Conflict of Laws

Citation(2010) 11 SAL Ann Rev 213
Published date01 December 2010
AuthorJoel LEE Tye Beng LLB (Hons) (Wellington), LLM (Harvard), DCH (AIH); Barrister and Solicitor (New Zealand), Advocate and Solicitor (Singapore); Associate Professor, Faculty of Law, National University of Singapore.
Date01 December 2010


10.1 For 2010, there are 15 cases which will be examined in this review.

10.2 As in previous years, it is useful to note that conflict of laws cases sometimes relate to other areas of law. In these situations, this review will only examine those parts of the case that are relevant to the field of conflict of laws.


Non-justiciability, Mocambique rule, whether parties can consent

10.3 It is generally accepted that a court does not have jurisdiction over a matter involving foreign immovables. While this rule, established by British South Africa Co v Companhia de Mo�ambique [1893] AC 602 (referred hereafter the Mo�ambique rule), has exceptions and been criticised, it remains for the moment good law. The Mo�ambique rule came up for consideration in Ng Teck Sim Colin v Hat Holdings Pte Ltd [2010] 4 SLR 840 (‘Ng Teck Sim Colin’).

10.4 This case involved a property in Phuket which had a villa upon it. Under Thai law, ownership of the land is separate from ownership of buildings on that land. Hence, separate transfers and registrations are required for legal ownership of both land and house to pass to a purchaser. The plaintiffs purchased the land and paid for the construction of the villa. The named owner of the villa upon it was Sarot, an architect who was issued a construction permit (expiring in April 2001) to construct the villa. The permit was transferred to the plaintiffs in March 2006.

10.5 The sale of the land and the villa to the defendants was thwarted when the Phuket Land Office rejected the transfer on the grounds that the construction permit that was transferred to the plaintiffs was invalid. The solution agreed to by the parties was for Sarot to transfer the villa directly to the defendants. The land was successfully registered and paid

for. It is not necessary for us to get into the ensuing complicated series of events relating to the transfer of the villa. It is sufficient to note that registration of the transfer of the villa was effected and when the final payment was not forthcoming, the plaintiffs sued for breach of contract. For our purposes, the crux of the defence was, inter alia, that the plaintiffs did not transfer ‘good, proper and perfect legal title’ to the defendants.

10.6 When asked if the Mo�ambique rule was an obstacle to the court determining the issues relating to title to the villa, both parties suggested that the court could adjudicate because the respective claims were founded on contract. After examining the law and factual matrix of this case, the court concluded that central to the matter was whether the plaintiffs or Sarot had good title to transfer to the defendants. As such, this involved determination of title to foreign land and was excluded by the Mo�ambique rule. This conclusion is unsurprising and there are two further points that can be noted about this matter.

10.7 First, the court acknowledged the exceptions to the Mo�ambique rule and noted that these exceptions were based on the existence of an in personam obligation arising out of contract or equity. In those cases, the obligations did not depend on the law of the locus of the immovable property for their existence. This was not the situation in this case where title is not an incidental question but is the principal issue. This clarity of statement from the court is a welcome one.

10.8 Secondly, the court considered the possibility of parties consenting to the court adjudicating on disputes of title. Put another way, can parties consent out of the Mo�ambique rule? The court declined to accept this suggestion and opined that mere consent of the parties could not prevent the operation of the Mo�ambique rule. This conclusion is correct if we accept (as the court pointed out in Ng Teck Sim Colin at [37]) that ‘[t]he Mo�ambique principle is one based on considerations of comity of nations. It recognises that where land (and this includes the building thereon) is concerned, a sovereign is entitled to assert a double prerogative, to make laws for its own country and to have those laws adjudicated in its own courts exclusively’.

Stay of proceedings

Forum non conveniens

10.9 Faced with the suit in Singapore, one can apply to the court to stay the proceedings based on, inter alia, forum non conveniens. Piong Michelle Lucia v Yuk Ming Cheung [2010] SGHC 110 (‘Piong Michelle Lucia’) was a straight application of this doctrine where the plaintiff

had sued the defendant for defamation who applied for a stay of proceedings. The assistant registrar found in favour of the defendant and on appeal, this was upheld by Quentin Loh JC. Put simply, in an application for stay of proceedings based on forum non conveniens, the defendant had the burden of proving that there was a distinctly more appropriate forum elsewhere. If this was established, then the plaintiff had to show that there were valid reasons or circumstances based on the ends of justice why the court should, nonetheless, not grant a stay. The court in this case decided that Hong Kong was a distinctly more appropriate forum than Singapore and in the absence of reasons and circumstances why the court should not grant a stay, granted the defendant“s application.

