On 5 January 2015, the Minister of Law K Shanmugan and Chief Justice Sundaresh Menon officially launched the new Singapore International Commercial Court (SICC), following the Opening of the Legal Year.

The SICC will decide global commercial cases and is part of the plan to position Singapore as Asia’s dispute resolution hub, which includes the Singapore International Arbitration Centre, established in 1991, and the Singapore International Mediation Centre, launched in November last year.

The establishment of an international commercial court will build upon and complement the success of Singapore’s vibrant arbitration sector, and allow the country’s judicial institutions and legal profession to serve the regional and the global business community.

To realise these aims, recent collaborative steps have been taken by Singapore’s Supreme Court, Ministry of Law, the Attorney General and the local bar.

  • The launch of the SICC was preceded by two public consultations held between 3 December 2013 and 31 January 2014, and 8 and 30 April 2014, and the introduction of several Bills in Parliament (which were recently passed by Parliament on 4 November 2014) to facilitate the establishment of the SICC. The relevant Acts are: the Constitution of the Republic of Singapore (Amendment) Act 2014, the Supreme Court of Judicature (Amendment) Act 2014, and the Legal Profession (Amendment) Act 2014.
  • During the launch of the SICC, the Chief Justice announced the appointment of eminent Judges who will hear international commercial disputes. They will include an inaugural panel of 11 International Judges, and retired Chief Justice Chan Sek Keong, who was appointed to serve as a Senior Judge by the President.
  • The Singapore Rules of Court have also been revised and new practices and procedures established to provide attractive features to international users, which complement existing arbitration services and broaden the suite of dispute resolution options that are available.

 

Panel of Judges

On 5 January 2015, the President appointed a group of eminent Judges who are experts in commercial law. They will complement and work alongside Singapore’s current Bench in deciding cases before the SICC.

This panel of Judges comprise 11 International Judges who hail from diverse geographical backgrounds and both the civil and common law traditions. Some of them continue to serve as judges in their own jurisdictions.

Singapore’s retired Chief Justice Chan Sek Keong was also appointed as a Senior Judge, and will sit as an occasional member of the Court of Appeal on appeals from the SICC. He may also sit in the SICC should the Chief Justice require this.

The Chief Justice announced the inaugural panel of 11 International Judges during the launch of the SICC. The names and titles of the participating judges, and the jurisdictions in which they reside, are as follows:

  1. Carolyn Berger, former judge of the Delaware Supreme Court and vice chancellor of the Delaware Court of Chancery (United States).
  2. Patricia Bergin, chief judge of the Supreme Court of New South Wales (Australia).
  3. Roger Giles QC, former judge of the Court of Appeal of the Supreme Court of New South Wales and judge of the Dubai International Financial Centre Courts (Australia).
  4. Irmgard Griss, former president of the Austrian Supreme Court (Austria).
  5. Dominique Hascher, judge of the French Supreme Court (France).
  6. Dyson Heydon AC QC, former judge of the High Court of Australia and the New South Wales Court of Appeal (Australia).
  7. Sir Vivian Ramsey, former judge of the High Court and judge in charge of the Technology and Construction Court (England and Wales).
  8. Anselmo Reyes, former judge of the Court of First Instance in Hong Kong, in charge of the construction and arbitration list and the commercial and admiralty list (Hong Kong).
  9. Sir Bernard Rix, former judge in charge of the Commercial Court and Lord Justice of Appeal in the Court of Appeal (England and Wales).
  10. Yasuhei Taniguchi, former chairman of the Appellate Body of the World Trade Organization Dispute Settlement Body and professor emeritus at Tokyo University (Japan).
  11. Simon Thorley QC, IP law specialist and former deputy High Court judge and deputy chairman of the Copyright Tribunal (England and Wales).

 

Features of the Singapore International Commercial Court

The recent legislative developments have laid the foundation for the establishment of the SICC, and will be facilitated by the subsequent introduction of tailored rules of court and practice directions.

These rules and practice directions, which came into operation on 1 January 2015, have been specifically formulated for the SICC and will provide the supporting framework required for the SICC to hear cross-border commercial disputes, including those governed by foreign law. The intention is clearly for the SICC to operate according to practices and procedures that have a familiar feel to international practitioners.

A summary of the key features of the practices and procedures governing the SICC is set out below.

Jurisdiction – The SICC enjoys jurisdiction to hear cases that can be heard by the Singapore High Court, including those governed by foreign law, if the claims are of an international and commercial nature, the parties have submitted to the court’s jurisdiction under a written jurisdiction agreement, and the parties do not seek any relief in the form of prerogative orders, such as mandatory orders, prohibiting orders, quashing orders, or an order for review of detention.

International and commercial cases are broadly defined. Obvious instances of cases of an international and commercial nature include those whereby the parties have their places of business in different States or outside of Singapore, and where the subject matter of the claim arises from a commercial relationship such as a trade transaction for the supply or exchange of goods/services and such other commercial endeavours, respectively. However, a case will also be of an international nature sufficient for the SICC to exercise jurisdiction where, even though the parties’ respective businesses are situated in Singapore, the parties expressly agree that the subject matter of the claim relates to more than one State.

Joinder of third parties – The SICC has the power to join third parties to an action, even if the third parties are not parties to a written jurisdiction agreement and do not consent to being joined as a party. This provides the SICC with a key advantage over arbitration where the Tribunal’s jurisdiction is limited to the parties to the arbitration agreement.

Foreign legal representation – In view of the international nature of the SICC, parties may be represented by foreign lawyers in global commercial cases which have no substantial connection to Singapore (also known as “offshore cases”), as well as in cases where the subject matter or issues in dispute give rise to questions of foreign law.

