Building on the success of Singapore’s arbitration sector, in early 2015 the Singapore International Commercial Court (SICC) was officially launched in Singapore.
The launch of the SICC is part of a wider strategy to position Singapore as Asia’s dispute resolution hub - offering parties an entire suite of options to resolve international commercial disputes, which includes the Singapore International Arbitration Centre and the Singapore International Mediation Centre.
The SICC’s aim is to serve as a companion rather than a competitor to arbitration by giving international parties another option to resolve their disputes.
Several features of the SICC, and in particular its flexible court procedures, take a leaf out of international arbitration practice. At the same time, the SICC’s court-based mechanism enables parties to avoid the following issues that may arise in international arbitration:
- delay in and rising costs of arbitration;
- concerns about the impartiality of arbitrators appointed by parties;
- limitations in joining third parties to an arbitraton; and
- the absence of appeals.
The SICC is a division of the Singapore High Court and part of the Supreme Court of Singapore, focusing on complex, cross-border commercial disputes.
By virtue of section 18D of the Supreme Court of Judicature Act (Cap. 322) read with Order 110, rule 7 of the Singapore Rules of Court (ROC), the SICC has the jurisdiction to hear and try any action that the Singapore High Court may hear and try in its original civil jurisdiction if:
- the claims between parties are of an international and commercial nature;
- the parties to the action have submitted to the SICC’s jurisdiction under a written jurisdiction agreement; and
- the parties do not seek any relief in the form of, or connected with, a prerogative order (including a mandatory, prohibiting, or quashing order or an order for review of detention).
According to Order 110, rule 1(2)(a) of the ROC, a claim is international in nature if:
- the parties to the claim have their places of business in different states;
- none of the parties to the claim have their places of business in Singapore;
- at least one of the parties to the claim has its place of business in a different state from the state in which a substantial part of the obligations of the commercial relationship between the parties is to be performed;
- at least one of the parties to the claim has its place of business in a different state from the state with which the subject matter of the dispute is most closely connected; or
- the parties to the claim have expressly agreed that the subject-matter of the claim relates to more than one state.
For those familiar with the International Arbitration Act (Cap. 143A) (IAA), you will have noticed that this is largely similar to section 5(2) of the IAA, which sets out when an arbitration is considered “international”.
A claim is considered “commercial” if it arises from any relationship that is commercial in nature, including transactions such as a joint venture, distribution agreements, construction works, investment, financing, banking or insurance (see Order 110, rule 1(2)(b) of the ROC). Again, this non-exhaustive list of relationships that are considered to be commercial is similar to the list in Article 1(1) of the UNCITRAL Model Law set out in the First Schedule of the IAA.
Additionally, the SICC may hear cases which are transferred from the Singapore High Court. In particular, the High Court may, after hearing parties, order the transfer on its own motion, even if parties have not expressly submitted to the SICC’s jurisdiction.
The SICC also has the power to join third parties to an action, even if the third parties are not parties to a written jurisdiction agreement and do not consent to being joined.
Disputes before the SICC are heard by either a single judge or three judges – the number is detemined by the SICC at its discretion.
The SICC’s panel of judges consists of both Singapore Judges (currently sitting in the High Court and the Court of Appeal) and International Judges. The International Judges include eminent current and former judges with diverse specialities, from both common law and civil law jurisdictions, including Austria, Australia, France, Hong Kong, Japan, the UK and the US.
3. Foreign representation
Foreign lawyers (i.e. lawyers not qualified in Singapore) may, in certain circumstances, represent parties in SICC proceedings. In order to do so, the foreign lawyers must first be registered under section 36P of the Legal Profession Act (Cap. 161).
The main category of cases in which registered foreign lawyers may represent parties is offshore cases. An offshore case is one that has no substantial connection to Singapore, but does not include an action in rem (against a ship or any other property).
4. Court procedures
Proceedings in the SICC are governed by a separate set of procedural rules and practice directions developed based on international best practices.
Some differences between the SICC rules and the rules governing other proceedings before the Singapore High Court include:
- Rules of evidence: The SICC is not bound to apply Singapore rules of evidence (including rules contained in the Evidence Act (Cap. 97) and at common law). Parties may apply to the SICC to adopt other rules of evidence in foreign law or elsewhere (for example, the International Bar Association Rules on the Taking of Evidence in International Arbitration (IBA Rules of Evidence)).
- Foreign law: Parties may apply for an order that any question of foreign law be determined on the basis of submissions instead of proof (through expert evidence).
- Document production: The rules of the SICC in relation to document production are similar to those in the IBA Rules of Evidence.
Proceedings before the SICC will generally take place in open court, however parties may apply for their case to be heard confidentially.
In deciding whether to grant a confidentiality order, the SICC may have regard to among other things, whether the case is an offshore one (i.e. with no substantial connection with Singapore) and any agreement between the parties on the making of such an order. The SICC will generally take a more liberal approach in making a confidentiality order in an offshore case given that such matters are not likely to be of domestic public interest.
As the SICC is a division of the High Court, any appeal from a judgment or order of the SICC will be heard by the Court of Appeal of Singapore.
The SICC, as a part of the Supreme Court and a division of the High Court, is a superior court of law.
SICC judgments may therefore be enforced in other jurisdictions no differently from a judgment of the Singapore High Court or superior courts of other jurisdictions.
In particular, under the Reciprocal Enforcement of Commonwealth Judgments Act (Cap. 264) (RECJA) and the Reciprocal Enforcement of Foreign Judgments Act (Cap. 265) (REFJA), SICC judgments may be enforced by registration in the 11 countries and territories scheduled (namely, the Commonwealth states and Hong Kong respectively). An SICC judgment once registered, can be expected to be enforced by the foreign court as if it were its own judgment.
Following the enactment of the Choice of Court Agreements Act (CCAA) which comes into force on 1 October 2016 and implements the Hague Convention on Choice of Court Agreements (the Convention), the range of countries in which SICC judgments can be enforced has now expanded and will continue to increase as more states become parties to the Convention.
Broadly, contracting states under the Convention are required to:
- uphold exclusive choice of court agreements which designate the courts of contracting states in international civil or commercial cases; and
- recognise and enforce the judgments of other contracting states designated in exclusive choice of courts agreements in the same way as if it were a judgment of their own court. In this regard, as noted by Senior Minister of State for Law, Ms Indranee Rajah, in her speech at the Second Reading on the Choice of Court Agreements Bill, the Convention “does for court judgments of contracting states what the New York Convention does for arbitral awards”.
There are currently 28 states that are party to the Convention, namely, the European Union member states (save for Denmark) and Mexico. The United States and Ukraine have signed the Convention but have yet to ratify it.