It is time that I did a review of eDiscovery developments in the Asia-Pacific region, and particularly the common law jurisdictions of Hong Kong and Singapore.
It is perhaps only from half a world away that one lumps Hong Kong and Singapore together as if they were slight variants on an Asia-Pacific theme, rather in the way that many Americans look on the UK and mainland Europe as a single place. They are very different places, but there is some justification for grouping Hong Kong and Singapore together, partly because they compete to some extent for disputes business, but mainly because they both have procedures based on English common law and rules, and an approach to litigation (and eDiscovery) which is closer to the English model than anything found in mainland Europe.
Here are some recent articles and links.
Electronic Discovery in Singapore: a quinquennial retrospective
Senior Assistant Registrar Yeong Zee Kin of the Supreme Court of Singapore has written an article for the Digital Evidence and Electronic Signature Law Review called Electronic Discovery in Singapore: a Quinquennial Retrospective which summarises the recent evolution of Singapore eDiscovery.
The reference to “quinquennial” derives from the fact that it is five years since Singapore launched its Practice Direction PD 3 of 2009 which began the formalisation of procedures relating to electronic discovery. I was there as it began, co-chairing an eDiscovery conference in October 2009 with the late Browning Marean. The first two photographs below show him and Yeong Zee Kin speaking at that event. The third is one of the Singapore skyline showing what is now the Marina Bay Sands hotel under construction. Like the hotel, the practice direction has since become part of the scenery
This is not the only area in which Singapore has taken a lead. It was one of the first (if not the first) jurisdiction to set up a proper electronic filing system for the courts. When the US Supreme Court recently announced a new electronic filing system to be in place by 2016, Yeong Zee Kin commented sardonically that it must be a “slow news day”; Singapore got there first.
Singapore International Commercial Court (SICC)
Singapore’s Chief Justice, Sundaresh Menon, announced last week the names of the first batch of 11 international judges for the Singapore International Commercial Court. They include Sir Vivian Ramsey, recently retired from the High Court of England and Wales, where his responsibilities included the fulfilment of the Jackson reforms. Singapore has also announced the establishment of the Singapore Judicial College for continuous training and development for judges as well as being “a testbed for innovation in judicial studies, practices and policies”.
There is an article from Channel News Asia here about both the SICC and the judicial training.
Arbitration centres in Singapore and Hong Kong
A recent article in the Wall Street Journal emphasises that Hong Kong and Singapore compete with each other for dispute resolution work. Called Singapore aims to outpace Hong Kong in arbitrating disputes, the article suggests that Singapore is taking an ever bigger share of international disputes work, in part at least at the expense of Hong Kong, but also because such work comes naturally on the back of increased trade. Hong Kong was first in this game, setting up the Hong Kong International Arbitration Centre (HKIAC) in 1985. The Singapore International Arbitration Centre (SIAC) followed, and the article sets out some comparative statistics of the number and value of arbitrations in each jurisdiction.
The article emphasises something which has long been evident, namely that the Singapore courts and government work as one in the battle to win work of this kind, with judicial aspirations matched by government investment and appropriate regulation. Although the article includes statistics from the arbitration bodies of the two jurisdictions, these tell us little of the about the total value of the work passing through each of them, not least because the nature of arbitration is that its proceedings are not public. For me, the most interesting measure of growth in disputes work is the number of English barristers’ chambers which have set up offshoots in Singapore. Solicitors might be there for a number of reasons; barristers go where they expect to find disputes work.
The Singapore International Mediation Centre
The third string in Singapore’s disputes bow, alongside the SICC and the SIAC, is the Singapore International Mediation Centre, launched in on 5 November 2014. There is a long and useful article by Herbert Smith Freehills here which explains how the SIMC works.
I will be back in Singapore in July, chairing a cross-border judicial panel. I will say more about this in due course.
Hong Kong Civil Litigation – the eDiscovery Practice Direction and the Chinacast case
What of Hong Kong? Their electronic discovery practice direction was launched in mid-2014. I took part in two panels about this last year. One, pictured left below, was with Menachem Hasofer of Mayer Brown JSM at the ALM / ILTA Asia Technology Summit in March. The other, pictured right below) was led by Celeste Kemper of Epiq Systems at the InnoXcell Big Data Summit in April where the other panel members were Registrar Lung and Dominic Wai of Baker & McKenzie.
Registrar Lung was responsible for the implementation of the eDiscovery practice direction. It would be fair to say that he and I took slightly different views on how the court should be involved in managing disputes between the parties – I was for greater proactive intervention by the court whilst Registrar Lung saw the court’s rule as limited to the settling of disputes between the parties.
Whatever his position then, Registrar Lung came up trumps with his judgment in a case called Chinacast delivered in August (my thanks both to Barry Wong of Consilio and Aaron Bleasdale of Baker McKenzie for drawing this to my attention).
Registrar Lung surveyed both UK and US approaches to eDiscovery as well as to the new practice direction. Interestingly, the PD was not then implemented (it came into force shortly afterwards, on 1 September) and was, as Registrar Lung said, primarily intended for “complicated commercial cases”. Crucially, however, he added “ .it is also applicable to other cases where the court may direct”.
He went on to set out the “practical guidelines” and “general principles” derived from the practice direction insofar as they related to the matter before him. The parties, he said, “had not taken into consideration the practical issues” set out in the practice direction, and the court therefore “invited the parties to consider and discuss the matter”.
Registrar Lung’s examination of the principles (from paragraph 26 of the judgment) makes interesting reading in any jurisdiction. It ranges through cases from other jurisdictions (including Digicel and West African Gas Pipeline from the UK) and emphasises both the parties’ duty to co-operate and the court’s role in encouraging that cooperation. The orders made reflect the Registrar’s careful analysis of the pleadings and the steps taken or not taken by the various parties; one application was dismissed, for example, partly because the registrar concluded that it was a fishing exercise and partly because it was oppressive and likely to result in satellite litigation. These are all precisely the factors which I had in mind in arguing, as I did at on the panel in April, that judges must roll up their sleeves and get involved in the fight.
The most recent article I have seen which summarises the present state of play in the civil jurisdiction of Hong Kong is written by Rachel Teisch of Xerox Litigation Services and called A Game-Changer for E-Discovery in Hong Kong. The article helpfully summarises the main points from the practice direction and, perhaps even more usefully, goes on to suggest what companies with business in Hong Kong might do now to be ready to manage the process in accordance with the practice direction (and now in accordance with Registrar Lung’s Chinacast decision).
Lastly on this subject, you cannot ignore the problem of cross-border discovery. This was the subject of a webinar which I did with FTI last year, one of a series which they organised about cross-border discovery around the world. The growing importance of cross-border discovery in AsiaPac is emphasised by the fact that the Sedona Conference Working Group 6 is planning to hold its annual International Programme in Hong Kong in 2015.
2015 looks like an AsiaPac year for me
For all my resolution to be restrained about my travel in 2015, there seems plenty of reason to fly eastwards. In addition to the Singapore and Sedona events already referred to, ILTA / ALM are holding their AsiaPac Legal Technology Summit on 2 March and InnoXcell is holding a three-day Asia Symposium from 14-16 April covering all aspects of technology related risk, including electronic discovery.