Conflict of Laws

AuthorJoel LEE Tye Beng LLB (Hons) (Wellington), LLM (Harvard), DCH (AIH); Barrister and Solicitor (New Zealand); Advocate and Solicitor (Singapore); Professor, Faculty of Law, National University of Singapore. LEOW Wei Xiang Joel Dip (Law and Management) (Temasek Polytechnic); LLB (Hons) (National University of Singapore); Senior Associate, Tan Kok Quan Partnership. Marcus TEO Wei Ren LLB (Hons) (National University of Singapore); Sheridan Fellow, Faculty of Law, National University of Singapore.
Publication year2021
Citation(2021) 22 SAL Ann Rev 268
Date01 December 2021
I. Introduction

12.1 In recent years, the Singapore courts, at various levels, have been very active in the conflict of laws. This is indicative of the increasing numbers of transnational interactions and highlights the importance of being on the lookout for issues relating to private international law. Unlike in the early days, it is no longer feasible to digest every case relating to the conflict of laws. As such, the authors have chosen to focus on cases which are noteworthy. By and large, this will include cases from the Court of Appeal and some High Court cases. For 2021, there are 11 cases that will be examined in this review. As usual, while conflict of laws cases can sometimes relate to other areas of law, this review will only examine those parts of the case that are relevant to the field of conflict of laws. In addition, the authors have also chosen to examine the recent changes in the Rules of Court 2021 (“ROC 2021”) which came into effect on 1 April 2022.

II. Jurisdiction and stay of proceedings

12.2 It is trite that before a court can hear a matter, it must be seised of jurisdiction over the parties (which is distinct from “subject matter

jurisdiction”).2 Jurisdiction can be in personam or in rem. In personam jurisdiction can generally be established, as per s 16(1) of the Supreme Court of Judicature Act 1969,3 via (a) service of originating process on the defendant whether within or outside of Singapore; or (b) if a defendant submits to the jurisdiction of the Singapore courts.4 Jurisdiction is established as of right against a local defendant as there is no legal impediment to service. Therefore, leave of court is not required to effect service in this scenario.5

12.3 Where it concerns a foreign defendant, however, there are requirements to be satisfied before the court will exercise its long-arm discretionary jurisdiction under O 11 r 1 of the old Rules of Court6 (“ROC”) to allow service out of jurisdiction. These requirements will first be briefly discussed.

A. Rules of Court 2014

12.4 There have been some changes to establishing in personam jurisdiction with the implementation of the Rules of Court 2021 this year. The relevant differences are discussed below.

12.5 On discretionary jurisdiction under the old ROC, there are three requirements before leave for service out of jurisdiction is granted.7 First, the plaintiff's claim must come within one of the heads of claim in O 11 r 1 of the ROC. Second, the plaintiff's claim must have a sufficient degree of merit. Third, Singapore must be the forum conveniens for the dispute. Furthermore, as the application for leave for service out of jurisdiction is usually done ex parte, the plaintiff is required to make full and frank disclosure of all the material facts.8 In cases where leave is granted, parties can challenge the existence of the court's jurisdiction and apply to set aside service of the writ.

12.6 On the third requirement, that of forum conveniens, it is useful to point out that apart from being considered as part of the discretionary jurisdiction analysis (where the existence of jurisdiction is being

challenged), a defendant can also apply to the court to stay proceedings on the basis of forum non conveniens, essentially asking the court to not exercise its jurisdiction because there is a more appropriate forum elsewhere.9

12.7 On the last requirement of full and frank disclosure, the recent Court of Appeal's decision in Tecnomar & Associates Pte Ltd v SBM Offshore NV10 provided some helpful reminders:11

(a) This is a duty that is owed to the court and is driven by the need for the court to satisfy itself that the case is a proper one for service out of jurisdiction.

(b) Such a duty invariably extends to furnishing information and facts that may go towards rebutting the applicant's claim, that is, relevant to the opponent's case. The applicant may disagree with the opponent's case, but it remains incumbent to candidly disclose all such information.

(c) Whether there is material non-disclosure of facts is to be determined by reference to facts disclosed at the time of the application. While this may seem intuitive, the applicant in Tecnomar & Associate Pte Ltd v SBM Offshore NV tried, unsuccessfully, to rely on affidavits filed after the leave application to argue its case against material non-disclosure.

(d) If the court finds the suppression/non-disclosure to be deliberate, the court will ordinarily discharge the ex parte order for service out of jurisdiction.

