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    Passing of Property 05 Risk and Perishment of the Goods 06 Transfer of Title by Non owner 07 Duties of the Seller and Buyer 08 Unpaid Seller s Real Remedies Against the Goods 09 Seller s Actions for Breach of Contract 10 Buyer s Actions for Breach of Contract 11 Consumer Protection in Sale Contracts Ch 10 International Sale of Goods 01 Introduction 02 When Does the CISG Apply 03 Relationship between CISG and Singapore Law 04 The Law Laid Out By the CISG 05 Where to Find Out More on the CISG 06 Conclusion Ch 11 The Law of Credit and Security 01 Introduction 02 Unsecured Credit 03 Real Security over Land and Building 04 Real Security over Chattels Goods 05 Quasi security over Chattels Goods 06 Real Security over Choses in action 07 Quasi security over Choses in action 08 Personal Security 09 Creditors Remedies Ch 12 Intellectual Property Law 01 Copyright and Neighbouring Rights 02 Industrial Designs 03 Patents 04 Confidential Information Trade Secrets 05 Trade Marks Protection Under Trade Marks Act 06 Trade Marks Common Law Action for Passing Off Ch 13 Intellectual Property Licensing 01 Introduction 02 Licence or Assignment 03 Formalities and Registration Requirements under Singapore Law 04 Rights of Exclusive Licensees 05 Revocation 06 Transferability Assignability 07 Specialised Topics Software Licensing 08 Specialised Topics Know How and Information Control 09 Specialised Topics Implied Licences 10 Specialised Topics Dealings over the Internet 11 Specialised Topics Rights of Repair 12 Specialised Topics Parallel Imports and Exhaustion of Rights 13 Specialised Topics Competition Law and its Impact on Licensing in Singapore 14 Specialised Topics Compulsory Licensing 15 Conclusion Ch 14 Forms of Business Organisations 01 Introduction 02 Sole Proprietorships 03 Partnerships 04 Limited Partnerships 05 Limited Liability Partnerships 06 Companies 07 Business Trusts Ch 15 Law of Agency 01 Introduction 02 Definition of Agency 03 Agency Contrasted with Other Relationships 04 Creation of Agency 05 Ratification 06 Relationship between the Principal and Agent 07 Relationship between the Agent and Third Party 08 Undisclosed Agency 09 Breach of Warranty of Authority 10 Termination of Agency Ch 16 Singapore Company Law 01 Introduction 02 Incorporation and its Consequences 03 Corporate Governance 04 Enforcement of Corporate Rights 05 Shareholder Remedies 06 Shares 07 Debentures and Charges 08 Companies in Distress 09 Winding up Ch 17 Corporate Finance and Securities Regulation 01 Background 02 Regulatory Authorities 03 Corporate Fundraising 04 Securities Offerings 05 Securities Regulation 06 Fraud Market Manipulation and Insider Trading 07 Civil and Criminal Liability 08 Regulation of Take over Activity Ch 18 Equity and Trusts 01 Introduction 02 The Conscience of Equity and Equitable Maxims 03 Equitable Obligations 04 Equitable Remedies and Defences 05 Equity and Property Ch 19 Restitution 01 Introduction 02 Money Paid under a Contract 03 Services Conferred under a Contract 04 No Double Recovery 05 Frustrated Contract 06 Anticipated Contracts that Fail to Materialise 07 Void or Unenforceable Contracts 08 Risk Allocation 09 Recovery of Deposits 10 Minority 11 Restitution for Breach of

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  • Ch.01 The Singapore Legal System
    Pung How as Chief Justice in September 1990 This coincided with the period of intensive constitutional remaking to develop an autochthonous government and parliamentary system of Singapore The departure from the Westminster inspired parliamentary system was evident through the innovations which attempted to cater to the unique political circumstances here 1 2 30 Constitutional provisions were made in 1979 for the creation of Judicial Commissioners to facilitate the disposal of business in the Supreme Court for limited renewable periods of between 6 months and 3 years Judicial Commissioners may also be appointed to hear and determine a specified case only Except for the fact that there is no security of tenure Judicial Commissioners exercise the same powers perform the same functions and enjoy the same immunities as a High Court Judge Earlier in 1971 the Constitution was amended to allow for the appointment of supernumerary judges which enables High Court Judges who have reached the mandatory retirement age of 65 years to remain on the Bench for further periods on a contract basis 1 2 31 1993 Abolition of all appeals to the Privy Council by 1989 however appeals to the Privy Council were already severely restricted A permanent Court of Appeal presided by the Chief Justice and two Justices of Appeal JAs was designated Singapore s highest court In November 1993 the Application of English Law Act Cap 7A 1994 Rev Ed came into force and specified the extent to which English law was applicable in Singapore 1 2 32 11 July 1994 The landmark Practice Statement on Judicial Precedent declared that the Privy Council Singapore s predecessor courts as well as the Court of Appeal s prior decisions no longer bound the permanent Court of Appeal The Practice Statement reasoned that t he development of our law should reflect these changes that political social and economic circumstances have changed enormously since Singapore s independence and the fundamental values of Singapore society Increasing confidence in the growing maturity and international standing of Singapore s legal system as well as the concern that Britain s increasing links with the European Union would render English law incompatible with local developments and aspirations gave impetus to the legal autochthony effort Reception of English Law 1 2 33 Prior to the enactment of the Application of the English Law Act Cap 7A 1994 Rev Ed the Second Charter of Justice provided the legal basis for the general reception of the principles and rules of English common law and equity and pre 1826 English statutes only those of general application into Singapore This was subject to suitability and modification to local conditions However the specific difficulty flowing from this was that no one knew for certain which English statutes even those that have been repealed in England applied here 1 2 34 This problem presented itself manifestly with the specific reception of English law under the former section 5 now repealed of the Civil Law Act Cap 43 1988 Rev Ed which provided that if a question or issue on specific categories of law or in general mercantile law arose in Singapore the law to be administered shall be the same as that administered in England at the corresponding period unless other provision is made by any law having force in Singapore Until its repeal in 1993 this was the most significant reception provision in Singapore s statute books The repeal has also removed much of the uncertainty and unsatisfactory state of affairs arising from a sovereign state which was until recently heavily dependent on the laws of the former colonial master 1 2 35 The Application of the English Law Act states that the common law of England including the principles