To facilitate this, the Legal Profession (Amendment) Act 2014 provides for two forms of registration:

  1. First, full registration, which allows a foreign lawyer to appear and act in proceedings before the SICC and appeals from the SICC in certain cases; and
  2. Second, restricted registration, which allows a foreign lawyer to appear and act solely for the purposes of making submissions on matters of foreign law in the specific case permitted by the SICC.

Laws of Evidence and Foreign Law – Parties may apply to the SICC to exclude the application of Singapore’s laws of evidence. Therefore, cases before the SICC will not be bound by the rules of evidence that are applicable under Singapore law. Instead, as with arbitration, the SICC may allow parties to choose to apply alternative rules of evidence, with which they may be more familiar.

In addition, the SICC may, upon the application of a party, order that any question of foreign law be determined on the basis of submissions (which may be oral or written or both) and need not be pleaded and proved as fact in proceedings before the SICC. Before making such an order, the SICC must be satisfied that all parties are or will be represented by counsel who are competent to submit on the relevant questions of foreign law.

Confidentiality of Proceedings – Proceedings will generally take place in an open court, but parties will have the option to apply for the proceedings to be heard confidentially. In deciding to make a confidentiality order, the SICC will take into account whether: (i) the case is an offshore case (i.e., a global commercial case which has no substantial connection to Singapore); and (ii) there is an agreement between the parties on the making of such an order.

Appeal – Decisions of the SICC may be appealed to the Singapore Court of Appeal, although parties will be allowed to contractually exclude or limit this right of appeal. If the parties agree in writing to waive, limit or vary the right to appeal against any judgment or order of the SICC, then an appeal may be brought only to the extent as agreed between the parties. If the parties agree in writing that there shall be no appeal against any judgment or order of the SICC, then such a judgment or order shall be binding on the parties.

Enforcement – The SICC will be established as a division of the High Court. This will enable its judgments to be enforceable as judgments of the Supreme Court of Singapore.

With regard to the enforcement of SICC judgments, unlike international arbitral awards that are enforceable by way of the New York Convention, judgments of the SICC have the status of national court judgments and their enforceability are dependent on the principles governing the recognition of foreign judgments in the relevant jurisdiction.This is arguably one of the disadvantages that a SICC judgment will have as compared to an arbitral award.

It is perhaps to address this key issue that the Supreme Court of Judicature (Amendment) Act 2014 stipulates that the parties who have agreed to submit to the jurisdiction of the SICC shall, unless expressly stated otherwise, also be considered to have agreed:

  1. to submit to the exclusive jurisdiction of the SICC;
  2. to carry out any SICC judgment without undue delay; and
  3. to waive any recourse to any court or tribunal outside Singapore against any SICC judgment and the enforcement of such a judgment.

Costs – Similar to hearings in the High Court, the parties are required to pay fixed fees (i.e., court fees, hearing fees and deposits) for commencing and pursuing actions in the SICC. The fees will apply for:

  1. cases commenced in the SICC;
  2. cases commenced in the SICC and subsequently transferred to the High Court (unless the SICC orders otherwise);
  3. cases commenced in the High Court and subsequently transferred to the SICC (unless the High Court orders otherwise);
  4. an appeal from a judgment or an order of the SICC in relation to an appeal from the above cases; and
  5. an application to the Court of Appeal in relation to an appeal from the above cases.

The fees that are payable for proceedings in the SICC are set out in the Schedule of Fees contained in Order 110, Rules 47 to 48, and are similar to the fees for proceedings in the High Court. As such, the fees for proceedings in the SICC are still relatively lower than that for commencing and pursuing arbitration in the Singapore International Arbitration Centre.

 

Concluding Remarks

Launched on 5 January 2015, the SICC is designed to provide commercial parties with a comprehensive suite of dispute resolution services.

The SICC will complement mediation at the recently established Singapore International Mediation Centre and arbitration at the Singapore International Arbitration Centre – it will offer adjudication by a court rather than a mediator or tribunal, will be able to join third parties to proceedings (even without their consent and even if they are not present in Singapore), and will also permit parties access to an appeal process.

The appointment of a panel of eminent Judges will ensure that the SICC is supported by a world-class Bench with extensive expertise in commercial law. The 11 International Judges from diverse jurisdictions and backgrounds will also have a keen appreciation for international jurisprudence from which they will be able to contribute to the internationalisation of Singapore law and Singapore legal services.

The recent legislative developments and introduction of user-centric rules and practice directions will also help to strengthen the framework required for the SICC to hear cross-border commercial disputes, including those governed by foreign law. This will help to make the SICC a more attractive option to foreign parties where the cases or disputes have little or no connection to Singapore.

The SICC, alongside the Singapore International Mediation Centre, will provide the full spectrum of avenues for parties to resolve their commercial disputes and is designed to build upon Singapore’s trusted hub status to position it as a neutral third-party venue for dispute resolution.

We are optimistic that in view of the significant consideration given to the SICC, as well as the support from key stakeholders including the Ministry of Law, Singapore will be able to make an important contribution to the global market in providing more options for international commercial dispute resolution.

 

By Leng Sun Chan SC, Andy Leck, Nandakumar Ponniya, Celeste Ang and Adam Giam.

 

©2015 Baker & McKenzie. All rights reserved. Baker & McKenzie.Wong & Leow is a member of Baker & McKenzie International, a Swiss Verein with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a “partner” means a person who is a partner, or equivalent, in such a law firm. Similarly, reference to an “office” means an office of any such law firm.

This may qualify as “Attorney Advertising” requiring notice in some jurisdictions. Prior results do not guarantee a similar outcome.