International Commercial Dispute Resolution: The Singapore International Commercial Court.

21 April 2016

Swee Siang Boey, Jonathan Choo, Navin Joseph Lobo

Bird & Bird & First for Disputes

“With its strong regional and international outlook, Singapore will continue to serve well as a forum of choice.” 

Singapore: A Forum of Choice

Singapore now offers a full range of fora for international dispute resolution in all forms, including the:

  • Singapore International Arbitration Centre;
  • Singapore International Mediation Centre; and
  • Recently launched Singapore International Commercial Court ("SICC").

The emergence and growth of these institutions is indicative of how Singapore has come into its own as a favoured location of choice for the resolution of international disputes, alongside the likes of London and Hong Kong. This owes much to Singapore's sterling reputation for its independence and neutrality, competent judiciary and strong tradition of the rule of law. Moreover, Singapore is strategically situated at a crossroads in South East Asia, providing efficient access to the immediate region, in addition to East Asia, South Asia and Australia. It is also a multicultural and cosmopolitan city which sports excellent infrastructure and language fluency, and has been ranked consistently as a top economy for ease of doing business.

The Singapore advantage has been thrown into sharp relief by recent international developments. Some of these include the recent establishment of the ASEAN Economic Community, the continued rise of foreign investment in Asia and the impending ratification of the Trans-Pacific Partnership by its signatories. The foregoing will correspond with the increased need for the proficient resolution of international commercial disputes. With its strong regional and international outlook, Singapore will continue to serve well as a forum of choice.


Key Features of the SICC

The SICC was opened by the Honourable the Chief Justice Sundaresh Menon at the beginning of the 2015 Singapore legal year on 5 January 2015.

Menon CJ noted that the setting up of SICC was driven primarily by two considerations:

  • The recognition that the increase in commercial activity (and therefore commercial disputes) in Asia has given rise to the corresponding need for institutions capable of swift, efficient, and predictable dispute resolution; and
  • The desire to promote Singapore as a centre for resolution of commercial disputes by offering an entire suite of options.

In line with the latter, the November 2013 Report of the SICC Committee (the "Committee Report") highlights the following strengths of the SICC to complement Singapore's offerings in international arbitration and mediation:

  • The coercive jurisdiction of a court, which may be useful in multi-party disputes;
  • Jurisdiction over a broader range of issues than may be available under other forms of dispute resolution; and
  • Effectiveness of enforceability over a broader range of jurisdictions than may be available under other forms of dispute resolution.

The following are key features of the SICC.


Jurisdiction

The SICC may hear and try any cases that the High Court of Singapore can, if:

  1. The claims between the parties are of an international and commercial nature;
  2. The parties named in the action when it was first brought have submitted to the SICC's jurisdiction under a written jurisdiction agreement; and
  3. The parties do not seek any relief in the form of prerogative orders (e.g. a mandatory, prohibiting or quashing order).

The Singapore Rules of Court non-exhaustively provide for when a claim may be considered to be of an "international" or "commercial" nature. 

Parties to a dispute can enter into an agreement to submit to the jurisdiction of the SICC at any time, including after a dispute has arisen. Parties may also agree on additional requirements to govern the resolution of their dispute before the SICC, for example, limiting or excluding their rights of appeal against the SICC judgment. The SICC has made available a list of Model Clauses to assist prospective litigants in drafting their agreements.

Where the parties agree in writing to submit to the jurisdiction of the SICC, the SICC cannot decline to assume jurisdiction in an action solely on the ground that the dispute between the parties is connected to a jurisdiction other than Singapore.


Foreign Representation

Foreign lawyers (i.e. lawyers not called to the Singapore Bar) may represent parties before the SICC. This predominantly occurs where the case before the SICC is an "offshore case", legally defined as an action that has no substantial connection with Singapore, and is not an action in rem (against a ship or any other property) under domestic admiralty statutes.

An action has no substantial connection to Singapore where:

  1. Singapore law does not govern or apply to the matter, or 
  2. The only connection between the dispute and Singapore are the parties’ choice of Singapore law as the applicable law to the dispute and the parties’ submission to the SICC’s jurisdiction.

Cases which do not qualify as "offshore cases" will be conducted by local counsel as if the matter were before the High Court of Singapore. However, foreign lawyers may still make submissions for a party on questions of foreign law with the permission of the SICC. 

Foreign lawyers have to be registered under the domestic Legal Profession Act and undertake to comply with local regulations and requirements in order to represent parties in proceedings before the SICC.


Confidentiality Orders

The SICC may make the following Confidentiality Orders:

  1. That the case be heard in private;
  2. That no person must reveal or publish any information or document relating to the case;  and (i.e. a gagging or suppression order); or
  3. That the SICC Court file be sealed.