and rules of equity so far as it was part of the law of Singapore before 12 November 1993 shall continue to be part of the law of Singapore Section 3 of the Act provides that the common law however shall continue to be in force in Singapore as long as it is applicable to the circumstances of Singapore and subject to such modifications as those circumstances may require Section 4 read with the First Schedule specifies the English enactments in toto or in parts with the necessary modifications that apply or continue to apply in Singapore Section 7 effects miscellaneous amendments to local Acts incorporating relevant English statutory law into local legislation 1 2 36 Under the direction of Chief Justice Sundaresh Menon Singapore has been a driver of the effort to promote the harmonisation or at least convergence of commercial laws in the Asia Pacific region The efforts include the catalysing of the development of a consistent body of transnational commercial law This necessarily entails dialogue among stakeholders in the regional and international sphere Return to the top SECTION 3 COMMON LAW IN SINGAPORE A Common Law Roots 1 3 1 The Common Law is one important strand of the Singapore politico legal fabric Singapore has inherited the English common law tradition and thus enjoys the attendant benefits of stability certainty and internationalisation inherent in the British system particularly in the commercial sphere She shares similar English common law roots with some of her neighbours such as India Malaysia Brunei and Myanmar though the details of the application and implementation will differ according to each country s specific needs and policies B The Doctrine of Judicial Precedent 1 3 2 In essence the common law system of Singapore is characterised by the doctrine of judicial precedent or stare decisis According to this doctrine the body of law is created incrementally by judges via the application of legal principles to the facts of particular cases In this regard the judges are only required to apply the ratio decidendi or the operative reason for the decision of the higher court within the same hierarchy Thus in Singapore the ratio decidendi found in the decisions of the Singapore Court of Appeal are strictly binding on the Singapore High Court the District Court and the Magistrate s Court The court decisions from England and other Commonwealth jurisdictions are on the other hand not legally binding on Singapore Other judicial statements obiter dicta made by the higher court in the judgment which do not directly affect the outcome of the case may be disregarded by the lower court 1 3 3 The lower court is able in some cases to avoid having to apply the ratio decidendi in a prior higher court s decision if it can distinguish the material facts of the case before the lower court from those in the prior case C Influences of and Departures from English Common Law 1 3 4 The influence of the English common law on the development of Singapore law is generally more evident in certain traditional common law areas such as Contract Tort and Restitution than in other statute based areas such as Criminal Law Company Law and the Law of Evidence 1 3 5 The Singapore courts have made significant departures from the decisions of the English courts even in the traditional common law areas There has been also a greater recognition of local jurisprudence in the development of the common law in Singapore 1 3 6 The judicial approach of the Singapore courts to English common law precedents is based on two main factors 1 the logic and reasoning underlying the case precedents and 2 the need for adaptability to local circumstances and conditions Hence the courts in their judgements examine closely both the legal principles as well as public policy considerations that may vary from one jurisdiction to another D Brief Comparisons Common Law and Civil Law Systems 1 3 7 The common law system in Singapore bears material differences from some Asian countries which have imbibed the civil law tradition the People s Republic of China Vietnam and Thailand or those with a mixture of civil and common law traditions the Philippines 1 3 8 Firstly the civil law systems place relatively less weight on prior judicial decisions and do not abide by the doctrine of stare decisis unlike the common law system as described in Section 1 3 2 and 1 3 3 above The common law courts in Singapore generally adopt an adversarial approach in litigation between the disputing parties whilst the civil law judges tend to take a more active role in the finding of evidence to decide the outcome of the case Thirdly whilst numerous legal principles have been developed by common law judges the civil law judges are more reliant on general and comprehensive codes governing wide areas 1 3 9 However the divergence between the common law and civil law systems is now less marked than in the past Common law jurisdictions have for instance embarked upon legislative programmes to fill the perceived gaps of the common law In this regard Singapore has enacted various statutes to govern specific areas of law such as the Competition Act 2004 No 46 of 2004 Consumer Protection Fair Trading Act Cap 52A 2004 Rev Ed and Protection from Harassment Act 2014 No 17 of 2014 E Common Law and Equity 1 3 10 Historically in England Equity or the body of principles of fairness or justice has been employed by the courts to ameliorate the defects or weaknesses inherent in a rigid common law system In England in the past Chancery courts administered Equity in a manner separate from the common law courts However such a historical demarcation is not important in Singapore today 1 3 11 According to the Singapore Civil Law Act Cap 43 1999 Rev Ed the Singapore courts are empowered to administer the Common Law as well as Equity concurrently The practical effect is that a claimant can seek both common law remedies Damages and equitable remedies including Injunctions and Specific Performance in the same proceeding before the same court Notwithstanding the abolition of the Common Law Equity divide Equity has played a decisive role in the development of specific doctrines in the law of contract including the Doctrine of Undue Influence and Promissory Estoppel F Publication of Law Reports and Legal Scholarship 1 3 12 Without the regular publication of judicial precedents accessible to the judges and lawyers the common law in Singapore would not have developed as quickly and extensively The Singapore Law Reports constitute the major publication of Singapore court decisions since 1992 Prior to that the Malayan Law Journal was responsible for the publication of local cases beginning in 1932 The Singapore Academy of Law has published the Singapore Law Reports Reissue from 1965 through 2009 with re written headnotes To make Singapore case law more accessible to Singaporeans and legal communities overseas recent judgements of the Supreme Court and the Subordinate Courts can be accessed free of charge at http www supcourt gov sg and http www subcourts gov sg respectively 1 3 13 Local law books and journal