Conflict of Laws
| Citation | (2013) 14 SAL Ann Rev 208 |
| Date | 01 December 2013 |
| Published date | 01 December 2013 |
11.1 For 2013, there are six cases which will be examined in this review.
11.2 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.
11.3 Further, two cases in 2013, EFT Holdings, Inc v Marinteknik Shipbuilders (S) Pte Ltd[2013] 1 SLR 1254 and Global Distressed Alpha Fund I Ltd Partnership v PT Bakrie Investindo[2013] 2 SLR 228 have already been considered in last year's SAL Ann Rev.
11.4 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, inter alia, forum non conveniens. When jurisdiction was founded on the long-arm discretionary jurisdiction via O 11 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed), a defendant may also apply to dispute the jurisdiction of the courts. Broadcast Solutions Pte Ltd v Zoom Communications Ltd[2014] 1 SLR 1324 (‘Broadcast Solutions’) illustrates some of the difficulties relating to this.
11.5 The plaintiff, Broadcast Solutions (a company incorporated in Singapore), sought sums of money from Zoom Communications (a company incorporated in India) under three hire-purchase agreements. The plaintiff obtained leave to serve the defendant outside the jurisdiction. The defendant filed a memorandum of appearance and sought an extension of time to file its defence. At the expiry of the extension period, the defendant filed an application to set aside service and an application to stay the proceedings. At first instance, the assistant registrar dismissed these applications and the defendant appealed to the High Court.
11.6 The plaintiff argued that the application to set aside could not succeed because the defendant had already submitted to the jurisdiction of the Singapore courts. They argued that submission took the form of the defendant's first application for extension of time to file its defence or, in the alternative, the setting aside and stay application. The defendant, of course, disputed that it had so submitted.
11.7 On the point of the defendant's first application for extension of time, Woo Bih Li J adopted the position in Carona Holdings Pte Ltd v Go Go Delicacy Pte Ltd[2008] 4 SLR(R) 460 at [95], that ‘[a]n application for an extension of time is not in itself tantamount to an unequivocal submission to jurisdiction’ and held that the defendants had not unequivocally submitted to the jurisdiction of the Singapore courts: Broadcast Solutions at [16].
11.8 Two points need to be made here. First, the learned judge opined, and it is submitted correctly, that the key issue is whether the defendant had clearly submitted or evinced its intention to submit to the jurisdiction of the Singapore courts. Secondly, and more important, is that while it is ideal for the defendant to expressly reserve its right to set aside service, not doing this expressly is not tantamount to submission. There must be clear evidence of submission. Put another way, there seems to be a rebuttable presumption (if one can state it as strongly as that) that no submission has occurred. It is submitted that, as a matter of policy, this robust approach must be correct. Considering the onerousness of the long-arm jurisdiction of the court via O 11, it is right to require a fairly high threshold before one should conclude that submission has occurred.
11.9 On the defendant's application to set aside and stay, this is where the waters get murky. Obviously, the application to set aside cannot be said to constitute submission. The difficulty lies with the application for a stay of proceedings because a stay application, in asking a court not to exercise its jurisdiction, presupposes that the court has jurisdiction.
11.10 The court took great pains to establish, with reference to authority, that this latter proposition is correct. This author has no fight with this. However, the court took the position that where an application for a stay is made as an alternative to an application to set aside service, this would be a step too far. The court also opined that even if the application to stay proceedings in an alternative per se did not qualify, making arguments in support of that application was certainly a step too far.
11.11 With respect, this author finds it difficult to agree with this position. An application for a stay, per se, must presuppose that jurisdiction exists. However, it is submitted that where the application for a stay is submitted as an alternative to an application for setting aside, it must be taken that there is not an unequivocal indication of intention to submit to the jurisdiction of the Singapore courts.
11.12 While it could be argued that a defendant should simply have kept the applications separate and sequential, the question arises as to why the defendant should have to function this way? There is a certain efficiency to filing arguments in the alternative.
11.13 The court had referred to O 12 r 7(5) of the Rules of Court which provided that an application under r 7(1) should not be treated as a submission to the jurisdiction of the court. It also noted that r 7(6) provided that an appearance, except in accordance with an application under r 7(1), constituted submission. It also noted that the protection accorded under r 7(5) did not extend to applications under O 12 r 7(2). On this basis, the court concluded that an application for a stay per se constituted a submission.
11.14 Again, this must be correct. However, it does not make any statement relating to when a defendant makes two applications, one to set aside and the other, as an alternative, to stay proceedings. If the test is whether there was clear intention to submit, surely filing an application to set aside at the same time as the application for a stay, should evince an intention to not submit. Even if it were ambiguous, the defendant should be given the benefit of the doubt in the same robust way as the court did in relation to the application for an extension of time.
11.15 To be fair, the learned judge acknowledged the importance of this point as a general principle and granted leave for the defendant to appeal to the Court of Appeal. It would be useful to have clarity on this from the Court of Appeal.
11.16 Having decided that the stay application constituted submission, the court considered the factors in Spiliada Maritime Corp v Cansulex Ltd[1987] AC 460 and concluded that the defendant had not shown that there was a clearly or more distinctly appropriate forum elsewhere. As such, the application for a stay was denied.
11.17 Apart from the doctrine of forum non conveniens, parties may also have to contend with the doctrines of forum election and lis alibi pendens. Virsagi Management (S) Pte Ltd v Welltech Construction Pte Ltd[2013] 4 SLR 1097 provides guidance on the differences and interaction between these three doctrines. The parties were involved in operating an overseas training centre in Bangladesh which trained, tested and certified workers for employment in the...
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