http://www.jdsupra.com/legalnews/singapore-launches-international-commerc-85681/
The Singapore International Commercial Court (the SICC) was officially launched on 5 January 2015 at the Opening of the Singapore Legal Year. One of the express objectives of the SICC is “to further boost Singapore’s value as a leading forum for legal services and international commercial dispute resolution, offering litigants the option of having their disputes adjudicated by a panel of experienced judges comprising specialist commercial judges from Singapore and international judges from both civil law and common law traditions”, hence bolstering Singapore’s efforts to position itself as an Asian dispute resolution hub.
Pursuant to a consultation process carried out by the SICC Committee appointed by the Minister for Law, a suggested framework was set out and subsequently adopted in the form of Parliamentary amendments to Singapore legislation. The key legislative changes required to establish the SICC are reflected in amendments made to the Singapore Supreme Court of Judicature Act (Chapter 322), the Legal Profession Act (Chapter 161) and the Singapore Rules of Court.
Effects of the key legislative changes
Constitutionally, the SICC is a division of the Singapore High Court and part of the Supreme Court of Singapore. Even though it is a division of the Singapore High Court, the SICC’s jurisdiction and procedures differ markedly from normal proceedings before the Singapore High Court.
First and foremost, the SICC’s jurisdiction extends to cases in which the relevant dispute fulfills the following requirements:
the claims made are “of an international and commercial nature”
each party has submitted to the SICC’s jurisdiction under a written agreement and
the parties do not seek any relief in the form of a prerogative order (e.g., a judicial review-type remedy).
Notwithstanding the above criteria, the SICC may decline to assume jurisdiction in an action if it is deemed “not appropriate” for the action to be heard in the SICC. Equally, on the application of a party, or on the High Court’s own motion, an action commenced in the High Court may be transferred to the SICC if it is deemed “more appropriate” for the case to be heard in the SICC. There is no published guidance on how the SICC and the High Court will determine when it is or is not appropriate for them to assume (or decline) jurisdiction; this presumably will be clarified only in due course by judicial decision-making.
In addition to determination of whether a case is “international”, certain cases will also be classified as “offshore cases” which, broadly speaking, are those with “no substantial connection” to Singapore. In such cases, parties may be represented by foreign counsel provided that such counsel are registered as foreign lawyers under Singapore’s Legal Profession Act. Examples of cases with no substantial connection to Singapore are those in which Singapore law is not applicable to the dispute in any respect, or where the only connection between the dispute and Singapore is the parties’ choice of Singapore law as the applicable law.
As with the notion of “appropriateness”, the “substantial connection” test will require clarification and refinement by judicial decision making. That said, the SICC’s Practice Directions provide some examples of factors which, in themselves, would not be sufficient to show a substantial connection, including:
that witnesses, documents and funds relevant to the dispute are located in Singapore
that one of the parties has property in Singapore provided it is not the subject matter of the dispute or
that one of the parties is a Singapore party, or is a foreign party with Singapore shareholders.[1]
When questions of foreign (i.e., non-Singapore) law arise in SICC proceedings (which normally would be treated as matters of fact requiring expert evidence), the SICC may determine these issues on the basis of legal submissions alone. This is unusual for Singapore court practice and more in line with modern international arbitration practice. This is, however, subject to the proviso that the SICC is satisfied that all parties are represented by counsel who are competent to make such submissions.
Another departure from ordinary Singapore court arrangements is the fact that the SICC’s bench comprises current and former judges of the Singapore Supreme Court as well as eleven “International Judges”, as of the date of this article, appointed from other countries – from both common law and civil law traditions.[i]
Comment
The establishment of the SICC was partly driven by concerns that certain modern practices in international arbitration have not been serving parties’ best interests. In recent years, international arbitration has been criticised for delays, doctrinal adherence to internationally-accepted procedures that are sometimes unnecessary, inconsistent decision-making and broader concerns regarding a perceived legitimacy deficit. The SICC has thus been conceptualised by the Singapore judiciary as an alternative forum for dispute resolution for those parties attracted by what the SICC can offer: the SICC’s prestigious bench of judges, freedom to develop its own jurisprudence, and the potential for appeals to the Singapore Court of Appeal. These aspects of the SICC may be attractive for parties with concerns, rightly or wrongly, about the rigour and consistency of other forms of dispute resolution.
