รายงาน ALA และ CACJ 2019

TIONS Thailand Vietnam
In case there is no treaty
Singapore mentioned above with
the requesting the requesting State, the
court11. Ministry of Justice of
Vietnam shall forward
the requirements are the documents to the
et, the Singapore Ministry of Foreign
gh Court has the Affairs of Vietnam. The
ower to make Ministry of Foreign
ppropriate orders to Affairs of Viet Nam shall
ve effect to the forward it to the
quest for obtaining requesting State via
vidence and to require diplomatic channels.
person specified in
e order to take According to provisions
ppropriate steps for of the treaty on mutual
at purpose.12 legal assistance in civil
matters between the
ubject to any special requesting State and
rections as ordered Vietnam, the execution
y the Court, the of the Letter of Request
xamination shall be shall free of charge,
ken in the manner except for some cases
ovided under O 39 r 5 (expert opinion, high
10 and 11(1) and (2) cost, etc).
the ROC.13 The main
atures are that a
tness may be
ummoned by

4

ASEAN NAT

Brunei & Malaysia Indonesia Myanmar

su
be
aw
ex
ex
ex
ma
an
en
ob
an
him
ex

14 O 39 r 5, ROC.
15 O 39 r 8, ROC.
16 O 39 r 10(1), ROC.

5

TIONS Thailand Vietnam

Singapore
ubpoena to attend
efore the examiner14,
witness may be
xamined, cross-
xamined and re-
xamined in like
anner as at a trial15,
nd a witness is
ntitled to state his
bjections to answering
ny questions put to
m in the course of the
xamination16.

5

The Procedure for The Service o

ASEAN

Brunei & Malaysia Indonesia Myanmar
This procedure is The Supreme Court of Order 5 of the Code o
mostly regulated the Civil Procedure (the
respectively by the Republic of Indonesia Code).
Bruneian Rules of the and the Ministry of
High Court 1990 and Foreign Affairs of the Any summons issued
the Malaysian Rules of Republic of may be sent to the
Court 2012 Indonesia No. Courts in the Union
PRJ/HI/102/02/2018/01 Myanmar and served
Both Bruneian and and as if they had been
Malaysian law provide No.01/NK/MA/2/2018 issued by such Courts
that a subpoena shall not dated 20 provided that the
be served outside the February 2018 President by gazette
jurisdiction. Therefore, in declared the provisions
the case where a witness The procedure in application to such
to be examined in Brunei Indonesia is mostly the courts.17
or Malaysia is outside the same as in Brunei and
jurisdiction, a request will Malaysia. The reverse Summons issued by
have to be made to that process of the any Civil or Revenue
foreign jurisdiction for the procedures relating to Court in Pakistan18 and
taking of evidence for the taking of evidence India19 may be sent to
use in Brunei or Malaysia for foreign proceedings the Myanmar’s Courts
(as the case may be). will have to invoked. and served as if they
had been issued by
such Courts.

17 Section 29 of the Code of Civil Procedure.
18 Judicial Department Notification No. 308, dated the 18th October 1954.
19 Judicial Department Notification No. 276, dated the 15th July 1961.
24 The Lao People’s Democratic Republic v Sanum Investments Ltd & Anor [201

6

of Subpoenas out of Jurisdiction

N Nation

Singapore Thailand Vietnam

of Rules of Court O.39 The court of justice will The judicial authority of

issue a letter of request Vietnam shall, in

Under Singapore law, for service of accordance with the

the issuance of a documents abroad, provisions of the

subpoena is seen as a judicial documents international treaty on

ministerial act by the written in Thai along mutual legal assistance

court. Ordinarily, the with the translation in in civil matters to which

subpoena is issued by English or national Vietnam is a party,

the court and then language of the request the competent

served on the witness requested country in authority of another

who is to be compelled duplicate and forward State party, by means

under it to give them to the Office of of a Letter of Request,

s testimony and/or the Judiciary to to serve of subpoena

produce documents in examine legal for the attendance of

court proceedings.24 requirements. witness or production of

materials.

At present, there is no If all requirements are

legal framework to met, Office of the The judicial authority of

d enable the service of Judiciary will issue a Vietnam shall then

subpoenas issued by request and forward send the Letter of

the Singapore courts those documents to the Request to the Ministry

on persons who are Ministry of Foreign of Justice of Vietnam.

outside of Singapore. In Affairs or the Central The Ministry of Justice

fact, O 38 r18 (2), ROC of Vietnam shall

13] 4 SLR 947 at [17].

6

Summons or
subpoenas issued by
foreign courts are
received through
diplomatic channel, and
served by the Supreme
Court or his
subordinates in
accordance with the
provisions of the Code
and Courts Manual.
The summons or
subpoena, whether
duly served or unable
to be served, is
returned to the Ministry
of Foreign Affairs.

If defendant resides
outside and has no
agent in Myanmar to
accept service,
summons may be
addressed to the
defendant wherever he
is residing and sent to
him by post, if there is
postal communication
between such place
and the place where
the Court is situate.20

20 Order 5 Rule 25 of the Code of Civil Procedure.
25 O 39, r2 read with O 39 r1, ROC.

7

expressly states that a Authority as the case forward it to the Central
subpoena shall not be maybe. Authority of the
served on any person requested State party.
outside the jurisdiction
(i.e. outside In case there is no
d Singapore). This is treaty mentioned above
e akin to Brunei and between Vietnam and
Malaysia. the requested State,
the Letter of Request
Nevertheless, O 39 of shall be transmitted via
the ROC prescribes a diplomatic channels.
procedure for taking
evidence of persons The summons shall
outside of Singapore. specify the conditions
The Singapore Court for acting as a witness
may grant an order for or expert including
y a person who is out of commitments of
jurisdiction to be protecting the witness’s
examined where it or expert’s life and
appears necessary for health, providing travel,
the purposes of meal and
justice.25 This is also accommodation
like Malaysia and expenses, and other
Singapore where a payable expenditures,
request to take conditions and time for
e evidence from foreign their payment.
jurisdictions for the
purposes of
proceedings in
Singapore may be
made.

