Conflict of Laws

Published date01 December 2001
Date01 December 2001
AuthorJOEL LEE TYE BENG LLB (Hons) (Wellington), LLM (Harv), DCH (AIH), Barrister & Solicitor (NZ), Advocate & Solicitor (Singapore), Associate Professor, Faculty of Law, National University of Singapore
Citation(2001) 2 SAL Ann Rev 107

8.1 Cases involving the field of Conflict of Laws or Private International Law have become increasingly common in the Singapore legal landscape. In 2001, the Singapore Law Reports contained six cases which will be examined in this review. In addition, there were also four unreported judgments which are worthy of note.

8.2 Before proceeding, it is useful to make two points. First, Conflict of Laws cases sometimes relate to other areas of domestic law. In these situations, this review will only examine those parts of the case that are relevant to the field of Conflict of Laws.

8.3 Secondly, as the area of Conflict of Laws is being reviewed for the first time, it is appropriate to consider two cases that were reported in the Singapore Law Reports for the year 2000. Both these cases dealt with jurisdiction clauses.

Cases in the year 2000

8.4 The first is The Jian He[2000] 1 SLR 8. As this case was discussed in “Admiralty and Shipping Law” (2000) SAL Ann Rev at 3—5 and at 16—19, “Civil Procedure” (2000) SAL Ann Rev at 58 and “Contract Law” (2000) SAL Ann Rev at 95, it will only be touched on briefly here. In The Jian He, there was a claim for misdelivery of cargo. An action was commenced in Singapore and there was an application for stay of proceedings on the basis of an exclusive jurisdiction clause in favour of China.

8.5 For the purposes of this review, The Jian He is particularly significant in that the Court of Appeal refused a stay on the basis that a genuine dispute did not exist. In other words, there was no defence to the claim to refer to China and the defendants were only seeking tactical advantages. This amounted to strong cause under the rule in The El Amria[1981] 2 Lloyd”s Rep 119 and justified a refusal of stay.

8.6 There were other points made relating to, inter alia, construction of the jurisdiction clause and the treatment of a time-bar in a stay application. However, the point of whether a genuine dispute existed was by far the

most significant. This will be discussed later (at para 8.27) when reviewing the cases in 2001.

8.7 The second case in the year 2000 that is significant is that of Baiduri Bank Bhd v Dong Sui Hung[2000] 4 SLR 212. The plaintiff bank claimed against the defendants who were guarantors of a company under liquidation. The guarantee contained a clause that provided for the defendants to submit irrevocably to the jurisdiction of the courts of Brunei but left it open to the plaintiff to enforce the guarantee in another court of competent jurisdiction. The plaintiff chose to sue in Singapore.

8.8 The defendants had sought to restrain the plaintiff from proceeding in Singapore via an application to the courts in Brunei. The Brunei High Court refused the application on the basis that the clause did not confer exclusive jurisdiction on the Bruneian courts. The defendants then applied to the Singapore courts to stay the action.

8.9 This case is significant in that Chan Seng Onn JC (as he then was) took the opportunity to clarify the different scenarios involving jurisdiction agreements and the various approaches to them. The first two scenarios involved those where a foreign jurisdiction clause did not exist and where an exclusive foreign jurisdiction clause existed to limit parties to one country respectively. The approaches to these scenarios were well established (see Spiliada Maritime Corp v Cansulex, The Spiliada[1987] AC 460 and The Eleftheria[1969] 1 Lloyd”s Rep 237 respectively).

8.10 Chan JC went on to consider the scenario where there is a semi-exclusive jurisdiction clause ie a jurisdiction clause that limits jurisdiction to a few countries with no specific right of election. In this type of situation, where an action is commenced in Singapore (being one of the jurisdictions named in the clause) and the defendant prefers another jurisdiction (also named in the clause), then the approach is to adopt the test of forum non conveniens where the defendant would have to show the court that his preferred jurisdiction is a clearly more appropriate forum. If the defendant succeeds, then the court would grant a stay subject to considerations of justice.

8.11 The final scenario concerns a jurisdiction clause that limits jurisdiction to a few countries with a specific right of election conferred on the plaintiff. In this type of situation, where the plaintiff commences an action in Singapore (being one of the jurisdictions named in the clause) and the defendant prefers another jurisdiction (also named in the clause), the approach is to adopt the test of “strong cause” which is the test for foreign exclusive jurisdiction clauses. The difference is that in this scenario, the burden is on the defendant to show “strong cause” why the plaintiff”s action in Singapore should be stayed. This is because the defendant, by applying for a stay, is seeking to breach the jurisdiction clause. As such, the burden should be upon the defendant. The factual matrix in Baiduri Bank fitted

squarely within this final scenario and Chan JC found that the defendants had not discharged their burden of “strong cause”.

8.12 Chan JC had also discussed the effect of the Bruneian judgment estopping the defendants from revisiting the issue of interpreting the clause. However it is his attempt to clarify the various scenarios that will prove useful for considering future cases.

Forum non conveniens

8.13 The cases on forum non conveniens were all fairly straightforward applications of the law set out initially in The Spiliada (supra). There are however some points of interest.

8.14 In Andre Ravindran S Arul v Tunku Ibrahim Ismail bin Sultan Iskandar Al-Haj (Suit 224/2001, HC, unreported judgment dated 1.8.2001), the plaintiff sued the defendant, the Crown Prince of Johor, for unpaid legal fees. The defendant applied to stay the action and was denied by the assistant registrar. The defendant appealed to the High Court. Choo Han Teck JC considered the connecting factors and held that despite the number of factors that pointed to Malaysia, the defendant had not met the burden of showing that Malaysia was the more appropriate forum.

8.15 This finding is of interest because it is clear that the assessment sought in the first stage of the forum non conveniens test is not a quantitative but a qualitative one. Put another way, the query is not about how many connecting factors pointed to one forum or another. Each factor must also be assessed for the qualitative weight that it contributes. For example, Choo JC opined that even though the governing law was probably Malaysian law, he saw no difficulty with the Singapore courts adjudicating the matter. Other factors pointing to Malaysia also...

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