The Singapore International Commercial Court: The Future of Litigation?

The Singapore International Commercial
Court: The Future of Litigation?

Man Yip*
Abstract International Financial Centre Courts (DIFCC)2 were

established in 2004 to cater to the resolution of civil and
The Singapore International Commercial Court (‘SICC’) was commercial disputes arising from the special economic
launched on 5 January 2015, at the Opening of Legal Year zone, the Dubai International Financial Centre.3 But the
held at the Singapore Supreme Court. What prompted the SICC is indubitably the first of its kind. It was not cre-
creation of SICC? How is the SICC model of litigation differ- ated to foster investor confidence by providing for a
ent from litigation in the Singapore High Court? What is the completely different system of administration of justice
SICC’s track record and what does it tell us about its future? from the indigenous legal system. On the contrary, the
This article seeks to answer these questions at greater depth SICC was established on the foundation of a mature and
than existing literature. Importantly, it examines these ques- established legal system that investors already have con-
tions from the angle of reimagining access of justice for liti- fidence in. It was set in operation before the plans for
gants embroiled in international commercial disputes. It establishing the international commercial courts in vari-
argues that the SICC’s enduring contribution to improving ous European countries and China were formulated.
access to justice is that it helps to change our frame of refer- What prompted the creation of SICC? How is the SICC
ence for international commercial litigation. Hybridisation, model of litigation different from litigation in the Singa-
internationalisation, and party autonomy, the underpinning pore High Court? What is the SICC’s track record, and
values of the SICC, are likely to be the values of the future what does it tell us about its future?
of dispute resolution. International commercial dispute reso- This article seeks to answer these questions in greater
lution frameworks – typically litigation frameworks – that depth than does the existing literature. Importantly, it
unduly emphasise national boundaries and formalities need examines these questions from the angle of reimagining
82
not and should not be the norm. Crucially, the SICC co-opts access to justice for litigants embroiled in international
a refreshing public-private perspective to the resolution of commercial disputes. It argues that the SICC’s enduring
international commercial disputes. It illuminates on the pub- contribution to improving access to justice is that it
lic interest element of the resolution of such disputes which helps to change our frame of reference for international
have for some time fallen into the domain of international commercial litigation. Hybridisation, internationalisa-
commercial arbitration; at the same time, it introduces tion and party autonomy, the underpinning values of
greater scope for self-determination in international com- the SICC, are likely to be the values of the future of
mercial litigation. dispute resolution. International commercial dispute
resolution frameworks – typically litigation frame-
Keywords: international commercial court, Singapore, works – that unduly emphasise national boundaries and
dispute resolution, litigation formalities need not and should not be the norm. Cru-
cially, the SICC co-opts a refreshing public–private per-
spective to the resolution of international commercial
1 Introduction disputes. It illuminates the public interest element of
the resolution of such disputes which have for some
The Singapore International Commercial Court (SICC) time fallen into the domain of international commercial
was launched on 5 January 2015 at the Opening of Legal arbitration; at the same time, it introduces a greater
Year, held at the Singapore Supreme Court, before a scope for self-determination in international commercial
curious audience comprising both local and foreign law- litigation.
yers.1 The SICC is not the first international commer- The discussion comprises four main parts. The first
cial court that the world has seen. The famous Dubai part (Section 2) analyses the reasons for creating a Sin-
gaporean model of international commercial court at
different levels: national interests, regional needs and
2. Dubai International Financial Centre Courts, ‘About the DIFC Courts’,

* Man Yip, BCL (Oxon), [email protected] This article analyses the available at: https://www.difccourts.ae/about-courts/ (last visited
SICC regime based on the legislative rules as of 1 November 2018. 8 February 2019).
1. A. See and M. Yip, ‘Opening of Legal Year 2015: A Year for Pushing 3. The DIFCC’s jurisdiction has expanded since to include jurisdiction in
Boundaries’, Singapore Law Blog, 6 January 2015, available at: http:// cases where parties have by written agreement submitted their disputes
www.singaporelawblog.sg/blog/article/75 (last visited 8 February to the DIFCC, even if such disputes did not arise from activities in the
2019). Dubai International Financial Centre.
ELR September 2019 | No. 1 - doi: 10.5553/ELR.000109

public interests. The second part (Section 3) discusses come as no surprise that investing in the expansion of
the salient features of the SICC litigation framework, the legal services industry – including the dispute reso-
highlighting the innovations in relation to jurisdiction, lution services subsector – would be a natural move to
procedures, panel of judges, and foreign legal experts’ make. Nor was it coincidental that the Singapore Inter-
participation. The third part (Section 4) critically exam- national Mediation Centre (SIMC) and its training arm,
ines the judgments handed down by the SICC to date to the Singapore International Mediation Institute (SIMI),
extract emerging patterns. The final part (Section 5) were launched in 2014. With a booming arbitration
discusses two potential challenges that the SICC faces: business sector helmed by the successful Singapore
competition from the Chinese international commercial International Arbitration Centre (SIAC),6 the obvious
courts and the international enforceability of Singapore initiative to take up would be invigorating the litigation
judgments. services subsector. Singapore was gearing up to become
the leading one-stop shop for dispute resolution. The
SICC, the SIAC and the SIMC (in tandem with the
SIMI) are the hallmarks of the nation’s three-pronged
2 The Reasons for the strategy to become a premium dispute resolution hub
Creation of the SICC through a comprehensive offering of dispute resolution
services. Singapore’s game plan is to augment the menu
The idea of creating a Singaporean model of interna- of dispute resolution options for potential users.
tional commercial court was first mooted by the chief The next question is why a new court, as opposed to
justice of Singapore, Sundaresh Menon, at the Opening improving the existing one, namely the Singapore High
of Legal Year 2013. As he recounted extrajudicially, his Court, was created? Institutionally, there are two advan-
visit to the London Commercial Court in September tages of creating a new ‘court’. First, a new litigation
2012 brought fresh insights into how to further invigor- model provides a clean slate on which innovations may
ate the dispute resolution landscape in Singapore. In his be made. Second, the creation of a new litigation model
words, is a marketing strategy to highlight Singapore’s thought
leadership in dispute resolution and, accordingly, build
The London experience suggests that arbitration and a brand image. From the user perspective, the creation
commercial courts are not competing players in a of a new court, while retaining the traditional Singapore
zero-sum game. Rather, there is room for co-exis- court, represents a choice between two systems of litiga-
tence and development of these two systems of tion. It signals to the potential users that autonomy in
83
dispute resolution.4 litigation services is an important value under Singapore
law.
While the inspiration for the SICC originated from the
London Commercial Court, the success of the London 2.2 Regional Needs?
Commercial Court alone does not explain the need to The prelaunch SICC feasibility study – the Report of
create a new litigation model in Singapore. After all, the the Singapore International Commercial Court Com-
London Commercial Court is very much a national mittee (SICC Committee Report) – states:
court in design and operation. What Chief Justice Cross border investment and trade into Asia and
Menon’s account does clarify is that his vision for the between Asian economies is expected to continue to
Singapore landscape is based on the coexistence of both grow, fuelling the need for a neutral and well-
litigation and arbitration in the resolution of interna- regarded dispute resolution hub in the region.7
tional commercial disputes. In this part, we will critical-
ly review the reasons for the creation of the SICC from The SICC Committee Report further points out that
different perspectives. arbitration alone cannot fulfil that important role of pro-
2.1 National Interests viding satisfactory dispute resolution services:
Let us start with the Singapore perspective. Legal serv- Arbitration has thus far been the primary means of
ices can be a highly profitable industry. According to international commercial dispute resolution within
Mr Shanmugam, Minister for Home Affairs and Law of the region, but its increasing currency has highligh-
Singapore, the value of the legal services section had
grown by 71.5% from 2008 to 2013.5 It should, thus,
6. In 2015, the year in which the SICC was launched, the SIAC received
271 cases from 55 jurisdictions, setting a new record for the highest
4. S. Menon, ‘International Commercial Courts: Towards a Transnational number of cases filed since its commencement in 1991. See ‘SIAC
System of Dispute Resolution’, 19 January 2015, at para. 10, available Announces Record Case Numbers for 2015’, Singapore International
at: https://www.supremecourt.gov.sg/docs/default-source/default- Arbitration Centre, 25 February 2016, available at: http://
document-library/media-room/opening-lecture---difc-lecture- www.siac.org.sg/images/stories/press_release/SIAC%20Announces
series-2015.pdf (last visited 8 February 2019). %20Record%20Case%20Numbers%20for%202015_25%20February
5. Z. Hamzah, ‘Positioning Singapore as Asia’s Legal Capital’, The Straits %202016.pdf (last visited 8 February 2019).
Times, 16 January 2015, available at: https://www.straitstimes.com/ 7. Report of the Singapore International Commercial Court Committee,
opinion/positioning-singapore-as-asias-legal-capital (last visited 8 Feb- 29 November 2013, at para. 8, available at: https://www.mlaw.gov.sg/
ruary 2019). In the same commentary, it was reported that the growth content/dam/minlaw/corp/News/Annex%20A%20-%20SICC
rate of Singapore’s legal sector outstripped that of the overall economy. %20Committee%20Report.pdf (last visited 8 February 2019).
Man Yip doi: 10.5553/ELR.000109 - ELR September 2019 | No. 1