articles on important areas have also contributed to the burgeoning common law in Singapore The contribution to the Singapore jurisprudence has been catalysed by the establishment of Academy Publishing under the auspices of the Singapore Academy of Law Academy Publishing aims to provide an additional publication channel for Singapore legal scholarship and to make such publications affordable It also seeks to disseminate Singapore s laws to a wider audience beyond Singapore 1 3 14 The Chief Justice has urged the Singapore Bar to cite local court decisions in support of their arguments especially when the relevant points of law have been considered by the courts He has also urged local law academics to write on Singapore law to help develop Singapore s jurisprudence The courts have been receptive to and have adopted academic writings in their judgements G Muslim Law in Personal Legal Matters 1 3 15 Apart from the Common Law and Equity the Syariah Court also administers Muslim law in specific personal legal matters governing marriages divorces the nullity of marriages and judicial separations under the Administration of Muslim Law Act AMLA Cap 3 2009 Rev Ed in respect of Muslims or parties married under Muslim law though the High Court has concurrent jurisdiction with the Syariah Court on specific matters relating to maintenance custody and division of property Significantly with respect to issues of inheritance and succession the AMLA expressly accepts particular Islamic texts as proof of Muslim law Return to the top SECTION 4 THE CONSTITUTION Supreme Law 1 4 1 The Constitution 1999 Reprint is the supreme law of the land It is mandated that any legislation contrary to the Constitution shall to the extent of the inconsistency be void 1 4 2 The provisions of the Constitution may only be amended by the votes of two thirds of the total number of elected Members of Parliament However as and when Article 5 2A comes into force in respect of specific constitutional amendments seeking to amend the discretionary powers of the Elected President and the provisions on fundamental liberties at least two thirds of the total number of votes cast by the electorate in a national referendum is also required Fundamental Rights 1 4 3 Part IV of the Constitution entrenches certain fundamental rights such as the freedom of religion freedom of speech and equal rights These individual rights are not absolute but qualified by public interests such as the maintenance of public order morality and national security Apart from the general protection of racial and religious minorities the special position of Malays as the indigenous people of Singapore is constitutionally mandated Powers and Functions of Organs of State 1 4 4 The Constitution contains express provisions delineating the powers and functions of the various organs of state including the Legislature Section 5 below the Executive Section 6 below and the Judiciary Section 7 below Return to the top SECTION 5 THE LEGISLATURE Function 1 5 1 The Legislature comprises the Singapore Parliament and the Elected President The main function of the Singapore Parliament is the enactment of laws governing the State A The Law Making Process 1 5 2 The law making process begins with a Bill normally drafted by the Government legal officers Private members Bills are rare in Singapore During the parliamentary debates on important Bills the Ministers often make speeches to defend the Bill and answer pointed queries raised by the backbenchers The Members of Parliament MPs may in some cases decide to refer the Bill to a Select Committee to deliberate upon and submit a report to the Parliament If the report is favourable or the proposed amendments to the Bill are approved by Parliament the Bill is accepted by the Parliament and passed 1 5 3 The Presidential Council for Minority Rights PCMR established under the Singapore Constitution is tasked except for certain exempted Bills to scrutinise Bills for any measures which may be disadvantageous to persons of any racial and religious communities without being equally disadvantageous to persons of other such communities either by directly prejudicing persons of that community or indirectly by giving advantage to persons of another community If the report of the PCMR is favourable or a two thirds majority in Parliament has been obtained to override any adverse report of the PCMR the Bill proceeds for the Elected President s assent Upon assent the Bill is formally enacted as law B Composition 1 5 4 In terms of composition the Singapore Parliament consists of both elected and non elected Members of Parliament MPs C Elected MPs 1 5 5 The elected MPs are drawn from candidates who have emerged victorious in general elections held every 4 to 5 years They are drawn from a combination of single member constituencies as well as Group Representation Constituencies GRCs Established in 1988 each GRC consists of 4 to 6 members at least one of whom must be of a designated minority race The underlying aim for the GRC is to entrench multiracialism in Singapore politics As at 12 September 2015 the Parliament is dominated by the ruling Peoples Action Party 83 elected members with a minority representation from the Workers Party 6 elected members D Non Elected MPs 1 5 6 The non elected MPs on the other hand do not enjoy voting rights on constitutional amendments money Bills and votes of no confidence in the Government They consist of two different categories the Non Constituency Members of Parliament NCMPs and the Nominated Members of Parliament NMPs The Constitution provides for the appointment of up to 9 NCMPs and NMPs respectively 1 5 7 To offer an alternative political voice in Parliament NCMPs are appointed from the candidates who have polled the highest percentage of votes amongst the losers in the general election The NMPs in contrast are non politicians who have distinguished themselves in public life and have been nominated to provide a greater variety of non partisan views in Parliament Return to the top SECTION 6 THE EXECUTIVE A Eligibility Functions and Powers of the Elected President 1 6 1 The head of the Executive is the Elected President The qualifications for presidential office are stringent Apart from integrity good character and reputation the presidential candidate must have held one of the following positions for not less than three years as a Minister Chief Justice Speaker of Parliament Attorney General Chairman of Public Service Commission Auditor General Accountant General or Permanent Secretary as chairman or chief executive officer of a statutory board as chairman of the board of directors or chief executive officer of a company with a paid up capital of at least S 100million or a similar or comparable position of seniority and responsibility in an organisation or department of equivalent size or complexity whether in the public or private sector which has given him or her the requisite experience and ability in managing financial affairs so as to handle the responsibilities of the job of the Elected President The Presidential Elections