In the July 2014 edition of our Dispute Resolution Bulletin (http://www.hfw.com/Dispute-Resolution-Bulletin-July-2014), Partner Paul Aston reflected on Singapore’s announcement of the launch of two new dispute resolution centres, the Singapore International Commercial Court (SICC) and the Singapore International Mediation Centre (SIMC), in pursuance of its ambition to establish itself as the Asian dispute resolution hub.
Following the launch of the SIMC in November 2014, the SICC launched in January 2015. The SICC’s published aim is “to further boost Singapore’s value as a leading forum for legal services and international commercial dispute resolution, offering litigants the option of having their disputes adjudicated by a panel of experienced judges comprising specialist commercial judges from Singapore and international judges from both civil law and common law traditions”. It aims to combine elements of both litigation and arbitration.
The first case to be heard by the new SICC is a SGD$1 billion dispute over a joint venture agreement involving Australian, Indonesian and Singapore business interests, relating to the production and sale of upgraded coal.
A key issue for the new court is likely to be the ease of enforcement of its judgments. Whilst it remains to be seen how straightforward this will be, the Singapore government has taken steps to improve the position.
The SICC is a division of the Singapore High Court and part of the Supreme Court of Singapore. It will hear cases which are international and commercial in nature and has jurisdiction over the following categories of cases:
- Where parties consent to use the SICC.
- Where there is a contractual clause giving the SICC jurisdiction over issues arising out of the contract.
- When the Chief Justice transfers the cases commenced in the Singapore High Court to the SICC, regardless of the consent of parties.
Where parties to a dispute would like their claim to be heard by the SICC, and do not want to wait for the issuance of a notice for transfer by the High Court, they can apply for a ‘pre-action certificate’, which serves as proof that the claim is international and commercial in nature and can therefore be heard by the SICC.
The SICC will not decline jurisdiction solely on the ground that there are few or no connecting factors to Singapore.
The bench: the SICC uniquely comprises both Singapore High Court judges and international judges. The newly appointed international judges come from both civil and common law jurisdictions, including the US, UK, Australia and France and have a mandate of three years. An indication that the SICC will draw on this blend of expertise is demonstrated in the first case to be heard, in which judges from Singapore, the UK and Hong Kong have been appointed.
Foreign representation: registered foreign counsel are permitted to appear before the SICC, subject to certain limitations.
Joinder of parties: one of the key differences with arbitration is that the SICC can join third parties to the proceedings regardless of consent. A joinder can be ordered whether or not the third party is a party to the SICC agreement. This feature can prove useful in a multiparty dispute.
Confidentiality: confidentiality is considered a key advantage of arbitration over court proceedings. The SICC has powers to order for (i) a case to be heard in private; (ii) parties not to disclose any information pertaining to the case; and (iii) the file on the case to be sealed.
Disclosure: disclosure is limited to documents on which the parties rely, subject to specific requests from the other parties. The SICC has power to order disclosure from a non-party and a party can apply for disclosure before a case has started.
Appeals: appeals against SICC judgments are heard by the Singapore Court of Appeal, in the same way as appeals from decisions of the Singapore High Court.
This is likely to be a significant issue for international parties considering the SICC to deal with their disputes. Unlike holders of SIAC arbitral awards, holders of SICC judgments will not have the advantage of the widespread ratification of the New York Convention to assist with enforcement in other jurisdictions.
However, on 25 March 2015, Singapore signed the Hague Convention on Choice of Court Agreements (the Convention). Other signatories to the Convention include the EU, USA and Mexico. If, as expected, the Convention comes into force later in 20151 and Singapore ratifies it, this will mean that courts in EU countries and the US will be obliged to recognise and enforce SICC judgments.
The SICC seems to offer some of the best advantages of both litigation and arbitration and the first claim to be heard will attract considerable interest. However, its long term success is likely to depend on the ease of enforceability of its judgments internationally.