The SICC will consider whether the parties had agreed to the making of such an order, and whether the case is an "offshore case" when deciding whether or not to make a Confidentiality Order. An "offshore case" may more likely be subject to a Confidentiality Order, given that it would not ordinarily be a matter that is of Singapore's domestic public interest.


Pre-Action Certificate

While not required for the commencement of an action, a Pre-Action Certificate is a helpful document that may be applied for by a party, or jointly by all parties, to obtain an early indication from the SICC that:

  1. The intended action is of an "international and commercial nature";
  2. It is an "offshore case"; and 
  3. There should be Confidentiality Orders in the intended action.

A Pre-Action Certificate is conclusive as to the matters specified only if, within 6 months after the date it is granted, the Certificate is exhibited by the relevant parties in the requisite documents to be filed in the action commenced in the SICC.

Certification that the action is of an "international and commercial nature" is relevant to establishing the SICC's jurisdiction, while certification that it is an "offshore case" is relevant for obtaining foreign representation and applying for Confidentiality Orders.


Disapplication of Singapore's Law of Evidence

The SICC is not bound to use Singapore's law of evidence. Parties may by agreement apply to the SICC to substitute Singapore's rules of evidence with other rules of evidence. "Rules of evidence" are legally defined as including any rule of law relating to legal professional privilege or the taking of evidence.


Adjudicators

Cases brought to the SICC will be heard by existing judges of the Supreme Court of Singapore, as well as by two other categories of Judges, namely Senior Judges (comprising of retired Judges of the Supreme Court of Singapore who are reappointed to hear SICC cases) and International Judges (consisting of renowned international jurists who are specifically appointed to hear cases in the SICC).

The current SICC International Judges are set out in the attached Schedule.


Enforcement and Appeals

The SICC operates as part of the Supreme Court of Singapore and is a division of the High Court of Singapore.

Any SICC judgment may therefore be enforced in Singapore in the same manner as a judgment of the High Court of Singapore. In the case where an SICC judgment is to be enforced in a foreign jurisdiction, the rules pertaining to such enforcement are no different from those pertaining to the enforcement of a judgment from the High Court of Singapore, or, generally, a judgment of a superior court from other jurisdictions.

Owing to the SICC's status as a division of the High Court of Singapore, any appeal from a judgment or order of the SICC will be heard by the Court of Appeal of Singapore. 


Schedule

  • The Honourable Justice Carolyn Berger, formerly Justice of the Supreme Court of Delaware, Vice-Chancellor of the Delaware Court of Chancery and Deputy Attorney General, State of Delaware;
  • The Honourable Justice Patricia Bergin SC, Chief Judge in Equity and additional Judge of Appeal of the Supreme Court of New South Wales;
  • The Honourable Justice Roger Giles QC, former Judge of the Court of Appeal of the Supreme Court of New South Wales and currently Judge of the Dubai International Financial Centre Courts;
  • The Honourable Justice Irmgard Griss, former President of the Austrian Supreme Court, and currently Deputy Member of the Austrian Constitutional Court and Speaker of the Senate of the European Law Institute;
  • The Honourable Justice Dominique Hascher, Judge of the Supreme Judicial Court of France;
  • The Honourable Justice Dyson Heydon AC QC, former Judge of the High Court of Australia;
  • The Honourable Justice Sir Vivian Ramsey, former Judge of the High Court of England and Wales and Judge in charge of the Technology and Construction Court;
  • The Honourable Justice Anselmo Reyes, former Judge of the Court of First Instance in Hong Kong and Judge in charge of the Construction and Arbitration List as well as the Commercial and Admiralty List;
  • The Honourable Justice Sir Bernard Rix, former Judge in charge of the Commercial Court of London and subsequently Lord Justice of Appeal in the Court of Appeal of England and Wales until his retirement in 2013;
  • The Honourable Justice Yasuhei Taniguchi, Professor Emeritus at Kyoto University and formerly Chairman and Member of the Appellate Body of the World Trade Organization;
  • The Honourable Justice Simon Thorley QC, a specialist in intellectual property law and former Deputy High Court Judge of England and Wales and Deputy Chairman of the Copyright Tribunal of the UK; and
  • The Honourable Justice Henry Bernard Eder QC, former Judge of the High Court of England and Wales 


Authors

Boey-Swee Siang

Swee Siang Boey

Partner
Singapore

Call me on: +65 6534 5266
Jonathan Choo

Jonathan Choo

Partner
Singapore

Call me on: +65 6534 5266
Lobo-Navin Joseph

Navin Joseph Lobo

Partner
Singapore

Call me on: +65 6534 5266