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Singapore: A Mix of Traditional and New Rules

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Optional Choice of Court Agreements in Private International Law

Part of the book series: Ius Comparatum - Global Studies in Comparative Law ((GSCL,volume 37))

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Abstract

The applicable rules differ depending on whether the Singapore High Court (not including the Singapore International Commercial Court), the Singapore International Commercial Court (“SICC”), or a foreign forum is named in an optional choice of court agreement. If the Singapore High Court (not including the SICC) or a foreign forum is named in the agreement, the traditional rules apply, although there are certain differences depending on whether the chosen court is local or foreign and the context of the case. The SICC regime departs from the traditional rules by relying on a presumption of exclusivity if party intentions as to the nature of the choice of court agreement are not made clear, and by abrogating the need to obtain leave to serve the writ on a defendant abroad. The test for the exercise of jurisdiction is also different and generally designed to make it harder for the SICC to refuse jurisdiction.

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Notes

  1. 1.

    “Jurisdiction agreements, though they may be [optional] in nature, should be respected and, when possible, upheld”: PT Jaya Putra Kundur Indah v Guthrie Overseas Investments Pte Ltd [1996] SGHC 285, [64].

  2. 2.

    Act No 14 of 2016.

  3. 3.

    Cap 396, 1994 Rev Ed. This Act offers protection against certain types of exclusion and limitation clauses.

  4. 4.

    Unless the context provides otherwise, references to the “Singapore High Court” in this chapter should be taken as references to the Singapore High Court excluding the SICC.

  5. 5.

    Although, similarly to procedural rules which implement the Brussels regime in the UK (Civil Procedure Rule 6.33(2)), no leave is required to serve a writ on a defendant abroad for a case commenced before the Singapore International Commercial Court (SICC) regime. It is unclear if the UK CPR provided the inspiration for this.

  6. 6.

    Cap 265, 2001 Rev Ed. Specifically, section 5(3)(b) thereof. See below, text n 109 et seq.

  7. 7.

    HCCCA, Article 22.

  8. 8.

    PT Jaya Putra Kundur Indah v Guthrie Overseas Investments Pte Ltd [1996] SGHC 285, [62].

  9. 9.

    Pacific Recreation Pte Ltd v S Y Technology Inc [2008] 2 SLR(R) 491.

  10. 10.

    The list of factors was summarised in Las Vegas Hilton Corp v Khoo Teng Hock Sunny [1996] 2 SLR(R) 589, [39] as including: the language and terminology used, the form of documents involved in the transaction, whether there is any connection with a prior transaction, the currency of the contract or the currency for payment, the places of residence or business of the parties and the commercial purpose of the transaction.

  11. 11.

    The factors that are considered at this third stage are the same as those considered in the search for an implied choice of law; however, while the weight attributed to specific factors may differ according to the context, equal weight is to be placed on all factors at the third stage. See Pacific Recreation Pte Ltd v S Y Technology Inc [2008] 2 SLR(R) 491, [48].

  12. 12.

    Peh Teck Quee v Bayerische Landesbank Girozentrale [1999] 3 SLR(R) 842, [17].

  13. 13.

    Peh Teck Quee v Bayerische Landesbank Girozentrale [1999] 3 SLR(R) 842, [12].

  14. 14.

    Peh Teck Quee v Bayerische Landesbank Girozentrale [1999] 3 SLR(R) 842, [17].

  15. 15.

    Shanghai Turbo Enterprises Ltd v Liu Ming [2018] SGHC 172, [31]; overruled on another point [2019] 1 SLR 779. It is ambiguous whether this is a statement of general principle applicable irrespective of the proper law’s position on floating choice of law agreements, or confined to situations where Singapore law is the proper law of the contract: compare Shanghai Turbo Enterprises Ltd v Liu Ming [2018] SGHC 172, [31] and [52]. The former is more persuasive.

  16. 16.

    E.g., as in Orchard Capital I Ltd v Ravindra Kumar Jhunjhunwala [2012] 2 SLR 519. This is on the basis of the common law presumption of similarity between the lex fori and the applicable foreign law if the content of the latter law is not proven.

  17. 17.