ted weaknesses that litigation in an international Although there is a regional need for a well-regarded
court is better placed to address – the coercive juris- and efficient dispute resolution institution, it is too early
diction of a court may be necessary in a multiple to tell whether SICC can fulfil that function. Challenges
party dispute; the subject matter of the dispute may would include the international enforceability of Singa-
not be amenable to arbitration (such as special torts pore judgments as well as competition from other insti-
arising from contract, international intellectual prop- tutions, including arbitration centres12 and other inter-
erty or trust disputes); and the New York Conven- national commercial courts. We will look at these chal-
tion, while wide in its reach, may not be fully effec- lenges in Section 5.
tive for enforcement in some countries.8
2.3 Public Interests?
A study on legal systems in the Association of South- The increasing popularity of using arbitration for the
East Asian Nations (ASEAN) in 20189 highlighted that resolution of commercial disputes is affirmed by the
the domestic courts of a number of ASEAN countries Queen Mary University of London and White & Case
adopt their indigenous language as the language of court LLP 2018 International Arbitration Survey (QMUL
proceedings, creating a language barrier for foreign liti- International Arbitration Survey 2018) findings.13 Nine-
gants to access justice through litigation in the domestic ty-seven per cent of the respondents indicated interna-
courts. Further, litigation in domestic courts in a num- tional arbitration as their favoured dispute resolution
ber of ASEAN countries is not favoured owing to per- mechanism, either as a stand-alone method or in combi-
ceptions of uncertainty, unpredictability in outcome, nation with alternative dispute resolution (ADR). The
protracted processes and lack of judicial independence. perceived advantageous features of international arbitra-
As for arbitration, the study points out that there is a tion, in descending order, are enforceability of awards,
lack of judicial support for the recognition or enforce- avoiding specific legal systems/national courts, flexibili-
ment of foreign arbitral awards in some ASEAN coun- ty, and ability of parties to select arbitrators. Ninety-
tries, even though some of these countries are Contract- nine per cent of the respondents ‘would recommend
ing States to the Convention on the Recognition and international arbitration to resolve cross-border disputes
Enforcement of Foreign Arbitral Awards (New York, in the future’.14 In a survey conducted by the Singapore
1958) (New York Convention). The study also incorpo- Academy of Law’s International Promotion of Singa-
rates a survey component, one of whose findings is that pore Law Committee in 2016, arbitration similarly
slightly more than half of twenty-four respondents emerged as the preferred dispute resolution mecha-
(businesses operating in ASEAN) saw the need for a nism.15
84 The advantages of arbitration notwithstanding, from a
‘new ASEAN-wide dispute resolution structure which
specialises in hearing contract disputes between public interest standpoint, the fact that the arbitral pro-
ASEAN businesses’.10 ceedings and awards are confidential would mean that
Incidentally, in the same year that Chief Justice Menon the application and development of commercial law are
mooted the idea of establishing an international com- hidden from the world.16 As arbitral awards do not have
mercial court in Singapore, China announced its ambi- a binding effect and the merits of the award are not open
tious plan for the transnational ‘One Belt, One Road’ to review, there is no system of ensuring consistent
project, which is now simply known as the Belt and application and development of commercial law in arbi-
Road Initiative (BRI). Although the SICC Committee tral practice. While this may suit the parties inter se, a
Report made no mention of the impact of BRI on the ‘hidden from view’ approach impedes the coherent
dispute resolution needs of the region, it is envisaged development of commercial law. If the popularity of
that the BRI will further increase the volume of com- using arbitration continues, visible development of com-
mercial dealings between parties in the BRI countries
and that disputes are, therefore, likely to increase in the Society of International Law Insights 1 (2018); Z. Huo and M. Yip,
coming years. For this reason, China launched two Chi- ‘Comparing the International Commercial Courts of China with the Sin-
nese international commercial courts, one in Xi’an and gapore International Commercial Court’, International and Comparative
Law Quarterly (2019, forthcoming).
the other in Shenzhen (the CICC), in June 2018 to serve 12. For instance, the recently rebranded Asian International Arbitration
the dispute needs of the BRI. A review of the CICC Centre (formerly Kuala Lumpur Regional Centre for Arbitration) would
jurisdictional framework reveals that the CICC is not be keen to compete for dispute business.
designed to take on all commercial disputes arising from 13. Queen Mary University of London and White & Case LLP, ‘2018 Inter-
national Arbitration Survey: The Evolution of International Arbitration’,
the BRI.11 There is, therefore, a gap for the SICC to fill. 2018, at 2, available at: http://www.arbitration.qmul.ac.uk/media/
arbitration/docs/2018-International-Arbitration-Survey---The-
8. Id., at para. 16. Evolution-of-International-Arbitration.PDF (last visited 8 February
9. L. Hsu, P. Koh & M. Yip, ‘Report: Improving Connectivity between 2019).
ASEAN’s Legal Systems to Address Commercial Issues’, 22 March 2018, 14. Ibid.
available at: https://www.canasean.com/reports/ (last visited 8 Febru- 15. For a summary of the survey findings, see Singapore Academy of Law,
ary 2019). ‘Study on Governing Law & Jurisdictional Choices in Cross-border
10. Id., at 105-6. See further P. Koh, ‘Enhancing Economic Co-operation: A Transactions’, 11 January 2016, available at: http://www.ciarb.org.sg/
Regional Arbitration Centre for ASEAN?’, 49 International and Compa- wp-content/uploads/2016/02/SAL_Singapore_Law_Survey.pdf (last
rative Law Quarterly 390 (2000). visited 8 February 2019).
11. M.S. Erie, ‘The China International Commercial Court: Prospects for 16. See generally C.A. Rogers, ‘Transparency in International Commercial
Dispute Resolution for the “Belt and Road Initiative”’, 22(11) American Arbitration’, 54 Kansas Law Review 1301 (2006).

mercial law (in the courts) will continue to decline. The tures of the SICC are set out in the Supreme Court of
merits of the common law system depend critically on a Judicature Act (SCJA)21 and the Rules of Court, a sub-
steady stream of cases to enable incremental develop- sidiary legislation of the SCJA.22 As Singapore is a com-
ment (including refinement or correction) of the law. mon law jurisdiction, the Singapore courts’ interpreta-
Crucially, the arbitral outcomes do not only affect the tion and application of the legislative provisions – pro-
commercial parties to the proceedings. The outcomes ducing what may be described as a body of statute-based
will necessarily generate downstream effects on other common law – is a binding source of law on the applica-
parties (e.g. the parties who would ultimately bear the tion of these legislative rules. Supplementing and clari-
costs of the decision or third parties related to the fying the operation of the legislation are the SICC Prac-
dispute but did not consent to participate in the same tice Directions,23 the SICC User Guides24 and the
arbitration). Finally, the fact that arbitral proceedings SICC Procedural Guide.25 However, these supplemen-
are not subject to public scrutiny raised issues of tary materials26 are not formal sources of law.
accountability.17 According to the QMUL International
Arbitration Survey 2018 findings, respondents ‘think 3.1 Jurisdiction Over International and
that arbitration rules should include provisions dealing Commercial Actions
with arbitrator conduct in terms of both standards of Existing literature has dealt extensively with the juris-
independence and impartiality and efficiency (or lack dictional rules of the SICC from a private international
thereof)’.18 law perspective.27 The present analysis shall instead
In view of the foregoing concerns, there is a place for lit- focus on highlighting the innovations and how they have
igation. The practical question is the ways in which we improved access to justice for litigants.
can encourage commercial parties to choose litigation. 3.1.1 Subject Matter Jurisdiction
In Section 3, we consider the innovative litigation The SICC hears ‘international’ and ‘commercial’
framework of the SICC, which borrows from the arbi- claims.28 The term ‘international’ is generally defined
tration template. by reference to parties’ places of business: if they are in
different states; if neither is in Singapore; or if one par-
ty’s place of business is in a different state from either
3 The SICC Litigation the state in which a substantial part of the obligations
arising from the parties’ commercial relationship is to be
Framework performed or the state with which the subject matter of
the dispute is most closely connected.29 Further, the 85
This part of the discussion reviews the innovative fea- definition ‘international’ allows parties to expressly
tures of the SICC litigation framework, which may be agree that ‘the subject matter of their claim relates to
broadly grouped into three categories: (a) jurisdiction; more than one State’.30
(b) procedural features and (c) international judges. All As for the meaning of ‘commercial’, a claim is consid-
three aspects are critical to the delivery of justice. ered ‘commercial’ if it arises from a commercial rela-
To begin with an overview, the SICC was established as
a division of the Singapore High Court.19 Within the
Singapore judicial system, the Singapore Court of
Appeal is the apex court. Below the Court of Appeal is 21. Supreme Court of Judicature Act, ch. 322 (2007) (SCJA).
the High Court, and below the High Court is the State 22. Rules of Court, ch. 332, s. 80 (2014).
23. In this article, a reference to the ‘SICC Practice Directions’ shall refer to
Courts.20 The jurisdictional rules and procedural fea- the version that is effective as of 1 November 2018.
24. Reference to the SICC User Guides in this article refers to the version as
at 31 January 2019.
17. For instance, the arbitral practice of allowing party-appointed arbitrator 25. These materials are available at: www.sicc.gov.sg (last visited 8 Febru-
has come under attack. See, e.g., S. Menon, ‘Adjudicator, Advocate or ary 2019).
Something in Between?: Coming to Terms with the Role of the Party- 26. For instance, the SICC User Guides explicitly state that the contents are
appointed Arbitrator’, 24 November 2016, available at: http:// ‘for reference purposes only’ and are not ‘binding on the [SICC]’. See
www.supremecourt.gov.sg/Data/Editor/Documents/CJ%20speech https://www.sicc.gov.sg/docs/default-source/legislation-rules-pd/sicc-
%20at%20CIArb%20Presidential%20Lecture%202016.pdf (last visited user-guides-31jan19.pdf (last visited 10 February 2019).
8 February 2019). 27. See, e.g., T.M. Yeo, ‘Staying Relevant: Exercise of Jurisdiction in the
18. Queen Mary University of London and White & Case LLP, above n. 13, Age of the SICC’, 13 May 2015, available at: http://law.smu.edu.sg/
at 3. See generally D.H. Wong, ‘The Rise of the International Commer- sites/default/files/law/CEBCLA/YPH-Paper-2015.pdf (last visited 8 Feb-
cial Court: What Is It and Will It Work?’, 33 Civil Justice Quarterly 205, ruary 2019); M. Yip, ‘The Resolution of Disputes before the Singapore
at 216-19 (2014). International Commercial Court’, 65 International and Comparative
19. To avoid confusion, any reference to the ‘High Court’ or ‘Singapore Law Quarterly 439 (2016); M. Yip, ‘Navigating Singapore’s Private
High Court’ henceforth shall refer to the Singapore High Court sans the International Rules in the Age of Innovative Cross-border Commercial
SICC division, unless otherwise indicated. For a diagram of the court Litigation Framework’, in P. Sooksripaisarnkit and S.R. Garimella (eds.),
structure, see Singapore International Commercial Court, Overview of China’s One Belt One Road Initiative and Private International Law
the SICC, available at: https://www.sicc.gov.sg/about-the-sicc/ (2018) 55; A. Chong and M. Yip, ‘Singapore as a Centre for Interna-
overview-of-the-sicc (last visited 8 February 2019). tional Commercial Litigation: Party Autonomy to the Fore’, 15 Journal
20. For a more detailed discussion of the structure and responsibilities of the of Private International Law 97 (2019, forthcoming).
Singapore judiciary, see G. Chan, ‘The Judiciary’, in G. Chan and J. Lee 28. Section 18D(a) SCJA; Order 110, rule 7(1)(a) Rules of Court.
(gen. eds.), The Legal System of Singapore: Institutions, Principles and 29. Order 110, rule 1(2)(a)(i)-(iii) Rules of Court.
Practices (2015), at 155. 30. Order 110, rule 1(2)(a)(iv) Rules of Court.