Importance in family cases for the same court to consider main and ancillary matters

10.10 In a family law context, ALJ v ALK [2010] SGHC 255 made some observations on forum non conveniens vis-�-vis main and ancillary matters before the court. The parties, both foreign nationals and Singapore permanent residents, were married in Singapore. The deterioration of the marriage was followed by a stormy period that included incidences of violence, abduction of the children and death threats to a third party. There was an application by the wife for an order of interim custody, care and control. An attempt to stay this application by the husband was dismissed. The husband commenced divorce proceedings and ancillaries in Singapore and the wife counterclaimed. Interim judgment was granted by the District Court and the ancillary matters were transferred to the High Court.

10.11 While the husband did not formally apply to stay the ancillary proceedings, it was clear to the court that his objective was to have the ancillary matters determined by the Californian courts. Woo Bih Li J declined to stay the proceedings on the basis that, despite some connecting factors to California, it was not clearly the more appropriate forum to resolve the ancillary matters. In coming to this conclusion, the learned judge took into account that the divorce proceedings in Singapore were far progressed and an interim judgment had been granted. Since the reasons for the breakdown of the marriage might be relevant to the ancillary issues of custody, care and control and division of matrimonial assets, it made practical sense for the same court to consider both the main divorce and the ancillary matters than to divide the issues to be decided in separate jurisdictions.

O 11 application and Forum Conveniens

10.12 The doctrine of natural forum is also a consideration when it comes to an application for service out of the jurisdiction under O 11 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (‘Rules of Court’). As part of establishing the requirements for service out of the jurisdiction, the plaintiff must show that Singapore is the forum conveniens for the dispute. This matter came up for the court“s consideration in Holdrich Investment Ltd v Siemens AG [2010] 1 SLR 1237 (HC) (‘Holdrich Investment Ltd’) and Siemens AG v Holdrich Investment Ltd [2010] 3 SLR 1007 (CA) (‘Siemens AG’).

10.13 The plaintiff, a Hong Kong company, sued the defendant, a German company, for commissions due for consultancy services provided by the plaintiff. When payment of the commission was not forthcoming, the plaintiff commenced proceedings in Singapore and obtained leave to serve the writ of summons on the defendant outside the jurisdiction. The defendant subsequently applied for and obtained a discharge of the leave order. The plaintiff appealed and the question revolved around whether Singapore was forum conveniens. The High Court found in favour of the plaintiff and held that Singapore was the more appropriate forum for the dispute. The defendant appealed.

10.14 The judgment of the Court of Appeal is instructional in a number of ways. First, Chao JA disagreed with counsel for the defendant“s submission that the Singapore court should compare all the connecting factors pointing towards Singapore against all the connecting factors pointing away from Singapore when determining forum conveniens. The learned judge clarified that since forum conveniens analysis is to identify the most appropriate forum in which to try the substantive dispute, the connecting factors which point away from Singapore must point to a more appropriate forum than Singapore.

10.15 Secondly, the court made some observations on the burden of proof in a forum non conveniens analysis. It is the accepted position that in an O 11 application, the plaintiff has the burden of showing that Singapore is forum conveniens whereas the defendant bears the burden when there is an application to stay the proceedings after jurisdiction has been established. Chao JA made a distinction between proving the existence of a fact (a question of fact) which goes towards showing whether a jurisdiction is the forum conveniens or not (a question of law). In the former category, the person alleging the fact has the evidential burden of proving it. This is separate from the legal burden of establishing whether a jurisdiction is, ‘on balance and in the final analysis, the most appropriate forum to try the dispute’: Siemens AG at [8]. What is important is that a plaintiff does not have to show that

Singapore is the most appropriate forum by far and ‘it matters not whether Singapore is the most appropriate forum by a hair or by a mile’...

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