The Singapore International Commercial Court (“SICC”) was officially launched by the Chief Justice of Singapore, Mr Sundaresh Menon on 5 January 2015. The SICC is will take on high-value, complex, cross border commercial cases and the Singapore High Court, of which it is a division, will be able to refer cases which satisfy certain conditions to the SICC. In addition to the existing panel of High Court judges, international jurists have been appointed to hear cases before the SICC.
The SICC had been two years in the making since it was first mooted at the Opening of Legal Year 2013, and is the latest in the movement to promote Singapore as an international centre for dispute resolution, which started with the promotion of the Singapore International Arbitration Centre more than a decade ago, and more recently, the opening of the Singapore International Mediation Centre in November 2014 (covered in our arbitration blog here). The SICC is an innovation of the Singapore Government and offers the following unique features that seek to marry the best of international arbitration and Singapore court practices, each of which is discussed in turn below:
- jurisdiction over international and commercial disputes that may or should have been tried by the High Court;
- presence of international specialist jurists on the bench;
- foreign representation of parties;
- freedom to depart from domestic rules of evidence including rules on privilege and document production;
- adoption of confidentiality obligations to keep disputes private and confidential.
(1) The jurisdiction of the SICC
The SICC will have jurisdiction over disputes which:
- are international and commercial in nature;
- may be heard and tried by the High Court in its original civil jurisdiction; and
- satisfy other conditions as may be prescribed by the Singapore Rules of Court.
A claim is considered to be commercial if it arises from any relationship that is commercial in nature. The definition includes a non-exhaustive list of relationships that are considered to be commercial, such as concession agreements, joint ventures, consulting, engineering or licensing, as well as construction works, investment, financing, banking or insurance relationship.
A claim will be considered “international” if:
- the parties have agreed by written agreement to submit their claim to the SICC and the parties have their place of business in different states;
- none of the parties to the claim have their place of business in Singapore;
- a substantial part of the obligation of the commercial relationship between the parties is to be performed outside any state in which any of the parties have their place of business;
- the place with which the subject matter of the dispute is most closely connected is outside any state in which any of the parties have their place of business, or
- the parties to the claim have agreed expressly that the subject-matter of the claim relates to more than one state.
Parties who would like a claim to be heard by the SICC may obtain what is known as a “pre-action certificate” which if granted certifies as conclusive that the claim in question is international and commercial in nature (and, where applicable, is an “offshore case”, which characterisation affects the choice of counsel, discussed further below).
Significantly, a claim that satisfies any of the conditions (2) to (5) above may also end up being heard before the SICC even in the absence of the parties’ express submission to the SICC’s jurisdiction, as the High Court can transfer cases to the SICC of its own motion. In practice, such transfer will be effected by way of a notice from the High Court to parties informing that the matter has been transferred to the SICC, with parties given an opportunity to show cause within a specified time if they wish for the matter to remain with the High Court. It is understood that several such notices have already been issued in pending cases.
(2) Constitution of the SICC
Every claim to be tried by the SICC shall be heard by a single judge or three judges. One of the distinguishing features of the SICC is that its composition of judges will include not only the judges of the High Court (of which the SICC is a division) but also foreign jurists. Foreign jurists, who in the opinion of the Chief Justice possess the necessary qualifications, experience and standing may be appointed an international judge the President of Singapore (upon the advice of the Prime Minister and the Chief Justice).
The first cohort of international judges have been appointed for a period of three years with effect from 5 January 2015, and hail from both civil and common law jurisdictions. These are:
- The Honourable Ms Carolyn Berger (United States of America)
- The Honourable Justice Patricia Bergin (Australia)
- The Honourable Mr Roger Giles (Australia)
- The Honourable Dr Irmgard Griss (Austria)
- The Honourable Justice Dominique T. Hascher (France)
- The Honourable Mr Dyson Heydon AC QC (Australia)
- The Honourable Sir Vivian Ramsey (United Kingdom)
- Mr Anselmo Reyes (Hong Kong)
- The Right Honourable Sir Bernard Rix (United Kingdom)
- Professor Yasuhei Taniguchi (Japan)
- Mr Simon Thorley QC (United Kingdom)
It is therefore now possible for a matter before the SICC which is governed by, for example, French law, to be argued by French qualified lawyers (subject to certain conditions, discussed below), before a court of three judges, one of whom is a French-qualified international judge. This feature takes a leaf out of the practice of international arbitration where parties can appoint an arbitrator with specific legal qualifications to determine a dispute.
