Conflict of Laws

Published date01 December 2012
Citation(2012) 13 SAL Ann Rev 180
Date01 December 2012
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.

11.1 For 2012, there are ten cases which will be examined in this review. 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.

11.2 Further, three cases in 2012, The Dolphina[2012] 1 SLR 992, Madihill Development Sdn Bhd v Sinesinga Sdn Bhd[2012] 1 SLR 169 and The Reecon Wolf[2012] 2 SLR 289, have already been considered in last year's SAL Ann Rev.

Stay of proceedings

Forum non conveniens

11.3 When faced with a suit in the Singapore courts, a defendant has the choice of applying to the court to stay the proceedings based on forum non conveniens. In such an application, a defendant would have to show in stage one of the test from Spiliada Maritime Corp v Cansulex Ltd[1987] AC 460 (‘Spiliada’) that there was a clearly and more distinctly appropriate forum elsewhere. This stage takes into account various factors that connect the matter before the court to various fora in making this determination. Should the defendant succeed at this first stage, the court would ordinarily grant a stay unless the plaintiff can show in stage two that there were valid reasons or circumstances based on the ends of justice why the court should nonetheless not grant a stay.

11.4 BDA v BDB[2013] 1 SLR 607 (‘BDA v BDB’) is a case that applies the two-stage test from Spiliada in a family law context. The wife (appellant claimant) and the husband (respondent defendant) were Indian nationals holding Indian passports and became Singapore permanent residents in 2009. In January 2010, their son was born and in October 2010, the wife left for India with their son while the husband remained employed and resident in Singapore. The wife filed for maintenance in the Singapore courts in September 2011 and the husband filed for divorce in the Indian courts in a month or two later. The husband applied for a stay of the maintenance proceedings on the grounds that India was the more appropriate forum. This was granted at first instance; the wife then appealed to the High Court and was successful.

11.5 While it could be said that this case is a straight-forward application of the Spiliada test, there are three points that are worth noting. The first relates to a preliminary observation made by Chao Hick Tin JA in response to the wife's argument that an application for maintenance under s 69 of the Women's Charter (Cap 353, 2009 Rev Ed) was a criminal process, and which excluded the application of the doctrine of forum non conveniens. Specifically, her argument was that s 79(1) which governed procedure made reference to the provisions of the Criminal Procedural Code (Cap 68, 1985 Rev Ed) (repealed) (‘CPC’) and that an application for maintenance was deemed to be a complaint for the purposes of the CPC.

11.6 This argument was despatched swiftly by the learned judge who pointed out that s 69 read together with ss 77 and 79 led one to conclude that an application for maintenance was essentially civil in nature and did not attract criminal sanction. Both case law and academic writing supported this conclusion. As such, the doctrine of forum non conveniens was applicable.

11.7 It is curious that at the end of his analysis, Chao JA felt the need to mention that even though he was not able to locate Commonwealth case authority where a stay was ordered in relation to maintenance application, he opined that since maintenance was ancillary to divorce proceedings (where the doctrine did apply), there was no reason why the doctrine should be excluded from an application for maintenance simpliciter.

11.8 Secondly, the court was careful to point out that a determination based on forum non conveniens was an exercise of judicial discretion. As such, an appellate court could not interfere with the exercise of that discretion (even if the appellate court should disagree with the lower court's decision) unless ‘the judge had misdirected himself on a matter of principle, or he had taken into account matters which he ought not to have taken into account or had failed to take into account matters which he ought to have taken into account, or his decision is plainly wrong’: at [23], citing CIMB Bank Bhd v Dresdner Kleinwort Ltd[2008] 4 SLR(R) 543 at [84]. It was of course unsurprising for Chao JA to point this out as he was about to overturn the lower court's decision.

11.9 Finally, the court looked at the application of the test from the Spiliada. After stating that stage one of the test required the court to weigh the various connecting factors and that a factor that was significant in one case might not be so significant in another, the court noted that because the respondent defendant was resident in Singapore, he would have a higher evidential burden to show that there was a more appropriate forum elsewhere. Pointing out that nationality was less valuable than residency and/or domicile as an indicator of a party's connection to a forum and that the divorce proceedings in India did not cover the same grounds as the application for maintenance, the court noted that the only factor in favour of India was the cost of living in India and that the conventional wisdom was that the courts of a country would be better suited to determine the cost of living in that country. Be that as it may, in this case, the court held that on the questions of establishing the need for maintenance and the quantum of maintenance, the Singapore courts were well placed to do so especially when the husband's earning capacity and their standard of living in Singapore prior to the separation was well within the purview of the Singapore courts. Therefore, the court opined that the judge in the court below had erred in placing too much weight on the nationality of the parties, not weighting sufficiently the fact of the husband's residence in Singapore and over-emphasising the impracticality of a Singapore court in adjudicating on the issue of quantum. As such, the wife's appeal was allowed.

Forum non conveniens, non-exclusive jurisdiction clause

11.10 Forum non conveniens is only one of a number of grounds upon which a stay application can be made. Parties may choose to incorporate into their contracts a choice of jurisdiction clause which can provide for the exclusive or non-exclusive jurisdiction of the courts of a particular forum. The treatment of these two different types of jurisdiction clauses should of course be different. Orchard Capital I Ltd v Ravindra Kumar Jhunjhunwala[2012] 2 SLR 519 looks at the treatment of jurisdiction clauses in a stay of proceedings application. This case was an appeal from the High Court in [2011] SGHC 185 (digested in the previous year's SAL Ann Rev). The facts are uncomplicated. Stated briefly, the parties entered into a settlement agreement that sought to resolve the respondent's unfulfilled obligations under three earlier contracts. The settlement agreement contained cl 23 which was a jurisdiction clause referring the dispute to the Hong Kong courts. The respondent failed to meet its obligations under the settlement agreement and the appellant commenced proceedings in the Singapore courts. The respondent applied for a stay based on forum non conveniens, relying on cl 23 as a non-exclusive jurisdiction clause. A stay was refused at first instance, which was overturned on appeal. At the High Court, the learned judge treated cl 23 as a non-exclusive jurisdiction clause and treated it as a strong factor pointing the natural forum under the two-stage forum non conveniensanalysis. A stay was consequently granted. This matter was then appealed to the Court of Appeal.

11.11 The appellant's argument was that while the non-exclusive jurisdiction clause indicated that Hong Kong is an appropriate forum, it by no means indicated that it was the appropriate forum and that the learned judge in the High Court had erred in holding that Hong Kong was the more appropriate forum. The respondent, obviously, took the polar position.

11.12 The Court of Appeal referred heavily to Yeo Tiong Min, ‘The Contractual Basis of the Enforcement of Exclusive and Non-exclusive Choice of Court Agreements’(2005) 17 SAcLJ 306 and considered many interesting issues, some of which did not directly relate to the appeal.

11.13 At the end of the day, two things are clear. First, cl 23 is a non-exclusive jurisdiction clause. Secondly, the approach to be used vis-à-vis a non-exclusive jurisdiction clause is to treat it as one of the factors to be considered in the Spiliada analysis. It is not the only indicator nor should it be, in the court's words, a ‘strong’ indicator.

11.14 On analysis, the court opined that the other connecting factors adduced by the respondent were dispersed across jurisdictions and had not discharged the burden...

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