Symposium: 125 years of the Permanent Court of Arbitration: A Retrospective and exploration of New Frontiers
Innovations in Dispute Resolution: the PCA and Singapore on the Cutting Edge
by Daniel Pakpahan
Published on 12 December 2024
The second panel of the commemorative event held in Singapore on 25 July 2024 for the 125th anniversary of the Permanent Court of Arbitration (PCA) was entitled ‘Innovations in Dispute Resolution’. As the moderator, Ms Foo Chi Hsia (Deputy Secretary of Southeast Asia and ASEAN at the Ministry of Foreign Affairs of Singapore) observed, the session was a dialogue between representatives of the different stakeholders in a typical dispute scenario: States, international organisations, the private sector and affected communities. She invited the individual speakers to share their observations on innovations in dispute resolution, in their respective areas of expertise.
Dispute Resolution and Public International Law
Ambassador Rena Lee (Singapore Ambassador for International Law) spoke on noteworthy innovations in international and regional frameworks for the settlement of inter-State disputes. She started by discussing the innovative features of the Biodiversity Beyond National Jurisdiction (BBNJ) Agreement (‘the Agreement’), an outcome of the Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction which she presided over from 2018 to 2023. The first innovation that Ambassador Lee highlighted was the conferral of advisory jurisdiction on the International Tribunal on the Law of the Sea (ITLOS) upon request of the Agreement’s Conference of the Parties (CoP) for matters relating to its mandate (see Art. 47(6) and (7) of the BBNJ Agreement). According to her, the drafters saw this provision as especially important to allow the CoP to seek guidance on the implementation of the Agreement and prevent potential disputes.
In addition to the ITLOS advisory jurisdiction, Ambassador Lee also underscored the extension of Part XV of the United Nations Convention on the Law of the Sea (UNCLOS) on the Settlement of Disputes to the Agreement (see Part IX) as another fundamental innovation which afforded parties to the BBNJ Agreement their choice of dispute settlement mechanism under Part XV, including Annex VII arbitrations which are administered by the PCA. In particular, Article 60 of the Agreement explicitly provides for the application of Part XV of UNCLOS to a State Party to the Agreement that is not a party to UNCLOS. This innovation also expanded the scope of Part XV to new areas – e.g., on the treatment of marine genetic resources of the high seas and the deep seabed and establishment of area-based management tools in the high seas —which were not found in UNCLOS.
With regard to innovations at the regional level, Ambassador Lee walked the audience through the dispute resolution provisions of the Association of Southeast Asian Nations (ASEAN) as enshrined in the ASEAN Charter and its 2010 Protocol to the ASEAN Charter on Dispute Settlement Mechanisms (DSM). The 2010 Protocol, which entered into force in 2017, adopts a transparent and conciliatory approach to dispute settlement applicable to all ASEAN agreements (other than ASEAN economic agreements). Instead of a default mechanism (as prescribed under UNCLOS), the ASEAN approach empowers the ASEAN Coordinating Council to direct the parties to the appropriate procedure (e.g., good offices, mediation, conciliation or arbitration) and obliges the parties to update all Member States on the status of compliance with arbitral decisions or settlement agreements, failure of which may be subject to the ASEAN Summit’s scrutiny. In Ambassador Lee’s view, the innovation of the DSM Protocol lies in its avoidance of a one-size-fits-all solution in favour of a tiered framework, respect for States’ sovereign choices and avenue for high-level political intervention to resolve disputes.
Dr Gérardine Goh Escolar (Adjunct Professor, Faculty of Law, National University of Singapore) continued the discussion with her presentation on innovations in dispute settlement for outer space matters, an area in which the PCA plays an important role. Dr Goh Escolar outlined the characteristics of disputes relating to activities in outer space. First such disputes have many possible origins, such as contracts, treaties, labour issues, environmental impact, and engage many different legal obligations. Second, the involvement of many different parties, including international institutions (e.g. the International Telecommunication Union), and different public agencies adds additional public policy and legal considerations in dispute resolution of outer space matters.
Dr Goh Escolar added that disputes relating to outer space are highly technical, and the actors involved work in a close and interconnected matrix, meaning that a dispute often has knock-on effects on risk allocation, limitations of liability and confidentiality. Given also the high costs and time-sensitivity of space activities, the dispute settlement framework must therefore provide efficiency and technical expertise, and cater to various stakeholders, including States, which according to her, is a particular strength of the PCA. In this context, Dr Goh Escolar explained the PCA’s innovation in creating the Optional Rules for Arbitration of Disputes Relating to Outer Space Activities, which was tailored to take into account the special characteristics of space activities and the public international law elements pertaining to these disputes. Notable innovations that she mentioned include, among others, the explicit waiver of immunity from jurisdiction — Art. 1(2) —, provisions on non-technical documents and confidentiality — Arts. 27(4) and 17(6) — and the appointment of a confidentiality adviser as an expert — Art. 17(8).
Dr Goh Escolar further noted that more awareness of the PCA’s Optional Rules is needed. She also encouraged Member States to contribute to diversity in the composition of the PCA’s specialised panels of arbitrators and experts. Lastly, she highlighted Singapore’s huge potential as a dispute resolution hub for space-related matters by leveraging its information technology and advanced dispute settlement infrastructure.