tionship,31 if it pertains to an in personam intellectual is a sufficient basis to establish existence of jurisdiction.
property dispute or if parties have expressly agreed that In this day and age, given the ease of travel, technologi-
the claim is commercial in character.32 cal advancement and the trend of globalisation, cross-
A striking commonality of the statutory definitions for border disputes are commonplace. Importantly, if a for-
‘international’ and ‘commercial’ is that it admits parties’ eign defendant has agreed to submit to the jurisdiction
agreement on the nature of the claim. From a policy of the SICC, there is little basis for him or her to com-
perspective, this approach upholds the value of party plain about the inconvenience and costs associated with
autonomy. Pragmatically, this approach also relieved the defending himself or herself in the SICC as these would
Singapore legislature of the difficult task of laying down generally be foreseeable at the time of contracting.
workable and comprehensive definitions. It implicitly Thus, in practice, the dispensation of court’s leave to
acknowledges that the distinction between ‘internation- serve out of Singapore would save the plaintiff both
al’ and ‘domestic’ as well as between ‘commercial’ and costs and time.
‘non-commercial’ is not a bright-line exercise. The Further, the SICC jurisdictional rules make clear that
SICC approach is, thus, to favour characterising the the SICC may decline to assume jurisdiction only if it is
claim as ‘international’ or ‘commercial’ in the first ‘not appropriate’ for the case to be heard by the SICC40
instance for the purpose of commencement of proceed- and that it may not do so on the sole ground that the
ings in the SICC by according to the parties the right of claim is connected to a foreign forum.41 In considering
determination. Overly technical definitions are thereby the guiding criterion of ‘not appropriate’, the SICC
avoided. As will become clear in the discussion later on shall have regard to the international and commercial
the SICC’s in personam jurisdictional rules, where the character of the claim.42 While this approach is unre-
SICC suit was commenced pursuant to an SICC juris- markable insofar as an exclusive jurisdiction clause is
diction clause, the SICC may decline to assume jurisdic- concerned,43 it is remarkable where a non-exclusive
tion on exceptional grounds, in particular, by consider- jurisdiction clause is concerned, as the conventional test
ing the character of the claim before it.33 for forum appropriateness under Singapore law is in
part based on an evaluation of connections with the
3.1.2 Written Jurisdiction Agreement competing fora.44
There are two main ways in which international and The overarching point is this: the parties’ expression of
commercial claims would come before the SICC.34 The choice in the form of a non-exclusive jurisdiction clause
first way is by the parties’ submission to the SICC’s is accorded greater respect under the SICC framework
jurisdiction through a written jurisdiction agreement.35 than under the traditional High Court framework. On
86 Consensual jurisdiction is a well-established basis of one view, this may be celebrated as a triumph of party
jurisdiction under Singapore law, even pre-SICC. What autonomy over conservative forum regulation. Indeed,
is novel is that even if the defendant is based abroad and as will become apparent in subsequent discussion, the
service of legal process out of Singapore is therefore SICC operates on a more internationalised framework
required, leave of court for extraterritorial service is not than traditional litigation. It is designed to hear cases
required.36 By contrast, under the traditional Singapore
High Court procedural regime, even where the dispute
arises out of a Singapore jurisdiction agreement, leave of by the Singapore courts over a foreign defendant is, in a real sense, an
court for service out of jurisdiction is mandated,37 save imposition on him’.
40. Order 110, rule 8(1) Rules of Court.
where there is a contractually stipulated mode of local
41. Order 110, rule 8(2) Rules of Court.
service.38 This procedural liberalisation under the SICC 42. Order 110, rule 8(3) Rules of Court. For example, an apparent dispute
framework implicitly recognises that the exercise of between two companies may on closer scrutiny reveal that the back-
extraterritorial jurisdiction is not as ‘exorbitant’ as tradi- ground to the commercial dispute involves a husband and a wife
– respectively, the sole shareholder and director of the companies –
tionally perceived to be39 and that parties’ choice alone
embroiled in contentious ancillary divorce proceedings. The dispute is
thus substantively a contest over (quasi) matrimonial assets. See IM
31. See Order 110, rule 1(2)(b)(i) Rules of Court for a non-exhaustive list of Skaugen SE v. MAN Diesel & Turbo SE [2016] SGHCR 6, at para. 112;
commercial relationships. Report of the Singapore International Commercial Court Committee,
32. Order 110, rule 1(2)(b)(ii)-(iii) Rules of Court. above n. 7, at para. 28.
33. See text to n. 42 below. 43. Even in respect of proceedings before the Singapore High Court, the
34. The third way arises exceptionally in cases involving ‘an originating court would generally enforce the obligation to sue in the exclusively
summons under Order 52 for leave to commit a person for contempt in chosen forum, save where exceptional circumstance amounting to
respect of any judgment or order made by the Court’: see Order 110, ‘strong cause’ can be shown to justify the breach of contract to sue in a
rule 7(2)(b) Rules of Court. non-chosen forum. Connections to a foreign forum are generally not
35. Order 110, rule 7(1)(b) Rules of Court. This is provided that parties are considered exceptional circumstances. See Golden Shore Transportation
not seeking any form of prerogative relief: see Order 110, rule 7(1)(c) Pte Ltd v. UCO Bank [2003] SGCA 43, [2004] 1 SLR(R) 6 at paras. 33
Rules of Court. See Singapore International Commercial Court, SICC and 38.
Model Clauses, available at: https://www.sicc.gov.sg/guide-to-the- 44. Orchard Capital I Ltd v. Ravindra Kumar Jhunjhunwala [2012] SGCA
sicc/model-clauses (last visited 8 February 2019). 16, [2012] 2 SLR 519, at para. 12. The non-exclusive jurisdiction clause
36. Order 110, rule 6(2) and (2A) Rules of Court. is one of the factors in the discretionary analysis: at para. 30. Notably,
37. Order 11, rule 1 Rules of Court. the SICC Committee Report proposed reforming the forum non con-
38. Order 10, rule 3 Rules of Court. veniens rules on which the SICC may decline to exercise jurisdiction in
39. Cf. Zoom Communications Ltd v. Broadcast Solutions Pte Ltd [2014] the context of a non-exclusive jurisdiction agreement. See Report of the
SGCA 44, [2014] 4 SLR 500, at para. 72. The Singapore Court of Singapore International Commercial Court Committee, above n. 7, at
Appeal remarked (in a pre-SICC case) that ‘the exercise of jurisdiction para. 27.

with foreign or international elements. In fact, the SICC the High Court may not order a transfer of proceedings
framework recognises a category of cases known as ‘off- on its own motion without having obtained all parties’
shore cases’, that is, cases with no substantial connection consent. Although the level of consent required for
to Singapore.45 As will be explained below, there is transfer of proceedings differs under the two sets of
greater scope for procedural flexibility in this category rules,51 more generally, the rules on transfer jurisdiction
of cases, in order to attract disputes that would not oth- oblige the Singapore High Court to have regard to par-
erwise be heard in the Singapore courts. On another ties’ choice, even though parties’ choice is not determi-
view, party autonomy is used as a means to favour the native of the outcome in non-Hague Convention cases
SICC hearing international commercial disputes. This under Order 110, rule 12(4).
view is bolstered by other pro-SICC provisions. For The statutory rules do not clarify when it might be more
instance, unless there is provision to the contrary, a ‘appropriate’ for a case to be heard in the SICC than in
written jurisdiction agreement in favour of the SICC is the High Court. In this connection, two recent Singa-
considered to be exclusive in nature.46 For jurisdiction pore cases may helpfully shed light on the possible
agreements entered into, on or after 1 October 2016,47 interpretation of ‘appropriate’. Both cases concerned a
unless ‘a contrary intention appears in the agreement’, situation where the plaintiff argued for the case to be
an agreement to submit to the jurisdiction of the Singa- heard in Singapore but the defendant applied for a stay
pore High Court shall be construed as ‘including an of proceedings in order that the case may be transferred
agreement to submit to the jurisdiction of the [SICC]’.48 to a foreign forum for resolution. The legal inquiry was
While these pro-SICC provisions may be justified on whether it would be more appropriate for Singapore
pragmatic concerns to avoid uncertainty, it cannot be than a foreign forum to hear the dispute – that is, a
denied that the overall effect is to favour the SICC hear- question of international jurisdiction. In Rappo, Tania v.
ing the claims in dispute. Accent Delight International Ltd,52 the Singapore Court
of Appeal affirmed that ‘[t]he presence of the SICC and
3.1.3 Transfer Jurisdiction its capabilities are potentially relevant to the [forum non
A second main way by which disputes will come before conveniens] analysis’,53 as the procedural features of the
the SICC is through the transfer of proceedings from SICC may reduce costs or neutralise the advantages of
the Singapore High Court to the SICC.49 The rules on having the case heard overseas. In the subsequent case
transfer jurisdiction have been made more complex by of IM Skaugen SE v. MAN Diesel & Turbo SE, the Sin-
Singapore’s ratification of the Hague Convention on gapore High Court remarked that an ‘archetypal
Choice of Court Agreements (Hague Convention).50 dispute’ that might be better dealt with by the SICC is
Pursuant to Order 110, rule 12(4) of the Rules of Court, 87
one where the factual and legal connections are distrib-
a non-Hague Convention case may be transferred from uted across ‘diverse and geographically divided’ juris-
the Singapore High Court to the SICC if the action con- dictions.54 Based on the foregoing, the overall tenor is
cerns international and commercial claims; if the parties that the SICC is especially suitable for dealing with
are not seeking any form of prerogative relief; it is more cases with international elements, as they lend them-
appropriate for the action to be heard in the SICC; and selves to the SICC’s unique capabilities. By extension, it
if all the parties consent to the transfer or the High may be argued that the characteristics of a claim and
Court orders the transfer on its own motion after hear- whether they lend themselves to the SICC’s capabilities
ing the parties. As for Hague Convention cases, Order are relevant factors in determining whether it is more
110, rule 12(3B) provides for the same criteria, save that appropriate for the SICC, as compared with the High
Court, to resolve the dispute55 – a question of internal
45. See Order 110, rule 1(1) Rules of Court. However, an ‘offshore case’ jurisdiction. We will consider the capabilities of the
does not include IAA proceedings commenced by way of originating
summons and in rem actions (against a ship or any other property)
SICC in Section 3.3.
under the High Court (Admiralty Jurisdiction) Act (Cap. 123). Order
110, rule 1(2)(f) Rules of Court continues to specify that an action has 3.2 Jurisdiction Over International Commercial
no substantial connection to Singapore where Singapore law is not the Arbitration Matters
governing law and the subject-matter of the dispute is not regulated by With effect from 1 November 2018, the SICC is confer-
Singapore law; or if the only connections to Singapore are parties’
red jurisdiction ‘to hear any proceedings relating to
choice of Singapore law as the governing law of the dispute and parties’
submission to the SICC. In Teras Offshore Pte Ltd v. Teras Cargo Trans- international commercial arbitration that the High
port (America) LLC [2016] SGHC(I) 02, [2016] 4 SLR 75, at para. 8,
Eder IJ explained that ‘the question is not whether the action has a sub-
stantial connection with some place or places other than Singapore but 51. The more stringent requirement of consent under Order 110, rule
whether the action has no substantial connection with Singapore’. He 12(3B) Rules of Court may be justified on the basis of ensuring a more
also clarified that some connections may be irrelevant or peripheral: at straightforward process for the enforcement and recognition of the
para. 16. resulting judgment in other Contracting States: see Art. 8(5) Hague
46. Sections 18F(1)(a) and 18F(2) SCJA. Convention. See explanation in Chong and Yip (2019), above n. 27.
47. The date on which the implementing legislation for the Hague Conven- 52. [2017] SGCA 27, [2017] 2 SLR 265. In this case, the lower court urged
tion on Choice of Court Agreements entered into force in Singapore. the parties to consider a transfer of proceedings to the SICC: see Accent
48. Order 110, rule 1(2)(ca) Rules of Court. Delight International Ltd v. Bouvier, Yves Charles Edgar [2016] SGHC
49. Order 110, rule 7(2)(a) Rules of Court. 40, [2016] 2 SLR 841, at paras. 111-16.
50. Hague Convention on Choice of Court Agreements, 30 June 2005, 44 53. Id., at para. 116.
ILM 1294, available at: https://www.hcch.net/en/instruments/ 54. [2018] SGHC 123, at para. 216. This case is currently pending appeal.
conventions/full-text/?cid=98 (last visited on 8 February 2019). 55. See further Chong and Yip (2019), above n. 27.

