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The Joint JIMC/SIMC Covid-19 Protocol
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Crisis Management ‘How To’: Don’t Throw Your Hands In The Air!
In our latest post, we turn to crises – and, more importantly, how to manage them. Crises can take a number of forms and by their nature they happen unexpectedly without warning. Inhouse counsel have an important role in identifying risks in order to prepare for a crisis. While a crisis is unfolding, inhouse counsel are critical in protecting privilege and providing legal advice in the moment.
Following hot on the heels of the entry into force of the Singapore Convention on Mediation on 12 September 2020, the Singapore International Mediation Centre (“SIMC”) and the Japan International Mediation Center in Kyoto (“JIMC”) jointly issued a covid-19 mediation protocol on 13 September 2020 (the “Protocol”). The Protocol reflects the ever-increasing presence of Japanese subsidiaries in Singapore and the now well-established choice by Japanese corporates of Singapore as a seat for resolving their regional cross-border disputes. The Protocol has a number of novel features, including the use of experienced co-mediators – one to be nominated by each of the centres so that individuals familiar with each jurisdiction and culture are appointed. Filing fees and costs will be low and fixed (e.g. a filing fee of JPY20,000 or SGD250), and if necessary, mediations may be conducted entirely online.
The aim of the Protocol is to help businesses overcome the difficulties presented by Covid-19 – financial and travel related – and resolve disputes in a fast, efficient, and cost effective way while maintaining partnerships during these universally challenging times. This is a key concern in Japan where a high premium is placed on loyalty, long-term relationships and working collaboratively through difficult situations.
In this context, it is worth bearing in mind a Concept Note published by the BIICL,[1] one month after the C-19 lockdown in the UK, containing the observations of several former members of the judiciary. It highlights the risk of a deluge of disputes with the potential non-performance of contracts in light of the pandemic. Sir William Blair observed that “new thinking is going to be required” for the law to play its full part in restoring international commerce following the pandemic. He stressed that “within the principle of legal certainty, space needs to be found for renegotiation and, if the contract is no longer viable, equitable solutions.” Lord Phillips stated that “parties should consider mediation, and conciliation should be encouraged at an early stage of legal proceedings.” It is precisely for reasons such as these that SIMC and JIMC have come together in producing the Protocol.
[1] 27 April 2020: the British Institute of International and Comparative Law (BIICL) Concept Note on the implications of the COVID-19 outbreak for commercial contracts and dispute resolution
ABOUT THE AUTHORS
Patric is a former KWM partner. Starting off life at the Irish Bar (in the legal sense..), an inveterate explorer, Patric has lived & arbitrated in most of the major arbitral centres, in London, Shanghai, Hong Kong, Singapore and Japan – he also spent part of his youth working in NY (although in those days, working in a windsurfing shop, the only ‘submissions’ he made were to potential customers!).