The annual Freshfields Arbitration Lecture took place on 30 November 2021 with the Honourable Chief Justice of Singapore, Sundaresh Menon, delivering the keynote address. For the second year running it was held virtually due to the ongoing travel restrictions imposed by the covid-19 pandemic.
Tribute was paid to the late Martin Hunter by both Professor Julian Lew QC, Head of the School of International Arbitration, and Sylvia Noury, Head of the London international arbitration practice at Freshfields. Martin Hunter founded the Freshfields arbitration practice along side Alan Redfern and taught on the School of International Arbitration’s first diploma course in 1985-1986. Significantly, he also played a fundamental role in establishing the Arbitration Lecture, laying the foundations for the event to flourish into the renowned and distinguished event it is today.
The topic of this year’s lecture was “Gateways to Justice: the Centrality of Procedure in the Pursuit of Justice”. Chief Justice Menon spoke about the fundamental importance of procedural reform and innovation to the rule of law, noting that the evolution of the law over the past decades has been predominantly fixated on substantive law.
He described the rapid growth of arbitration as a means of dispute resolution as perhaps the “most significant procedural innovation of the past few decades”, noting that while this is remarkable it may also evidence a sense that traditional court procedures have proved inadequate to meet evolving legal needs.
Chief Justice Menon referred to the pandemic serving as a timely wake-up call for the profession, demonstrating the importance of a modernised and robust procedural framework as justice systems grappled with restrictions on travel and face-to-face contact. He referred to the tremendous potential of procedure highlighted by the pandemic, as jurisdictions swiftly rallied to implement a generational update of their procedural frameworks, including a broad shift to virtual hearings and acceptance of electronic signatures.
Chief Justice Menon then challenged the audience to consider whether these innovations – which have largely been limited to using technology to approximate or analogise our physical experience in a virtual space - are “really the limit of our imagination”. In the current climate of structural reform, Menon advocated for seizing the current momentum to redefine and reengineer the structural architecture of our dispute resolution systems, including arbitration.
With respect to arbitration, he argued that despite its roots as a procedural innovation, arbitration is today facing some of the very issues with litigation that had once contributed to arbitration’s popularity. With respect to small value employment or consumer claims, for example, the Chief Justice reasoned that the arbitral process was simply not designed with such claims in mind.
In relation to ISDS, it was noted that the growing legitimacy crisis may be traced at least in part to the failure to appreciate the different interests in play in such disputes, instead adopting and applying arbitral processes developed for private disputes to matters with a strong public element. He used transparency to demonstrate that procedural norms can take dramatically different significance and complexion depending on the context.
Chief Justice Menon expressed his view that procedural reform is both ripe and urgent – in his view we should (i) develop differentiated models of justice that better serve the needs of users in different contexts; (ii) prioritise proportionate solutions that bear a sensible relation to the complexity of a case and the quantum at stake; and (iii) simplify rules and frameworks to the greatest extent possible so they do not themselves become insurmountable barriers of entry to the justice system.
He suggested the arbitration community may benefit from rethinking its approach to a range of issues – from the need to contextualise the procedures for investor-State disputes, to the possibility of developing dedicated AI-enabled processes for small claims, to considering new evidential methods for the resolution of hyper-complex disputes, such as representative sampling.
Menon concluded that “only if we, as privileged legal professionals, apply ourselves to think more deeply about how we can transform our procedural frameworks to sustain a justice system capable of serving us amidst the great challenges of our times, might procedure come to serve as a real gateway to justice.”
In her vote of thanks, Sylvia Noury thanked the Chief Justice for his lecture, which “transcended borders and broke down barriers with content that was both evocative and provocative”. She commented on how authentically the lecture reflected the values of the lecturer himself, who is universally applauded for being a driver of innovation. While helping to shape the Singapore International Arbitration Centre, he has also championed and implemented alternatives to arbitration, including the Singapore International Commercial Court and the Singapore Convention on Mediation. He has also been the driving force behind recent technological advances in Singapore responding to the pandemic, including a vision for an online court.
To watch the 2021 Arbitration Lecture, click here.