In this podcast series, Deminor Litigation Funding interviews global professionals to share their perspectives on different aspects of dispute resolution and litigation funding.
Podcast Preface
In this interview, we speak with Joyce Fong (JF), Counsel in the arbitration team at Reed Smith in Singapore. In conversation with Deminor's Emily Wyse Jackson (EWJ), Joyce discusses the recent and impending modernisation of the legal framework for international arbitrations in England & Wales and Singapore, the "friendly competition" between these two jurisdictions in the arbitration space and how legislative reform might impact their standing as leading global arbitration hubs.
Podcast Transcript
EWJ: Hello, and welcome to this episode of Deminor's podcast series.
We're going to focus today on two jurisdictions that are both recognised as world leaders in the field of international arbitration, and that on a personal level, I've been fortunate enough to spend time living and practising in, namely England and Wales and Singapore.
Specifically, we're going to look at the recent or impending, as the case may be, modernisation of their respective arbitration laws and how this might impact their standing as leading hubs for arbitration globally.
I'm delighted to be joined today by Joyce Fong, who is counsel in the arbitration team of Reed Smith in Singapore, where she's been based since 2013. Joyce also studied and trained in England, so shares my interest in arbitration developments in both of those places.
Thank you very much for being here, Joyce.
JF: The pleasure is all mine, Emily. I'm delighted to be here chatting with you today.
As you say, there are important developments happening in both Singapore and the UK, and it's interesting to compare how the two jurisdictions are going about it.
Singapore and the UK have a lot in common: both are islands and common law jurisdictions. On the arbitration front, both Singapore and London are well regarded as arbitral seats with reputable arbitration institutions.
In fact, the recent 2025 International Arbitration Survey by Queen Mary University of London placed London as number one and Singapore and Hong Kong as joint second top choice for seats.
There is also significant alignment between their respective arbitration legislation, which were brought into force within a couple of years of each other in the 1990s. Although it's worth noting that unlike the English Arbitration Act of 1996, Singapore's International Arbitration Act of 1994 is based on and incorporates the UNCITRAL Model Law.
EWJ: Yeah, I think that's really relevant and interesting background. And I think it's fair to say that against this background, there's developed between the two jurisdictions a degree of healthy competition in the arbitration space.
And perhaps that's been a motivating factor underpinning these review and reform exercises by each of them. Actually, in February this year, when the UK government announced that the new English Arbitration Act 2025 had received Royal Assent, it sort of acknowledged this, stating that, and I quote, "modernising arbitration law will ensure the UK remains the global destination of choice for the legal sector, outstripping competitors such as Singapore, Hong Kong and Paris."
So, Joyce, how is Singapore responding to that?
JF: Oh, I think it's game on! I don't know how deliberate the timing was, but very shortly after the English Arbitration Act received Royal Assent, Singapore's Ministry of Law announced a public consultation on eight issues pertaining to the International Arbitration Act, the IAA.
Three of these eight issues are directly responsive to the changes made by the English Arbitration Act of 2025, namely how to ascertain the governing law of the arbitration agreement, whether the review of the tribunal's jurisdiction should be conducted by way of an appeal or rehearing, and whether to codify the summary disposal powers of arbitral tribunals.
The consultation has now concluded and we are eagerly awaiting the outcome of the consultation.
EWJ: OK, so let's zoom in on a few of those key areas that are affected by the English reforms and chat about how Singapore might deal with those.
Shall we start with a nice technical one? The new English legislation changes the test for determining the governing law of the arbitration agreement, as distinct from the contract as a whole.
Joyce, perhaps you could briefly explain why this is important.
JF: Well, as you know, the leading English authority on how to ascertain the governing law of the arbitration agreement is the Supreme Court's decision in Enka v Chubb. It essentially sets out the following approach: the applicable law shall be the law chosen by the parties to govern the arbitration agreement.
In the absence of such choice, the applicable law shall be the law with which the arbitration agreement is most closely connected to.
What does this mean in practice? Well, to be honest, it's rare for contracts to expressly set out the law applicable to the arbitration agreement. So, following the approach in Enka v Chubb, it would then generally be implied that the law of the main contract shall apply to the arbitration agreement.