That said, the SICC does currently suffer from some drawbacks. The most significant is the limited portability of an SICC judgment in Asia, where cross-border enforcement of domestic court judgments remains a rare event and an arduous process. This is in contrast with international arbitration in Asia, whose strongest selling point is the prospect that the arbitral award will be enforceable in other jurisdictions where the New York Convention applies. Until there is a similar treaty in place for the enforcement of SICC judgments in Asia – a prospect that is likely to face considerable resistance – parties are best advised to approach the prospect of recourse to the SICC only if they have a reasonable prospect of enforcing outcomes in jurisdictions of relevance.
This is not to say, however, that these current difficulties will always remain. Even now, Singapore is understood to be actively pursuing mutual recognition and enforcement arrangements with the European Union, and the Hague Choice of Court Convention could substantially improve the prospects for cross-border enforcement of SICC judgments (as well as those of other courts chosen by the parties) if and when it comes into force.
Finally, in terms of costs, for cases at the SICC heard before a single judge the SICC’s court fees will often be broadly comparable to those of the Singapore High Court. However, we understand that the SICC’s court fees for cases heard by a three-member bench are substantially higher than ordinary High Court fees, and in some instances may not be that far apart from arbitration costs.
Conclusion
The SICC is likely best seen as an alternative dispute resolution forum, alongside other options, such as the Singapore International Arbitration Centre, the Singapore International Mediation Centre, and the Singapore Chamber of Maritime Arbitration, all of which form part of the country’s sophisticated dispute resolution architecture. In its initial stages, the most probable outcome is that the SICC will be presiding over cases referred from the Singapore High Court. We understand that, as of the date of this article, there is already at least one pending application for transfer of a Singapore High Court case to the SICC. Until parties are convinced that the SICC represents a source of final, conclusive and, most importantly, enforceable resolution to their disputes, it may be that parties in Singapore, and South East Asia more broadly, will continue with the present norm of international arbitration.
[1] The SICC’s Practice Directions also give the following examples of where the subject matter of the dispute would be considered regulated by or otherwise subject to Singapore law: a dispute over the sale of shares in a Singapore incorporated company, notwithstanding that the share purchase agreement was governed by a different national law; a dispute over the transfer of land in Singapore, notwithstanding that the sale contract was governed by a different national law; and a dispute under a shareholders’ agreement governed by non-Singapore law, where the dispute relates to the use of a patent registered in Singapore.
[i] The complete list of judges currently assigned to the SICC is as follows: the Honourable the Chief Justice Sundaresh Menon; Justice Chao Hick Tin, Judge of Appeal Justice Andrew Phang Boon Leong, Judge of Appeal; Justice Chan Sek Keong, Senior Judge; Justice Judith Prakash, High Court Judge; Justice Choo Han Teck, High Court Judge; Justice Belinda Ang Saw Ean, High Court Judge; Justice Woo Bih Li, High Court Judge; Justice Tay Yong Kwang, High Court Judge; Justice Lee Seiu Kin, High Court Judge; Justice Chan Seng Onn, High Court Judge; Justice Quentin Loh Sze-On, High Court Judge; Justice Steven Chong, High Court Judge; Justice Vinodh Coomaraswamy, High Court Judge; Ms Carolyn Berger, International Judge; Justice Patricia Bergin, International Judge; Mr Roger Giles, International Judge; Dr Irmgard Griss, International Judge; Justice Dominique T. Hascher, International Judge; Mr Dyson Heydon AC Q.C. , International Judge; Sir Vivian Ramsey, International Judge; Anselmo Reyes, International Judge; the Rt Hon Sir Bernard Rix, International Judge; Professor Yasuhei Taniguchi, International Judge; and Mr Simon Thorley Q.C., International Judge.
Written by:
DLA Piper
