The Singapore International Commercial Court (“SICC“) was established with the aim to further boost Singapore’s position as a leading forum for international commercial dispute resolution. Singapore is currently already recognised as one of the leading arbitration hubs in Asia, and the SICC, established in 5 January 2015, hopes to build on this success. The SICC should not be of interest only to Singaporean parties, as matters with no substantial connection to Singapore can be heard and decided by the SICC judges (more details below).
What is the SICC and why was it created?
The SICC is a division of the High Court of Singapore, and is intended to be a “hybrid” of international arbitration and traditional court litigation, and it is hoped that the SICC will be the best of both worlds. Dispute resolution under the SICC enjoys a well-designed court based mechanism,and avoids the typical pitfalls of international arbitration such as delay, costs, and a lack of consistency of decisions and developed jurisprudence.
Some key advantages of the SICC procedure include:
- Non-parties can be ordered to disclose relevant documents if necessary;
- Wider rights to appeal against SICC judgments unlike in arbitration (although parties have freedom to waive or limit such rights);
- SICC judgments are published, implying more room for development of legal precedents contributing to consistency and certainty of SICC judgments. However, parties can also apply for SICC judgments to be confidential; and
- Easier to join non-parties to SICC proceedings compared to arbitration
What’s the difference between the SICC and a “normal” court?
The SICC has certain advantages compared to domestic courts. For example, SICC cases are presided over by a panel of international judges from countries like Australia, France and the United States. Foreign legal representation is also allowed in certain situations, and points of foreign law can be dealt with by way of submissions instead of requiring expert evidence. Parties also have some flexibility in the procedure compared to domestic courts – eg: they can apply to exclude the application of Singapore’s laws of evidence.
What’s the difference between SICC and international arbitration?
The SICC does share some similarities with international arbitration – eg: parties can agree via written agreement to have their disputes settled by the SICC, and parties may be represented by foreign lawyers qualified in the relevant governing law.
However, party autonomy in SICC cases is significantly less than in international arbitration. For example, in international arbitration, parties can agree on the number of arbitrators and on the arbitrator(s) appointed. In the SICC, parties cannot choose which judges are supposed to hear their matter. In international arbitration, parties can also choose the venue for their hearings (which may be different from the seat of arbitration). In contrast, trial hearings for SICC matters will be held in Singapore.
Who are the SICC judges?
The SICC bench consists of judges from the Singapore Court of Appeal and High Court, as well as “international judges” from various nationalities such as France, Japan, United States, Australia and the United Kingdom.
What type of cases are heard by the SICC?
Generally, the SICC has the jurisdiction to hear and try an action if:
- the claim in the action is of an international and commercial nature; or
- parties have agreed in writing to have the SICC determine the dispute.
The SICC cannot hear matters if the form of relief includes prerogative orders (eg: mandatory order, prohibiting order, quashing orders etc)
There have been 21 written judgments published by the SICC as of 6 March 2018. One example of a case heard and decided by the SICC is BCBC Singapore Pte Ltd & Anor v PT Bayan Resources TBK & Anor [2016] SGHC (I) 01. This was the very first judgment handed down by a three-judge panel, which involved a large scale industrial project of Australian, Indonesian and Singaporean public listed entities. The matter was transferred to the SICC in March 2015, and the hearing was concluded in May 2016. The judgment was delivered within 4 months after the end of the hearing. The timeline demonstrates the SICC’s ability to adjudicate cases with swiftness and quality.
Does this mean that the SICC can hear cases which are not even related to Singapore?
The SICC has jurisdiction to hear “offshore cases”, which are usually cross-border disputes with no jurisdictional link to Singapore. These cases can still be heard by the SICC provided the necessary requirements are met.
To qualify as an “offshore case”, one of the key requisites is that the action must have no substantial connection to Singapore, and does not include an action in rem (against a ship or any other property). An action has no substantial connection to Singapore where:
- Singapore law is not the law applicable to the dispute and the subject matter of the dispute is not regulated by or otherwise subject to Singapore law; or
- The only connections between the dispute and Singapore are the parties’ choice of Singapore law as the law applicable to the dispute and the parties’ submission to the SICC.
How can parties agree to have their disputes heard in the SICC?