7

If defendant resides in
India or Pakistan, the
Court may add or
substitute other mode
of service, send the
summons by registered
post to the defendant a
the place where he is
residing or carrying on
business. An
acknowledgment
purporting to be signed
by the defendant, or an
endorsement by a
postal servant that the
defendant refused
service, may be
deemed by the Court
issuing the summons to
be prima facie of
service thereof.21

A service in any foreign
country the defendant
resides, shall be
deemed valid if it is
made by a Political
Agent that has been
appointed or by a court
which has been
established or
continued to be given
the power under the

21 Order 5 Rule 25A of the Code of Civil Procedure.

8

Conversely, there is
also no legal
framework to enable
the service,
recognition and/or
d enforcement of foreign
at issued subpoenas on
persons within
Singapore.

d
n

o

n

t

8

Code which have been
declared by a
notification in a Gazette
by the President. If the
service made to the
Political Agent or the
Court either by way of
post or otherwise on
behalf of the defendant
and had been endorse
by Political Agent or the
Court when returned, it
is deemed to be
evidence of service.22

In order to enable a
person from a foreign
territory to attend a
Court in Myanmar on
the date fixed, a person
residing in foreign
territory is required to
appear before a Court
in Myanmar at least
four months’ clear
notice from the date of
issue of a summons to
the date on which such
person in required to
appear before a
Court23.

22 Order 5 Rule 26 of the Code of Civil Procedure.
23 Para 139 of the Courts Manual.

9

n
e
e

t,
ed
e
t

n

o
h

9











SESSION 4

7th CACJ COUNCIL, PHUKET
CONFERENCE PAPER

THE EMERGENCE OF DISRUPTIVE TECHNOLOGY IN MALAYSIA

A. INTRODUCTION

1. By virtue of paragraph 10 of the Singapore Declaration at the 6th
Council of ASEAN Chief Justices Meeting, the Working Group on
Case Management and Court Technology shall expand its terms of
reference as follows:

“10. THE AGREEMENT that the terms of Reference of
the Working Group on Case Management and Court
Technology be expanded to look into new and
potentially disruptive areas such as Artificial
Intelligence and big data as well as on emerging
legal-technology areas arising from blockchain
technology (for example, bitcoins, decentralized
autonomous organization, smart contracts, crypto-
currency) and to report to the Council at its next
meeting.”

2. This report will only deal with the following two items:
a. Artificial Intelligence (‘AI’) and big data; and
b. Blockchain technology.

1

B. AI, BIG DATA AND CRYPTOCURRENCY IN MALAYSIA: AN
OVERVIEW

Policy Initiatives on AI and Big Data
3. For the time being, there is no specific or express law in Malaysia

legislation regarding AI and Big Data.

4. In general, recourse may be taken by referring to the principal
section 90A of the Evidence Act governing the admissibility and
proof of documents produced by computer.

5. Nevertheless, the government of Malaysia with the assistance of
Malaysia Digital Economy Corporation (MDeC) had taken up the
initiatives to draft a number of policies and roadmaps in order to
push the nation’s Digital Economy to new heights by
strengthening business environment that provides companies
with opportunities for continued growth1.

6. Amongst the said initiatives is the National Big Data Analytics
(BDA) Framework launched in 2014. The BDA Framework calls for
five important components that must be looked into. They are
talent development; developing use cases to show how big data
can be used to benefit society and businesses; using public open

1 See https://mdec.my/about-mdec/what-is-digital-economy/ & https://mdec.my/about-malaysia/government-
policies/

2

data to produce useful applications; technology development; and
creating awareness within the private and private sectors2.

7. A National Framework on Artificial Intelligence will be presented
by end of this year to the Communications and Media Ministry for
approval3.

Legislative Initiatives on Cryptocurrency
8. In January 2019, Malaysia’s Finance Minister announced the

coming into force of the Capital Markets and Services
(Prescription of Securities) (Digital Currency and Digital Token)
Order 2019. In line with the Order, cryptocurrencies, tokens and
other digital assets will be categorized as securities. Both the
Securities Commission (SC) and Bank Negara Malaysia will join
efforts in regulating these securities.

9. In June 2019, the SC had conditionally approved three companies
to operate cryptocurrency exchanges in Malaysia. Luno Malaysia
Sdn Bhd, SINEGY Technologies (M) Sdn Bhd and Tokenize
Technology (M) Sdn Bhd are the companies that were given up to
nine months to fully comply with all the regulatory requirements
prior to receiving a full license.

2 See https://www.digitalnewsasia.com/digital-economy/malaysias-big-data-framework-rolls-out
3 See https://mdec.my/news/gobind-its-vital-for-keeping-up-with-industrial-revolution-4-0/

3

C. JUDICIAL TRAINING
10.The Malaysian Judiciary has to date conducted training for judges

and judicial officers in raising awareness on the emergence of
cryptocurrency and block chain technology. Together with the
United States Department of Justice’s Office, Malaysian Judiciary
had conducted a program on “Asset Forfeiture Tools to Combat
Terrorism Financing” in May and September 2019 in Kota
Kinabalu, Sabah.

11.In May and August 2019, by the same joint effort a Digital
Evidence and Cybercrime Workshop was conducted for Judges in
Penang and Miri Sarawak respectively.

