burdens to the financial
resources of clients and government alike would make it arguably
detracting from favouring such a radical measure.
It is also considered problematic for the allowance of advisory opinions
and mandating the power to refer the legal issues to Parliament; there is
a danger of conflating the judicial and legislative arms of the
government. While courts have conventionally reserved the right to
develop common law through case law, the CJs call to request for
referring Parliament to further consideration of advisory decisions would
informally extend the jurisdiction of the courts into the legislative arm of
government. Bills and amendments usually originate from the needs
determined by the executive branch, where the ministries would bring
the relevant gaps in statutory law to attention to Parliament. This referral
process is likely to change the separation of these constitutional duties of
the three arms of government if the judiciary is involved in raising the
issues. Judges in these jurisdictions have always been careful to steer
their law-making abilities away from an overlap with the legislative
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SLIC Take-home Exam 2016
branch. The creation of a new source of judicial powers in this manner
would go against the separation of powers enshrined in our constitution,
and should thereby be sparingly considered.
Looking at the CJs proposal, there will be a number of practical
considerations in implementing such policies. The whole system of legal
education would have to integrate the development of advisory decisions,
which would add an additional area of law for law students and future
practitioners to study. Admittedly, this broadens the study of graduates so
that they would not be confined within litigation, and necessitates their
training in ADR. However, it is not immediate and such training takes
time before advisory decisions can be robustly used in courts as
persuasive authority. Judges would also have to adapt to this new system
of precedence, and consider them in their cases with mind to the
doctrine of judicial precedent.
Singapore intends to distinguish themselves as a unique system
which allows foreign law firms to practice within certain domestic realms
of law. Such an advisory system has not evolved in other jurisdictions,
which

would

Singaporean

ultimately
lawyers

disadvantage

receiving

foreign

overseas

law

trained

lawyers

education.

It

or

could

potentially alienate clients and foreign firms, who originally intend to

seek the expediency and confidentiality of our ADR mechanisms, when
cases have to be flagged up wherever there are controversies. Foreign
firms would also be at a practical disadvantage as it is unclear whether
their offshore law would have make concessions to Singapore courts if

A0138050R
SLIC Take-home Exam 2016
they provide ADR services. This would be counter-productive to
Singapores goal to become a legal hub, providing mediation and
arbitration services locally and abroad. With respect to the legal industry,
that has been flagged to be a growing sector of the service driven
economy after the Asian Financial Crisis in 1997, we have to keep these
implications in mind with such a potential overhaul.
Ultimately, we must consider the extent of how much we would be
willing to use the evaluative overview and advisory decisions. Whether it
would have a blanket effect on the legal system, or incrementally allow
for more oversight by the court in ADR, it could lead to the reversal of
the twenty years of ADR developments. There are alternative means of
developing common law beyond such a heavy-handed approach, whereby
we can expand the jurisdiction of the courts to assist in ADR. Overall, in
the changing social landscapes, there will be new emergent ways of
developing law in tandem despite ADRs increasing popularity. So long as
we retain justice for the people who use our court systems for the fair
arbitration of justice, we can further review a better system for the longrun.

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