Staying Relevant: Exercise of Jurisdiction in the Age of the SICC

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1 Yong Pung How Professorship of Law Lecture 2015 Staying Relevant: Exercise of Jurisdiction in the Age of the SICC Professor YEO Tiong Min Yong Pung How Professor of Law Singapore Management University Text of lecture will be available on from 14 May 2015

2 Outline Existence and Exercise of Jurisdiction in the common law Existence and Exercise of Jurisdiction in the SICC Parties to written jurisdiction agreement Transfer cases Third parties Relationship between common law and SICC principles Effect of the Hague Convention on Choice of Court Agreements Conclusion Q&A

3 Common Law Existence of International Jurisdiction Service on defendant present in Singapore Service out of Singapore with leave of court Submission to jurisdiction Exercise of Jurisdiction Exclusive choice of court agreement: need to show exceptional circumstances amounting to strong cause to justify departing from agreement No choice of court agreement: Spiliada principles case should be tried in the most appropriate forum in the interests of the parties and for the ends of justice Non-exclusive jurisdiction agreement: possible modification to Spiliada test depending on ascertained content of agreement

4 Jurisdiction of the SICC SICC is a division of the Singapore High Court (SCJA, s 18A) SJCA has jurisdiction when ALL 3 conditions are satisfied (SCJA, s 18D): Action is international and commercial in nature Action is within High Court s original civil jurisdiction Action satisfies such other conditions prescribed by Rules of Court Rules of Court (Order 110): Action is international and commercial Jurisdiction where there is a written jurisdiction agreement Jurisdiction over cases transferred from the High Court Jurisdiction over third parties by joinder Exclusion of matters involving judicial review Effect of SCJA, s 18F on choice of SICC agreement

5 Exercise of Jurisdiction in the SICC Cases commenced in the SICC: Rule 8(1) and 8(2) Decline jurisdiction when it is not appropriate forum (ir)relevance of foreign connections Exclusive and non-exclusive choice of the SICC Transfer from High Court Action is international and commercial in nature SICC will assume jurisdiction in the case More appropriate for the SICC to hear the case SICC not to reconsider whether it has or will assume jurisdiction Third Parties appropriate to be heard

6 The Future Effect on the common law? I can t count the reasons I should stay; one by one they all just fade away (The 88, At Least it was Here) Effect of the Hague Convention on Choice of Court Agreements?

7 Conclusion Too many tests?

8 Exclusive Choice of Court Agreement Context Forum Court Chosen Foreign Court Chosen Hague Convention Article 5 (invalidity only) Article 6 (enumerated exceptional circumstances) SICC Rule 8(1) & 8(2): decline when not appropriate to assume jurisdiction, and not to rely solely on foreign connections Common Law Strong cause Strong cause NA

9 Non-Exclusive Choice of Court Agreement Context Forum Court Chosen Foreign Court Chosen Hague Convention NA NA SICC Common Law Rule 8(1) & 8(2): decline when not appropriate to assume jurisdiction, and not to rely solely on foreign connections Spiliada as modified by party agreement Rule 8(1) & 8(2): decline when not appropriate to assume jurisdiction, and not to rely solely on foreign connections Spiliada as modified by party agreement

10 Joinder of Third Party Context Dispute in relation to third party not subject to exclusive choice of court agreement Dispute in relation to third party subject to exclusive choice of court agreement Singapore court Foreign court Hague Convention NA Article 5 (invalidity only) SICC Rule 9(1)(b)(ii): appropriate to be heard Article 6 (enumerated exceptional circumstances) Rule 9(1)(b)(ii): appropriate to be heard Common Law Spiliada Strong cause