Perspectives of users and stakeholders in Dispute Resolution
The next speakers, Mr Paul Tan (Partner at Gibson, Dunn & Crutcher) and Ms Wu Ye-Min (Regional Director at the Centre for Humanitarian Dialogue), offered their views on how dispute resolution has innovated from the perspectives of users and stakeholders – from satisfying the rapidly evolving needs of the business sector to meeting the demands of the communities and the wider public that may be affected by a seemingly private dispute.
Mr Tan began by outlining the architectural reforms that resulted in a self-sustaining arbitral framework that relies less on national courts’ interventions: first, emergency arbitration for urgent relief (which national courts were prepared to respect, as seen in Gerald Metals SA v Timis); second, the assertion of authority by arbitral institutions to decide on consolidation/joinder of cases; third, greater flexibility for parties to request an expedited procedure, and fourth, efforts at self-regulation by arbitral institutions to insulate their administered proceedings from external challenge, for instance by permitting scrutiny of draft final awards (see Art. 34 of the International Chamber of Commerce 2021 Arbitration Rules), and publication of ethical/practice guidance (see Annex to the London Court of International Arbitration 2020 Rules). He also touched on the various efficiency enhancements in arbitration that have emerged, including new avenues for early dismissal of claims — introduced in ICSID’s Rules in 2006 — and development of specialist rules tailored to particular types of disputes, such as the PCA’s Optional Rules for outer space disputes.
In Mr Tan’s view, ultimately procedural reform is only one side of the equation and trust is more important, which explains the PCA’s success as it has a good reputation for smooth administration of proceedings and a sound system for tribunal appointments. On the future direction of dispute resolution, he called on the arbitration community to safeguard the legitimacy of the process to best serve the interest of justice and to continuously reflect on how the substantive quality of awards can be improved, to ensure not only that justice is done but also seen to be done.
Ms Wu continued the discussion by giving her perspective as a mediator in international conflicts. She illustrated five guiding principles for a thoughtful dispute resolution process to not only resolve the conflict more holistically but also restore relationships: ensuring that the dispute resolution process fits sensibly into the overall resolution of the broader conflict; enabling sustainable, implementable and meaningful change; applying the principle of ‘do no harm’; building in flexibility to foster buy-in; and identifying the next steps ahead of time.
Ms Wu then shared analytical tools that she has used to implement these principles, namely the Actors, Content, Context, Process (ACCP) Conflict Analysis Framework and the Mediation Process Matrix process design tool. In addition, she provided three strategic considerations that apply across various forms of dispute resolution processes: first, choosing processes which do not entrench grievances but unlock solutions (e.g. non-adjudicative conciliation proceedings that successfully resolved the Timor Sea dispute between Australia and Timor-Leste); second, fostering trust and relationships for durable peace, and third, addressing the root cause of a dispute. Ms Wu commended the PCA for embracing conciliation and mediation in addition to arbitration and highlighted the Singapore judiciary’s multidisciplinary approach in the delivery of justice to better resolve disputes.
Singapore’s Contribution to the Dispute Resolution Landscape
The last speaker of the roundtable discussion, Ms Sarala Subramaniam (Director-General, International & Advisory, Singapore Ministry of Law), summed up the challenges in dispute resolution and tied together the common themes of the different innovations that were discussed. For innovation to be truly dynamic, expedient and relevant, Ms Subramaniam noted that this required not just vertical structural innovations within a particular system (e.g. the architectural reform of the arbitration ecosystem outlined by Mr Tan), but also the horizontal cross-fertilisation of ideas across domains, for instance, the adaptation of traditional court processes to the arbitration context. She observed that this called for two things: first, practitioners must be interoperable across the different modes of dispute resolution which may be applied throughout the life cycle of the dispute without compromising the larger picture, and second, rules of procedure must allow sufficient flexibility to allow flitting between these mechanisms with ease.
Ms Subramaniam also highlighted that in the modern world, with more scrutiny over the dispute resolution process, there would be greater demand for agency (ensuring that everyone involved finds themselves represented and heard in the process), and greater demand for accountability of decision makers, for instance through adherence to clear standards of conduct.
Ms Subramaniam expressed that States seek the following: first, autonomy, to be given a choice in the design of a dispute resolution process; second, flexibility that allows for creative win-win solutions; third, predictability and sell-ability of outcomes, as States are most likely to comply if the results are reasonably within the realm of anticipation and can be translated into something palatable for their constituencies. Finally, she elaborated on how a dispute resolution hub like Singapore has been able to meet the needs of different parties in various types of disputes, with its unique blend of (1) modern physical infrastructure, (2) an independent, efficient, rules-based legal system catering to the full range of dispute settlement modes, (3) diverse and high-quality legal expertise, (4) strong partnerships with international organisations like the PCA, and (5) participation in the relevant international instruments which enhance the enforceability of outcomes.
Final observations
In response to Ms Foo’s query on the impact of technology and Artificial Intelligence (AI), the speakers agreed that there were certainly opportunities and advantages to reap, such as greater expediency in data processing, virtual hearings, overcoming linguistic barriers, but there were also challenges to navigate, for instance Intellectual Property infringement, veracity of data sets training AI models, reliability of AI decision-making. Finally, on the subject of what States can do better to facilitate peaceful dispute settlement, the speakers underlined the importance of continued engagement with stakeholders and communities on the ground and coordinated, whole-of-government approaches to decision-making.
This report was prepared by Mr Daniel Pakpahan, Research Associate, Centre for International Law (CIL) at NUS.