Committee has been set up to ensure the requirements are adhered to 1 6 2 The Elected President s term of office is 6 years He or she shall act in accordance with the advice of the Cabinet in discharging the Elected President s constitutional functions except in specified areas The areas in which Elected President may act in his discretion are as follows the veto against the government s attempts to draw on past reserves eg in relation to a guarantee or loan given or raised by the government and the budgets of specified statutory boards and government companies that draw on past reserves the appointment of the Prime Minister specified constitutional appointees eg the Chief Justice and the Attorney General and other key civil service appointments eg Commissioner of Police the concurrence with the Director of Corrupt Practices Investigation Bureau to make any inquiries or to carry out any investigations into any information received by the Director notwithstanding the Prime Minister s refusal to consent the withholding concurrence to the detention of persons under the Internal Security Act Cap 143 1985 Rev Ed the exercise of certain powers pertaining to restraining orders made under the Maintenance of Religious Harmony Act Cap 167A 2001 Rev Ed where the Cabinet s advice is contrary to that of the Presidential Council for Religious Harmony There are also counter checks on the presidential discretion eg Parliament overruling via a two thirds majority of the total number of elected MPs the presidential decision in certain instances In discharging certain specified constitutional functions the President is required to consult the Council of Presidential Advisers a body set up under the Singapore Constitution In other cases the Elected President may in his discretion consult the Council of Presidential Advisers B The Cabinet 1 6 3 The Cabinet under the helm of the Prime Minister is collectively responsible to the Parliament The Prime Minister is appointed by the Elected President from among the Members of Parliament who in the Elected President s judgment is likely to command the confidence of the majority of the Members of Parliament The other Ministers in the Cabinet are appointed from among the Members of Parliament by the Elected President on the advice of the Prime Minister 1 6 4 There is no complete separation of powers between the Executive and Legislature In terms of composition the Ministers from the Cabinet are drawn from the MPs Parliamentary Secretaries are further appointed from amongst the MPs to assist the Ministers Moreover the Ministers and the relevant government agencies are responsible for enacting subsidiary legislation to supplement the parent legislation passed by the Parliament C Government s Legal Advisers 1 6 5 On the legal front the Government is advised and represented by the Attorney General the Deputy Attorney General and the Solicitor General in both civil and criminal matters The Attorney General possesses wide prosecutorial discretion ie to institute conduct or discontinue any proceedings for any offence There are also special divisions within the Attorney General s Chambers dealing with the drafting of legislation law reform economic crimes and international affairs Return to the top SECTION 7 THE JUDICIARY A International Reputation 1 7 1 The great efficiency and strength of the Singapore Judiciary has won her several accolades and a strong international reputation see the rankings of the world s legal systems by Political and Economic Risk Consultancy PERC and the Institute for Management Development IMD Strict case management and Alternative Dispute Resolution methods see Section 9 below have reduced drastically the backlog of cases which had plagued both the Supreme Court and Subordinate Courts in the 1980s The Honourable Chief Justice Sundaresh Menon since his appointment with effect from November 2012 has attained several notable achievements and undertaken important institutional reforms related to the administration of justice One major innovation is the setting up of the Singapore International Commercial Court to hear transnational commercial disputes with a view to establishing Singapore as an international and regional hub for dispute resolution in commercial matters The new Singapore Judicial College provides continuing training and development for the judges and shares Singapore courts experiences in the use of technology organisational excellence and active case management with their counterparts in the region Retired judges of the Supreme Court with a wealth of judicial expertise and experience have been appointed as Senior Judges of the Supreme Court to ease the hearing load and mentor younger judges The new Family Justice Courts have also been set up under the leadership of Sundaresh Menon CJ to provide a non adversarial approach to resolving family related disputes The Centre for Dispute Resolution was launched in 2015 at the State Courts to consolidate the ADR services B Function and Powers 1 7 2 The judge is the arbiter of both law and fact in Singapore The jury system had been severely limited in Singapore and was entirely abolished in 1970 Judicial power is vested in the Supreme Court comprising the Singapore Court of Appeal and the High Court as well as the State Courts formerly the Subordinate Courts C The Court of Appeal 1 7 3 The highest court of the land is the permanent Court of Appeal which hears both civil and criminal appeals emanating from the High Court and the Subordinate Courts As a significant watermark of Singapore s legal history appeals to the Privy Council in England were abolished in 1994 The Practice Statement on Judicial Precedent issued by the Supreme Court on 11 July 1994 clarified that the Singapore Court of Appeal is not bound by its own decisions as well as prior decisions of the Privy Council However it would continue to treat such prior decisions as normally binding though it may depart from the prior precedents where it appears right to do so D The High Court 1 7 4 The High Court Judges enjoy security of tenure whilst the Judicial Commissioners are appointed on a short term contract basis Both however enjoy the same judicial powers and immunities Their judicial powers comprise both original and appellate jurisdiction over both civil and criminal matters Some of the High Court judges are specially designated to hear cases in specific legal areas such as arbitration admiralty and intellectual property E The Singapore International Commercial Court SICC 1 7 5 The SICC is a division of the High Court and part of the Supreme Court of Singapore It hears international and commercial disputes where the litigants have submitted to its jurisdiction under a written jurisdiction agreement and do not seek any relief in the form of or connected with a prerogative order The Chief Justice is the President of the SICC and the other SICC judges include the Judges of Appeal High Court judges Senior Judges as well as International Judges of the Supreme Court Foreign counsel are entitled to appear before the SICC and Court of Appeal on