Parties may insert a dispute resolution clause in their contracts to state that they agree to submit to the jurisdiction of the SICC when there are disputes arising from or out of that contract. Parties may, after having chosen the SICC as a dispute resolution forum, also agree to limit or exclude their rights of appeal against the SICC judgment.
The model clause provided by the SICC is as follows:
“Each party irrevocably submits to the [exclusive/non-exclusive] jurisdiction of the Singapore International Commercial Court all disputes arising out of or in connection with the present contract, including any question relating to its existence, validity or termination.”
Even if the parties’ contract does not include a SICC dispute resolution clause, parties can later enter into a separate written agreement to have their disputes determined by the SICC.
Since the SICC is in Singapore but deals with matters involving “international” disputes – how does legal representation work? Does a party have to use Singapore qualified lawyers?
Foreign legal representation is permitted in ‘offshore cases’, provided the foreign lawyer is granted registration (full or restricted) by the SICC. A foreign lawyer with full registration is allowed to do any of these things:
- Appear and plead in proceedings before the SICC
- Appear and plead in the Singapore Court of Appeal in any appeal arising from a SICC case
- Represent any party to any relevant proceedings before the SICC / relevant appeal in any matter concerning those proceedings or that appeal
- Give advice, prepare documents or provide any other assistance in relation to or arising out of any relevant proceedings or relevant appeal.
Registered foreign lawyers also enjoy certain work pass exemptions.
The list of registered foreign lawyers can be found here. As at 2 March 2018, there are only two Malaysian lawyers who have been granted full registration by the SICC.
How are hearings in the SICC conducted?
Matters heard by the SICC generally follow the procedure and practice set out in the Singapore Rules of Court and the SICC Practice Direcitons.
Are SICC judgments enforceable in Malaysia?
SICC Judgments are treated as a Singapore High Court judgment. Under Malaysia’s Reciprocal Enforcement of Judgment Act 1958, a monetary final judgment from the High Court of Singapore may be registered in Malaysia. Upon registration, the judgment will be deemed, for the purposes of execution, as having the same force and effect as a judgment of a Malaysian High Court.
What other countries recognise /enforce SICC judgments?
Since SICC Judgments are equivalent to a Singapore High Court Judgment, SICC judgments can also be enforced by registration in countries and/or territories scheduled under the Reciprocal Enforcement of Commonwealth Judgments Act (eg: UK, Australia, New Zealand, Pakistan, Brunei, etc) or under the Reciprocal Enforcement of Foreign Judgment Acts (ie: Hong Kong).
Alternatively, enforcement may also be achieved by commencing a fresh action against the losing party, based on the SICC judgment and using the SICC judgment as evidence of a debt. In such cases, the merits of the SICC action will not be re-litigated.
Singapore has also ratified the Hague Convention on Choice of Court Agreements (“Hague Convention“) whereby the courts of the member states are obliged to recognise and enforce Singapore judgments (including SICC judgments). The Hague Convention is in force in the European Union and all its member states (except Denmark) and Mexico. The Hague Convention has also been signed by the United States and Ukraine, but those countries have yet to ratify it.
What are the recent updates to the SICC?
On 9 January 2018, the Singapore Parliament passed the Supreme Court of Judicature (Amendment) Bill (No. 47/2017) . The amendment clarifies that the SICC has the same jurisdiction as the High Court to hear proceedings relating to international commercial arbitration under the Singapore International Arbitration Act (IAA) eg: applications for stay of proceedings and/or setting aside an arbitral award issued in Singapore.
Only Singapore-qualified lawyers in Singapore law practices may appear before the High Court/SICC for IAA and IAA-related matters. Foreign lawyers, even if they receive full registration from the SICC, will not be able to appear before the SICC in respect of IAA matters, notwithstanding that foreign lawyers had represented the parties in the original arbitration.
***
This article was written by Donovan Cheah (Partner, Employment Law and Dispute Resolution), with assistance from Yeoh Kai Shin (Intern). Donovan is an advocate and solicitor of the High Court of Malaya, and is also registered with the Singapore International Commercial Court as a foreign lawyer. He is named as a recommended lawyer for labour and employment by the Legal 500 Asia Pacific in both 2017 and 2018.
Have a question? Please contact us.