12.8 The importance of the duty of full and frank disclosure cannot be overemphasised. The Court of Appeal confirmed that it would not hesitate to order costs on an indemnity basis against litigants who evinced a flagrant disregard of their duty of full and frank disclosure owed to the court.12

B. Rules of Court 2021

12.9 The Rules of Court 2021, which was gazetted on 1 December 2021, took effect on 1 April 2022. For the purposes of this review, the focus will be on the new provisions relating to (a) service out of jurisdiction under O 8 r 1(1) of the ROC 2021; and (b) challenging the jurisdiction of the Singapore courts under O 6 r 7(4) of the ROC 2021.

12.10 Turning first to the provisions on service out of jurisdiction: From a literal reading of O 8 r 1(1) of the ROC 2021 alone, it would appear that a claimant only needs to prove one of two things — that the Singapore court either has jurisdiction or is the appropriate forum. While it remains to be seen how the provision will be interpreted by the courts, the authors' reading of the provisions is as follows.

12.11 Under the first limb, it would appear that a claimant succeeds in establishing jurisdiction of the Singapore courts over the dispute in one of the three scenarios below:13

(a) The dispute falls within the scope of a jurisdiction clause that confers exclusive jurisdiction on courts of Singapore. In such a situation, the exclusive jurisdiction will be given full contractual force (until and unless it is invalidated) and Singapore courts will be seised of jurisdiction over the dispute unless the defendant is able to convince the Singapore court to not exercise jurisdiction by showing “strong cause”.14

(b) The dispute falls within the scope of a jurisdiction clause that confers non-exclusive jurisdiction on the courts of Singapore, which forum parties have agreed to submit their disputes to, and the claimant commences an action first. In such a situation, the Singapore court will be seised of jurisdiction over the dispute and the defendant will be required to show strong cause if he wishes to convince the Singapore court to not exercise jurisdiction. This is because while the claimant may sue in any jurisdiction, the claimant is “promised the defendant's submission if the claim is brought in the named jurisdiction”.15 In other words, the Singapore courts have interpreted the parties to have consented to the exercise of jurisdiction by the named forum (that is, Singapore) and waived any objection thereto, thereby

reducing the risk of jurisdictional challenges if proceedings are brought in the named forum.16

(c) Where the Choice of Court Agreements Act 201617 (“CCAA”) applies (that is, agreements that, inter alia, were concluded after 1 October 2016 and which designated a Singapore court as the chosen court to resolve their dispute),18 a Singapore court is seised of jurisdiction under s 11(1) of the CCAA. Furthermore, the chosen Singapore court, as per s 11(2) of the CCAA, cannot refuse to exercise jurisdiction on the ground of forum non conveniens.19

12.12 As to the second limb, it would appear that all the claimant needs to show is that the Singapore court is “the appropriate court”. While this, at first blush, seems to suggest that an analysis of the Spiliada factors identifying the forum conveniens would be sufficient, this is not entirely true when one considers the requirements additionally set out in the Supreme Court Practice Directions 2021 (“SCPD 2021”).

12.13 The SCPD 2021 requires the claimant to state, in the supporting affidavit for an application for service out of jurisdiction, the relevant information on the following in showing why the Singapore court is the appropriate court to try the dispute:20

(a) There is a good arguable case that there is sufficient nexus to Singapore.

(b) Singapore is the forum conveniens.

(c) There is a serious question to be tried on the merits of the claim.

12.14 In determining whether there is a good arguable case and whether there is sufficient nexus to Singapore, para 63(3) of the SCPD 2021 reproduces a similar (non-exhaustive) list of factors which the court can consider in determining appropriateness. This list is materially similar to that set out in O 11 r 1 of the old ROC. This amendment, instead of reproducing the same O 11 factors in the ROC 2021, is deliberate. It is said that under the ROC 2021, the claimant no longer needs to “scrutinise the long list of permissible cases in the hope of fitting into one or more descriptions. It also avoids the possibility that a particular category of

cases which could and should be heard in Singapore is actually not in the list”.21

12.15 The retaining of the O 11 grounds in the SCPD 2021 is sound. After all, there is a need to establish nexus with the forum so that Singapore courts do not inadvertently become an “international busybody”.22 The retention of the O 11 grounds in the SCPD 2021 on the one hand gives the court the flexibility to determine what is “appropriate” without needing to insist on a fulfilment of a O 11 ground in the old ROC, and at the same time ensures that there is sufficient nexus with the forum before it decides to seize jurisdiction over the dispute.23

12.16 The ROC 2021 definitely leaves the door open for Singapore courts to hear claims that do not fall within any of the grounds for service out (that is, grounds in O 11 of the old ROC and...

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