appeals from the SICC in offshore cases which have no substantial connection to Singapore F The Constitutional Tribunal 1 7 6 A special Constitutional Tribunal was also established within the Supreme Court to hear questions referred to by the Elected President on the effect of constitutional provisions G The State Courts 1 7 7 The State Courts consisting of the District Courts Magistrates Courts Juvenile Courts Coroners Courts as well as the Small Claims Tribunals led by the Presiding Judge have also been set up within the Singapore judicial hierarchy to administer justice amongst the people With the increased sophistication in business transactions and law the Commercial Civil and Criminal District Courts have recently been established within the State Courts to deal with the more complex cases Specialist judges have also been appointed on an ad hoc basis to hear specific complex cases H The District and Magistrates Courts 1 7 8 The District Courts and the Magistrates Courts share the same powers over specific matters such as in contractual or tortious claims for a debt demand or damage and in actions for the recovery of monies However the jurisdictional monetary limits in civil matters for the Magistrates Courts and District Courts are 60 000 and 250 000 respectively The courts also differ in terms of criminal jurisdiction and sentencing powers Under the new Criminal Procedure Code 2010 Act 15 of 2010 the Magistrates Courts have the power to try any offence for which the maximum term of imprisonment provided by law does not exceed 5 years or which is punishable with a fine only As for the Districts Courts the stipulated maximum term of imprisonment is 10 years A District Court may pass a sentence of imprisonment not exceeding 10 years fine not exceeding 30 000 caning not exceeding 12 strokes and any other lawful sentence The sentencing powers of a Magistrates Courts are as follows imprisonment not exceeding 3 years fine not exceeding 10 000 caning not exceeding 6 strokes and any other lawful sentence I The Small Claims Tribunals 1 7 9 The Small Claims Tribunals on the other hand afford a speedier less costly and more informal process for the disposition of certain specified small claims ie claims relating to disputes arising from contract for the sale of goods or the provision of services tort in respect of property damage and any contract for the lease of residential premises that does not exceed 2 years with a monetary limit of 10 000 only or 20 000 where the disputing parties consent in writing J Family Justice Courts 1 7 10 The Family Justice Courts set up in 2014 under the Family Justice Act 2014 comprise the High Court Family Division the Family Court and the Youth Court The Family Court deal with family related matters including divorces and other ancillary matters maintenance custody care control and access to children and the division of matrimonial property adoptions and personal protection orders The Youth Court which is presided over by a District Judge or a Magistrate has jurisdiction over children or young persons charged with offences K The Courts and Information Technology 1 7 11 The Judiciary has also taken major strides in utilising information technology in the courts which has in part at least enhanced its efficiency The Technology Courts were for instance set up to enable the sharing of information by lawyers and judges and the giving of evidence by witnesses via video conferencing The Electronic Filing System EFS a joint project by the Judiciary Singapore Network Services and the Singapore Academy of Law to enable the filing extraction and service of court documents as well as the tracking of case information by electronic means has undergone further refinements to upgrade services to end users It was reconstituted as the Electronic Litigations Systems ELS in order to further integrate technology into the litigation processes eLitigation has since been launched in 2013 to provide for the management of case files through short message services SMS reminder alerts calendaring and hearing management to select hearing dates as well as a secure form of access to the web based service via SingPass Various information technology innovations have also been utilised to facilitate and streamline various criminal processes namely the registration and management of criminal cases SCRIMS the processing of traffic charges between the police and the courts TICKS 2000 and the payment of fines for minor traffic offences ATOMS Return to the top SECTION 8 LEGAL EDUCATION AND LEGAL PROFESSION A Functions of Lawyers in Singapore 1 8 1 The legal profession in Singapore is fused the Singapore lawyer may act as both an Advocate as well as a Solicitor As an Advocate and Solicitor of the Supreme Court of Singapore he or she has the right to appear and plead before the Singapore courts of justice The opportunities of a Singapore lawyer are fairly varied he or she may for example wish to serve as a legal or judicial officer in the Singapore Legal Service an in house counsel of a company or practise law in a local or international law firm In the local set up the lawyer may handle litigation corporate work real estate and intellectual property work Outstanding litigators practitioners and law academics have been appointed as Senior Counsel in recognition of their lofty professional standards The legal profession has like the courts undergone increased specialisation of functions in recent years B Admission to the Singapore Bar 1 8 2 A sound legal education is instrumental to the birth and subsequent development of the Singapore lawyer The Singapore Institute of Legal Education was established in May 2011 to maintain and improve the standards of legal education in Singapore To be admitted to the Singapore Bar an aspirant has to first attain the status of a qualified person by obtaining a law degree from the National University of Singapore NUS or the Singapore Management University SMU or from one of the approved overseas universities of the United Kingdom United States Australia Canada and New Zealand In addition to the LL B programme SMU offers a Juris Doctor J D Program for graduates with a first degree from other disciplines as well as law graduates from civil law jurisdictions and non gazetted universities in common law jurisdictions Apart from a four year LL B program NUS also offers a three year graduate LL B program for graduates with a first degree 1 8 3 Law graduates from the approved foreign universities will be required to pass Part A of the Bar Examination a short conversion course on Singapore law Overseas graduates with Lower Second Class honours and above from the approved universities are eligible to take the Bar Examination Law graduates from NUS and SMU are not required to undertake Part A of the Bar Examination The law graduates from both the local and approved foreign universities would have to undergo and pass the full time Preparatory Course leading to Part B of the Singapore Bar Examinations consisting of a list of both compulsory and elective subjects Finally the law graduate must