12.The Malaysian Judiciary together with Bank Negara Malaysia are
also in the midst of conducting a seminar on cryptocurrency at
Bank Negara Malaysia. This is part of the Malaysian Judiciary’s
effort in educating the Judges on the basic one on one of
cryptocurrency and emerging legal technologies.

13. The importance of such training is paramount in providing Judges
with an adequate understanding in view of the emergence of the
use of cryptocurrency and blockchain technology. This was
exemplified in a workshop on Contract Interpretation conducted
recently in Kuala Lumpur where Judges were asked to analyze a
case emanating from Singapore on cryptocurrency – B2C2 Ltd v

4

Quoine Pte Ltd [2019] SGHC (1) 03 (first Singapore
cryptocurrency Court case - brought to our notice by our
Singapore counterpart for which we are grateful). A basic
understanding of what cryptocurrency entails was essential to the
understanding of the aforesaid case.

D. MOVING FORWARD
Full Automation of Decision Making

14.Malaysian judiciary aspires to employ the second type of
automation in decision-making process where it deploys rules
inferred by the system from historic data. This second wave of
artificial intelligence, better known as ‘machine learning’ is very
much different from those mentioned above as it does not rely on
series of pre-programmed rules written by humans4. It is operated
entirely by machines.

15.‘Machine learning’ establishes processes by which a system will
learn patterns and correlations so that it can generate predictions
or reveal insights. The ‘learning’ occurs iteratively as an algorithm
attempts to improve performance against a specified goal5.

16.As a reference point, we refer to the United States risk
assessment tools employed in determining bail, parole and most

4 M. Zalnieriute et al, ‘The Rule of Law and Automation of Government Decision-Making’, (2019) 82(3) MLR 425-
455 at pp. 432-433
5 Infra n4 at pp. 433-434

5

recently sentencing such as, COMPAS6 that distinguish among
individuals based on variety of characteristics. Concerns have
been raised that race has an impact on assessments – an
investigation found that African Americans are more likely to be
given false positive score by COMPAS; and that men most likely
than women are given false positive score in terms of recidivism 7.

17.In Wisconsin Supreme Court case of Loomis8, the latter concern
was raised. The defendant in that case argued that the court’s
decision on the COMPAS score violated his constitutional rights
because COMPAS software used ‘gendered assessment’ – that
men are most likely to reoffend compared to women. The court
held that partial reliance on COMPAS score in sentencing did not
violate the defendant’s rights to due process conferred by the
United States constitution so long as the decision is not fully
delegated to the output of the machine learning software.

18.The court also added that the right to review and rectify was
satisfied because the defendant had a degree of control over
relevant input data – he could review the accuracy of public
records and offer other data directly by completing the COMPAS
questionnaire.

19.Be that as it may, we realize that because the data accumulated in
such fully automated software is pre-labelled (either in the context

6 Abbreviation of ‘Correctional Offender Management Profiling for Alternative Sanctions’
7 Supra n4 at pp. 437-438
8 State of Winconsin v Loomis 881 N.W.2d 749 (Wis. 2016)

6

of historic decision-making or in the context of development of the
system) it carries within it human biases and assumptions. There
is also possibility that it relies on faulty processes and false
assumptions which may replicate across future decisions. And
that it is not easy to deduce the erroneous assumptions made by
this type of automation9.

20.It is also important to note that the existing Acts and instruments
in other jurisdictions that authorize automated-decision making10
do not set out what is required in terms of transparency of the
system’s logic or evaluation of the relevant decision-making
programs11.

21.In Loomis (supra), the company that built COMPAS, Northpointe
Inc. refused to publicly disclose the methods used in deducing
inference as its algorithms were regarded as ‘trade secret’. In
deciding the case, Abrahamson J observed that “this court’s lack
of understanding of COMPAS was a significant problem in the
instant case” and that “making a record, including a record
explaining consideration of the evidence-based tools and the
limitations and strengths thereof, is part of the long-standing,
basic requirement that a circuit court explain its exercise of
discretion at sentencing”. Such transparency and analysis of the

9 L.B. Moses, ‘The Need for Lawyers’, in ‘The Future of Australian Legal Education’ (Thomson Reuters 2018) [2018]
UNSWLRS 46
10 As identified in S. Elvery, ‘How algorithms make important government decisions – and how that affects you’,
ABC News (21 July 2017) and Perry J ‘iDecide: Administrative Decision-Making in the Digital World’ (2017) 91
Australian Law Journal 29

7

tool itself would also, in her opinion, provide “the public with a
transparent and comprehensible explanation for the sentencing
court’s decision”.

E. LEGAL IMPLICATIONS TO CONSTITUTIONAL RIGHTS
The Rule of Law Issues

22.The aforementioned setbacks highlight some fundamental ‘rule of
law’ questions which may affect individual liberties set out in the
Constitution –

i. Transparency and Accountability of the Decisions Made

 ‘Machine learning’ raises the issue of transparency, when
sufficient technical expertise to understand the logic
embedded in the tools may not be acquired for
confidentiality reasons.

 In some context, where consequence of a decision is
severe, the lack of access to expert advice and opacity of
algorithm of the system effectively reduces the extent to
which the decision itself can be described as transparent
and accountable.

 On the issue of accountability, humans must remain
accountable for the decisions made albeit the logic of the

8

system is first run through an automated system as can be
seen in Swedish students’ welfare system.12
 ‘Technological due process’, a concept coined by Citron
and Pasquale13 may be adopted as it enables individuals to
challenge a fully-automated decision made by the system
when human accountability is not discernible.

ii. Predictability and Consistency of the Decisions Made14

 ‘Machine learning’ raises another issue for predictability
and consistency; it is difficult to predict the behavior and
outcomes of the system as learning from new data
continues over time.

