Conference Notes: A Matter of Trusts

The SICC and SIDRA recently concluded a thought leadership event on dispute resolution options for trust disputes. The key issue was: given the increasing prevalence of alternative forms of dispute resolution (“ADR”), why was there still uncertainty as to whether trust disputes were amenable to ADR (and in particular, arbitration)? The distinguished panellists provided a stimulating discussion of the various conceptual and practical difficulties faced in submitting trust disputes to arbitration.

Amicus Briefs in the WTO: An Uneasy Compromise

An amicus curiae means a “friend of the court” who, though not a party to a lawsuit, provides the court with information or a brief because of his strong interest in the dispute. Since the Appellate Body ("AB") of the World Trade Organisation ("WTO") decided that panels may accept amicus curiae briefs in 1998, there has been extensive debate over this issue for 20 years. One of the chief criticisms from Member states of this decision is that allowing non-state actors to access the Dispute Settlement Mechanism would undermine the “Member-driven” nature of the WTO. Notwithstanding such criticisms, the AB has weathered the storms and continually affirmed the power of the WTO adjudicatory bodies to accept amicus briefs. Ironically, despite this steadfast position, they have displayed great reluctance to actually utilise amicus briefs. This seems to be an uneasy compromise to avoid potential political costs in reaction to the explicit protests from Members. Contrary to commentators that commend the AB for its management of the status quo, this paper argues against this uneasy compromise.

Arbitration: A second chance to object to the tribunal’s jurisdiction – Rakna Arakshaka Lanka Ltd v Avant Garde Maritime Services (Private) Limited [2019] SGCA 33

In Rakna Arakshaka Lanka Ltd v Avant Garde Maritime Services (Private) Limited [2019] SGCA 33, a respondent disagreed with an arbitral tribunal’s ruling that the tribunal had jurisdiction over the respondent’s dispute with the claimant, and did not participate in arbitral proceedings over the dispute. The respondent also did not appeal the ruling within the 30-day period. The Court of Appeal held that the respondent was not precluded by Article 16(3) of the UNCITRAL Model law from raising such objections in setting-aside proceedings.