    In PT Jaya Putra Kundur Indah v Guthrie Overseas Investments Pte Ltd [1996] SGHC 285, the clause read: “Each of the parties to this Agreement hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the District Courts of Central Jakarta but without prejudice to the right of any thereof to commence action or bring suit against each and every other party in any Court having Jurisdiction but for this Section… . In relation to any proceedings in Singapore, …”. The proper law of the agreement was Indonesian law but without helpful evidence on Indonesian law on construction of the agreement, the court proceeded on the basis that Indonesian law on construction of the agreement was the same as Singapore law. The High Court held that on normal Singapore principles of construction, the clause was an optional choice of court agreement. See [1996] SGHC 285, [61]–[63].

  18. 18.

    YES F&B Group Pte Ltd v Soup Restaurant Singapore Pte Ltd [2015] 5 SLR 1187; Yap Son On v Ding Pei Zhen [2017] 1 SLR 219.

  19. 19.

    Cap 322, Rev Ed 2007.

  20. 20.

    Yeo (2015), para 22.

  21. 21.

    Yeo (2015), para 36.

  22. 22.

    Yeo (2015), para 22.

  23. 23.

    Abdul Rashid bin Abdul Manaf v Hii Yii Ann [2014] 4 SLR 1042, [12].

  24. 24.

    Astrata (Singapore) Pte Ltd v Portcullis Escrow Pte Ltd [2011] 3 SLR 386.

  25. 25.

    Rules of Court, Order 10, rule 3.

  26. 26.

    Of course, service can be effected within Singapore if the defendant is present in Singapore, but the basis of service within jurisdiction in this instance will be the presence of the defendant and not the optional choice of court agreement.

  27. 27.

    Bradley Lomas Elektrolok Ltd v Colt Ventilation East Asia Pte Ltd [1999] 3 SLR(R) 1156. The specific procedural rules are set out in the Rules of Court, Order 11, rule 2.

  28. 28.

    This requires the applicant to have “the better of the argument”: Shanghai Turbo Enterprises Ltd v Liu Ming [2019] 1 SLR 779, [49].

  29. 29.

    “the claim is in respect of matters in which the defendant has submitted or agreed to submit to the jurisdiction of the Court”.

  30. 30.

    “the claim is brought to enforce, rescind, dissolve, annul or otherwise affect a contract, or to recover damages or obtain other relief in respect of the breach of a contract, being (in either case) a contract which … contains a term to the effect that that Court shall have jurisdiction to hear and determine any action in respect of the contract.”

  31. 31.

    [1987] AC 460. This test is elaborated below, see text to n 88 et seq. See also JIO Minerals FZC v Mineral Enterprises Ltd [2011] 1 SLR 391, [45]–[52], where the Court of Appeal rejected the Australian “clearly inappropriate forum” test.

  32. 32.

    [2010] 2 SLR 821.

  33. 33.

    The relevant sub-clause provided: “Each of the parties irrevocably waives any objection it may now or in the future have to the venue of any action or proceedings, and any claim it may now or in the future have that the action or proceeding has been brought in an inconvenient forum.” See [2010] 2 SLR 821, [12] (emphasis in judgment).

  34. 34.

    This test is elaborated below, see text to n 53–62. See also Societe Generale v Tai Kee Sing @ Tai Hean Sing [2003] SGHC 139 (“strong cause” test applied even though, from the face of the judgment, it appears that the clause did not include a waiver of objection to jurisdiction).

  35. 35.

    [2011] 4 SLR 503.

  36. 36.

    [2011] 4 SLR 503, [120].

  37. 37.

    Industrial & Commercial Bank Limited v Banco Ambrosiano Veneto S.P.A. [2000] SGHC 188; UBS AG v Telesto Investments Ltd [2011] 4 SLR 503; Dinesh Kishin Kikla v The Hong Kong and Shanghai Banking Corporation Ltd [2013] SGHCR 06 (High Court Registry). In Asia-Pacific Ventures II Ltd v PT Intimutiara Basindo [2001] 2 SLR(R) 371, [22] the court cited Dicey and Morris on the Conflict of Laws (13th ed, 2000) to the effect that pursuant to the test in Spiliada, in principle, it is not open to either party to object to the court’s exercise of its jurisdiction on grounds which should have been foreseeable when the agreement was made. However, the court did not appear to apply this prohibition in its analysis of the facts.

