Commentary
| Citation | (2016) 28 SAcLJ 692 |
| Published date | 01 December 2016 |
| Author | TEH Hwee Hwee LLB (Hons) (National University of Singapore), LLM (Harvard University); Advocate and Solicitor (Singapore), Attorney and Counsellor-at-Law (New York); Deputy Registrar, Supreme Court of Singapore; Divisional Registrar, Court of Appeal; Divisional Registrar, Singapore International Commercial Court. Justin YEO LLB (Hons) (National University of Singapore); Advocate and Solicitor (Singapore); Former Assistant Registrar, Supreme Court of Singapore. 1 The authors were involved in the transfer and/or management of the first Singapore International Commercial Court (“SICC”) case in their capacity as registrars of the Supreme Court of Singapore, and set out in this article a description of what they observed as highlights of the case from the time it was transferred to the court on 4 March 2015 to the time judgment was rendered by the court for the first tranche of the trial on 12 May 2016 in BCBC Singapore Pte Ltd v PT Bayan Resources TBK [2016] SGHC(I) 1. The authors are grateful to Ms Cornie Ng, Ms Una Khng, Mr Paul Chan, Ms Joan Janssen, Mr Mark Mangan and Ms Eunice Chua who have provided valuable comments on an earlier draft of this article. All errors in this article are solely the authors' own. Colin SEOW LLB (Hons) (National University of Singapore), LLM (Harvard University); Advocate and Solicitor (Singapore); Assistant Registrar, Supreme Court of Singapore. |
| Date | 01 December 2016 |
THE SINGAPORE INTERNATIONAL COMMERCIAL COURT IN ACTION
Illustrations from the First Case 1
The Singapore International Commercial Court (“SICC”) rendered its first written judgment in its first case on 12 May 2016, setting a significant milestone since its establishment in 2015. The procedural aspects of the SICC's first case offer many valuable insights on several key features of the SICC. This commentary seeks to elucidate these insights for the reader, particularly on matters relating to the transfer of proceedings to the SICC, the strength of the SICC panel, the discovery regime, the determination of questions of foreign law, registered foreign lawyers and their participation, as well as confidentiality applications. This commentary also considers some practice issues relating to case management, the use of technology, appeals, as well as fees and costs for proceedings in the SICC.
1 5 January 2015 saw the birth of the Singapore International Commercial Court (“SICC”), a new institution that was brought from vision to reality within a short span of two years.2
2 The establishment of the SICC was primarily motivated by two key ideas:3 first, the recognition that the exponential and unprecedented growth of commercial activity in Asia would be accompanied by a need for institutions to resolve transnational commercial disputes swiftly, efficiently and predictably, while providingbasis for developing a freestanding body of commercial law;4 and second, Singapore's drive to provide an entire suite of dispute resolution services so as to bolster her status as a hub for resolving commercial disputes.5
3 A high-level committee comprising eminent local and foreign jurists was appointed to study the viability of establishing the SICC and to propose a framework for doing so.6 The committee submitted its report on 29 November 2013 and the Government welcomed the recommendations made by the committee.7 The proposal to establish the SICC went through a two-month public consultation from 3 December 2013 to 31 January 2014.8 The legal framework to establish the SICC, which included amendments to the Constitution of the Republic of Singapore,9 the Supreme Court of Judicature Act10 and the Legal Profession Act,11 was finalised in the fourth quarter of 2014, prior to its launch in January 2015.12
4 There has been extensive publicity on and significant interest in the SICC, its procedures and its processes.13 Of particular interest is whether and how the SICC can better serve the needs of the international business community by resolving disputes cost-efficientlyand in a manner that is predictable and commercially sensible.
5 Just slightly more than a year after its launch, the SICC rendered its first judgment in BCBC Singapore Pte Ltd v PT Bayan Resources TBK14 (“BCBC v PT Bayan Resources”).
6 This commentary first examines procedural aspects of BCBC v PT Bayan Resources which illustrate certain key features of the SICC, namely, the transfer of proceedings to the SICC, the strength of the SICC panel, the discovery regime, the determination of questions of foreign law, registered foreign lawyers and their participation, as well as confidentiality applications. It then turns to consider practice issues relating to case management, the use of technology, appeals, as well as fees and costs for proceedings in the SICC.
7 Shortly after the launch of the SICC, the SICC received its first case, BCBC v PT Bayan Resources, on 4 March 2015 by way of a transfer from the High Court pursuant to O 110 r 12 of the Rules of Court.15 By way of brief background, the case concerned a joint venture in Indonesia between publicly listed parties from Australia and Indonesia (including their associated companies) to exploit a patented technology developed in Australia to produce and sell upgraded sub-bituminous coal from East Kalimantan, and involved a complex contractual matrix.16 The parties involved were variously incorporated in Singapore, Australia and Indonesia. The counsel involved were from two of the largest law firms in Singapore. The plaintiffs and the second defendant by counterclaim were represented by a team from Rajah & Tann LLP led by Francis Xavier SC, while the defendants were represented by a team from Drew & Napier LLC led by Davinder Singh SC.