Court may hear and that satisfy such conditions as the and there is a developed body of local jurisprudence
Rules of Court may prescribe’.56 According to the Rules based on our Courts’ interpretation and application
of Court, the only requirement in respect of the SICC’s of the IAA provisions, which Singapore lawyers are
jurisdiction to hear international commercial arbitration well versed in.
matters is that the ‘proceedings must be proceedings
that the High Court may hear’ under the International 3.3 Procedural Features
Arbitration Act (IAA).57 These applications include stay The SICC has been described as ‘a careful marriage
of proceedings, interim measures, challenges to arbitra- between litigation and arbitration’.64 In other words, it
tors, challenges to awards, recognition and enforcement is a hybrid design, drawing from the advantageous fea-
of awards, appeals on ruling of jurisdiction and subpoe- tures of both processes. This does not, however, mean
nas. The term ‘international’ in this context adopts the that the SICC is the sum of the advantages of both pro-
meaning set out in section 5(2) of the IAA; and the cesses. The hybridisation of litigation and arbitration
meaning of ‘commercial’ is to be guided by that pro- inevitably results in a different mechanism. All in all, it
vided in the UNCITRAL Model Law on International may be said that the SICC procedural framework admits
Commercial Arbitration.58 Further, IAA proceedings a greater scope for the consideration of parties’ prefer-
commenced in the High Court may be transferred to the ences than the traditional litigation process. Given Chief
SICC, pursuant to the requirements provided in Order Justice Menon’s vision to optimise the coexistence of
110, rule 58 of the Rules of Court. both litigation and arbitration, the SICC was not estab-
The expansion of the SICC’s jurisdiction to hear inter- lished to be a direct competitor with arbitration. For
national arbitration matters had been predicted 3 years this reason, it is unfair to assess the merits of the SICC
ago, when the SICC was launched into operation.59 The by a simplistic comparison with arbitration on the
parliamentary intention was to ‘increase Singapore’s parameters of procedural flexibility and party autono-
attractiveness as a seat of arbitration’, in part, through my.
the enhanced appeal of the Singapore bench, which now More importantly, the SICC provides a platform for the
includes international judges.60 This legislative reform innovation and experimentation of procedural reform.
iterates that the Singapore vision for its dispute resolu- Some of the innovations may in due course be adapted
tion landscape is based on the coexistence of arbitration for or applied in non-SICC proceedings; they can also
and litigation. serve as a reference template for other jurisdictions
However, in line with the position in respect of IAA interested in embarking upon similar reforms. As such,
applications before the High Court, only Singapore- the SICC and Singapore High Court bifurcation need
88
qualified lawyers may appear before the SICC in respect not be viewed as an immutable ‘business class’ and
of IAA applications.61 As such, the definition of an ‘off- ‘economy class’ treatment of litigants.65 But the bifurca-
shore’ case62 – matters in which the SICC will take a tion, by reason of the nature of the cases that are to
more generous approach in granting foreign representa- come before the SICC, does emphasise the point that
tion – does not include IAA proceedings brought before one size does not fit all.66
the SICC. The exclusion of foreign representation in We now consider the unique procedural features of the
IAA proceedings was explained in the second reading of SICC, each in turn.
the bill in parliament:63
3.3.1 Rules of Evidence
The IAA is part of Singapore law, with features that In SICC proceedings, parties may by agreement apply
are tailored for the Singapore arbitration landscape, to the SICC for the disapplication of Singapore rules of
evidence67 and for other rules of evidence (including
rules of evidence that may not constitute part of foreign
56. Section 18D(2) SCJA. This provision was introduced pursuant to a bill
passed by Singapore Parliament on 9 January 2018.
57. Cap 143A, Rev Ed 2002.
58. Order 110, rule 57(2) Rules of Court. See, in particular, the meaning of 64. S. Chong, ‘The Singapore International Commercial Court: A New
‘commercial arbitration’ set out in Order 110, rule 57(2)(c). Opening in a Forked Path’, 21 October 2015, at para. 5.2, available at:
59. J. Ahmad and P. Tan, ‘Should Court Actions Arising Out of International http://www.supremecourt.gov.sg/Data/Editor/Documents/J
Arbitration Disputes Be Heard at the Singapore International Commer- %20Steven%20Chong%20Speeches/The%20SICC%20-%20A
cial Court’, Kluwer Arbitration Blog, 17 July 2015, available at: http:// %20New%20Opening%20in%20a%20Forked%20Parth%20-
arbitrationblog.kluwerarbitration.com/2015/07/17/should-court- %20London%20(21.10.15).pdf (last visited 8 February 2019).
actions-arising-out-of-international-arbitration-disputes-be-heard-at- 65. The ‘business class’ and ‘economy class’ dichotomy is borrowed from
the-singapore-international-commercial-court/?print=pdf (last visited the Right Honorable the Lord Thomas of Cwmgiedd’s article, ‘Singa-
8 February 2019). pore Academy of Law Annual Lecture 2016 – “Cutting the Cloth to Fit
60. ‘Second Reading Speech by Ms Indranee Rajah, Senior Minister of State the Dispute: Steps towards Better Procedures across the Jurisdictions”’
for Law and Finance, on Supreme Court of Judicature (Amendment) 29 Singapore Academy of Law Journal 1, at 9 (2017).
Bill’, available at: https://www.mlaw.gov.sg/content/minlaw/en/news/ 66. Ibid. For a detailed commentary on and insights into the procedural fea-
parliamentary-speeches-and-responses/second-reading-speech- tures of the SICC with illustrations from the first case before the SICC,
supreme-court-of-judicature-bill.html (last visited 8 February 2019). see H.H. Teh, J. Yeo & C. Seow, ‘The Singapore International Commer-
61. Ibid. cial Court in Action: Illustrations from the First Case’, 28 Singapore
62. See n. 45 above. Academy of Law Journal 692 (2016).
63. ‘Second Reading Speech by Ms Indranee Rajah, Senior Minister of State 67. Section 18K SCJA; Order 110, rule 23(6) Rules of Court. Notably, par-
for Law and Finance, on Supreme Court of Judicature (Amendment) ties may ask for the disapplication of particular rules or all the rules of
Bill’, above n. 60. evidence under Singapore law.