  38. 38.

    [2019] 1 SLR 779.

  39. 39.

    [2012] 2 SLR 519.

  40. 40.

    Yeo (2005).

  41. 41.

    The Court of Appeal cautioned that it by no means wholeheartedly accepted the contractual approach: [2012] 2 SLR 519, [26].

  42. 42.

    Emphasis in original: [2012] 2 SLR 519, [25].

  43. 43.

    [2012] 2 SLR 519, [31].

  44. 44.

    The court also did not have to grapple with the contractual analysis as it had not been raised by the parties, and further, the court held that the parties had not intended the particular agreement in the case to have a significant effect: see [2012] 2 SLR 519, [27].

  45. 45.

    Orchard Capital [2012] 2 SLR 519, [24].

  46. 46.

    Orchard Capital [2012] 2 SLR 519, [27].

  47. 47.

    Shanghai Turbo [2019] 1 SLR 779, [80].

  48. 48.

    [2019] 1 SLR 779, [84] (emphasis in original).

  49. 49.

    For example, the clause provides that: “The contract is subject to the jurisdiction of the Singapore court.” See [2019] 1 SLR 779, [89].

  50. 50.

    [2019] 1 SLR 779, [86].

  51. 51.

    [2019] 1 SLR 779, [83].

  52. 52.

    See below, text following n 103.

  53. 53.

    Vinmar Overseas (Singapore) Pte Ltd v PTT International Trading Pte Ltd [2018] 2 SLR 1271, [71].

  54. 54.

    [1969] 1 Lloyd’s Rep 237.

  55. 55.

    [2018] 2 SLR 1271.

  56. 56.

    [2018] 2 SLR 1271, [130].

  57. 57.

    [1999] 3 SLR(R) 432.

  58. 58.

    [2018] 2 SLR 1271, [130].

  59. 59.

    Shanghai Turbo [2019] 1 SLR 779, [95].

  60. 60.

    Shanghai Turbo [2019] 1 SLR 779, [95].

  61. 61.

    Trisuryo Garuda Nusa Pte Ltd v SKP Pradiksi [2017] 2 SLR 814, [85] and [90].

  62. 62.

    Golden Shore Transportation Pte Ltd v UCO Bank [2004] 1 SLR(R) 6, [38]; The “Hyundai Fortune” [2004] 4 SLR(R) 548, [30]; Vinmar Overseas (Singapore) Pte Ltd v PTT International Trading Pte Ltd [2018] 2 SLR 1271, [72] and [112].

  63. 63.

    If the optional choice of court agreement is in favour of the “Singapore High Court” and the agreement is concluded on or after 1 October 2016, Order 110, rule 1(2)(ca) of the Rules of Court provides that the agreement is to be construed as including an agreement to the jurisdiction of the SICC, unless a contrary intention appears in the agreement. The SICC is a division of the Singapore High Court.

  64. 64.

    Rules of Court, Order 110, rule 6(2).

  65. 65.

    Cf. Abela v Baadarani [2013] UKSC 44, [2013] 1 WLR 2043, [53].

  66. 66.

    See further Chong and Yip (2019), pp. 109–110.

  67. 67.

    IM Skaugen SE v MAN Diesel & Turbo SE [2016] SGHCR 6, overruled, without consideration of this point [2018] SGHC 123.

  68. 68.

    Voth v Manildra Flour Mills Pty Ltd (1991) 65 ALJR 83.

  69. 69.

    Yeo (2015), para 32.

  70. 70.

    See further, Yeo (2015), paras 27–34; Yip (2016), pp. 456–460.

  71. 71.

    UBS AG v Telesto Investments Ltd [2011] 4 SLR 503, [119].

  72. 72.

    Morgan Stanley Asia (Singapore) Pte (formerly known as Morgan Stanley Dean Witter Asia (Singapore) Pte) v Hong Leong Finance Ltd [2013] 3 SLR 409, [71].

  73. 73.

    [1996] SGHC 285.

  74. 74.

    [1996] SGHC 285, [64].

  75. 75.

