Conflict of Laws

Citation(2002) 3 SAL Ann Rev 110
Published date01 December 2002
Date01 December 2002

8.1 In 2002, the Singapore Law Reports contained nine reported cases which will be examined in this review.

8.2 As in the previous year”s review, 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 cases that are relevant to the field of Conflict of Laws.

Forum non conveniens

8.3 There were a significant number of cases on forum non conveniens in 2002, many of which were fairly straightforward applications of the law set out initially in Spiliada Maritime Corp v Cansulex Ltd (The Spiliada)[1987] AC 460. It would not be useful to review all those cases here. Instead, the writer will only review three cases which raise points of interest.

8.4 Before looking at these cases, by way of completion, it is useful to note that two unreported cases reviewed last year have since been reported. The first is Praptono Honggopati Tjitrohupojo v His Royal Highness Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj[2002] 4 SLR 667 and the other Asia-Pacific Ventures II Ltd v PT Intimutiara Gasindo[2002] 3 SLR 326.

8.5 In Baridhi Shipping Lines Ltd v Sea Consortium Pte Ltd[2002] 3 SLR 587, the plaintiffs sued the defendants for a defamatory email sent to a third party. The defendants applied for and obtained a stay of proceedings in Singapore in favour of the courts in Bangladesh. The plaintiffs were given leave to apply to lift the stay should the defendants challenge the jurisdiction of the Bangladeshi court or assert that there was no cause of action. The Bangladeshi court subsequently ruled that the plaintiffs had no cause of action and the plaintiffs applied to lift the stay.

8.6 Lee Seiu Kin JC (as he then was) granted the plaintiffs” application to lift the stay on the basis that the defendants had not shown that Bangladesh was the more appropriate forum. This itself is not remarkable. However, there

was the suggestion that, because the plaintiff had no cause of action in Bangladesh, Bangladesh was therefore not even a possible forum.

8.7 This is interesting. It is not clear where this factor of the availability of another forum fits within the Spiliada approach. Traditionally, stage 1 of the Spiliada approach consists of identifying connecting factors between the matter and particular fora. There is no requirement that a particular forum must be a “possible” one.

8.8 At one level, this would appear to be splitting hairs. After all, if no cause of action was available in a forum, then it ceases to be an available forum even for the purposes of stage 1. Seen in this way, the notion of “availability” of a particular forum by-passes the Spiliada approach. This is reminiscent of the “no dispute” argument as applied to jurisdiction clauses before it was made clear by the Court of Appeal (see The Jian He[2000] 1 SLR 8, The Hung Vuong-2[2001] 3 SLR 146 and the discussion in “Conflict of Laws”(2001) 2 SAL Ann Rev 107 at paras 8.27—8.30).

8.9 However, this view does create some difficulties. What if the plaintiff argues that there are defences to the cause of action in the other forum? Alternatively, what if the argument is that a particular type of cause of action is not available in the other forum? Does this make the other forum “unavailable”? The writer submits that these are appropriately considered in stage 2 of the Spiliada approach where the court asks whether the interests of justice require that the trial should take place other than in the natural forum. Similarly, an argument that a cause of action does not exist in the other forum should be considered at stage 2.

8.10 However, it is clear from the judgment in Baridhi Shipping that stage 2 was not even reached. At this point, it therefore looks like the availability of a forum is something that is considered at stage 1 or even as a way to by-pass the test.

8.11 Finally, this notion opens up the possibility of parties going to possible alternative fora or unrelated ones for declarations that a cause of action does not exist. This would take the jurisdictional battle up a strategic level.

8.12 The next case of Re A (an infant) (No 2)[2002] 2 SLR 137 involved applications relating to the custody and access of a seven-year-old girl. Both her father (a French citizen) and mother (a French and Moroccan citizen) had commenced proceedings in the Singapore courts for, inter alia, custody of her. At the same time, the father had proceedings pending in France for divorce and other ancillary orders. The mother applied for and obtained a stay of

proceedings in Singapore in favour of the proceedings in France. The father appealed to the High Court.

8.13 Lai Kew Chai J applied the Spiliada approach to the matter and stayed the proceedings. What is worthy of note is that Lai J took into consideration the best interests of the child at stage 1 of the Spiliada approach. As the learned judge phrased it at [16]:

“In … proceedings involving custody of a child, an important consideration must be the child”s cultural connections with and the affinity for the cultural and societal environment which the forum serves. This … is best determined by the forum which is best equipped to determine what is best for the child in all material respects ranging from its health care, education, moral and spiritual and other relevant needs.”

8.14 This statement is certainly wide indeed and, it is submitted, correctly so. It brings in a wealth of factors into stage 1 beyond what has been traditionally considered in commercial cases.

8.15 This case also addresses the question of whether the Spiliada approach was applicable in cases where “the best interests of the child” became relevant. It is clear now that it is a factor considered in stage 1 and which is also subject to the stage 2 justice considerations.

8.16 The last case in this section is Yugiantoro v Budiono Widodo[2002] 2 SLR 275. The plaintiff alleged an oral contract with the defendant whereby he would purchase USD2m Pacific shares and hold them for one year. The defendant in turn would indemnify the plaintiff for any loss in the price of those shares at the end of that period. The plaintiff claimed against this indemnity. The defendant contended that he did not enter into the indemnity arrangement and refused to pay. The plaintiff commenced proceedings in Singapore and the defendant applied for a stay. This was refused by the assistant registrar and the defendant appealed.

8.17 At one level, this was a straightforward application of the Spiliada approach. Tan Lee Meng J considered the factors of residence, location of assets and availability of witnesses at stage 1. On these factors, the defendant had not discharged the burden of showing that Indonesia was a more appropriate forum than Singapore.

8.18 It was contended on behalf of the defendant that the contract was governed by Indonesian law and that there were complicated issues under Indonesian law regarding the validity of the indemnity. As such, it was more appropriate for the Indonesian courts to deal with...

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