law) to be applied instead.68 In granting the order, the to ‘curious consequences’.77 For example, one party may
SICC may, ‘for the just, expeditious and economical decide to prove the content of some rules of foreign law
disposal’ of the dispute, modify the parties’ agreement but not prove the other relevant rules in the hope of
with parties’ consent or stipulate supplementary terms relying on the operation of the presumption of similari-
that are consistent with the parties’ agreement as it sees ty, so as to ‘mix a cocktail of the two’ to arrive at an out-
fit.69 This procedural feature amply demonstrates the come available under neither legal system.78
balance between party autonomy and judicial control The SICC framework, while retaining the traditional
that the SICC seeks to strike. common law mode of proof, allows for the possibility of
The SICC User Guides further explain, using exam- dealing with foreign law by way of direct submissions
ples, what the outcome might be if Singapore evidence (oral, written or both),79 as per the practice in interna-
rules are disapplied in the SICC proceedings.70 For tional arbitrations. This reform is strategic, as explained
example, parties may apply to the SICC for the disap- in the SICC Committee Report:
plication of the Singapore rule on hearsay without stat-
ing which rule should apply in its place. According to In line with the international character of the SICC,
the SICC User Guides, if the order is granted, this foreign law need not be pleaded and proved as fact in
means that evidence that would otherwise be considered proceedings before the SICC, as the Judges can take
hearsay under Singapore law may be admitted in the judicial notice of foreign law with the assistance of
proceedings and the issue of reliability of the evidence oral and written legal submissions, supported by rele-
will be addressed as a matter of the weight of evidence.71 vant authorities. The SICC would then apply foreign
It is also useful to note that parties to SICC proceedings law to determine the issues in dispute. This would
may apply for the disapplication of all the rules on evi- facilitate buy-in from foreign counsel to bring their dis-
dence under Singapore law and for the IBA Rules on putes to the SICC and, at the same time, aligns SICC
the Taking of Evidence in International Arbitration procedure with the practice in international arbitra-
(IBA Rules), as appropriately adapted, to apply tion…80 (emphasis added)
instead.72
Importantly, the ‘buy-in from foreign counsel’ is also
3.3.2 Foreign Law forged on other aspects of liberalisation in the SICC
Following the convention of common law, foreign law is framework: the appointment of foreign judges and the
regarded as an issue of fact under Singapore law. greater scope for representation by foreign counsel in
Accordingly, foreign law must be pleaded and proved SICC proceedings. We will consider these two matters
like facts,73 notwithstanding the obvious ‘legal quality in greater detail in a moment. For present purposes, it 89
inherent in this “fact”’.74 As a rule of convenience, if the suffices to highlight that before ordering the determina-
parties fail to prove the content of the applicable foreign tion of foreign law on the basis of submissions, the
law, Singapore courts will presume the content of for- SICC must be satisfied that all parties are or will be rep-
eign law to be identical with Singapore law (referred to resented by ‘a counsel,81 restricted registration foreign
as the presumption of similarity of laws), unless ‘it is lawyer or registered law expert82 who is suitable83 and
unjust and inconvenient to do so’.75 competent to submit on the relevant questions of for-
However, the common law mode of proof of foreign law eign law’.84
is far from perfect. Reliance on expert evidence, in par-
ticular, is expensive, and the expert evidence is at times 3.3.3 Representation by Foreign Lawyers
partisan or even deficient in quality.76 Further, the com- As the SICC is a division of the High Court, the general
bination of proof and presumption of similarity can lead rule is that parties to SICC proceedings are to be repre-
sented by lawyers called to the Singapore bar. In tradi-
tional High Court proceedings, foreign representation is
available in very limited circumstances. Subject to the
68. Section 18K SCJA read with Order 110, rule 23(1) Rules of Court. An
application may not be made unless all parties agree to the rules of evi-
dence that shall not apply to their proceedings, and the rules that shall 77. D. Foxton QC, ‘Foreign Law in Domestic Courts’, 29 Singapore Acade-
apply instead. my of Law Journal 194, at 198 (2017).
69. Order 110, rule 23(3) Rules of Court. 78. Ibid.
70. SICC User Guides Note 4, at paras. 23-5. Seehttps://www.sicc.gov.sg/ 79. Section 18L SCJA; Order 110, rule 25(1) Rules of Court.
docs/default-source/legislation-rules-pd/sicc-user-guides-31jan19.pdf 80. Report of the Singapore International Commercial Court Committee,
(last visited 10 February 2019). above n. 7, at para. 34.
71. Id., at para. 23. 81. See Order 110, rule1(1). ‘Counsel’ includes ‘a registered foreign lawyer
72. Id., at para. 25. who is granted full registration under section 36P of the Legal Profes-
73. Foreign law may be proved by ‘directly adducing raw sources of foreign sion Act’.
law as evidence’ or by an expert opinion: see Pacific Recreation Pte Ltd 82. See Order 110, rule 1(1). A ‘registered law expert’ refers to a law expert
v. S Y Technology Inc [2008] SGCA 1, [2008] 2 SLR(R) 491, at para. registered under section 36PA of the Legal Profession Act, ch. 161
54. (2009) (‘LPA’). A registered law expert may appear in SICC proceedings
74. EFT Holdings, Inc v. Marinteknik Shipbuilders (S) Pte Ltd [2013] SGCA (including appeals) and give advice and prepare documents ‘solely for
64, [2014] 1 SLR 860, at para. 57. the purposes of making submissions’ on matters of foreign law as per-
75. D’Oz International Pte Ltd v. PSB Corp Pte Ltd [2010] SGHC 88; mitted by the SICC.
[2010] 3 SLR 267, at para. 25. 83. On showing ‘suitability’ of the foreign jurist, see Order 110, rule 25(2A)
76. T.M. Yeo, ‘Common Law Innovations in Proving Foreign Law’, 12 Year- Rules of Court. The SICC may require evidence of good standing.
book of Private International Law 493, at 493-94 (2010). 84. See Order 110, rule 25(2) Rules of Court.

discretion of the High Court, a foreign lawyer, who is a Guides go on to explain that the ‘main category of cases’
Queen’s Counsel or of equivalent standing, may be in which foreign representation would be allowed is off-
granted a right of audience before the High Court on an shore cases.92 As explained previously,93 these are cases
ad hoc basis.85 Considerations that the High Court with no substantial connection to Singapore. Taking a
would need to balance in this discretionary exercise are more generous approach in allowing foreign representa-
‘(a) nurturing the local Bar; (b) allowing litigants to tion in this category of cases may attract foreign counsel
engage counsel of their choice to advance their case as to advise their clients to choose the SICC as the dispute
well as possible; and (c) ensuring the proper and timely resolution forum in cases that are otherwise unlikely to
administration of justice’.86 come before the Singapore courts. Conversely, a more
In sharp contrast, in SICC proceedings, less restrictive restrictive approach towards allowing foreign represen-
conditions apply in respect of representation by foreign tation in non-offshore cases protects business for Singa-
lawyers.87 To represent parties in SICC proceedings, pore practitioners and, thus, facilitates buy-in from
foreign lawyers would need to be registered under sec- them to bring their clients’ international commercial
tion 36P of the Legal Profession Act. The SICC foreign disputes to the SICC.
lawyer registration regime differentiates between full
registration and restricted registration. The type of reg- 3.3.4 Right of Appeal
istration will determine the requisite qualifications of As the SICC is established as a division of the Singapore
the foreign lawyer as well as the scope of work that the High Court, SICC cases may be appealed to the Singa-
foreign lawyer may undertake on behalf of a party in an pore Court of Appeal. However, parties may by writing
SICC case.88 In short, only foreign lawyers who have agree to waive, limit or vary the right to appeal against
been granted full registration may represent parties in an SICC judgment.94 Instead of mandating a no-appeal
SICC proceedings. Foreign lawyers who have been litigation model or a traditional litigation model that
granted restricted registration may only represent par- entails an appeal mechanism, the SICC accords the par-
ties for the purposes of making submissions on matters ties the right to determine for themselves the extent of
of foreign law as permitted by the SICC or the Court of appeal that they desire. While it may be said that the
Appeal. By way of reference, to qualify for full registra- traditional litigation process enables parties to decide for
tion, the following criteria must be met:89 themselves if they would like to appeal after the trial
a. The foreign lawyer is duly authorised or registered to judge has handed down the judgment and on what
practice law in a foreign jurisdiction. issues, the SICC model accords parties the right of
b. The foreign lawyer has at least 5 years’ experience in determination pre-dispute. Parties may opt for the
90 wholesale exclusion of the right of appeal if they desire a
advocacy before any court or tribunal.
c. The foreign lawyer is sufficiently proficient in Eng- prompt resolution of their dispute and finality of out-
lish for the purpose of conducting proceedings or come, as per the international commercial arbitration
appeal. practice.
d. The foreign lawyer has not been disbarred, struck off, 3.3.5 Confidentiality
suspended, fined, censured or reprimanded in the The default position for SICC cases is open court pro-
capacity of a legal practitioner. ceedings and publication of its judgments. Transparen-
e. The foreign lawyer is to give an undertaking that he cy is perceived to be ‘important for the branding of the
or she will appear and perform the scope of work that SICC’.95 The SICC Committee, clearly in recognition
he or she is permitted to undertake on behalf of a of the public interest element in dispute resolution,
party to the SICC proceedings. agreed that confidentiality would ‘[militate] against the
At the time of writing this article, seventy-eight foreign development of a body of jurisprudence, which will be
lawyers from different jurisdictions have been granted necessary to enable prospective users of SICC dispute
full registration; one English lawyer has been granted resolution to model their future commercial relations’.96
restricted registration.90 Nevertheless, parties may apply to the SICC for a confi-
The SICC Practice Directions set out the circumstances dentiality order under Order 110, rule 30(1) of the Rules
under which representation by foreign lawyers in SICC of Court, which provides for three different kinds of
proceedings may be permitted.91 The SICC User confidentiality orders: that the case be heard in camera;
no disclosure or publication of any information or docu-
85. Section 15 LPA. library/sicc-practice-directions-(with-effect-from-1-

86. Re Andrews Geraldine Mary QC [2012] SGHC 229, [2013] 1 SLR 872, jan-2016)f7782f33f22f6eceb9b0ff0000fcc945.pdf.
at para. 66. 92. SICC User Guides Note 3, at para. 3. A declaration of ‘offshore’ status
87. Section 18M SCJA. was sought in Teras Offshore Pte Ltd v. Teras Cargo Transport (Ameri-
88. See Sections 36P(1) and (2) LPA. ca) LLC [2016] SGHC(I) 02, [2016] 4 SLR 75 and BNP Paribas SA v.
89. Rule 4(1) Legal Profession (Foreign Representation in Singapore Inter- Jacob Agam [2018] SGHC(I) 03 for the purpose of appointing foreign
national Commercial Court) Rules 2014. counsel.
90. Singapore International Commercial Court, ‘Register of Foreign Law- 93. See text to n. 45 above.
yers,’ available at: https://www.sicc.gov.sg/registration-of-foreign- 94. SICC Practice Directions, above n. 91, at para. 139.
lawyers/foreign-lawyers (last visited 8 February 2019). 95. Report of the Singapore International Commercial Court Committee,
91. SICC Practice Directions, at para. 26, available at: https:// above n. 7, at para. 32.
www.supremecourt.gov.sg/docs/default-source/default-document- 96. Ibid.