    Lai J expressly rejected the approach suggested by Waller J in British Aerospace v Dee Howard [1993] 1 Lloyd’s Rep 368, 375–377, under which factors which are eminently foreseeable at the time they entered into the contract cannot be relied upon by the parties in the context of the Spiliada test, particularly if the choice of court agreement was freely negotiated and is an express term of a detailed agreement.

  76. 76.

    Yeo (2005), para 81.

  77. 77.

    [2014] 4 SLR 1042.

  78. 78.

    [2014] 4 SLR 1042, [54].

  79. 79.

    [2014] 4 SLR 1042, [53].

  80. 80.

    [1999] 2 SLR(R) 632.

  81. 81.

    See also Baiduri Bank Bhd v Dong Sui Hung [2000] 2 SLR(R) 271. Cf. OCBC Capital Investment Asia Ltd v Wong Hua Choon [2010] 4 SLR 904, where the optional choice of court agreement was for Malaysia and coupled with a waiver of objection on grounds of inconvenient forum. On construction of the agreement, it was held that the waiver portion only applied to proceedings before the Malaysian court. Hence the Spiliada test was applied to the stay application.

  82. 82.

    Rules of Court, Order 110, rule 8(1).

  83. 83.

    The Court endorsed the Hong Kong Court of Appeal decision of Noble Power Investments Ltd v Nissei Stomach Tokyo Co Ltd [2008] 5 HKLRD 631.

  84. 84.

    Cf. Hii Yii Ann [2014] 4 SLR 1042, [25]–[26] and [49].

  85. 85.

    [2018] 2 SLR 1271, [138].

  86. 86.

    [2019] 1 SLR 779, [90]. The clause on the facts appeared to have been freely negotiated. Cf. Hii Yii Ann [2014] 4 SLR 1042, [51].

  87. 87.

    [2019] 1 SLR 779, [88].

  88. 88.

    [1987] AC 460.

  89. 89.

    JIO Minerals FZC v Mineral Enterprises Ltd [2011] 1 SLR 391, [41]–[42].

  90. 90.

    Rappo, Tania v Accent Delight International Ltd [2017] 2 SLR 265.

  91. 91.

    “The search is for a natural forum, not the natural forum”: Yeo (2009), para 75.089, cited in JIO Minerals FZC v Mineral Enterprises Ltd [2011] 1 SLR 391, [53].

  92. 92.

    Eng Liat Kiang v Eng Bak Hern [1995] 2 SLR(R) 851, [19].

  93. 93.

    Rules of Court, Order 110, rule 7(2).

  94. 94.

    Rules of Court, Order 110, rule 12(5)(a). This provides that where a case is transferred, “the court to which the case is transferred must not reconsider whether it has jurisdiction”. On the one hand, the original text read: “the court to which the case is transferred must not reconsider whether it has or will assume jurisdiction” (emphasis added). The omission of the italicised words in the amended text (2016 amendment) suggests that the SICC retains the discretion to examine the exercise of jurisdiction. On the other hand, the wording of Order 110, rule 8(1), which sets out the ‘not appropriate’ forum test as the test for exercise of jurisdiction by the SICC was recently amended to be “[s]ubject to … Rule 12(5)(a)” (2018 amendment). On policy grounds, a prohibition on a review of both existence and exercise of jurisdiction in a transfer case would be sound.

  95. 95.

    John Reginald Stott Kirkham v Trane US Inc [2009] 4 SLR(R) 428, [25], citing Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871, 892.

  96. 96.

    John Reginald Stott Kirkham v Trane US Inc [2009] 4 SLR(R) 428, [28]–[29].

  97. 97.

    Sun Travels & Tours Pvt Ltd v Hilton International Manage (Maldives) Pvt Ltd [2019] 1 SLR 732, [68].

  98. 98.

    Sun Travels & Tours Pvt Ltd v Hilton International Manage (Maldives) Pvt Ltd [2019] 1 SLR 732, [68].

  99. 99.

    Sun Travels & Tours Pvt Ltd v Hilton International Manage (Maldives) Pvt Ltd [2019] 1 SLR 732, [82]–[83].

  100. 100.

    UBS AG v Telesto Investments Ltd [2011] 4 SLR 503.