 The variables relied by ‘machine learning’ may be
different from the ones relied by human judges which
creates disparity of reasoning – for instance, human
judges rely on evidentiary evaluation and rules stipulated
by the law while automated system relies on algorithmic
inferencing.

iii. Equality before the Law15

 While a properly designed system could eliminate both
conscious and unconscious bias, it is qualified by two

12 Supra n4 at p. 443
13 D.K. Citron and F. Pasquale, ‘The Second Society: Due Process for Automated Predictions’ (2014) 90 Washington
University Law Review 1, 20
14 Supra n4 at p.447
15 Supra n4 at pp.448-449, 452

9

main interrelated challenges. 1) The accuracy of key
information may not be challenged; 2) Lack of
transparency as discussed above.
 The greatest challenge to equality before the law comes
not from an explicit incorporation of inappropriate
variables in the automated system but from the fact that
automation can infer rules from historical patterns and
correlations. Even when variables such as race are not
used in the ‘learning’ process, a machine can still produce
racially or otherwise biased assessments. This is turn
would undermine the right to having ‘individual’ sentence
or decision as ‘like cases be treated alike’ without taking
into account the novelty of facts in each case.

F. CONCLUSION

23.At our end, while we are driven to keep abreast with the
development of the technology, we acknowledge the fact that our
regulation of automation is still at its nascency. The Malaysian
National Framework on Artificial Intelligence will be presented by
end of this year to the Communications and Media Ministry for
approval16.

16 See https://mdec.my/news/gobind-its-vital-for-keeping-up-with-industrial-revolution-4-0/ (accessed on
22.10.2019)

10

24.Be that as it may, we are of the view that automation can improve
judicial decision-making. The benefits include cost savings and
greater speed, as well as a capacity to enhance the rule of law.

25.Properly designed, implemented and supervised automation,
whether in the form of systems applying pre-programmed rules,
systems that learn rules from historic data or combination of these
can help the courts decision-making better reflect the value of
transparency and accountability, predictability and consistency
as well as equality before the law17.

26.Ultimately, humans must evaluate each decision-making process
and consider what forms of automation are useful, appropriate
and consistent with the rule of law18.

17 Supra n4 at pp.454-455

11

INTENSIVE COURSE ON
ARTIFICIAL INTELLIGENCE
AND OTHER EMERGING
TECHNOLOGIES

25 - 27 NOVEMBER 2020

ABOUT THE COURSE

This Intensive Course is designed to provide judges and policy-making officials with foundational knowledge about key legal
and regulatory issues around the use of AI and other emerging technologies. Participants can look forward to a set of modules
crafted with their particular needs in mind, delivered by a team of dedicated and experienced tutors drawn from academia
and government. They will learn how they can harness technology to better manage internal court and policy processes and
improve on the efficiency and quality with which services are delivered to the general public. Participants will further acquire
a nuanced appreciation of the impact of technologies across a range of legal domains and gain insights into the available
strategies and approaches that they can embrace in response to, or anticipation of, technology adoption and innovation. This
three-day programme is organized by the SMU Law Academy, which has a stellar track record of providing legal professionals
with high quality seminars and other opportunities to remain fully informed about contemporary legal developments in today’s
fast-paced world.

COURSE SCHEDULE

DATE EVENT
USING TECHNOLOGY TECHNOLOGY TO ENHANCE COURT & POLICY-MAKING PROCESSES
25WED Module 1: Automating Legal Proceedings
Module 2: Legal Issues Regarding IT Outsourcing
NOV Module 3: Principles of Legal Design
Module 4: Case Study of the Sinagapore Judiciary

26THUR ADJUDICATING AND REGULATING TECHNOLOGY: SAFEGUARDING DATA AND SECURITY
Module 5: AI, Robotics and the Law
NOV Module 6: Fundamentals of Smart Contracts & Blockchain
Module 7: Privacy & Data Protection Law
Module 8: Information Security & Cyber Crime

FRI ADJUDICATING AND REGULATING TECHNOLOGY: MANAGING GLOBAL INTERCONNECTIVITY & NEW SERVICES
Module 9: Internet Jurisdictional Issues & Dispute Resolution in e-Commerce
27 Module 10: Fintech, Cryptocurrencies & Anti-Money Laundering
Module 11: Competition Law & the Technology Industry
NOV Concluding Remarks by The Honourable the Chief Justice Sundaresh Menon
Fireside Chat with The Honourable the Chief Justice Sundaresh Menon moderated by Prof Goh Yihan, SMU School of Law
Award of Certificates by The Honourable the Chief Justice Sundaresh Menon

Morning and afternoon tea breaks and lunch will be provided for the duration of the course. Schedule as of September 2019 and subject to change.

COURSE FEES (inclusive of GST) Singapore Management University
School of Law, 55 Armenian Street
Early Bird : SGD900, for registration by 31 August 2020 Singapore 179943
Regular Pricing: SGD1,050 for registration on or after
1 September 2020 smu.sg/smula

[email protected]

PROPOSAL FOR AN INTERNATIONAL
JUDICIAL DISPUTE RESOLUTION NETWORK

A. Executive Summary

1. This paper sets out a proposal for the establishment of an International Judicial
Dispute Resolution (“JDR”) Network to promote the early, amicable and fair
resolution of court disputes without the need for a trial through the use of the
whole suite of judge-led dispute resolution processes such as (a) judicial
mediation, (b) early neutral evaluation and (c) judge-directed negotiations as a
core case management strategy.

2. To this end, it is intended that a set of best practice standards will be developed
to serve as a benchmark for judiciaries to enhance the effectiveness of the
judicial process by delivering more optimal outcomes for disputing parties.
Members of the JDR network will also benefit from the sharing of experiences
and resources for capacity building.