This implication can be displaced if necessary. If there is no express or implied choice of law, the arbitration agreement is governed by the law with which it is most closely connected. This would generally be the law of the seat.
As you know, Emily, not everyone is a fan of the Enka v Chubb approach. I won't go into the details today, but I'll say this: many consider this approach to be unnecessarily complex and to result in unpredictable outcomes.
This is far from ideal, especially since the law governing the arbitration agreement is relevant to critical issues such as whether the issue is arbitrable, the scope of the arbitration agreement and whether the arbitration agreement is separable from the main contract.
EWJ: Right, so as you say, it can be a pretty complicated picture for what's a pretty important point. The English Arbitration Act 2025 now reverses the position under Enka v Chubb and stipulates that in the absence of an express choice, it's the law of the seat, not the law of the main contract, that will govern the arbitration agreement.
The intention here is to simplify the position and to promote greater certainty, which in turn should reduce the risk of wasteful satellite litigation on these points.
I think it probably will result in a more straightforward and predictable outcome in many cases. Though, appreciating that hindsight is 20/20, it remains the case that if you really want to avoid a dispute on this point, the best course is to specify expressly in the contract what the parties intend the governing law of the arbitration agreement to be.
JF: Absolutely.
EWJ: How does the position in Singapore compare?
JF: Well, the common law position in Singapore is, in fact, very similar to the Enka v Chubb position. So, the courts use a three-stage framework to determine the law of the arbitration agreement.
First, if the parties have chosen expressly the governing law, this express choice shall prevail. In the absence of an express choice, the courts will adopt the governing law of the main contract as the governing law of the arbitration agreement, unless there are indications to the contrary.
If there is no implied choice of law, the arbitration agreement shall be governed by the law with the closest and most real connection with it, which should usually be the law of the seat.
Interestingly, though, there doesn't appear to be as much opposition to this approach in Singapore. In fact, this three-stage framework was adopted by the Court of Appeal fairly recently in the case of Anupam Mittal v Westbridge Ventures II Investment Holdings with no dissenting opinion.
The recent consultation I mentioned earlier has, however, sought views on whether to retain the current approach and whether to codify this in the International Arbitration Act.
EWJ: OK, and from what you're seeing in practice, do you have a sense of how this is likely to play out?
JF: Oh, good question. It's hard to say at this stage, I think. I mean, given the relative lack of opposition to the current approach, I personally do not expect a significant departure from the status quo.
EWJ: OK, so let's move then from that fairly “techie” legal point to a more procedural one. Another interesting reform under the new English legislation is a change to the framework for challenging an arbitral award in the English court on jurisdictional grounds.
Back in 2010, in the Dallah case, the English Supreme Court held that these challenges should be conducted on a de novo basis. That is, a full rehearing on the jurisdictional point.
The concern that arose in relation to this was that parties sometimes misused this mechanism as an opportunity to try to correct “criticisms” that had been made by the tribunal of their case by presenting it differently, or as a mechanism to try to re-litigate the merits, sort of dressing merits issues up as jurisdictional points. And either of those would be wasteful, obviously, of both time and costs.
The updated provision here sets out a stricter framework. If you're bringing a jurisdictional challenge under the new legislation, the court will not rehear evidence put to the tribunal and you cannot raise a new ground of argument or put forward new evidence unless you show that you couldn't, with reasonable diligence, have done so in the arbitration, unless there's a compelling reason in the interests of justice for the court to allow it.
So this really sort of moves from a rehearing approach to a review approach, which should, in theory, improve efficiency and improve confidence in the finality of the main arbitral proceedings.
What's the approach for these challenges in Singapore?
JF: The current Singapore approach is very similar to the pre-reform English position. Both an appeal to the Singapore courts from a tribunal's ruling on jurisdiction, as well as an application to set aside an award on the basis of jurisdiction are conducted on a de novo basis, as you just explained.
This means that the tribunal's own view of its jurisdiction basically has no legal or evidential value to the court, although its reasoning may still be of some persuasive value.
EWJ: OK, and what about new arguments or new evidence?
JF: Unlike the new English position, the Singapore courts may entertain new grounds of objections to jurisdiction and new evidence. They may also consider all evidence, and are, I quote, "unfettered by any principle limiting its fact-finding abilities."