serve a practice training period with a Singapore law practice pursuant to a practice training contract or through work as a Legal Service officer or under the supervision of a qualifying legal officer Upon fulfilment of the above requirements he or she can be admitted to the Singapore Bar 1 8 4 Foreign qualified lawyers may apply for a Foreign Practitioner Certificate from the Attorney General to practise in limited areas of Singapore law such as banking and finance mergers and acquisitions and intellectual property law subject to passing the Foreign Practitioner Examinations FPE One prerequisite for taking the FPE is that the foreign lawyer must have at least three years of relevant legal practice or work in Singapore or overseas Queen s Counsel from the United Kingdom may be admitted on an ad hoc basis for a particular case provided the court is satisfied that it is of sufficient difficulty and complexity 1 8 5 Queen s Counsel from the United Kingdom may be admitted on an ad hoc basis for a particular case based on the following considerations the nature of the factual and legal issues involved in the case the necessity for the services of a foreign senior counsel the availability of any senior counsel or other advocate and solicitor with appropriate experience and whether having regard to the circumstances of the case it is reasonable to admit a foreign senior counsel for the purpose of the case C Legal Education 1 8 6 With the increased internationalisation of legal services legal education in Singapore has placed greater emphasis on the need for law undergraduates to acquire knowledge of and exposure to foreign legal systems and international law To ensure that Singapore lawyers keep abreast of significant legal developments a Mandatory Continuing Professional Development scheme applies to newly qualified lawyers with less than 5 years experience as well as senior lawyers of between 5 and 15 years standing The Government also reviews the supply of lawyers periodically to ensure that the supply of lawyers meets the growing demand for legal talent The Fourth Committee on the Supply of Lawyers 2013 has recommended that the intake of students at SMU Law School be increased and that a new law school be set up which focuses on legal training for those persons who are interested to practise community law as well as similarly interested mature students who have worked as paralegals social workers or law enforcement officers D Forms of Legal Practice 1 8 7 There are various vehicles for the setting up of legal practices and cooperative alliances amongst the law firms Apart from the erstwhile sole proprietorships and partnerships the legal profession has also seen the creation of the law corporation with the associated benefits of limited liability as well as limited liability partnerships Singapore law firms are entitled to employ appropriately qualified foreign lawyers to practise law subject to certain criteria including appropriate qualifications expertise and experience and the areas of legal practice of the lawyer and the law firm 1 8 8 There also exists the avenue of forming Joint Law Ventures and Formal Law Alliances between foreign and local law firms subject to the approval of the Attorney General with the attendant advantages of marketing the venture or alliance as a single service provider and centralised billing for clients Foreign lawyers who are employed by or who are partners or directors of the Joint Law Ventures may practise Singapore law subject to certain requirements such as qualifications expertise and experience and the restrictions on the areas of legal practice Qualifying Foreign Law Practice QFLP licences have been granted by the Ministry for Law to selected foreign law firms to allow them to practise Singapore law in permitted areas of legal practice through Singapore qualified solicitors employed by them 1 8 9 The Legal Services Regulatory Authority headed by the Director of Legal Services has been established under the Ministry for Law to register law practices and regulate the business of the law practices in Singapore A new

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  • Ch.02 Civil Procedure
    not determinative of the matter The court will also consider whether there are special circumstances which militate against a stay including whether substantial injustice will be caused in sending the plaintiff to a foreign court C Court Fees and Hearing Fees 1 Fees payable at various stages of civil proceedings 2 5 5 Court fees are prescribed in a number of statutory regulations and are payable at various stages in civil proceedings 2 Fees payable when documents filed and services rendered 2 5 6 Fees are payable when documents are filed with the court Fees are also separately payable in respect of services such as sealing documents providing copies of documents and the use of the court for hearings 3 Tabular summary of fees payable 2 5 7 Presently court hearing fees for hearings in the State Courts are as follows Days Magistrate s Court District Court 1st day Free Free 2nd day onward S 250 per day or part thereof S 500 per day or part thereof 2 5 8 Court hearing fees for hearings before a Judge in the High Court are as follows Days Value of claim up to S 1 million Value of claim more than S 1 million 1st to 3rd day Free Free 4th day S 6 000 per day or part thereof S 9 000 per day or part thereof 5th day S 2 000 per day or part thereof S 3 000 per day or part thereof 6th to 10th day S 3 000 per day or part thereof S 5 000 per day or part thereof 11th day onward S 5 000 per day or part thereof S 10 000 per day or part thereof Return to the top SECTION 6 COMMENCING A WRIT ACTION PROCEEDINGS UP TO CLOSE OF PLEADINGS Issue and Validity of a Writ 2 6 1 To commence a writ action the plaintiff will have to file the writ in the Supreme Court Registry to be signed and sealed by the Registrar Once the writ is signed and sealed it is deemed issued A writ is generally valid for 6 months Where it has to be served out of jurisdiction it is valid for 12 months and where it is issued in Admiralty Proceedings the writ is valid for 12 months The plaintiff may apply to the court to extend the validity of the writ for a further period of 6 months at a time Service of the Writ 2 6 2 A writ must be served personally on each defendant Personal service is effected by leaving a copy of the document on the defendant if he is an individual and at the registered address of the defendant if it is a company There are exceptions for example where the defendant s solicitor has authority to accept service on behalf of the defendant or where an order for substituted service is made Service of the Writ out of Singapore 2 6 3 The court may grant leave to a plaintiff to serve a writ on a defendant outside Singapore Before a court grants leave it must be satisfied that the plaintiff has a good arguable case falling under one of the limbs of Order 11 rule 1 of the Rules of Court which amongst other cases include instances where relief is sought against a person who is domiciled ordinarily resident or carrying