1. In Accent Delight International Ltd and anor v Bouvier, Yves Charles Edgar and anor [2016] 2 SLR 841 (“Accent Delight (HC)”), the Singapore High Court held that the perceived advantages (to the defendants) or disadvantages (to the plaintiffs) of the foreign forum being forum conveniens would be “levelled out” if the proceedings remain in Singapore but is transferred to the Singapore International Commercial Court (“SICC”).[1]
  2. This raises the question of whether the possibility of a transfer to the SICC is a relevant factor in determining forum non conveniens under the Spiliada[2] test. The answer to this question has far-reaching implications on the extent to which disputes with overseas elements will now be heard in Singapore.
  3. On appeal, the Singapore Court of Appeal answered the question with a resounding “yes”: as a matter of principle, the Singapore courts are entitled to take the possibility of a transfer into account in determining whether Singapore is forum non conveniens. This, however, comes with the important caveat that the “SICC factor” should not be considered as a “free pass to elude all jurisdictional objections: Rappo, Tania v Accent Delight International Ltd and anors [2017] SGCA 27 (“Accent Delight (CA)”) at [116] and [124].
  4. By way of background, the SICC was officially launched on 5 January 2015. Building on the success of Singapore’s arbitration sector and leveraging on its efficient, competent and honest judiciary, the SICC seeks to boost Singapore’s status 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.[3]
  5. A unique feature of the SICC is that it is a division of the Singapore High Court. Generally, the SICC has the jurisdiction to hear and try an action if: (a) the claim in the action is of an international and commercial nature; (b) the parties to the action have submitted to the SICC’s jurisdiction under a written jurisdiction agreement; and (c) the parties to the action do not seek any relief in the form of, or connected with, a prerogative order. The SICC may also hear cases which are transferred from the High Court which fulfil requirements (a) and (b), and “it is more appropriate for the case to be heard in the [SICC]”[4].
  6. In Accent Delight (HC), it was not disputed that the claim was of an international and commercial nature. However, the Defendants argued that Switzerland or Monaco (where there were ongoing proceedings) were clearly more appropriate fora and the“SICC factor” should not be relevant to the Spiliada test.[5] The High Court disagreed and held that the Singapore suit should be transferred to the SICC (not to Switzerland or Monaco) where eminent judges who hail from civil law jurisdictions can determine the matter.[6] The Defendants appealed.
  7. On appeal, the Court of Appeal agreed that the “SICC factor” was relevant to the Spiliada test On the facts, this did not tip the balance in favour of Switzerland as the more appropriate forum. Given its finding that Singapore was forum non conveniens, the Court refrained (perhaps out of respect for international comity) from determining whether the proceedings in Monaco were lis alibi pendens – “this might perhaps be a relevant consideration for the Swiss courts” (at [125]).
  8. The Court of Appeal’s analysis on the “SICC factor” is both illuminating and thought-provoking.
  9. First, the Court’s reasoning exhibits the enduring relevance of the time-tested Spiliada test. The inquiry under Spiliada is “a broad one” such that in determining whether a particular forum is forum non conveniens, “the court is required to take all factors into consideration, and this must include the possibility of a transfer to the SICC”. Taking the example of how the SICC may, on the application of a party, order that any question of foreign law be determined on the basis of submissions instead of proof, the Court reasoned that this “would obviate the need (and correlative expense) for experts to give evidence on foreign law. More fundamentally – leaving aside issues of cost – the reason why the applicable law to a dispute is considered a relevant connection under Spiliada is that a court which is called on to apply its own law is better equipped to do so and less likely to err in its application[7]…Thus, the fact that a law other than Singapore law applies to the dispute at hand should carry less weight in the forum non conveniens analysis if the Singapore courts, through their International Judges in the SICC, are familiar with and adept at applying that foreign law (at [122]).
  10. This reasoning is undoubtedly sound and raises the interesting question as to whether the “SICC factor” should be considered relevant to the Spiliada test’s first stage (i.e. whether the action has a real and substantial connection with another forum) and/or second stage (i.e. whether the plaintiff will be denied substantial justice if the case is not heard in Singapore). The Court’s example in the preceding paragraph would suggest that the “SICC factor” is at least relevant to the first stage.  
  11. Second, the Court emphasised that the “SICC factor” should not encourage opportunistic forum-shopping. Agreeing with the Appellants, the Court cautioned that the “SICC factor” should not lead to “an unprincipled jurisdictional grab resulting in the Singapore courts’ refusal to grant a stay in all cross-border commercial cases… Thus, the presence of the SICC and the possibility of a transfer of the case to it may well not be determinative.” (at [123]).
  12. The Court provided further guidance to future litigants: a submission that in favour of the “SICC factor” must be grounded in specificity of argument and proof by evidence”. Thus, “a plaintiff must articulate the particular quality or feature of the SICC that would make it more appropriate for the dispute to be heard in Singapore by the SICC, as well as prove that the dispute is of a nature that lends itself to the SICC’s capabilities”. In short, the “SICC factor” should not be considered as a “free pass to elude all jurisdictional objections to the adjudication of a dispute in Singapore” (at [124]). 
  13. In this new age of competing major dispute resolution centres, the Court of Appeal’s guidance in Accent Delight (CA) charts a safe and a sound course for Singapore – one which deters opportunistic forum-shopping while respecting international comity. This is as much a testament to the ingenuity of the Court of Appeal as the enduring genius of the Spiliada test.