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Singapore – International Commercial Court.

3 May 2014

 

Legal News & Analysis – Asia Pacific – Singapore  Dispute Resolution

 

The Rationale

 

In the last 20 years, Asia has been growing in prominence as a favoured destination for trade and investment. It can be viewed as inevitable that expected increases in cross-border and multi-jurisdictional disputes in Asia follow such a trend. With a reputation for its “efficient, competent and honest judiciary”1 and connectivity, Singapore is poised to take prime position as a “neutral third-party”2 venue for international commercial dispute resolution. An international court has therefore been proposed to address the apparent limitation of arbitration: namely, disputes whose subject matter is not amendable to arbitration,3 to coerce parties in a multiple-party dispute to a jurisdiction4 and be fully effective for enforcement in other jurisdictions.5 Such a proposal was introduced by way of the Report of the Singapore International Commercial Court (“SICC”) Committee in November 2013.

 

Features Of The SICC

 

Constitution Of The SICC

 

Under this proposal, the SICC is to be part of the Supreme Court of Singapore6 and constituted as “a statutory division of the High Court under the Supreme Court of Judicature Act (“SCJA”).”7 The jurisdictional limits of the SICC would be identical to that of the Singapore High Court.

 

The panel of SICC Judges will comprise existing Supreme Court Judges and Associate Judges who will be appointed by the SICC Registry for a fixed period and assigned to cases on an ad hoc basis.8 The Chief Justice will have the power to assign Associate Judges from the SICC panel of adjudicators to relevant individual SICC cases.9

 

A foreign Associate Judge may be appointed from the panel of SICC adjudicators.10 This is achievable with the proposed amendment of Article 94(4) of the Constitution of the Republic of Singapore, enabling the Chief Justice to appoint as Associate Judges of Singapore, persons considered to have the right qualifications and experience.11 It is proposed that the foreign Associate Judge could be given the title “Associate (International) Justice.”12 A single Judge will hear the case.13 On a party’s application, the Chief Justice may assign three Judges to hear the case when necessary.14

 

Proceedings

 

Proceedings at the SICC will be governed by the Singapore Rules of Court (“Rules of Court”), the SICC Rules and practice directions formulated for the SICC. Proceedings will take place in open court15 unless specifically directed otherwise on any party’s application.16 The criteria for which the special rules will apply have not been finalized, but they will include instances where “(i) Singapore law is not the governing law; or (ii) the choice of Singapore law is the sole connection to Singapore, and agree that it is desirable to maintain confidentiality.”17

 

Representation at the SICC will be governed by the Legal Profession Act of Singapore. However, special rules will apply where the case has no connection to Singapore. The criteria for what is a case that has no connection in Singapore are still being finalized but will “include cases where (i) Singapore law is not the governing law; or (ii) the choice of Singapore law is the sole connection to Singapore.”18

 

Foreign lawyers who have been registered at the SICC Register of Foreign Lawyers may represent at the SICC.19 Registration is done by: “(a) provid[ing] an address representing their place of business, which may include an address of a Singaporean solicitor with whom the foreign counsel is working with on the case, and (b) undertak[ing] to abide by a set of ethical rules applicable to SICC proceedings.”20 Representation on procedural issues by foreign lawyers is subject to the SICC’s discretion.21 Any issues on the propriety of foreign representation may be heard by the SICC as a preliminary issue.22 These conditions apply for appeals from the SICC to the Court of Appeal as well.23

 

Foreign law need not be pleaded and proved as fact.24Judges can take judicial notice with the assistance of oral and written submissions.25 However, in handling issues of foreign law, consideration to Singapore’s public policy should be given to the extent that it is applicable and, where relevant, the implications which may be on the resolution of the SICC dispute.26

 

Enforcement Of Judgment

 

Judgments of the SICC, like judgments of the Supreme Court of Singapore, may be enforced through reciprocal enforcement provisions in other jurisdictions.27Suggested improvements include the provision of a model SICC clause waiving the parties’ rights to defend against actions based on SICC judgment in all jurisdictions,28 diplomatic treaties allowing for recognition and enforcement of the SICC judgment and signing-up to the Hague Convention on Choice of Court Agreements (“COC Convention”).29

 

Appeal

 

Appeal from an SICC decision can be made to the Singapore Court of Appeal. The appellate judges will be drawn from the SICC panel of judges.30

 

SICC’s Docket

 

The SICC will have jurisdiction over the following categories of cases31:

 

  1. Where parties consent to use the SICC;
  2. Where there is a contractual clause giving the SICC jurisdiction over issues arising out of the contact; and
  3. When the Chief Justice transfers the cases commenced in the Singapore High Court to the SICC, regardless of the consent of parties.32 The grounds of transfer will be provided either in the Rules of Court or the SICC Rules. Costs of the transferred cases will generally follow the Rules of Court unless the connection with Singapore is not strong.