B. Strengthening the administration of justice - Advantages of JDR

3. An effective system of justice is one that dispenses justice in a fair, timely
manner, delivering optimal and proportionate outcomes for parties.

4. By focusing on managing each case by finding the best solutions to resolve
parties’ conflict, and moving away from the traditional paradigm of the court’s
role as the arbiter of legal disputes, the JDR process brings benefits both to the
parties and the courts. These are as follows:

(a) Cases are resolved early, thus saving parties’ time;
(b) Legal costs are saved by parties;
(c) The uncertainty over the outcome of the trial is avoided for the parties;
(d) Parties have autonomy and control over the outcome, instead of having

a decision imposed on them by an adversarial trial process;
(e) An amicable resolution of the case can preserve the relationship between

the parties;
(f) Creative solutions can be used by the court and the parties to resolve the

dispute;
(g) Valuable court time and trial resources are saved; and
(h) Judicial resources can be more optimally deployed.

2

C. Use of JDR – A case management strategy

a. Singapore

5. The State Courts have institutionalised the JDR process as a case management
strategy to facilitate the resolution of civil, community and relational disputes
without the need for a trial. Judicial mediation, early neutral evaluation, judge-
directed negotiations and other JDR modalities are utilised, undergirded by the
robust management of the case. About 40% of the civil cases filed in the State
Courts fall under the rubric of the JDR process. More than 80% of cases which
go through the JDR process are settled without trial.

b. Other jurisdictions

6. Many judiciaries in both common law and civil law countries recognise the
benefits of JDR and the proactive role the courts can play in facilitating parties
to resolve their legal disputes. To this end, they have adopted various JDR
modalities as part of their case management process, including judicial
mediation, early neutral evaluation and the conduct of “mini-trials” – countries
which have adopted JDR include Australia, Canada, France, Germany, Japan,
Korea, the Netherlands, New Zealand, United Kingdom and the United States.

D. Benefits of JDR for ASEAN judiciaries

7. JDR holds the promise of helping to resolve disputes brought to court in a more
timely and economical way, enabling cases to be diverted from the traditional
adversarial trial process through various mechanisms as an integral part of
judicial case management.

8. JDR integrates the whole suite of ADR modalities into the heart of court
proceedings, from mediation to neutral evaluation, so that parties do not
overlook or ignore the possibility of resolving disputes through a method other
than a formal, adversarial trial.

9. Hence, JDR can enable ASEAN judiciaries to serve the needs of their public
more effectively by making a range a dispute resolution mechanisms available
within the court system, including mediation and neutral evaluation, under a
single roof.

3

E. Objectives of establishing the International JDR Network

10. The JDR Network aims to promote the adoption of JDR around the world to
help enhance the administration of justice. To this end, the objectives of
establishing the International JDR Network are to:

(a) Provide a platform for judiciaries to share experiences and exchange ideas
and expertise on leveraging JDR to manage their caseload more effectively
and achieve better outcomes for court users. The platform will also
encourage jurisdictions new to JDR to explore its benefits, and enable them
to obtain assistance in developing their own approaches and institutions.

(b) Develop best practice standards which will set the benchmark for the JDR
process.

(c) Support JDR efforts in each jurisdiction by providing access to knowhow
and resources for capacity building and developing of judicial competencies
in JDR.

F. Interest in the International JDR Network

11. The idea for an International JDR Network was seeded at the Commonwealth
Magistrates & Judges Association Conference in September 2019, where the
State Court’s experience in JDR was shared. The proposal was well-received,
and many judiciaries commented that the JDR process would help to tackle the
backlog of cases in their jurisdictions, and optimise scarce trial resources.

12. Fourteen judiciaries have expressed interest in joining the Network, namely,
Australia (Federal Circuit Court), Fiji, Ghana, India (Tamil Nadu), Jamaica,
Kenya, Kiribati, Nigeria, Papua New Guinea, Sri Lanka, Tanzania, Uganda,
Vanuatu, and COMESA Court (Common Market of Eastern and Southern
Africa – 19 countries).

G. Deliverables and initiatives

13. To promote the concept and employment of JDR in the judicial world, as well
as to ensure the sustainability, relevance and vibrancy of the Network, the
following deliverables and initiatives for the Network are proposed:

4

(a) Develop and promote a set of best practice standards to serve as the
benchmark for judiciaries which want to set up and implement JDR in
their countries.
i. This will help promote the concept of JDR, especially to
developing jurisdictions. The standards should be developed in
cooperation with other like-minded jurisdictions.
ii. Developing and popularising these standards will spread the
JDR approach throughout the judicial world.
iii. The standards will encompass the following:
1. characteristics of a good JDR system
2. objectives/benefits of a JDR system
3. suggested structure of a JDR unit within a court system
4. critical success factors for the establishment and
sustainability of a JDR system in the courts
5. appropriate capacity building and training regime; and
6. best practices and approaches during the JDR process,
including the use of technology and the suite of JDR
modalities
iv. The starting point for the development of the best practice
standards is set out in the primer attached at Annex A.

(b) Set up a dedicated online platform for the communication, discussions
and work of the Network.
i. The platform will have a dedicated webpage and portal link
for online discussions and sharing of regular features and
updates on JDR and related matters.
ii. Resources on JDR can be shared via this platform.

(c) Capacity building and training. This can be done through various
mechanisms:
i. Training programmes and workshops on JDR and its specific
modalities, e.g. the State Courts Judicial Mediators Workshop
in 2020; customised training programmes on the JDR process.
ii. Technical assistance and training workshops on how to
develop and conduct online JDR hearings
1. To help judiciaries understand the advantages and
implications of digital transformation in dispute
resolution, and how to leverage it to manage conflict
more efficiently.

