The Year Ahead – Regional Developments: What Are The Key Developments Across The Regions?
Legal News & Analysis - Asia Pacific - Dispute Resolution
6 February, 2019
Final report of government inquiry into banking and financial services
A Government inquiry is examining standards and misconduct in the banking and financial services industry, with a final report due by 1 February 2019. Financial institutions have already been served with legal proceedings (including class actions) arising from the inquiry, which is expected to continue.
First year of Trans-Pacific Partnership
Australia has ratified the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, along with Canada, Japan, Mexico, New Zealand and Singapore. The CPTPP came into force on 30 December 2018. The agreement contains an investor-state dispute settlement mechanism (using arbitration) for breaches of certain investment protections under the treaty.
Third party funding in arbitration to be permitted
Amendments to the Arbitration Ordinance expressly permitting third party funding for arbitration, and introducing related measures, will come into effect on 1 February 2019. An advisory body will monitor compliance by funders with a Code of Practice. The Code will cover the funding agreement, capital adequacy requirements for funders, conflicts of interest, confidentiality and privilege, degree of control by funders over proceedings, disclosure, liability for adverse costs, and grounds for termination.
Legislature considers fewer restrictions on representation by foreign lawyers
In 2018, an amendment to the Act on Special Measures Concerning the Handling of Legal Services by Foreign Lawyers was proposed. This would relax certain restrictions for foreign lawyers to represent clients in international arbitration cases and ADR. The matter may be voted on by Japan’s legislature in 2019 and, if passed, could lead to an increase in the number of international arbitration and ADR cases that take place in Japan.
Simplified procedures under Hague Apostille Convention
With effect from 14 May 2019, foreign public documents issued in states which are party to the Hague Apostille Convention need not be authenticated abroad by foreign embassies or consular offices for them to be recognized as public documents in the Philippines. It is expected that the Philippine Supreme Court will make the appropriate procedural amendments for consistency with the Convention.
Singapore Mediation Convention expected to be signed
A Convention on the Enforcement of Mediation Settlements and accompanying Model Law was published in October 2018, and is expected to be signed in Singapore on 1 August 2019.
The Convention, to be named the Singapore Mediation Convention, aims to implement an international framework for the enforcement of mediated settlements. It will come into force six months after ratification by at least three UN states.
Proposed reforms to civil justice system
The Ministry of Law set up the Civil Justice Commission in January 2015 and the Civil Justice Review Committee in May 2016 to review and reform the civil justice system in Singapore. Proposed changes include enhanced judicial control over litigation, greater procedural flexibility, simplified applications and the introduction of scaled legal costs. The consultation period ends on 31 January 2019. No implementation date has been announced but further developments are expected during 2019.
Legislature considers introduction of jury trials
The Legislative Yuan is reviewing the draft Act of Citizen Participation in Criminal Trials, which provides that for certain criminal offenses, the trial would be heard and decided by a panel of three judges and six citizens. Taiwan is a civil law system but has been considering the implementation of a lay participation or jury system in criminal proceedings for many years.
Amendments expected to Arbitration Act
The legislature is considering a draft bill to amend the Thai Arbitration Act. Thai law currently precludes foreign counsel from acting in many arbitrations conducted in Thailand, and foreign arbitrators must go through the inconvenient process of obtaining a work permit. The proposed changes are designed to address these issues. The amendments are expected to come into effect sometime in 2019, although the actual date and final form of amendments are not yet certain.
Supreme Court guidance on interest and contractual penalties to be adopted
In November 2018, the Supreme Court of Vietnam issued a draft Resolution giving guidance on interest payments and contractual penalties. This is intended to resolve inconsistency among local courts and authorities in calculating interest. The draft provides detailed guideline on calculation of interest (e.g. loan interest, overdue payment interest) in civil transactions, and also regulates the application and enforcement of penalty clauses in civil contracts. The draft is expected to be adopted in 2019.
A version of this post originally appeared in the 2019 edition of Baker McKenzie’s “The Year Ahead”, a publication looking at key developments in global litigation and arbitration for the coming year.
For further information, please contact:
Benjamin Roe, Baker & McKenzie