(3) Full or partial foreign representation before the SICC
Another groundbreaking feature of the SICC is the ability of parties to appoint and be represented by a foreign counsel of its choice upon the fulfillment of certain conditions.
Any foreign lawyer who is qualified (i.e. certified by the relevant authority in the jurisdiction in which he/she is qualified) to practise law in any part of the world, provided that he/she has at least five years’ experience in advocacy and is sufficiently proficient in the English language may apply for registration. The foreign counsel must also agree to comply with the Code of Ethics issued pursuant to the amended LPA.
Parties may be represented by a registered foreign counsel without any involvement of local Singapore counsel if the matter in question is considered to be an “offshore case”. An “offshore case” is defined in the amended Rules of Court as a case which has no substantial connection to Singapore either because (i) Singapore law is not the law applicable to the dispute and the subject matter of the dispute is not regulated by or otherwise subject to Singapore law, or (ii) the only connection between the dispute and Singapore are the parties’ choice of Singapore as the law applicable to the dispute and the parties’ submission to the SICC’s jurisdiction.
Where a case is not considered an offshore case, a registered foreign counsel may only represent the party in question in respect of aspects of foreign law on which the said counsel is qualified to advise. In such cases, it is expected that local counsel will have primary conduct of the matter as if it were a matter before the High Court, with assistance from the registered foreign counsel as co-counsel and not as expert on foreign law.
(4) Freedom to depart from domestic rules of evidence
Along with the ability to pick a foreign counsel, the amended SCJA also permits parties to submit on foreign law (through registered foreign counsel qualified to submit on that law) rather than to prove such law through expert evidence as traditionally required under the domestic rules of evidence.
The SICC is not bound by the domestic rules of evidence at all and may apply other rules of evidence whether they are found in a foreign law or otherwise, if the parties make an application for it. The amended Rules of Court make it clear that the reference to rules of evidence includes any rule relating to legal professional privilege and the taking of evidence.
(5) Imposition of confidentiality obligations
One of arbitration’s attractive features is the private and confidential nature of the proceedings. By contrast, court proceedings are, in the absence of special circumstances, not confidential and hearings are open to the public as they may affect the interest of the public. To bridge this gap, the amended Rules of Court allow the SICC, on the application of a party, to order (i) a case before it to be heard in private, (ii) parties not to disclose any information relating to the case, and/or (iii) the file on the case be sealed. The SICC will have regard to factors such as the parties’ prior agreement on this as well as whether the case is an offshore case (which may be more likely to be subject to such confidentiality orders as it is not likely to affect the interest of the public in Singapore) in deciding whether to make the order.
The SICC fulfills a very important function insofar as it widens the offering available in the Singapore courts to those who cannot or choose not to, for whatever reasons, refer their disputes to arbitration. It provides these users with some of the attractive features available in arbitration, such as flexibility on the rules of evidence, wider choices of counsel for the right circumstances, and specialist expertise in foreign law amongst the judges hearing the dispute.
Having said that, the SICC is likely to face challenges convincing users to make the switch from other forms of dispute resolution. One primary reason is the enduring popularity of arbitration and the ease of cross-border enforcement that arbitration provides. In contrast, an SICC judgment, being a judgment of the Singapore court, may not be as easily enforced abroad in the absence of a litigation equivalent to the New York Convention, which allows arbitral awards issued in a “Convention State” to be enforced as a matter of course (and subject to limited exceptions only) in any of the other 152 or so Convention States. The Singapore Government is reportedly studying Singapore’s possible accession to the Hague Convention on the Choice of Court Agreements and there have also been discussions about reciprocal enforcement possibilities within the ASEAN framework, but the Hague Convention is not yet in force, and there has been little indication thus far that Singapore would be prepared to enter into reciprocal arrangements for the mutual enforcement of ASEAN judgments.
The SICC will nevertheless be instrumental in increasing the profile of Singapore as a dispute resolution center. To this end, it is expected that Singapore’s courts will be proactive in referring suitable cases to the SICC to promote the SICC. This will increase the profile and decision-making expertise of the SICC. As the SICC develops, it will also build a body of jurisprudence which will in turn contribute to the internationalisation of Singapore law and Singapore legal services. This will no doubt cement the reputation and use of Singapore as a hub for dispute resolution and can also be helpful for the continued growth of other forms of dispute resolution such as arbitration and mediation.