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2. To successfully make the paradigm shift from
traditional adjudication and dispute resolution to
handling conflict remotely and virtually (eg e-
mediation, e-negotiation, e-case management)

iii. Customised consultancy service and technical assistance to
set up a JDR system in a jurisdiction and develop judicial
competencies in JDR

H. Next steps

14. To achieve the objectives of the Network and attain the deliverables, the
following steps for the immediate future are outlined:

(a) To bring together a core group of like-minded judiciaries to drive the
work of the Network and, in particular, to work on the best practice
standards;

(b) To set up the online platform to kick off discussions among members of
the Network;

(c) To organise one or two training workshops on JDR within the next year;
and

(d) To bring together the core group of the Network for an inaugural
meeting of the Network in Singapore in the next 1 to 2 years to, inter alia,
adopt the best practice standards.

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ANNEX A

A PRIMER FOR ESTABLISHING
A JUDICIAL DISPUTE RESOLUTION SYSTEM

A Objective

The objective of a non-adversarial Judicial Dispute Resolution (JDR) process within
the judicial system is to amicably resolve court cases and disputes (especially those
involving lower value claims) as early as possible within the judicial process, without
the need for trial, through pro-active judge-led management of cases.

B Characteristics of the JDR Process

The JDR process is integrated into the judicial process. At the heart of this process is
robust and innovative pre-trial case management, driven by an experienced trial judge
who employs a variety of strategies to achieve early, consensual outcomes between
parties. This case management toolbox includes neutral evaluation, judicial mediation
and a judge-directed negotiation process, undergirded by rigorous case management
through which firm and realistic timelines are set by the judge to ensure that each case
is managed in an efficient and timely manner, while allowing parties sufficient time
for negotiations.

In the State Courts of Singapore, about 40% of the civil cases fall within the JDR case
management regime. Through this process, more than 85% of the cases are amicably
resolved and settled.

C Advantages of the JDR Process

The practical advantages of judge-led settlement of cases without the need for trial are
as follows:

(1) Cases are resolved early, thus saving parties’ time;
(2) Legal costs are saved by the parties;
(3) The uncertainty over the outcome of the trial is avoided for the parties;
(4) The parties have autonomy and control over the outcome, instead of having a

decision imposed on them by an adversarial trial process;
(5) An amicable resolution of the case can preserve the relationship between the

parties;
(6) Creative solutions can be used by the court and the parties to resolve the

dispute;
(7) Valuable court time and trial resources are saved; and
(8) Judicial resources can be more optimally deployed.

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D Legal Framework to Support the JDR System

In Singapore, legislation is in place to enable and support the judge-led JDR process.

The power of the judge to conduct the JDR process is derived from Order 34A rule 2
of the Rules of Court in Singapore (a piece of subsidiary legislation promulgated
under the Supreme Court of Judicature Act (Cap 322)).

 Pursuant to rule 2(1), the Court may, at any time before the trial of any action,
direct the parties to attend a pre-trial conference (“PTC”).

 Rule 2(2) then provides broad powers to the Court in conducting the PTC, such
that “the Court may consider any matter including the possibility of settlement
of all or any of the issues in the action or proceedings and require the parties to
furnish the Court with any such information as it thinks fit, and may also give
all such directions as appear to be necessary or desirable for securing the just,
expeditious and economical disposal of the action or proceedings”.

 Rule 2(3) allows the Court to enter judgment or dismiss the action, if the parties
fail to comply with any of the Court’s directions given at the PTC.

 If, at the PTC, the parties are agreeable to settle the action, rule 2(6) allows the
Court to make the necessary judgment or orders to effect the settlement.

Paragraphs 35 to 42 of the Practice Directions of the State Courts provide procedural
guidance as to how, at the PTC, the judge-led JDR is conducted for all the various
types of civil cases filed in the State Courts.

 Paragraph 35(2) allows for mediation, conciliation and neutral evaluation to be
undertaken as mechanisms of the JDR process, and the procedure for these
mechanisms are set out in paragraphs 41, 41A and 42 respectively.

 Paragraph 35(9) specifically provides for a presumption of JDR for all civil cases,
such that the appropriate JDR processes will be applied as a “first stop” for
resolving the dispute, at the earliest possible stage.

Judicial immunity for the JDR process. Section 68(4) of the State Courts Act (Cap 321)
states that no judge “shall be liable to be sued for an act done by him for the purposes
of any mediation or other alternative dispute resolution process conducted by him,”
provided that the act was done in good faith and did not involve any fraud or wilful
misconduct.

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E Establishing a JDR System

The essential building blocks and critical success factors for the establishment and
sustainability of an effective and efficient JDR system have been identified in (a) to (f)
below. Practical pointers to guide those tasked with establishing such a new dispute
resolution system are set out in bullet points.

(a) Visionary Leadership

The establishment of any JDR system must be driven by visionary leaders in the
Judiciary. These leaders must believe in the ethos, objectives and the role of a non-
adversarial approach in the litigation process in the courts, as well as have the long-
term vision of developing a culture of pro-active judge-led case management process
towards achieving amicable, consensual outcomes. They must map the strategic
direction and develop sound, forward-looking policies to implement, maintain and
improve the system. They must also develop a robust monitoring and review system
to ensure that the desired outcomes of the JDR process are met and sustained.

 Identify a core team of senior judges and court administrators who believe in
the vision and role of the non-adversarial approach to dispute resolution to
drive and take ownership of the undertaking.