ment relating to the case; and the sealing of the court been in their possession, custody or power’.107 For gen-
order. In deciding whether to grant the confidentiality eral discovery, parties are to disclose documents on
order sought for, the SICC shall take into account two which the parties rely or will rely, as well as documents
factors: first, whether the case at hand is an offshore that could adversely affect his or her own case, adversely
case, and, secondly, whether the parties have agreed to affect the case of another party and support another par-
the making of the order.97 The SICC User Guides state ty’s case.108 In contrast, under the SICC regime, the
that ‘the [SICC] will generally give due weight to the obligation on parties is more limited – each party is only
fact that the case is an offshore case and the parties agree required to provide ‘all documents available to it on
that such an order should be made’.98 which it relies’.109 In B2C2 Ltd, Thorley IJ explained
that the SICC discovery process
3.3.6 Coram
Every SICC case shall be heard by a single judge or a is intended to institute a simplified process compared
panel of three judges.99 Where the case is to be heard by to [Order 24]. Disclosure is only required of docu-
a panel of three judges, one of the appointed judges shall ments that are relevant and material and there is no
be appointed by the chief justice to preside over the pro- general discovery.110
ceedings.100 The case shall be decided in accordance
with the majority opinion of the three-judge panel.101 Relevantly, the SICC provisions on discovery are ‘large-
Exceptionally, an SICC case may be heard by two judg- ly’ based on the IBA rules.111 For example, Order 110,
es.102 This occurs where one of the three judges origi- rule 17(2)(b) is based on the wording of Article 9(2) of
nally appointed to decide the case cannot continue in the IBA Rules.112
the proceedings and the parties have consented to the
proceedings continuing with two judges. 3.3.8 Costs
An appeal against an SICC judgment will be heard by Costs recovery is an important aspect of litigation.
the Singapore Court of Appeal. Following the rules Order 110, rule 46(6) of the Rules of Court makes clear
applying to Court of Appeal hearings, appeals will be that the SICC regime precludes the application of the
heard by a panel comprising three or ‘any greater Order 59 procedure on taxation of costs by the High
uneven number of Judges of Appeal’.103 An internation- Court which applies to traditional High Court proceed-
al judge may be appointed by the Chief Justice to sit in ings. By way of background, Order 59 provisions are
the Court of Appeal to hear an appeal against an SICC expressed in the terminology of ‘costs in in the cause’,
judgment or order.104 ‘costs in the application’, ‘costs thrown away’, ‘costs in
any event’, ‘standard costs’, ‘indemnity costs’ and the 91
3.3.7 Discovery like – language which parties from civilian jurisdictions
Order 110, rule 21 of the Rules of Court provides that are unaccustomed to.113
the default position is that the Order 24 procedure that By contrast, the SICC regime on costs is stated in clear
applies in High Court proceedings does not apply in and simple language that may be readily understood by
SICC proceedings.105 As Thorley IJ noted in B2C2 Ltd parties from both common law and civil law jurisdic-
v. Quoine Pte Ltd (‘B2C2 Ltd’), ‘[t]here are material dif- tions. Indeed, Vivian Ramsay IJ emphasised in CPIT
ferences in language and approach between the discov- Investments Ltd v. Qilin World Capital Ltd114 that the
ery provisions in O 110 and O 24’.106 Under the SICC SICC costs regime is different and simpler than the tra-
regime, the discovery process is referred to as ‘produc- ditional Order 59 regime. Order 110, rule 46(1), which
tion of documents’. The provisions for the SICC regime applies in the SICC, states that:
for production of documents are found in Order 110,
rules 14-20 of the Rules of Court. The unsuccessful party in any application or proceed-
The traditional process under Order 24 that applies to ings in the Court must pay the reasonable costs of the
High Court proceedings requires the parties ‘to disclose
107. Teh, Yeo & Seow (2016), above n. 66, at 700.
all documents which are relevant to the issues in the 108. See Order 24, rule (1) and (2) Rules of Court. For specific discovery of
suit, including those of which are or have at any time documents, see Order 24, rule 5 Rules of Court.
109. Order 110, rule 14(1) Rules of Court. For provisions on request to pro-
duce documents, objection to request and application for SICC to order
production, see Order 110, rules 15-17 Rules of Court. This process is
97. Order 110, rule 30(2) Rules of Court. commonly practised in international arbitration.
98. SICC User Guides Note 3, at para. 8. 110. Id., at para. 32.
99. Section 18G SCJA. 111. Teh, Yeo & C. Seow (2016), above n. 66, at 701.
100. Section 18H(2) SCJA. 112. In B2C2 Ltd, above n. 106, at para. 35, however, Thorley IJ said that
101. Section 18H(3) SCJA. case law under discovery regimes in other common law jurisdictions
102. Section 18H(5) SCJA. In that event, where the two judges reach differ- would equally provide guidance on the application of Order 110, rule
ent conclusions on the relevant claim, counterclaim or application, the 17(2)(b)(v) Rules of Court.
claim, counterclaim or application shall be dismissed (Section 18H(6) 113. L. Teh, ‘Costs Recovery in the SICC, A Different Regime’, available at:
SCJA). https://www.sicc.gov.sg/docs/default-source/modules-document/
103. Section 30(1) SCJA. news-and-article/-costs-recovery-in-the-sicc-a-different-regime-mr-
104. Section 29(4) SCJA. lawrence-teh-dentons-rodyk-davidson-
105. The SICC or the High Court (in the case of a transfer of proceedings to llp_8a224afc-96aa-48c4-8394-7c83ffc3f3bd.pdf (last visited 8 February
the SICC) may order the application of the Order 24 procedure. 2019).
106. [2018] SGHC(I) 04, [2018] 4 SLR 67, at para.15. 114. [2018] SGHC(I) 2, [2018] 4 SLR 38, at para. 15.

application or proceedings to the successful party, of foreign jurists from the UK and Australia appointed
unless the Court orders otherwise. (emphasis added) as International Judges is significantly higher as com-
pared with jurists from other jurisdictions. This is
Order 110, rule 46(3) continues to set out the broad dis- unsurprising given that English and Australian cases
cretion which the SICC has in respect of costs orders. – by reason of common law heritage and legislative
Pursuant to the said provision, the SICC may apportion influence – are most referred to and followed in Singa-
costs between the parties; consider all relevant circum- pore cases, as compared with case law developed in oth-
stances (including conduct of the case); order costs to be er jurisdictions.121 As will be discussed in greater detail
paid by a lawyer, law expert or a non-party; order inter- in Section 4, many of the SICC cases to date are gov-
est on costs; or make an ancillary order, including one erned by Singapore law or the relevant applicable for-
on time and manner of payment. Supplementing Order eign law which, in the absence of proof, was presumed
110, rule 46 of the Rules of Court is the guidance provi- to be identical with Singapore law. Given the strong
sions in the SICC Practice Directions on costs. At para- jurisprudential links between Singapore law and English
graph 152, the SICC Practice Directions reiterates that law as well as Australian law, former English and Aus-
costs issues ‘shall be in the discretion of the Court and tralian judges are well suited for deciding such disputes
the Court shall have the full power to determine by and may be (as indeed have been) appointed as sole
whom and to what extent the costs are to be paid’. Para- judges at first instance.
graphs 152(3) and 152(5), in particular, prescribe non- Going forward, it remains to be seen if more jurists
exhaustively the matters which the SICC may take into from Asian jurisdictions will be appointed to the SICC,
account in ordering costs. in view that a primary aim of the SICC is to become the
Notably, the use of wide discretion, the concept of ‘rea- leading Asian dispute resolution centre. Casting a side-
sonable costs’ and the principle of the unsuccessful way glance at the SIAC’s panel of arbitrators, while
party paying costs are commonly employed in arbitra- there are many Australian and UK arbitrators, the
tion.115 SIAC panel also boasts arbitrators from many Asian
jurisdictions, including India, Philippines, Indonesia,
3.4 International Judges Korea, China and Malaysia.122
The SICC panel comprises both local and foreign judg-
es (known as ‘International Judges’).116 The Interna-
tional Judges are appointed for a fixed term as the chief
justice specifies.117 The formal power of appointment of 4 Review of SICC Judgments
92 International Judges lies with the president of Singa-
pore;118 and the President of Singapore is to act with the At the date of writing, a total of thirty-four SICC judg-
advice of the Prime Minister of Singapore who shall in ments, comprising both procedural orders and judg-
turn consult the chief justice on the appointment.119 ments on the merits of the disputes, have been handed
There are no legislative provisions on the qualifications down. Of course, a number of the orders and judgments
of the International Judges. In practice, the matter lies pertain to (different aspects of) the same cases. Of the
at the discretion of the Chief Justice as he/she is the thirty-four judgments, seven were appellate judgments
person to make recommendations for appointment.120 rendered by the Singapore Court of Appeal. All thirty-
The International Judges are assigned by the chief jus- four judgments related to cases transferred from the
tice to hear SICC disputes on an ad hoc basis. Unlike in Singapore High Court to the SICC.123 This is unsur-
arbitrations, there is no scope within the SICC frame- prising. In the initial years of the SICC’s operation,
work for parties to appoint their preferred adjudicator many potential users of the SICC are likely to take a
or express a preference for a certain judge to be ‘wait and see’ approach, generally resistant to the idea to
appointed. be the first ones to try out something new and untested.
To date, sixteen International Judges have been appoin- Moreover, even if parties are willing to insert an SICC
ted to the SICC (see table on the next page). clause into their contract, it will be some time before a
dispute arises. In February 2018, marking an important
The appointments thus far indicate a trend of favouring milestone for the SICC, a case was directly filed with
the appointment of retired judges. Further, the number the SICC. While we wait for more cases to be filed
directly with the SICC on the basis of an SICC clause,
the transfer cases would play a crucial role in establish-
115. See C.Y.C. Ong and M.P. O’Reilly, Costs in International Arbitration
ing the initial track record for the SICC. For this rea-
(LexisNexis, 2013), at 70-73 (survey of arbitration legislations and pro-
cedural rules); The Honourable Sir V. Ramsay, ‘Establishing Claims for
Damages, Costs and Interest in International Arbitration’, 26 American
University International Law Review 1211, at 1233-1239 (2011). 121. See Y.H. Goh and P. Tan, ‘The Development of Local Jurisprudence’, in
116. See Singapore International Commercial Court, ‘Judges’, available at: Y.H. Goh and P. Tan (gen. eds.), Singapore Law: 50 Years in the Mak-
https://www.sicc.gov.sg/about-the-sicc/judges (last visited 8 February ing (2015) 195, at 222-35.
2019). 122. See Singapore International Arbitration Centre, Our Arbitrators, avail-
117. See Art. 95(5) Constitution of the Republic of Singapore (1965). able at: http://siac.org.sg/our-arbitrators/siac-panel (last visited 8 Feb-
118. Article 95(4) Constitution of the Republic of Singapore. ruary 2019).
119. Article 95(6) Constitution of the Republic of Singapore. 123. What is unclear is how many of the cases were non-consensual trans-
120. Article 95(4)(c) Constitution of the Republic of Singapore. fers.

