OBTAINING JURISDICTION OVER FOREIGN COMPANIES
|01 December 1995
|TOH KIAN SING
|01 December 1995
A recurrent problem in international commercial disputes is determining when a foreign company1 is amenable to the jurisdiction of the local courts. The somewhat instinctive response of chasing the foreign corporation to its place of incorporation by effecting service out of jurisdiction under Order 11 of the Rules of Supreme Court (hereinafter, the RSC), is often not the most ideal solution, both in terms of convenience and tactics.2 Other jurisdictional heads which involve only service within jurisdiction3 should be considered first, whenever possible.
The purpose of this article is to explore these jurisdictional heads which only require service within jurisdiction of the Singapore forum and consider how they might be invoked, if at all, in the context of different physical and economic manifestations of a foreign company within Singapore. An early caveat is apposite, however. Scarcity of local cases, doubts as to
applicability of cases from other jurisdictions, absence of judicial survey of the entire field and recent statutory amendments in 1993 make the task of constructing a conceptual framework in this area difficult and the analysis to be put forward presently, tentative.
The starting point is s. 16(1) of the Supreme Court Judicature Act4 which sets out the scheme of civil jurisdiction of the High Court of Singapore for in personam actions. In fact, s.16(1) supplies two of the three statutory regimes in relation to jurisdiction over foreign companies. Under s. 16(1)(i), the High Court has jurisdiction to hear an action in personam where the defendant is served with a writ or other originating process in Singapore in the manner prescribed by the Rules of Court. S.16(1)(b) confers the High Court with jurisdiction if the defendant submits to the jurisdiction of the High Court.
In addition, s.16(3) provides that without prejudice to the generality of subsection 1 the High Court should have jurisdiction as is vested in it by any other written law.5 S.16(3) thus captures any other jurisdiction conferring statutory provisions, which in relation to foreign companies in Singapore, would presently be argued to include Part XI, Division 2 of the Companies Act.
Whilsts.16(1) of the SCJA sets out the heads of civil jurisdiction in Singapore, it may be more convenient to begin with this third statutory regimeunder the Companies Act rather than the two contained in s.16(1). If, as presently argued that it would, certain provisions of this Part of the Act do indeed confer jurisdiction, then any foreign company that is registered under s.368 of this Part could be served in accordance with the procedure prescribed in s. 376 and be made amenable to jurisdiction of the Singapore courts. There would be no further need to consider if the other two jurisdictional limbs in s.16(1) could be invoked which, subject to one exception,6 remain possible (though in many situations, less attractive) alternatives.
Under Division 2, a foreign company which wishes to commence to carry on business or establish a place of business8 in Singapore must be registered under s.368. Registration of such a foreign company requires the lodgment with the Registrar of Companies of, inter alia, the names and addresses of two or more natural persons resident in Singapore who are authorised to accept on its behalf service of process9 (such persons being referred to as ‘agents’10 of the foreign company). In addition, such a foreign company must have a registered office in Singapore11 and notice of the situation of this office in Singapore must also be lodged.12 Failure to register before carrying on business or establishing a place of business attracts an offence (penalised by a fine) under s.386.
Any documents (including any originating processes) required to be served on a foreign company may be left at or sent by post to
a. the registered office of the foreign company (if addressed to the foreign company) or
b. the registered address of any of its agents (if addressed to its agent) or
c. the registered office of the foreign company’s place of incorporation if it has ceased to maintain a place of business in Singapore.13
In essence then, a foreign company which wishes to carry on business or establish a place or business in Singapore must register itself, supplying the names of its local agents as well as the address of its registered Singapore office and once so registered, may be served with process in the manner prescribed by s.376. It is significant to observe that if a foreign company carries on business or establishes a place of business in Singapore but fails to register itself, the service procedure set out in s.376 does not apply.
As a matter of historical interest, this problem was addressed by s.305 of the Companies Ordinance of 1955 which allowed service on a place of business established by the unregistered foreign company. But this provision
and others dealing with registration and service in the 1955 Ordinance (which were probably borrowed from the English Companies Act of 1948) were left out of Companies Act of 1967 which repealed the 1955 Ordinance and also introduced the present Part XI, Division 2 provisions.
The provisions in Part XI, Division 2 of the Companies Act which are relevant to our discussion have close parallels in Australia, Malaysia and England. For instance, s.343 of Part 4.1 Division 2 of the Australian Corporations Law, 1989 forbids a foreign company to carry on business14 before it is registered under provisions in Part 4.1, Division 2. The ambit of the expression, ‘carrying on business’, found in s.21(2),(3) of the same Act is similar to that found in s.366 of our Companies Act. Similarly, a local agent must be appointed by the foreign company and the company must have a registered office.15 Service procedure under s.363 is broadly similar to s.376.16
The Malaysian provisions are in pari materia similar to those in Singapore, albeit numbered differently.17
The provisions18 in England contained in Part XXIII of the 1985 Companies Act are different from Part XI, Division 219 in several pertinent aspects although the basic schema remains the same. S. 691(1) of the English Companies Act 1985 requires a foreign company to register within one month after establishing a place of business20 and to lodge for registration, inter alia, the names and addresses of one or more persons authorised to
accept service. Service on the foreign company may be effected on such an agent of the company by addressing the process to him and leaving the process at or posting it to the agent’s registered address.21 It will be noticed that no mention is made in the English provisions of a company ‘carrying on business’ and service on a registered company may only be effected on the agent. Perhaps more significantly, there is a UK provision which, since 1967, has no local equivalent: if the foreign company fails to register, then service may still be effected at a place of business established by the company in the England.22 As will presently be discussed, this lacuna in the local legislation presents problems on both jurisdiction and service.
This question does not admit of an easy reply. However, what appears to be an affirmative answer may be obtained from a number of indirect sources.
The legislative purpose behind the registration and service provisions of this Division, particularly ss. 365, 366, 368 and 376 seems predominantly to be one of protection of local creditors of the foreign company by securing for them a procedure for service which does not involve service out of jurisdiction. This obviates the inconvenience of service out and puts the potential plaintiff at no worse a position than he would be if he were to sue a local company. This purpose was identified by Ackner LJ (as he then was) in 23, by Winslow J in 24 and has been echoed in two Australian decisions, 25 as well as .26 Another justification, somewhat less sophisticated, stems from some notions of mutuality: a foreign company can sue any local creditor as if it is a local plaintiff27 and so should be capable of being sued as if it were a local defendant.
Admittedly, these judicial pronouncements do not bear directly on the jurisdiction question and that there is no express provision in any Part XI, Division 2 or other comparative legislation which deals specifically with
jurisdiction. However, it should be noted that as far as English and Australian cases are concerned, they are to be read with the common law conflict of laws principle in mind, that the foundation of jurisdiction in personam is service of the writ on a defendant present within jurisdiction.28 It may therefore be argued that by providing for a statutory substitute for the common law equivalent criterion of corporate presence in the form of registration and a special facility for service on foreign companies registered within jurisdiction, the legislatures of these countries have already created an avenue by which jurisdiction over foreign companies may be exerted. Any express enactment on denoting that service in the forum confers jurisdiction would be superfluous.29
Indeed, such an argument, reading into statutory provisions dealing with foreign companies a jurisdictional nexus is supported by writers and cases on the area. Both Dicey and Morris and Cheshire and North regard service under the relevant UK provisions on foreign companies as...
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