Conflict of Laws

• Citation: (2003) 4 SAL Ann Rev 118
• Date: 01 December 2003
• Author: JOEL 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.
• Published date: 01 December 2003

Introduction

8.1 In 2003, there was a surprising dearth of noteworthy cases relating to conflict of laws. Many of the cases in 2003 were applications of existing areas of laws. There are, however, four cases which will be examined in this review.

8.2 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.

Jurisdiction clauses

8.3 There were two cases relating to jurisdiction clauses that will be covered in this review. Golden Shore Transportation Pte Ltd v UCO Bank[2004] 1 SLR 6 was an appeal from two cases which raised substantially identical issues. These two cases were UCO Bank v Golden Shore Transportation Pte Ltd[2003] SGHC 137 and UCO Bank v Golden Orient Maritime Pte Ltd[2003] SGHC 138.

8.4 The plaintiff is an Indian bank carrying on business in Singapore. One of its customers was SOM International Pte Ltd (‘SOM’), a Singapore incorporated company. SOM arranged for cargo to be shipped from various ports in East Malaysia to Kandla in India. One set of cargo was loaded on board the Asean Pioneer owned by the defendants, Golden Shore Transportation Pte Ltd (‘Golden Shore’). Bills of lading were issued with UCO Bank as the consignee. Letters of credit were issued to the sellers of the cargo and UCO Bank came into possession of the bills of lading.

8.5 At about the same time, SOM obtained the issuance of a second set of bills of lading by promising Golden Shore that the originals would be returned to them. On this second set, SOM was named as the shipper, instead of SOM”s suppliers. The original bills, which were held by UCO, were never returned to Golden Shore as promised by SOM. SOM never paid UCO to obtain the original bills.

8.6 The second set of bills of lading was transferred by SOM to buyers in India. The Asean Pioneer arrived at its destination and upon presentation of the second set of bills of lading, the cargo was delivered. Golden Shore then asked UCO Bank for the return of the original bills of lading. UCO Bank refused and after repeated attempts at asking SOM for repayment, UCO Bank commenced proceedings against Golden Shore for wrongful delivery of cargo. Golden Shore applied to have the action stayed on the ground that cl 17 of the bill of lading was an exclusive jurisdiction clause and required that any dispute between the parties be adjudicated upon at the port of delivery. The application first came before the assistant registrar, who ordered a stay. This was reversed on appeal to the High Court by Woo Bih Li J, who refused a stay.

8.7 Two issues arose on appeal. The first related to the question of whether cl 17 of the bill of lading was an exclusive jurisdiction clause. This was essentially an exercise in interpretation. The difficulty was that cl 17 did not resemble more commonly worded exclusive jurisdiction clauses. The question turned on whether the word ‘claim’ in the first sentence of cl 17 encompassed the idea of ‘suits’ and ‘disputes’.

8.8 The Court of Appeal was aided in its construction by the cases of Maharani Woollen Mills Co v Anchor Line(1927) 29 Ll L Rep 169 and The Media(1931) 41 Ll L Rep 80. Both these cases had exclusive jurisdiction clauses which were significantly similar to cl 17. After considering these cases and counsel”s submissions, the Court of Appeal agreed with the High Court that cl 17 was indeed an exclusive jurisdiction clause.

8.9 On the court”s approach to this first issue, the writer submits that this was a good example of an exercise in interpretation. Instead of looking for a formulaic expression, the court looked at the clause in its entirety, in its contractual context, and drew from cases with similar clauses to arrive at what was a fair interpretation.

8.10 The second issue related to whether a stay should be granted. The Court of Appeal stated that the applicable test was for the party seeking to bring an action in a Singapore court in breach of an exclusive jurisdiction clause to show exceptional circumstances amounting to ‘strong cause’. The court went on to state that the law relating to exclusive jurisdiction clauses was different from that relating to forum non conveniens and that showing strong cause was more than a balancing of the conveniences.

8.11 The court went on to list the five factors that the High Court had taken into account in refusing the stay. These were:

(a) that both parties were more closely connected with Singapore;

(b) that Singapore law was the governing law under the bill of lading;

(c) that in respect of the main issue of consent or acquiescence on the part of UCO Bank, the evidence was primarily to be found in Singapore;

(d) that Golden Shore did not genuinely desire trial in India; and

(e)...