Citation(2005) 17 SAcLJ 306
Date01 December 2005
Published date01 December 2005

This article argues that, although choice of court agreements can be viewed from a procedural or contractual perspective, the predominant approach in Singapore and English law in respect of the exclusive jurisdiction agreement has been to give primacy to the rationale of the enforcement of a contractual bargain, tempered by a judicial discretion in its enforcement within the procedural jurisdictional context. It is also argued that the only difference between exclusive and non-exclusive jurisdiction agreements lies in the content and scope of the agreement between the parties, so the same contractual approach (as tempered by procedural considerations) should be applied in so far as the court is enforcing a contractual agreement. The main difficulty lies in determining the promissory content within a non-exclusive jurisdiction agreement. The implications of this analysis go beyond questions relating to the exercise of the jurisdiction of the court. They also reach the contexts of anti-suit injunctions, damages for breach of contracts, and defences to foreign judgments.

I. Introduction

1 Jurisdiction agreements perform a very significant channelling function in the adjudication of cross-border civil disputes. Many jurisdictions give effect, to varying degrees, to the parties’ selection of venue for and mode of dispute resolution. The choice of court agreement is the most significant type of jurisdiction agreement as far as civil litigation is concerned. Its significance has in fact been underscored recently by the efforts of the Hague Conference on Private International

Law to gain worldwide support for a Draft Convention on Exclusive Choice of Court Agreements.1

2 In the common law, the distinction has been traditionally drawn between exclusive and non-exclusive choice of court agreements, a distinction that is also adopted by the Hague Conference. In an exclusive choice of court agreement, the parties agree that disputes falling within their dispute resolution agreement will be decided by, and only by, their chosen court. In the typical non-exclusive choice of court agreement, the parties agree that they can sue one another in the court of a particular state, but do not say they cannot bring proceedings in the courts of other states. The increasing use, and sophistication in the drafting, of non-exclusive jurisdiction clauses, as well as growing litigation in relation to such clauses, call for closer study of the effect of such agreements. There is much potential for confusion in the arena where non-exclusive jurisdiction agreements operate: they may give rise to the same effect2 as (or even thought to have stronger effect3 than) exclusive jurisdiction agreements; they may require a sui generis approach;4 they may be given ordinary weight in the determination of the natural forum;5 or they may be given effect to as a very strong factor in the natural forum calculus.6 While considerable attention has been paid to the effect of exclusive

jurisdiction agreements on the exercise of the jurisdiction of the court under the common law,7 much less academic attention has been paid to the effect of non-exclusive jurisdiction agreements.8

3 The main thesis of this article is a simple one. It is that the same contractual basis that underlies the enforcement of the exclusive jurisdiction agreement should be applied to non-exclusive jurisdiction agreements. Consequently, the traditional distinction between exclusive and non-exclusive jurisdiction agreements in the common law is an illusory one, and while it remains practically useful to distinguish between the two, the real question in every case is the content and scope of the contractual bargain of the parties. Whereas the obligations are sharply defined in the typical exclusive jurisdiction agreement, the obligations attached to a non-exclusive jurisdiction can be more complex. They are often a matter of inference and should therefore be a question of the construction of the specific agreement in each case, in accordance with the proper law of the agreement (where it is proved).

4 The analysis will focus on the Singapore position, but frequent references will be made to English cases for guidance. The question is considered from the perspective of how a Singapore court will consider a choice of court agreement to affect the jurisdictional dispute before it. There may well be parallel jurisdictional disputes in foreign countries (whether in the chosen court or otherwise) in respect of the same subject matter, but this falls outside the scope of this study.

5 Part II of this article outlines the common law concept of jurisdiction, and Part III discusses some fundamental concepts relating to jurisdiction agreements. Together, they set out the background against which the argument will be made. Part IV sets out the common law basis

of the contractual enforcement of exclusive jurisdiction agreements within a procedural context. Part V carries that argument further to examine its consequences in the context of exclusive jurisdiction agreements. Part VI explores the consequences of the contractual analysis for non-exclusive jurisdiction agreements.

II. Outline of international civil jurisdiction
A. Jurisdiction: Nexus and exercise

6 In general, in civil cases, whether the Singapore court has personal jurisdiction over the defendant, in the sense of having legal authority to bind the defendant to its decision, depends on the service of process on the defendant. Historically, under the common law rules, the court may assume jurisdiction over the defendant if the defendant has been properly served with process while physically present within the territory of the forum, or if the defendant has submitted to the jurisdiction of the forum. This rule is now statutorily endorsed in Singapore.9 If the defendant is present, the claimant can serve the originating process on the defendant as a matter of right. Service within the jurisdiction in accordance with a valid agreement to submit to the jurisdiction of the Singapore court provides a legal basis of jurisdiction.10 Submission can also occur during the conduct of legal proceedings by an act of the defendant demonstrating irrevocably that he has accepted the legal authority of the court to determine the merits of the case. In submitting to the jurisdiction, the defendant is estopped from arguing that the court has no jurisdiction.11 This type of jurisdiction, derived from the common law, does not involve the discretion of the court and is commonly known as jurisdiction as of right.

7 The defendant may, however, challenge the exercise of the jurisdiction of the court. Today, this challenge is based on the doctrine of the natural forum.12 Where jurisdiction is obtained as of right, in the absence of a jurisdiction agreement, the defendant may try to persuade the court to stay the proceedings on the basis that there is another

available forum that is the clearly and distinctly more appropriate forum to hear the case as a matter of convenience, and (if so) that there are no reasons of justice — that the claimant will not be deprived of substantial justice if the trial were to take place abroad — why the case should nevertheless be heard in the Singapore court.13

8 In addition, there is statutory discretionary jurisdiction in cases where the defendant cannot be served within the jurisdiction.14 Under the Rules of Court,15 the court may grant leave for service of process out of the jurisdiction. The grounds for the granting of such leave are generally based on connections between the forum and one of the following: the defendant, the subject matter of the dispute, or the cause of action. Before leave is granted, the court must be satisfied that there is a good arguable case that the situation falls within one of the provisions providing for service of process out of jurisdiction,16 that there is a serious issue to be tried on the merits,17 and that it is a proper case for leave to be granted.18 The most important consideration to establish the proper case is that the Singapore court should be shown to be the most appropriate forum to hear the case.19 The application for service out of jurisdiction is made in the first instance by the claimant alone. After the service of process has been effected on the defendant overseas, the defendant may apply to set aside the service of the writ. For the present purposes, the most important ground to support such an application is that the Singapore court is not the most appropriate forum to determine the merits of the case. This involves the same doctrine of natural forum discussed above, except that, in the absence of a jurisdiction agreement, it is up to the claimant to show why the Singapore court is the most appropriate forum

to hear the case. The only distinction is a procedural one, and in fact it is not uncommon for the defendant to apply to stay the proceedings, instead of applying to set aside the service. The applicable principles of natural forum are the same, apart from the burden of proof.20

9 Thus, putting aside procedural complications, the personal jurisdiction of the Singapore court in general international civil litigation can be understood in terms of two concepts: the existence of the nexus for the jurisdiction, and the exercise of this jurisdiction. The former is supplied under the common law by the territorial presence or submission of the defendant, and expanded by statute to numerous grounds connecting the defendant, the subject matter of the action, or the cause of action, to the forum. The latter involves largely the consideration of the natural forum doctrine. Where there is no question of breach of a jurisdiction agreement, the question is which country’s court should determine the merits of the dispute in the interests of the parties and the ends of justice.21 The question can arise in the form of whether the Singapore court is forum...

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