The courts are, however, quite pragmatic. While they're free to consider any material before them, they've acknowledged that they will not necessarily conduct a complete rehearing of what's occurred before the tribunal and the witnesses. And witnesses already heard by the tribunal will only be called back when necessary.
So in practice, who knows how different the English and Singapore approaches will end up being?
EWJ: And is this being looked at as part of the review?
JF: Yes, Singapore is considering whether to follow the English reforms.
EWJ: OK, and then staying with challenges to awards, pre-reform English law provided for the possibility of appealing an arbitral award on a point of law also.
There's a high threshold for getting leave to appeal an award on this basis. We're basically just talking about cases where the decision of the tribunal is obviously wrong or open to serious doubt on a question of general public importance. And parties can also opt out either expressly in their contract or through their choice of arbitral rules and agree that an appeal on this basis will not be available.
This was an issue on which there was some debate during the consultation, but ultimately the position has been left unchanged.
Joyce, what do you think about allowing for the possibility of an appeal on this basis? Is that a helpful inclusion or does it just open up the door for unsuccessful parties to try to delay things further?
JF: I think with arbitration, there's a tension between the need for awards to be final and the importance of ensuring that the law is applied consistently. And what this does is it translates into a wider debate on the degree to which awards should be subject to appeal.
As you said, the Law Commission considered this in England and decided not to recommend a reform because it considered the existing position under Section 69 to be a defensible compromise between these two goals.
However, in Singapore, the position is slightly different. A party can appeal to the court on a question of law only in domestic arbitrations governed by the Arbitration Act of 2001. International arbitrations are governed by a separate Act and there is currently no right of appeal for international arbitrations.
There is therefore no possibility of judicial review of arbitration awards other than for appeals on jurisdictional rulings and setting aside applications, even if the tribunal made a serious error of law in its final award.
EWJ: OK, and is there likely to be reform here, do you think?
JF: Well, that's the million-dollar question, because Singapore has been debating whether to introduce a right of appeal under the IAA for a while now. So this was explored during a previous consultation in 2019, but the government decided against it.
But given the English decision to retain the limited right of appeal, the Singapore government is again considering whether to introduce a right of appeal under the IAA, but on slightly different terms. This time on an opt-in basis, which would be a bit different from the English opt-out approach.
EWJ: OK, that is interesting. Well, we will watch to see how that plays out.
One final topic that I wanted to raise, perhaps unsurprisingly, is third party funding. This is not something that is addressed by the English Arbitration Act either pre- or post-reform, although there are some people who have questioned whether it should have been.
Specifically, some have asked whether the Act should have codified a requirement to disclose the involvement of a funder in arbitration proceedings. This point was considered by the Law Commission, but there was not significant support for it.
Personally, I think there are good arguments for leaving disclosure requirements to be specified in the applicable arbitration rules rather than dealing with it at statutory level. The funding market is an evolving one, and the ability to deal with it in a more nuanced way and to revise the way that it's dealt with as needed is helpful, I think, in terms of remaining competitive and remaining in line with market developments.
And after all, it's obviously much quicker and easier to amend arbitral rules than arbitration legislation.
But Singapore takes a slightly different approach to regulating funding disclosure, right?
JF: Yes, in addition to disclosure requirements in the applicable arbitral rules – and the new SIAC Rules have perhaps the most developed set of rules in this respect – there is a requirement under the professional conduct rules applicable to lawyers in Singapore for legal practitioners (rather than the parties) to disclose the existence of a third-party funding arrangement and the identity and address of the third-party funder to the court or tribunal and to every other party, either when proceedings commence or as soon as practicable after the funding contract is entered into. So, depending on the arbitral rules that apply, that duty might end up applying on multiple fronts.
It's probably worth mentioning for context that third-party funding is a relatively new phenomenon in Singapore as compared to the UK, and the differences in approach and regulation go beyond just funding disclosure.
Historically, third-party funding was prohibited under the rules against champerty and maintenance. In 2017, Singapore (and around the same time Hong Kong) passed legislation permitting third-party funding of international arbitrations seated in Singapore and related court and mediation proceedings.
These have since been expanded to include domestic arbitration proceedings and certain Singapore International Commercial Court proceedings.