on business or who has property in Singapore and or an injunction is sought ordering the defendant to do or refrain from doing anything in Singapore and or the claim is brought in respect of a breach committed in Singapore of a contract made in Singapore Further the court has to be satisfied that there are serious issues to be tried If leave is granted service outside Singapore has to be in accordance with the laws of the country in which service is effected Entering Appearance 2 6 4 If a defendant is served with the writ he has 8 days after service of the writ or 21 days if the writ was served out of jurisdiction to enter an appearance by filing a Memorandum of Appearance with the court to indicate his intention to defend the suit Pleadings 2 6 5 Before a writ is issued it must be endorsed with a statement of claim or if the statement of claim is not endorsed on the writ with a general endorsement consisting of a concise statement of the nature of the claim made and the relief or remedy prayed for When the writ only has a general endorsement the statement of claim must be served before the expiration of 14 days after the defendant enters an appearance When the defendant has entered appearance he is required to file and serve his defence on the plaintiff 14 days after the time limited for entering an appearance or after service of the statement of claim whichever is later A defendant may make a counterclaim in the same action brought by the plaintiff in the defence and counterclaim A plaintiff must serve on the defendant his reply and defence to a counterclaim if any within 14 days after the defence and counterclaim has been served on him Close of Pleadings 2 6 6 Pleadings are deemed closed 14 days after service of the reply or service of defence to the counterclaim If neither a reply nor a defence to the counterclaim is served pleadings are deemed to be closed at the end of 14 days after the defence is served Third Party Proceedings 2 6 7 If the defendant is of the view that another party is liable to indemnify it and or otherwise contribute towards the plaintiff s claim the defendant may apply to add that party as a third party leading to third party proceedings Return to the top SECTION 7 DISPOSAL OF ACTION WITHOUT TRIAL 2 7 1 Proceedings may be resolved and or otherwise summarily terminated and or determined and disposed of at an early stage before the trial of the action for a variety of reasons Default Judgment 2 7 2 If a defendant fails to enter an appearance or having entered appearance fails to file a defence within the time specified in the writ the plaintiff may enter default judgment against him This may be a final judgment or an interlocutory judgment depending on the nature of the claim Summary Judgment 2 7 3 If the defendant has entered appearance and filed a defence but it is clear that the defendant has no real defence to the claim the plaintiff may apply to court for summary judgment against the defendant To avoid summary judgment being entered the defendant has to show that the dispute concerns a triable issue or that there is some other reason for trial An application for summary judgment must be filed at the latest within 28 days after pleadings are deemed to be closed unless the court otherwise orders Striking Out 2 7 4 Pleadings may also be struck out summarily An application to strike out any pleading or part thereof may be made if it discloses no reasonable cause of action or defence and or is scandalous frivolous or vexatious and or tends to prejudice embarrass or delay the fair trial of the action and or is otherwise an abuse of the process of the court Discontinuance and withdrawal 2 7 5 Finally a party may withdraw or discontinue his action or defence or counterclaim as the case may be This may be done with or without the court s leave permission depending on the stage of the proceedings Return to the top SECTION 8 PROVISIONAL REMEDIES AND OTHER INTERLOCUTORY MATTERS Interlocutory Injunction 2 8 1 At any stage of the proceedings but frequently immediately following the issue of the writ it may be necessary and or appropriate for a litigant to apply to court for an interlocutory injunction directing the other party to do or refrain from doing something until the trial of the action The purpose of such an injunction is to protect the litigant against injury which it would not otherwise be adequately compensated for in damages if the dispute was resolved in its favour at trial In cases of urgency the plaintiff may make an application even before the issue of the proceedings but must give notice of the application to the other concerned parties unless grounds can be shown that giving notice would defeat the purpose of the application 2 8 2 To obtain the injunction the applicant must show that there is a serious question to be tried with a real prospect of success and that the balance of convenience lies in favour of granting the injunction The granting of an injunction is normally made subject to the plaintiff s undertaking to pay damages to the defendant in the event the defendant is vindicated or the court later decides the injunction should not have been granted Mareva injunction 2 8 3 The Mareva injunction is designed to prevent parties from taking steps to deliberately frustrate the orders of the Court by dissipating assets either locally or worldwide in order to avoid the risk of having to satisfy any judgment which may be entered against them in the proceedings Notice of the application has to be given to the other parties concerned unless there is evidence that such notice will defeat the purpose of the application 2 8 4 To obtain a domestic injunction the plaintiff must show that he has a good arguable case against the defendant the defendant has assets within jurisdiction and there is a real risk of dissipation of assets from the jurisdiction which would render judgment obtained in the proceedings nugatory The same principles apply in the case of a worldwide Mareva injunction except that insofar as the defendant s assets within jurisdiction are concerned the plaintiff will have to show that there are no and or insufficient assets within jurisdiction to satisfy the claim and that there are assets outside the jurisdiction Anton Piller Order 2 8 5 Another provisional remedy is the Anton Piller order which seeks to prevent a defendant from destroying incriminating evidence by permitting certain persons to enter his premises to search for seize and retain documents or other items Such an application is made without notice To obtain such an order the plaintiff must satisfy the court that it has an extremely strong prima facie case the potential damage to the plaintiff which the grant of an order could avert is very serious there is clear evidence that the defendant has in its possession incriminating documents or items and there is a real possibility that the defendant may destroy such material before an application with notice to the other parties can be made Other Interlocutory Matters Applications 2 8 6 Apart from these provisional remedies there are other more