8 The hearing of the first tranche of the trial in BCBC v PT Bayan Resources commenced about eight months after the case was
transferred.17 The first tranche related to the issues of contractual construction and some issues of Indonesian law, while issues relating to the alleged breach of contract were reserved to be determined in later tranches.18 The first tranche was initially fixed for a period of 15 days, from 16 November 2015 to 4 December 2015, but the evidence-taking process was completed six days ahead of schedule on 26 November 2015, with a full day of hearing for closing submissions conducted thereafter on 14 January 2016.19 The SICC rendered its first written judgment on 12 May 2016. The judgment has attracted much interest and, amongst other things, has been hailed as a “masterclass” in how to deal with rules of interpretation, public policy and the implication of terms.209 This commentary turns to consider in greater detail the procedural aspects of BCBC v PT Bayan Resources that illustrate certain key features of the SICC.
10 BCBC v PT Bayan Resources was the first case transferred to the SICC from the High Court. Order 110 r 12(4), as at the time of the transfer,21 provided that a case may be transferred from the High Court to the SICC only if the following requirements were met:
(a) the High Court considers that the requirements in O 110 rr 7(1)(a) and 7(1)(c) have been satisfied, that is, the claims “are of an international and commercial nature”, and the parties “do not seek any relief in the form of, or connected with, a prerogative order”;22
(b) the High Court considers that the SICC will assume jurisdiction in the case;23
(c) the High Court considers that it is more appropriate for the case to be heard in the SICC; and
(d) either a party has, with consent of all other parties, applied for the transfer, or the High Court, after hearing the parties, orders the transfer on its own motion.
11 BCBC v PT Bayan Resources was transferred on the court's own motion after the parties were heard. The case is illustrative of disputes that would be considered suitable for transfer from the High Court to the SICC and the factors that would be relevant in considering whether a case should be transferred.
12 The factors that were taken into account were recorded in the brief grounds for the order of transfer dated 4 March 2015, and were as follows:
(a) First, in relation to the nature of the dispute, it was observed that the case concerned a transnational business dispute involving parties, business interests and commercial dealings in different jurisdictions.24
(b) Second, with respect to the reliefs sought, the claim and counterclaim of the parties arose mainly from alleged breaches of agreements relating to a joint venture for the application of a patented technology to produce upgraded coal from East Kalimantan for sale and the business and operations of the joint venture company that was incorporated in Indonesia. In addition, damages were sought for alleged breaches of guarantee, misrepresentation and negligence, and inducement to enter into the joint venture. The parties did not seek any relief in the form of, or connected with, a prerogative order.
13 It was further observed that the dispute was at its root concerned with the commercial expectations of the parties in respect of a large-scale industrial project that bore significant and substantial international elements, and therefore would, subject to necessary consequential orders, be more appropriately dealt with by the SICC as
the SICC is a division of the High Court specifically established to hear and resolve international commercial disputes.14 Having heard the parties on the issue of the transfer of the proceedings to the SICC, and in view of the foregoing factors, the High Court made an order for transfer together with various consequential orders.
15 The SICC has a panel of specialist commercial judges comprising Judges of the Supreme Court of Singapore25 and International Judges.26 The International Judges, who hail from a mix of civil law and common law jurisdictions – Australia, Austria, France, Hong Kong, Japan, the UK and the US27– have extensive and diverse expertise in commercial litigation. The strength of the SICC's panel of judges is one of the key advantages that potential court users can expect to benefit from when they take their cases to the SICC. The diversity of the panel is another advantage especially where there are issues of foreign law or commercial practices in key jurisdictions in the world outside Singapore that are in dispute.
16 Proceedings may be heard in the SICC before one or three judges at first instance.28 After BCBC v PT Bayan Resources was transferred from the High Court to the SICC, the Chief Justice directed a three-judge coram to be constituted to hear the case pursuant to O 110 r 53(1)(b).
17 The judges assigned to the coram were High Court Judge Quentin Loh and International Judges Vivian Ramsey and Anselmo Reyes. The members of the coram, who have been described as
“international legal heavyweights”,29 have a wealth of commercial law practice knowledge and expertise as evinced by their professional biographies:(a) Quentin Loh J was appointed as a Judicial Commissioner in 2009 and, later, a Judge of the Supreme Court in 2010. Prior to joining the Bench, he was the head of the Building and Engineering Construction and Insurance and Reinsurance...
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