Jurisdiction - Singapore
Reports and Analysis
Singapore – What You Should Know About The International Commercial Court.

16 January, 2015

 

Legal News & Analysis – Asia Pacific – Singapore  Dispute Resolution

 

Introduction


Since the development of the Singapore International Commercial Court (“SICC”) was announced by Chief Justice Sundaresh Menon in 2013, the legal industry has been eagerly anticipating the realisation of this groundbreaking dispute resolution facility. On 5 January 2015, the SICC was officially launched at the Singapore Supreme Court.


The SICC is set to become a vital component of Singapore’s rapid advancement as the regional dispute resolution hub of choice in Asia, functioning alongside complementary institutions like the Singapore International Arbitration Centre and the Singapore International Mediation Centre. Building on Singapore’s reputation of strong legal infrastructure, the SICC provides a novel option for the submission of cross-boundary commercial disputes.


As a new institution, the rules and functions of the SICC are still somewhat fresh to the business community. Apart from the Rules of Court, the procedural guidelines for the SICC can be found in the SICC Practice Directions, which took effect on 1 January 2015, as well as in the newly introduced SICC User Guides.


In this Update, we take a look at the pertinent features of the SICC, as well as what parties should know about dispute resolution before the SICC.

Jurisdiction


The SICC is intended to match the advantages of the Singapore legal system with the requirements of transnational business disputes. Thus, the SICC is a division of the Singapore High Court, with international jurists serving alongside the existing High Court judges.


In keeping with these aims, the SICC will deal with disputes of a commercial and international nature, where:


(i) Parties have consented to use the SICC post-dispute;


(ii) Cases which have already been filed with the Singapore High Court are transferred to the SICC; and


(iii) Parties are not seeking relief in the form of a prerogative order, which is an order through which the Court exercises its supervisory jurisdiction, including mandatory, prohibiting and quashing orders.


The SICC has a firmly international slant, and it is unlikely that disputes that are merely domestic (as well as non-commercial disputes) will be accepted before the SICC. The rules thus provide some guidance as to when a claim may be considered international in nature, such as in the following instances:


(i) The parties have their place of business in different states and agree to submit the claim for resolution by the SICC;


(ii) None of the parties have their places of business in Singapore;


(iii) The place where a substantial part of the obligations are to be performed, or with which the subject matter of the dispute is most closely connected, is situated outside any state that any of the parties have their place of business; or


(iv) The parties have agreed that the subject matter of the dispute relates to more than one state.

 

Foreign Representation


Another pertinent feature of the SICC is that it allows for foreign lawyers to represent the parties in certain instances. Generally, only lawyers qualified to practice in Singapore can appear before the Singapore Courts. However, the SICC – in light of its international slant – has carved out some exceptions.


The main category of cases where foreign lawyers are allowed to represent the parties is offshore cases. This is essentially a claim that has no substantial connection to Singapore, meaning that:


(i) Singapore law is not the law applicable to the dispute or the law regulating the subject matter; or


(ii) The only connection between Singapore and the dispute is the parties’ choice of Singapore law as the law applicable to the dispute and the parties’ submission to the jurisdiction of the SICC.


Parties may also be represented by foreign lawyers in situations where a question of foreign law is to be determined, though the foreign lawyer’s submissions must be confined to the question of foreign law.


Procedure


Since the SICC is a division of the Court rather than an arbitral institute, it follows a more defined procedural framework than that of arbitration. The detailed guidelines relating to procedural matters can be found in the Rules of Court and in the SICC Practice Directions.
A notable aspect of the SICC procedure is that of discovery. Unlike in regular Court proceedings, where all relevant documents within the party’s possession must be produced, the SICC procedure only requires each party to produce documents on which it will rely. This could potentially reduce the scope of discovery by a significant extent.


However, it should also be noted that parties can still request the production of certain documents, provided it can explain why such documents are relevant and material to its case, as well as its belief that the documents are in the other party’s possession.
Another interesting feature of the SICC procedure is the pre-action certificate, through which parties can approach the Court for an early conclusive decision on certain matters, such as:


(i) Whether the claim is of a commercial and international nature;


(ii) Whether the action is an offshore case; and


(iii) Whether there should be confidentiality orders.


This allows parties to determine important questions upfront before even commencing proceedings, thus saving time and costs.


Judgments And Appeals


Judgments from the SICC function much as any other judgment from the Singapore Courts. Where a judgment of the SICC is to be enforced in Singapore, it may be enforced in accordance with the Rules of Court, thus cutting down on the extra step of having the award or judgment recognised in Singapore and dealing with any of the related challenges to validity.


Parties who are dissatisfied with their SICC judgments have the option of bringing the case on appeal directly to the Court of Appeal. However, the SICC also allows for the option of restricting the right to appeal through prior agreement. Therefore, if the parties have agreed in writing that there will be no appeal from the SICC decision, or a limited right of appeal, they will be held to such agreement. This is a significant departure from the regular conduct of proceedings before the Singapore Court, where agreements to restrict the right to appeal are not recognised, thus providing a degree of flexibility to parties who are considering lodging a claim.


Concluding Words


The launch of the SICC is truly a significant milestone in the development of Singapore’s legal infrastructure, further paving the way towards establishing Singapore as a regional hub for the resolution of transnational commercial disputes. It represents a unique and original avenue for legal action well matched to the needs of the times.


As the SICC is still in its early days, the legal community will be closely watching the proceedings and decisions emerging from its ranks. Nonetheless, the guidance provided by the Courts will be helpful in understanding the features of the SICC, whether to commence claims before the SICC, as well as how to navigate SICC proceedings.


The full SICC Practice Directions can be found here, while the User Guides can be found here.

 

Rajah & Tann

 

For further information, please contact:

 

Paul Tan, Partner, Rajah & Tann
paul.tan@rajahtann.com


Mark Cheng, Partner, Rajah & Tann
mark.cheng@rajahtann.com


Adrian Wong, Partner,  Rajah & Tann
adrian.wong@rajahtann.com


Ian Teo, Partner,  Rajah & Tann
ian.teo@rajahtann.com

 

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