No. International judge Home jurisdiction Appointment Professional experience
(in brief)121
1. Justice Patricia Bergin Australia January 2015-present Former Judge of the Supreme
Court of New South Wales (retired
in 2017)
2. Justice Roger Giles Australia January 2015-present Former Judge of the Court of
Appeal of New South Wales
(retired in 2011)
3. Justice Dyson Heydon AC QC Australia January 2015-present Former Judge of the High Court of
Australia (retired in 2013); current-
ly barrister and arbitrator
4. Justice Robert French Australia January 2018-present Former Chief Justice of Australia
(retired in 2017); non-permanent
Judge in the Hong Kong Court of
Final Appeal
5. Justice Irmgard Griss Austria January 2015-January Former president of the Austrian
2018 Supreme Court
6. Justice Beverley McLachlin PC Canada January 2018-present Former Chief Justice of Canada
(retired in 2017)
7. Justice Dominique T. Hascher France January 2015-present Judge of Supreme Judicial Court of
France
8. Justice Anselmo Reyes Hong Kong January 2015-present Former Judge of the Court of First
Instance in Hong Kong (retired in
2012)
9. Justice Yasuhei Taniguchi Japan January 2015-present Professor Emeritus at Kyoto Uni- 93
versity, Japan; former Chairperson
of the appellate body of WTO
10. Justice Sir Vivian Ramsey UK January 2015-present Former Judge of the High Court
(Queen’s Bench Division) of Eng-
land and Wales (retired in 2014)
11. Justice Sir Bernard Rix UK January 2015-present Former Lord Justice of Appeal in
the Court of Appeal of England
and Wales (retired in 2013)
12. Justice Simon Thorley QC UK January 2015-present Former barrister specialising in

intellectual property (retired in
2014); former Deputy High Court
Judge of England and Wales
13. Justice Sir Henry Bernard Eder UK May 2015-present Former Judge of the High Court of
England and Wales (retired in
2015)
14. Justice David Edmond UK January 2018-present Former President of the UK

Neuberger Supreme Court (retired in 2017)
15. Justice Jeremy Cooke UK January 2018-present Former Judge of the High Court of
England and Wales (retired in
2016); current international judge
of the DIFCC
16. Justice Carolyn Berger US January 2015-present Former Justice on the Delaware
Supreme Court (retired in 2014)
121 Information is based on the international judges’ biographies on the SICC website: see Singapore International Commercial Court, above
n. 116.

son, the last part of the discussion reviews the SICC In the two matters which had connections with France
judgments. and in which French issues were raised, Dominique
Hascher IJ was appointed as a member of the three-
4.1 Profile of Cases judge panel.135 In the matter in which issues governed
By way of a quick overview, the following is a summary by English law were raised, Sir Henry Bernard Eder IJ
of the profile of SICC cases decided to date: was appointed as the sole judge.136 Interestingly, inter-
a. In all cases, at least one of the parties was based in an national judges from the UK and Australia have been
Asian jurisdiction. appointed as a single judge to hear cases which involved
b. In all cases, the party and event connections of the issues governed by Singapore law137 or where the matter
dispute were distributed across at least two different raised issues of Singapore procedural law.138 In these
jurisdictions. disputes concerning Singapore law as the applicable law,
c. The substantive legal issues that have been raised it is evident from the judgments that the presiding
include contract,124 tort,125 trust,126 fiduciary duties, international judge ensured that relevant Singapore
directors’ duties and minority oppression. cases were cited and discussed.
d. Most of the cases involved Singapore law as the gov- In light of the foregoing review, one could surmise that
erning law of the issues in dispute.127 Two matters the Singapore judiciary is unafraid of allowing foreign
raised issues governed by French law.128 One matter jurists to directly participate in the application and
involved issues governed by English law.129 One mat- development of Singapore law. As the SICC is a divi-
ter involved Bahamas law as the governing law but sion of the High Court, its judgments on Singapore law
the parties agreed that the content of Bahamas law are binding authorities on the High Court.
did not differ from Singapore law.130 One matter A number of interesting questions may be asked in the
raised an issue governed by Indonesian law.131 future when there is a sizeable pool of SICC judgments
4.2 Assignment of International Judges on Singapore law for a more in-depth study. First,
Based on a review of the SICC judgments handed down whether the development of Singapore law in the SICC
to date, it is clear that the international judges – touted has proceeded on a more transnational (and less English
as a distinctive capability of the SICC – have been law-biased) trajectory, with the participation of non-UK
actively deployed to hear the cases brought before the international judges.139 Indeed, a similar question may
SICC by way of exercise of transfer jurisdiction. They be asked in respect of the development of commercial
have been appointed as either a single judge or a mem- law in general in the SICC. Second, whether the crea-
ber of a three-judge panel to hear SICC appeals, trials tion of the SICC has led to a two-track development of
94
and procedural/interlocutory matters. When appointed Singapore law: one in the SICC and one in the High
as a member of a three-judge panel,132 the international Court. For example, the SICC judges, being aware of
judges had also taken on the responsibility to deliver the their capacity as a judge in an international commercial
judgment of the court in a number of cases.133 Further, court, might be more inclined towards applying ‘hard
in all appeal hearings, at least one member of the three- and fast rules’ and ‘fixed’ criteria, as opposed to discre-
judge panel was an international judge.134 tionary approaches.140 Third, whether the international
judges are adept at grappling with questions of Singa-
pore public policy? Fourth, whether the presence of
international judges would enhance the global influence
124. A wide range of contractual issues have been discussed, including inter- of the SICC judgments? For example, these judgments
pretation, breach, contract formation, misrepresentation and mistake. may be more persuasive or more frequently referred to
125. For example, tort of conspiracy, tort of inducing breach of contract, and
tort of conversion.
126. For example, constructive trust and equitable compensation for breach 135. See, BNP Paribas Wealth Management v. Jacob Agam [2017] SGHC(I)
of trust. 02, [2017] 4 SLR 14; BNP Paribas SA v. Jacob Agam [2017] SGHC(I)
127. This is unsurprising as these are cases transferred from the High Court 10, [2018] 3 SLR 1.
to the SICC. 136. See Macquarie Bank Ltd, above n. 129.
128. See BNP Paribas Wealth Management v. Jacob Agam [2017] SGHC(I) 137. See, e.g. Telemedia Pacific Group, above n. 130 (Parties have agreed
02, [2017] 4 SLR 14 (concept of subrogation under French law); BNP that the content of applicable foreign law is identical to that of Singa-
Paribas SA v. Jacob Agam [2017] SGHC(I) 10, [2018] 3 SLR 1 (The pore law and proceeded on that basis); CPIT Investments Ltd v. Qilin
French law issues were later abandoned.). World Capital Ltd [2017] SGHC(I) 05, [2017] 5 SLR 1 (Vivian Ramsay
129. Macquarie Bank Ltd v. Graceland Industry Pte Ltd [2018] SGHC(I) 05, IJ).
[2018] 4 SLR 87. 138. See, e.g., Macquarie Bank Ltd v. Graceland Industry Pte Ltd [2017]
130. Telemedia Pacific Group Limited v. Yuanta Asset Management Interna- SGHC(I) 12 (Henry Bernard Eder IJ); Arovin Ltd v. Hadiran Sridjaja
tional Limited [2016] SGHC(I) 03, [2016] 5 SLR 1 (Patricia Bergin IJ [2018] SGHC(I) 09, (Vivian Ramsay IJ). To be clear, these two judg-
was appointed as a single judge in the case.). ments ruled on issues concerning general Singapore procedural law that
131. BCBC Singapore Pte Ltd v. PT Bayan Resources TBK [2016] SGHC(I) is also applicable to traditional High Court proceedings, as opposed to
01, [2016] 4 SLR 1, at paras. 181-228. procedural rules that are unique to the SICC regime.
132. As a matter of general practice, at least one Singapore judge is included 139. See Telemedia Pacific Group, above n. 130. Bergin IJ, an Australian
in a three-member panel. international judge, cited a number of Australian authorities in support
133. See, e.g. Arris Solutions Inc v. Asian Broadcasting Network (M) Sdn of trite contractual principles.
Bhd [2017] SGHC(I) 01, [2017] 4 SLR 1 (Judgment was delivered by 140. See CPIT Investments Ltd v. Qilin World Capital Ltd, above n. 137, at
Simon Thorley IJ.). para. 199, where Vivian Ramsey IJ suggested that under Singapore law
134. See, e.g. BNP Paribas SA v. Jacob Agam [2018] SGCA(I) 07 (Judgment (as with any other legal system), a remedial constructive trust is
was delivered by David Edmond Neuberger IJ.). ‘imposed sparingly’.

