The last decade or so has seen the emergence of ‘international commercial courts’ in four jurisdictions: the Dubai International Financial Centre Courts, the Qatar International Court, the Abu Dhabi Global Market Courts and the Singapore International Commercial Court (‘SICC’). These courts have some unique features when compared with traditional domestic courts, which make them ‘particularly attuned to the needs and realities of international commerce’. Our research paper, ‘International Commercial Courts: The Singapore Experience’, uses the SICC as a case study for an examination of the key issues concerning the institutional design and perceived benefits of international commercial courts.
The SICC was established in January 2015. It is a special division of the Singapore High Court that only hears claims that are ‘of an international and commercial nature’. The SICC judges include highly regarded international jurists who are experienced in commercial matters (known as ‘International Judges’), as well as Singapore Supreme Court judges from both the Court of Appeal and the High Court. The SICC also has its own procedural rules and practice directions that make provision for various innovations, including the following:
- parties may be represented by foreign lawyers where the action is an ‘offshore case’ (that is, it has ‘no substantial connection to Singapore’);
- proceedings may be confidential (particularly if the case is an ‘offshore case’);
- parties may apply for an order to replace Singapore evidential rules with other rules of evidence;
- a party may apply to have a question of foreign law determined on the basis of submissions rather than proof; and
- parties may contract out of, or limit, their rights to appeal to the Court of Appeal of the Singapore Supreme Court against any SICC judgment or order.
Between May 2016 and May 2017, the SICC published 10 judgments that relate to six separate actions; the Court of Appeal also dismissed an appeal from an SICC decision. One part of our research paper considers what these cases reveal about the operation and impact of the SICC. Some of our key findings are as follows:
- At least one International Judge has been assigned to each SICC case. The three actions heard by a single judge have been assigned to International Judges; in the actions heard by three judges, two out of three judges have been International Judges.
- The SICC has already made an order under O 110 r 25 of Singapore’s Rules of Court allowing a question of foreign law to be determined according to submissions. In that case, BCBC Singapore Pte Ltd v PT Bayan Resources TBK, the Court also demonstrated that where a foreign law expert fails to satisfy the O 110 r 25 requirements, the SICC may modify the traditional common law approach, with the consent of the parties, so as to allow a foreign law expert to provide oral evidence as a witness without being subject to cross examination.
- In the 2016 Teras Offshore case, the SICC held that an action may be an ‘offshore case’ despite the existence of various procedural and administrative factors connecting the action to Singapore. This means that where the substantive dispute concerns commercial activities outside of Singapore, it is likely that parties will be allowed to be represented by foreign counsel. This decision led to the defendant in the 2017 Teras Offshore case being represented by a foreign lawyer.
These findings show that the SICC is willing to apply its features to achieve its objective of being ‘particularly attuned to the needs and realities of international commerce’. This should operate as an incentive for parties to write SICC jurisdiction clauses into their contracts, particularly if SICC judgments are enforceable in the country in which enforcement is likely to be sought.
Additionally, while many of the SICC decisions have concerned civil procedure matters, rather than substantive commercial law issues, some decisions have contributed to the development of Singapore’s law on contractual liability. For example, the first Telemedia Pacific Group Ltd decision (involving claims and counterclaims regarding a joint venture) contributes to the legal jurisprudence on the interpretation of non-recourse loan agreements, which are not yet common in Singapore. The SICC is likely to further develop its substantive commercial law jurisprudence as it hears more cases.
Andrew Godwin is Associate Professor and Director of Transactional Law, Melbourne Law School, The University of Melbourne.
Ian Ramsay is Harold Ford Professor of Commercial Law and Director of the Centre for Corporate Law and Securities Regulation, Melbourne Law School, The University of Melbourne.
Miranda Webster is a Research Fellow at Melbourne Law School, The University of Melbourne.