(b) Strategic Planning

The articulation of clear strategies is crucial for the development and implementation
of the new system. The leaders must first identify the current needs and problems, as
well as the limitations of the current legal and operational framework. This will be
key to developing the right solutions to meet these challenges. Strategies must then
be mapped to focus on the identified needs and proposed solutions. To this end, in
launching any new initiative such as the establishment of a new dispute resolution
system, it is best to kick off with a pilot programme so that operational issues can be
addressed early and the process refined before scaling it up in phases, culminating in
the institutionalisation of the whole process in the longer term.

 Identify the types of cases for which the JDR process would be most effective
in addressing current needs, eg small-value, high volume cases; types of cases
which represent a significant portion of the case backlog.

 Identify the most suitable dispute resolution modalities as part of the
overarching case management strategy for these types of cases – eg neutral
evaluation, mediation, judge-directed negotiations, simplified adjudication, etc.

 Plan a small-scale pilot scheme to introduce the new system to stakeholders
and court users.

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(c) Operational Policies and Processes

Clear, practical and workable operational policies and processes are necessary to
operationalise and implement the strategies enumerated through the strategic
planning process. They are also crucial for the long-term sustainability of the new
system. The new JDR process must be clear and easy to understand. Be prepared for
teething problems, and be flexible in adjusting the process accordingly. Most
importantly, it must allow for the intervention of the judge as early on in the life cycle
of the case as possible in order to ensure that the full benefits of judge-led case
management can be reaped.

 Identify the earliest possible point in the current judicial process where the JDR
process can be implemented, so as to improve prospects for an amicable
solution.

 Determine whether a legislative framework needs to be put in place to support
the implementation of the new system.

 Determine whether the application of the JDR process is to be made
compulsory, be implemented as a default option (which parties can opt out of)
or if an entirely voluntary use of the process is preferred.

 Design a simple process for the new system, taking into account the needs and
challenges of the jurisdiction, and the identified solutions and strategies.

(d) Judicial and Administrative Resources

Having well-trained judges and court administrators with the right attitude and
aptitude is key to the successful establishment of the new system and the
implementation of the JDR process. The selected judges should be experienced trial
judges, and must be trained to acquire the necessary dispute resolution and case
management skills. Court administrators should similarly be trained and be adept as
case managers. If available and applicable, technology is another useful resource,
which would enhance the system’s efficiency and accessibility.

 Identify and train suitable judges and court administrators.
 Identify and harness suitable technological tools, eg electronic case

management and tracking systems, Online Dispute Resolution platforms, to
support the new system.

(e) Stakeholder Engagement and Support

The JDR process seeks to achieve better outcomes for litigants. It is hence essential
that litigants and their legal advisers are well-informed about and familiar with the
process. Without their support and buy-in, the new system will not succeed, as their
consent is required before any amicable resolution of their court case is reached. There

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must be adequate feedback and communication channels with the judiciary so that
their needs and challenges can be heard and addressed.

 Acquaint the lawyers and the public on the necessity, desirability and
advantages of the JDR process.

 Welcome feedback from lawyers and court users, and incorporate suitable
suggestions into the design and enhancement of the process.

 Engage lawyers and litigants in the pilot scheme.

(f) Measuring Desired Outcomes

The cases and disputes must be resolved fairly, quickly and cost-effectively. The
process must be accessible, easily comprehensible and affordable. The public must
have trust and confidence in the new JDR system.

 Develop empirical and qualitative Key Performance Indicators to keep track of
the effectiveness of the new system.

 Conduct a survey for lawyers and litigants to obtain views and suggestions on
the new system, which can be used to refine and improve it.

 Inject innovative solutions when fine-tuning and improving the JDR process –
be bold in trying out new ideas.

***************

SESSION 5

Council of ASEAN Chief Justices (CACJ)

Working Group on Judicial Education and Training

Work Plan 2020-2025

1. Introduction
1.1. Recognizing aspirations for a rules-based community embodied in the ASEAN

Community Vision 2025 and the CACJ’s mission to strengthen partnerships
among ASEAN Judiciaries and uphold the rule of law within and across ASEAN
in the spirit of institutional independence and principled partnerships, the CACJ
Working Group on Judicial Education and Training (WG-JET) will continue to
advance and to ensure sustainability and quality of the judicial education and
training through collaborative efforts.

1.2. The 6th CACJ Meeting 27 July 2018 acknowledged the importance of
strengthening judicial education and training by adopting the CACJ WG-JET
Strategic Plan 2018-2025 in the Singapore Declaration. The Singapore
Declaration as stated in paragraph 11:

11. THE AGREEMENT to adopt the Strategic Plan 2018-2025 as proposed by
the Working Group on Judicial Education and Training and:

(i) for all Heads of organisations overseeing judicial education and training
in each ASEAN Judiciary to be given the said Strategic Plan 2018-2025
so that they can meet, propose and/or develop work plan, and mobilise
the resources and support needed to implement Strategic Plan;

(ii) for all training courses to be consolidated and made available to all
ASEAN Judiciaries by posting these courses on the AJP; and

(iii) for the continued commitment of all ASEAN Judiciaries to send
participants for these training courses.

1.3. The Strategic Plan 2018-2025 charts the overall training and education
aspirations of the CACJ and provides direction and guideline for the WG-JET.
The Strategic Plan provides the WG-JET with a vision and mission, institutional
framework, objectives, and strategies for mobilizing resources for its programs.

1.4. Further, the Strategic Plan 2018-2025 provides the framework through which the
CACJ will better integrate education and training across its members, including
through the strategic and collaborative selection of topics aligned with the most
pressing needs for judicial training and education programs.