by the courts of the home jurisdictions of the interna- cient by itself to establish the CICC’s jurisdiction over a
tional judges. dispute, unless the amount in dispute exceeds RMB 300
million and the case has an actual connection with Chi-
na.145 As such, party autonomy is clearly less valued
within the CICC’s jurisdictional framework, as com-
5 Challenges Ahead pared with the SICC regime.
Second, the CICC judges are Chinese judges drawn
We now consider the challenges confronting the SICC from the SPC.146 Currently, fifteen SPC judges have
going forward. been appointed to the CICC.147 Chinese law (Judges’
5.1 Competition from CICC? Law and the Law on the Organisation of the People’s
To provide a judicial safeguard for the BRI, on 29 June Courts) does not permit the appointment of foreigners
2018, China established the CICC to serve the dispute as judges of the Chinese courts. The absence of an inter-
needs of the BRI. Presently, the Supreme People’s national bench may affect user confidence in the impar-
Court of China (SPC), in charge of the creation of the tiality and trustworthiness of the CICC, especially
CICC, is ‘in the final stages of formalising its rules and because the CICC disputes will likely involve at least
procedures’.141 A judicial interpretation document one non-Chinese party. Further, it is envisaged that
issued by the SPC, entitled ‘Provisions of the Supreme many of the disputes arising from the BRI would
People’s Court on Several Issues Regarding the Estab- involve foreign law elements. An international bench
lishment of the International Commercial Courts’ sets (such as the SICC panel) would boost greater confi-
out the CICC framework, the jurisdiction of its courts, dence in the more accurate interpretation and applica-
judicial panel and numerous procedural provisions (the tion of foreign law, where there are foreign judges on
‘Judicial Interpretation on the CICC’).142 The creation the bench who are trained in the relevant foreign law.
of the CICC may raise some concern as to whether it The decision to appoint only Chinese nationals as CICC
would compete for judicial business with the SICC.143 judges reflects a strong desire for ensuring forum con-
A review of the CICC framework deserves detailed trol in the dispute resolution process. Perhaps, this
treatment in a separate article.144 It suffices, for present shortcoming of the CICC could be mitigated to some
purposes, to highlight the main competitive advantages extent by the establishment of the CICC’s International
which the SICC has over the CICC. It is argued that the Commercial Expert Committee. To date, thirty-two
SICC is a far more attractive litigation option than the experts from different countries have been appointed.148
CICC. However, the precise remit of the Expert Committee
95
First, unlike the SICC, the CICC’s jurisdictional frame- remains unclear, and its utility cannot, thus, be fully
work is much more constrained. Notably, a written assessed at this point.
jurisdiction agreement in favour of the CICC is insuffi- Third, current Chinese law does not grant foreign law-
yers a right of audience before the Chinese courts
(including the CICC).149 This limitation diminishes the
141. M. Walters, ‘Jury Is Out Over China’s New Commercial Court, Say CICC’s appeal to the international business community
Lawyers’, UK Law Gazette, 1 November 2018, available at: https:// who are very much used to the procedural flexibility of
www.lawgazette.co.uk/law/jury-is-out-over-chinas-new-commercial- arbitration practice. Indeed, in cases which raise foreign
court-saylawyers/5068125.article?
utm_source=dispatch&utm_medium=email&utm_campaign=
law issues, litigants (especially non-Chinese nationals)
%20GAZ141016 (last visited 8 February 2019). would likely prefer to engage foreign counsel who are
142. ‘Provisions of the Supreme People’s Court on Several Issues Regarding familiar with the relevant foreign law.
the Establishment of the International Commercial Court’ (Court Finally, pursuant to existing Chinese legislation, pro-
Explanation No 11 of 2018)] (promulgated by the Supreme People’s
Court on 27 June 2018; effective as on 1 July 2018), available at:
ceedings of cases involving foreign elements must be
http://www.court.gov.cn/zixun-xiangqing-104602.html? (last visited conducted in ‘languages commonly used in China’ – in
8 February 2019). other words, in Chinese or the native languages of the
143. The CICC has announced on 29 December 2018 that it has accepted ‘a
number of international commercial disputes in accordance with Article
20 and Article 38 of the Civil Procedure Law of the People’s Republic of 145. Judicial Interpretation on the CICC, above n. 143, Art. 2.
China and Article 2 of the Provisions of the Supreme People’s Court on 146. On the basic qualifications of CICC judges, see Judicial Interpretation on
Several Issues Regarding the Establishment of the International Com- the CICC, above n. 143, Art. 4.
mercial Court’. Based on the information, it may be surmised that these 147. See China International Commercial Court, available at: http://
are transfer cases. See http://cicc.court.gov.cn/html/1/219/208/210 / cicc.court.gov.cn/html/1/219/193/196/index.html (last visited 8 Febru-
1152.html (last visited 8 February 2019). ary 2019).
144. See W. Sun, ‘International Commercial Court in China: Innovations, 148. See ‘The Decision on Appointment of the First Group of Members for
Misunderstandings and Clarifications’, Kluwer Arbitration Blog, 4 July the International Commercial Expert Committee’, China International
2018, available at: http://arbitrationblog.kluwerarbitration.com/ Commercial Court, 24 August 2018, available at: http://
2018/07/04/international-commercial-court-china-innovations- cicc.court.gov.cn/html/1/219/235/245/index.html (last visited 8 Febru-
misunderstandings-clarifications/ (last visited 8 February 2019); ‘With ary 2019). This first group of experts have been appointed for a four-
An Eye on Belt and Road Disputes, China Establishes New International year term, from 26 August 2018 to 26 August 2022.
Commercial Courts’, Herbert Smith Freehills, 4 July 2018, available at: 149. Civil Procedure Law (promulgated by the President of the People’s
https://www.herbertsmithfreehills.com/latest-thinking/with-an-eye-on- Republic of China on 9 April 1991) and the Law on the Organisation of
belt-and-road-disputes-china-establishes-new-international-commercial the People’s Courts (promulgated by the Chairman of the Standing
(last visited 8 February 2019); Z. Huo and M. Yip, (2019, forthcoming), Committee of the National People’s Congress on 5 July 1979; effective
above n. 11. as on 1 July 1980).

fifty-five officially recognised ethnic minorities in Chi- avenue is far more uncertain, as the requirements and
na.150 This creates an unnecessary language barrier for their application would vary from jurisdiction to juris-
foreign litigants. Moreover, it is unclear why the lan- diction.159 Indeed, it has been observed that it is very
guage of proceedings before the CICC – an international difficult to recognise or enforce foreign judgments in
commercial court – does not include English, given that some ASEAN countries.160
litigants from the BRI countries would speak a variety of To increase the portability of its judgments abroad, Sin-
languages and that the prescribed qualifications of the gapore continues to seek ways, directly or indirectly, to
CICC judges include the ability to use English as a foster collaboration and trust with the courts of other
working language.151 countries. The Supreme Court of Singapore, on 19 Jan-
uary 2015, entered into a non-binding ‘Memorandum of
5.2 International Enforceability of Singapore Guidance’ with the DIFC Courts concerning the recip-
Judgments rocal enforcement of money judgments.161 On
The real challenge for the SICC concerns the interna- 31 August 2018, the Supreme Court of Singapore
tional enforceability of Singapore judgments. Practically entered into a Memorandum of Guidance with the SPC
speaking, users of the SICC (or any international com- on the recognition and enforcement of money judgment
mercial court for that matter) would be most concerned in commercial cases.162 The Asian Business Law Insti-
with whether the judgments may be recognised and tute is now undertaking a project on the harmonisation
enforced in other jurisdictions, most notably, where the of the rules of recognition and enforcement of foreign
assets of the judgment debtor are located. Enforceability judgments in Asia. The first phase of the project con-
of outcomes is the key reason why business parties cerning the description of domestic rules in each Asian
favour international commercial arbitrations.152 As jurisdiction has been completed and published.163 It is
Godwin, Ramsay and Webster have astutely observed, hoped that these efforts will bring forth comprehensive
‘the problem of enforcement is more acute for interna- reciprocal treaty arrangements in the future.
tional commercial courts as “the parties before such
courts may have little or no presence and few (if any)
assets within the state where the courts are located”’.153
Hence, in 2016, Singapore has signed and ratified the 6 Conclusion
Hague Convention which prescribes rules for both
jurisdiction and the recognition and enforcement of The SICC framework of litigation is undergirded by the
judgments.154 The Hague Convention regime applies in values of hybridisation (between litigation and arbitra-
96 ‘international cases to exclusive choice of court agree- tion), internationalisation (participation by foreign law-
ments concluded in civil or commercial matters’.155 One yers and judges) and party autonomy. It changes our
of the basic rules under the Hague Convention is that a frame of reference for what international commercial lit-
judgment by the chosen court must be recognised or igation should be like. It helps to establish the norm that
enforced in Contracting States,156 subject to limited litigation can be neutral, effective and user focused.
exceptions set out in Article 9. At the date of writing, This is Singapore’s contribution to the future of dispute
the Hague Convention has entered into force in Mexico, resolution.
Montenegro and the European Union member states Going forward, the SICC will need to build its docket
(including Denmark). China, the USA and Ukraine on the basis of cases arising out of an SICC clause and
have signed but yet to ratify the Hague Convention.157 not continue to be heavily reliant on transfer cases. How
Where there is no treaty arrangement in place, a Singa- soon this may be achieved would depend on the compe-
pore judgment may be recognised and enforced in
accordance with the domestic rules of the recognising/ available at: https://www.sal.org.sg/Portals/0/PDF%20Files/Law
%20Reform/2005-06%20-%20Enforcement%20of%20Foreign
enforcing jurisdiction.158 However, this domestic rule
%20Judgments.pdf (last visited 8 February 2019).
159. For common law countries, the requirements for enforcement of foreign
150. Civil Procedural Law, Art. 11. judgments are largely similarly to the requirements under Singapore
151. Judicial Interpretation on the CICC, above n. 143, Art. 4. law.
152. See discussion in text to nn. 13-15 above. 160. For example, Thailand and Indonesia. See Hsu, Koh & Yip (2018),
153. A. Godwin, I. Ramsay & M. Webster, ‘International Commercial Courts: above n. 9.
The Singapore Experience’, 18 Melbourne Journal of International Law 161. See Supreme Court of Singapore and DIFC Courts, ‘Memorandum of
219, at 233 (2017). Guidance as to Enforcement Between the Supreme Court of Singapore
154. The local implementing legislation is the Choice of Court Agreements and the Dubai International Financial Centre Courts’, 2015, available at:
Act, ch. 39A (2016). https://www.supremecourt.gov.sg/docs/default-source/default-
155. Hague Convention, Art. 1(1). document-library/dubai-mog-2015-cj-menon-and-cj-of-difc-
156. Hague Convention, Art. 8. (memorandum-of-guidance)4bb63033f22f6eceb9b0ff0000fcc945.pdf
157. See Status Table, available at: https://www.hcch.net/en/instruments/ (last visited 8 February 2019).
conventions/status-table/?cid=98 (last visited 8 February 2019). 162. See H. Baharudin, ‘Singapore and China Courts Agree on Guide for
Although Canada has not ratified the Hague Convention, Ontario has Money Judgement in Commercial Cases to Be Recognised in Each Oth-
recently enacted the International Choice of Court Agreements Con- er’s Countries’, The Straits Times, 3 September 2018, available at:
vention Act 2017 to give effect to the Hague Convention in anticipation https://www.straitstimes.com/singapore/singapore-and-china-courts-
of Canada’s ratification. agree-on-guide-for-money-judgment-in-commercial-cases-to-be (last
158. For more details, see discussion in ‘Report of the Law Reform Commit- visited 8 February 2019).
tee on Enforcement of Enforcement of Foreign Judgments’ Singapore 163. A. Chong (ed.), Recognition and Enforcement of Foreign Judgments in
Academy of Law, Law Reform Committee (June 2005), at pp. 8-9, Asia, ABLI Legal Convergence Series (2017).

tition from other dispute resolution institutions, the
degree of the international enforceability of the SICC
judgments, and the willingness of lawyers and in-house
counsel to insert SICC clauses into commercial con-
tracts.
More interestingly, the mid- to long-term impact of the
SICC, domestically and internationally, merits an in-
depth study in due course. Section 4 highlights ques-
tions concerning the impact of foreign judges on the
development and influence of Singapore law. But there
are other equally interesting facets to consider, for
instance, whether other international commercial courts
would base their design on the SICC or adopt successful
procedural reforms from the SICC. This will be a meas-
ure of SICC’s influence on the design of dispute resolu-
tion mechanisms. Further, what is the impact of the lib-
eralisation of the criteria for foreign lawyers to appear as
counsel in SICC proceedings? Does this reform bring in
more dispute business for Singapore? How do local law-
yers support litigation in which foreign lawyers appear
as counsel, and do these interactions inspire healthy
competition and better litigation practices? We await the
full impact of the SICC.
97

The Singapore International Commercial Court: The Future of Litigation?

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The Singapore International Commercial

Court: The Future of Litigation?

Abstract International Financial Centre Courts (DIFCC)2 were

2. Dubai International Financial Centre Courts, ‘About the DIFC Courts’,

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85. Section 15 LPA. library/sicc-practice-directions-(with-effect-from-1-

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12. Justice Simon Thorley QC UK January 2015-present Former barrister specialising in

14. Justice David Edmond UK January 2018-present Former President of the UK

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