 

Joinder Of Parties


The SICC may join third parties to the proceedings regardless of the consent of the third parties.33 The SICC will have the power to allow any third party to be joined in the proceedings, irrespective of whether the third party is a party to the SICC agreement.34

 

The procedure outlined in the Supreme Court of Judicature Act (“SCJA”) and the Rules of Court will apply.35

 

Forum Non Conveniens


A proposed change to clarify the law to deal with cases not founded on exclusive jurisdiction agreements is suggested in the Report. At the moment, Singapore’s common law position differs from the position in the COC Convention for consensual jurisdiction.

 

Cases Inappropriate For The SICC


The SICC will have the jurisdiction to hear and determine the appropriateness of the dispute to be heard by the SICC.

 

Potential Implications Of The Scope And Services Of The SICC


The jurisdictional limits of the SICC are the same as the Singapore High Court.36 Given its status as a Singapore Court, these drawbacks are not detrimental, particularly if Singapore law (on which the SICC is largely premised) is the governing law.

 

The ability of the SICC to overcome the identified drawback of arbitration noted above is largely conditional on contractual drafting and diplomatic treaties. For instance, the ability to coerce parties in a multiple-party dispute to a jurisdiction is through the model SICC dispute resolution clause.

 

Similarly, governmental treaties are required for fully effective enforcement in other jurisdictions, but they would likely take considerable time to negotiate. The COC Convention is susceptible to the limitation present in international law on its application to other countries, such as the accession, rectification and acceptance of selected articles of the COC Convention that should apply. Notably, Singapore is not a party to the COC Convention.37

 

Conclusion


It is apparent that considerable time is required before the SICC would surpass its arbitration counterpart as a favoured destination for international commercial dispute resolution. This is largely because the success of the SICC (given its overall constitution) will likely be based on Singapore law being the favoured governing law in Asia (on which the Report of the Singapore International Commercial Court Committee does not comment).

 

Nonetheless, the SICC would fill the gap for “provid[ing] an internationally accepted dispute resolution procedural framework for the resolution of international commercial disputes in accordance with substantive principles of international commercial law.”38 The presence of the SICC may open the door for increased participation of foreign lawyers and adjudicators in the Singapore legal system. This is likely to be highly attractive to Singapore law firms in joint ventures with foreign firms, which are poised to take full advantage of the SICC’s flexibility in catering to the ever-growing market for international commercial dispute resolution in Asia.


End Notes 

1 International Commercial Court Committee Report of the Singapore International Commercial Court Committee (November 2013), at [15].
2 Ibid.
3 Above n1 at [16].
4 Ibid.
5 Ibid.
6 Above n1 at [17].
7 Ibid.
8 Above n1 at [4]
9 Above n1 at [19].
10 Above n1 at [18].
11 Above n1 at [19].
12 Report of the Singapore International Commercial Court Committee, above n1 at [20].
13Above n1 at [31].
14 Ibid.
15 Above n1 at [32].
16 Ibid.
17 Ibid.
18 Above n1 at [4].
19 Above n1 at [39]-[40].
20 Above n1 at [38].
21 Above n1 at [39].
22 Ibid.
23 Above n1 at [40].
24 Above n1 at [34].
25 Ibid.
26 Above n1 at [34]
27 Report of the Singapore International Commercial Court Committee, above n1 at [42].
28 Above n1 at [43].
29 Above n1 at [46].
30 Above n1 at [4].
31 Above n1 at [21].
32 Above n1 at [21(c)].
33 Above n1 at [24].
34 Ibid.
35 Above n1 at [25].
36 Report of the Singapore International Commercial Court Committee, above n1 at [17].
37 Above n1 at [46] – “only Mexico is a party to the COC Convention.”
38 Above n1 at [14].

Duane Morris Selvam LLP

For further information, please contact:

Raghunath Peter Doraisamy, Director, Duane Morris & Selvam
pdoraisamy@selvam.com.sg

Andrew Weiming Lee, Duane Morris & Selvam
alee@selvam.com.sg

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