  101. 101.

    The reasoning used by the court in UBS, [2011] 4 SLR 503, [120], which was that to hold otherwise would render the distinction between exclusive and optional choice of court agreements illusory, is no longer good law after Shanghai Turbo. The principle remains untouched by Shanghai Turbo.

  102. 102.

    UBS AG v Telesto Investments Ltd [2011] 4 SLR 503, [119].

  103. 103.

    Morgan Stanley Asia (Singapore) Pte (formerly known as Morgan Stanley Dean Witter Asia (Singapore) Pte) v Hong Leong Finance Ltd [2013] 3 SLR 409, [71].

  104. 104.

    [2019] 1 SLR 732.

  105. 105.

    [2019] 1 SLR 732, [98]–[99].

  106. 106.

    [2019] 1 SLR 732. [99].

  107. 107.

    [2019] 1 SLR 732, [105].

  108. 108.

    [2019] 1 SLR 732, [113].

  109. 109.

    Cap 265, 2001 Rev Ed.

  110. 110.

    S 5(3)(b). Unless the judgment debtor submitted to that court’s jurisdiction.

  111. 111.

    [2017] SGHC 93.

  112. 112.

    [2002] 1 WLR 1517.

  113. 113.

    [2017] SGHC 93, [293].

  114. 114.

    The “Jian He” [1999] 3 SLR(R) 432; Golden Shore Transportation Pte Ltd v UCO Bank [2004] 1 SLR(R) 6.

  115. 115.

    See text to n 53–62.

  116. 116.

    John Reginald Stott Kirkham v Trane US Inc [2009] 4 SLR(R) 428, [29]; UBS AG v Telesto Investments Ltd [2011] 4 SLR 503, [109].

  117. 117.

    Sun Travels & Tours Pvt Ltd v Hilton International Manage (Maldives) Pvt Ltd [2019] 1 SLR 732, [81].

  118. 118.

    The presumptions which apply when there is a choice of court agreement for the SICC have been set out above, text to n 19 above.

  119. 119.

    Rules of Court, Order 110, rule 8(1). See above, text to n 67–70.

  120. 120.

    Rules of Court, Order 110, rules 7(2), 12(3B) and 12(4).

  121. 121.

    See n 94 above.

  122. 122.

    Defined in CCAA, s 4.

  123. 123.

    Defined in CCAA, s 3.

  124. 124.

    A list of matters excluded from the Act are set out in CCAA, s 9.

  125. 125.

    CCAA, s 11(1).

  126. 126.

    Hartley and Dogauchi (2005) (“Hartley and Dogauchi Report”), paras 132 and 134.

  127. 127.

    Pursuant to Rules of Court, Order 11.

  128. 128.

    CCAA, s 11(5): however, “the chosen court must, before exercising that discretion, take into account the parties’ choice of court.”

  129. 129.

    [2018] 3 SLR 70.

  130. 130.

    [2002] 1 SLR(R) 485. The court did not refer to its asymmetry as being a special feature and the agreement was dealt with on the basis that it was like any other optional choice of court agreement.

  131. 131.

    Cf. Lee (2003), pp. 598–599, who is of the view that the court applied the test of “strong cause”.

  132. 132.

    [2002] 1 SLR(R) 485, [14].

  133. 133.

    TMT Co Ltd v The Royal Bank of Scotland plc [2018] 3 SLR 70, [74].

  134. 134.

    Hartley and Dogauchi Report, paras 32, 105–106 and 249.

  135. 135.

    [2017] EWHC 161 (Comm), [2017] 1 WLR 3497, [74].

  136. 136.

    Ermgassen & Co Ltd v Sixcap Financials Pte Ltd [2018] SGHCR 8.

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  1. Singapore Management University, School of Law, Singapore, Singapore

    Adeline Chong

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  1. Griffith Law School, Griffith University, Brisbane, Australia

    Mary Keyes

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Chong, A. (2020). Singapore: A Mix of Traditional and New Rules. In: Keyes, M. (eds) Optional Choice of Court Agreements in Private International Law. Ius Comparatum - Global Studies in Comparative Law, vol 37. Springer, Cham. https://doi.org/10.1007/978-3-030-23914-5_14

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