1.5. As mandated by the Singapore Declaration, the development of the CACJ WG-
JET Work Plan 2020-2025 is to detail education and training needs and to
provide strategies for engaging and mobilizing the resources and support
needed to implement the Strategic Plan. In accordance with the Strategic Plan
2018-2025 Section 3.1. (Principles) and Section 6.1 (General Framework of
Training and Education), the Work Plan is developed in a consultative manner,
receiving inputs form all ASEAN Judiciaries based upon a need assessment.

1.6. The Work Plan 2020-2025 will provide specific education and training topics and
activities based on a survey of ASEAN Judiciaries. In addition, the Work Plan
2020-2025 will provide an implementation framework to guide the WG-JET and
the ASEAN Judiciaries in carrying out the education and training programs and
monitoring their effectiveness.

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2. Objective

The objective of the Work Plan 2020-2025 has been informed by the six objectives of
the Strategic Plan 2018-2025, Section 4:

a) Establish the capacity of the working group to identify, develop, and implement
regional training and education programs;

b) Identify existing capacities of ASEAN Member States to take advantage of joint
judicial training and education opportunities to ensure suitable rotation of training
programs and shared responsibility across Member States;

c) Identify opportunities for joint judicial training and education programs on a bi-
lateral or multi-lateral basis across ASEAN Member States;

d) Provide opportunities for sharing good practices across Member States judiciaries
where possible;

e) Establish mechanism for information sharing and reporting on the implementation
of training and education programs through the ASEAN Judicial Portal and to the
annual CACJ Meeting;

f) Establish capacity to support and mobilize available resources to enhance the
quality and to ensure sustainability of the training and education program.

3. Judicial Education and Training Priorities

3.1. Legal convergence in the ASEAN context is essential to ensure that the courts
are able to respond to contemporary legal issues, which often transcend ASEAN
borders. This means that a judge must also be capable of interpreting and
effectively enforcing domestic law within an understanding of regional as well as
international contexts. The Strategic Plan 2018-2025 Section 5 (Focus of Training
and Education Program) has identified the focal and priority areas of judicial
education and training as the following:
a. Area of environmental law, as the highest priority area based on the
preference of all Judiciaries. The area under environmental law covers topics
such as illegal wildlife trade, forest protection, and transboundary haze
pollution.
b. Area of business and commercial law covers priority topics such as
convergence and harmonization of ASEAN commercial laws, intellectual
property rights, bankruptcies and insolvencies, competition law, arbitration
and consumer protection.
c. Area of Cross Border Criminal Law covers priority topics such as trafficking in
persons, anti-terrorism, illicit drugs law, juvenile justice, child abuse and
exploitation, asset recovery and money laundering, and cyber crime.
d. Area of Civil Procedure Rights covers topics such as enforcement of foreign
judgements, reform of civil procedural process, cross border family law, child
disputes and mediation.
e. Area of leadership and management are also identified as a priority for the
ASEAN Judiciaries, covering topics such as court and technology,
organizational reform, change management, communication with media.

Activities in these areas are further detailed in the attached Work Plan matrix.

3.2. Beside the topics that fall under the five areas of focus of the Strategic Plan 2018-
2025, members of the WG-JET have also identified proposed training and
education programs across topics, which are included in the Work Plan Matrix.

3.3. The WG-JET will review and decide the training and education program priorities
on a biannual basis, based on consultation with all ASEAN Judiciaries, and which
will be presented during the WG-JET Meeting.

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4. Education and Training Methods

4.1. Referring to the Strategic Plan 2018-2025 Section 6.2 (General Framework of
Training and Education), it is mentioned that the training and education programs
will be undertaken through various methods. The WG-JET identified the preferred
education and training methods, which include conferences, seminars,
workshops, e-learning, webinars, and exchange of experiences or comparative
learning.

4.2. The WG-JET recognizes the importance of the use of technology to increase

knowledge-sharing to a broader community of judge participants, interactive
learning, efficient and effective distribution of training materials throughout
judiciaries at the country level.

4.3. The WG-JET also recognizes the importance of a training of trainers (ToT)
program to promote leveraging, replication, sustainability, and expansion of the
training and education program, as stated in the Strategic Plan 2018-2025
Section 6.4 (General Framework of Training and Education).

4.4. In the implementation of education and training, the training host is encouraged to
identify and invite trainers from across the ASEAN Judiciaries where possible, to
promote sharing of good practices and expertise across ASEAN Judiciaries. As
part of this effort, there is a need to maintain a pool of trainers from ASEAN
Judiciaries and from various institutions with different expertise.

4.5. The WG-JET recognizes the importance of having a common understanding of
basic knowledge on specific training topic. One method that can be used is to
distribute the training materials through an e-learning platform or any other
platforms prior to the training implementation. This method will promote better
outcomes by providing a common foundation and starting point for in person
trainings.

4.6. The WG-JET identified the need to overcome the language barriers and
variations in legal interpretation among the participants since these factors can
limit participation and access to broader participants in the ASEAN Judiciaries. To
promote more access to training and education at the country level, the WG-JET
identified the importance of translating the materials into different country
languages and uploading or distributing them in advance to participants.

5. Training Participants

5.1. The WG-JET has identified the needs for training for judges, in particular for the
mid-level judges and first instance judges. Beside the importance of training of
judges, the WG-JET also recognizes the importance for the training of trainers
(ToT) program to promote leveraging, replication, sustainability, and expansion of
the training and education program, as stated in the Strategic Plan 2018-2025
Section 6.4 (General Framework of Training and Education).

5.2. In the implementation of training and education, the training host is encouraged to
provide criteria for participants. The criteria can be determined based on:

a. Specialization or expertise of the judges;

b. Term of service;

c. Scope of responsibilities.

5.3. Besides the judges, the court managers also hold an important role for the
success of the judiciary, and therefore education and training activities also need
to include or target the court managers.

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