For a funding agreement to be enforceable, the third-party funder must be a qualifying third-party funder, which is essentially a professional funder. And this funder must meet capital adequacy requirements. Am I right to say that this is not a statutory requirement in the UK?
EWJ: Yeah, that's a good point. It isn't, although there are requirements around capital adequacy and provisions around when funders can withdraw from cases, their role in relation to the conduct of proceedings and so on, in the Association of Litigation Funders or ALF Code of Conduct, which at present provides a framework for self-regulation of the funding industry in the UK.
That's the position currently. In relation to litigation funding, as distinct from arbitration funding, we can anticipate some changes coming down the track in terms of the UK regulatory position based on recommendations that have been made in the recently published review of litigation funding by the Civil Justice Council.
I won't go into that in detail now, but I think the headline points for the purposes of this discussion are, first, that it's likely there'll be a move to a more formal regulatory regime for litigation funding in the UK. And second, that the review has recommended that such regulatory regime should not be extended to arbitration funding. Rather, much like the UK approach around disclosure, this should be left for arbitral centres to determine.
So I think in this area, again, and particularly in terms of arbitration funding, we can expect some continued difference in the approaches that are taken by Singapore and the UK.
Well, to wrap up, I think it seems we can be confident that whatever similarities and differences between Singapore and the UK remain following the conclusion of Singapore's Arbitration Act review, both jurisdictions are keen to retain their status as leading hubs for arbitration globally and other jurisdictions too are pushing for bigger pieces of that pie.
For the international arbitration community, I think this healthy competition must be a good thing in terms of promoting high standards, clarity and innovation in terms of national arbitration frameworks.
Joyce, do you have any thoughts on that?
JF: I agree. Competition is healthy and competition is good in keeping both jurisdictions on their toes.
And where there's divergence, I think it's great to see where the different approaches take the different jurisdictions, because then you can take a step back and with hindsight see, oh, what's the consequence of taking this approach versus that approach and should we stick on this path?
So, I think, yeah, absolutely, competition is great.
EWJ: Perhaps we could both be accused of bias on this point, but I think the future looks bright for both Singapore and the UK on this front!
Well, Joyce, thank you again for joining me today and for your insights. I know you're going to be monitoring developments in Singapore on this front closely, and elsewhere, so I'll look forward to discussing again in the future.
JF: Thanks, Emily. See you.
Podcast Speakers and Further Information:
Thanks for joining Deminor's Litigation Funding Podcast Series as we dive deep into core topics in funding litigation.
Keep a lookout for our upcoming conversations as the Deminor team speaks with several more experts to get their insights into different aspects of litigation funding.
If you would like to connect with either Joyce or Emily on LinkedIn, please click on the links below:
Joyce Fong, Counsel at Reed Smith
– https://www.linkedin.com/in/joyce-fong-fogwill/
Emily Wyse Jackson, Senior Legal Counsel at Deminor – https://www.linkedin.com/in/emily-wyse-jackson/
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Further Reading:
- https://www.deminor.com/en/case-studies/co-funder-proposes-sharing-of-litigation-funding-risk-to-leverage-deminors-in-house-due-diligence-capability
- https://www.deminor.com/en/case-studies/financing-assertion-of-patents-protecting-manufacturing-processes
- https://www.deminor.com/en/case-studies/telecoms-patent-assertion-multi-jurisdictional-campaigns
- https://www.deminor.com/en/case-studies/canadian-innovative-start-up-preparing-for-a-david-v-goliath-litigation-funding-battle
- https://www.deminor.com/en/case-studies/whats-the-risk-assessing-the-risk-of-counter-assertion-by-the-defendant-in-patent-litigation
- https://www.deminor.com/en/case-studies/overstepping-the-mark-litigation-funding-trade-mark-infringement
- https://www.deminor.com/en/case-studies/lights-camera-action-recovering-damages-for-infringement-of-rights-in-a-short-film
- https://www.deminor.com/en/case-studies/recovering-damages-for-stolen-software-through-litigation-funding
- https://www.deminor.com/en/case-studies/funding-in-the-pharma-sector-/-investing-in-a-case-where-litigation-is-already-ongoing