standard interlocutory matters applications which may be and or are typically taken out before a matter is ready to be set down for trial Discovery and Inspection of Documents 2 8 7 For example an important aspect of litigation is the discovery process through which parties have to give discovery of the documents which are relevant to the issues in the case and which are in their possession custody or power However if one party believes that the other party has given inadequate discovery it may apply to Court for specific discovery of documents Security for Costs 2 8 8 Another common application is that for security for costs The court may order a person in the position of plaintiff to give security for its opponents costs The defendant has to show that the plaintiff is ordinarily resident out of the jurisdiction and or the plaintiff is a nominal plaintiff who is suing for the benefit of some other person and there is reason to believe that he will be unable to pay the costs of the defendant if ordered to do so and or the plaintiff s address is not stated in the writ or other originating process or is incorrectly stated and or the plaintiff has changed its address during the course of proceedings to evade the consequences of litigation If the case falls within one of the aforesaid cases the court will having regard to all the circumstances of the case including whether an order will stifle a genuine claim decide if it will be just to order security Return to the top SECTION 9 EXCHANGING EVIDENCE AND SETTING DOWN FOR TRIAL Pre Trial Conference 2 9 1 To facilitate proceedings the Registrar holds regular pre trial conferences PTC At the PTC the Registrar will take stock of the status of the action and give directions to parties on the next steps to be taken in the proceedings The PTC is supplemented by the Summons For Directions which is filed by the plaintiff to obtain formal directions amongst other things for the exchange of affidavits of evidence in chief and to fix trial dates Exchange of Affidavits of Evidence in Chief 2 9 2 Each party has to prepare file and exchange affidavits of evidence in chief of each of its witnesses These are written sworn statements by the witnesses which will stand as their testimony at the trial and on which they will be cross examined The affidavits of evidence in chief are filed and exchanged before the trial Expert Evidence 2 9 3 Parties may also exchange expert evidence by way of an expert report exhibited to the affidavit Experts may be appointed by the court or by parties It is the duty of an expert to assist the court on the matters within his expertise and this duty overrides any obligation to the person from whom he has received instructions or by whom he is paid Subpoenas 2 9 4 Subpoenas may be issued to ensure the attendance of witnesses at trial failing which the affidavits they have submitted as evidence in chief will be rejected by the court Three types of subpoenas may be issued The first requires the witness to attend court to give oral evidence the second requires the person named to produce documents without the obligation to attend personally and the third is a combined subpoena that requires the witness to give evidence in court and produce documents Setting Down 2 9 5 When all interlocutory processes have been concluded and the matter is ready for hearing parties have to file the Request for Setting Down Action for Trial together with the necessary bundles of documents Return to the top SECTION 10 TRIAL 2 10 1 The plaintiff s solicitors will open the plaintiff s case unless the burden of proof is on the defendant by addressing the court and the plaintiff s witnesses will take the stand first and be cross examined Each witness may be re examined after his her cross examination has ended After all the plaintiff s witnesses have given evidence the plaintiff s case is closed It is then the turn of the defendant s witnesses to testify and be cross examined and re examined on their evidence After the defendant s witnesses have completed giving their testimony parties will make closing submissions which may depending on the Judge and complexity of the matter be either oral or written After a decision has been made and judgment delivered the Registrar or the proper officer of the Court will enter in the minute book the judgment given by the Judge and any order made by the Judge as to costs Return to the top SECTION 11 ASSESSMENT OF DAMAGES 2 11 1 In certain cases including personal injury claims a judge may grant judgment on the issue of liability but not make a ruling on the precise quantum of damages that has to be paid to the successful litigant by the other party In this situation the quantum of damages to be awarded is assessed by a Registrar in a hearing in chambers The Registrar will hear evidence from appropriate parties such as the injured plaintiff and or medical experts to determine the appropriate quantum of damages to be awarded The hearing for assessment of damages follows a similar order of proceedings used in trials before judges Return to the top SECTION 12 ENFORCEMENT Writs of Execution 2 12 1 A judgment may be enforced by one of a variety of writs of execution including a Writ of Seizure and Sale of movable and immovable property a Writ of Delivery and Writ of Distress These writs authorize court officials to take appropriate measures to give effect to the judgment Garnishee Proceedings 2 12 2 The garnishee process may be appropriate where the judgment debtor owes a debt to a third party the garnishee When the judgment creditor garnishes the debt the garnishee must pay the money to him instead of to the judgment debtor To collect the money representing the debt the judgment creditor must first apply for a garnishee order nisi which may be filed without involvement of other parties This leads to show cause proceedings If the garnishee confirms that there are monies due and owing to the judgment debtor at the show cause stage the Registrar may proceed to make the garnishee nisi absolute and the garnishee must pay the money to the judgment creditor instead of the judgment debtor Registration of Judgment 2 12 3 Where the judgment creditor is not able to enforce his judgment in Singapore because the judgment debtor has no assets here he may be able to enforce it in a country where the latter does have assets He might do so by commencing fresh proceedings or if possible by registering his Singapore judgment in the foreign country on the basis of reciprocity of enforcement between the two countries Others 2 12 4 There are other processes by which a judgment may be enforced including bankruptcy and company winding

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  • Ch.03 Mediation
    and to include a mediation clause for referrals of disputes to SMC in government contracts 4 Developing Singapore as an international mediation centre 3 3 19 In 2013 the CJ and the Ministry of Law appointed a Working Group to look into developing Singapore as the centre of international commercial mediation The key recommendations were 1 the formation of the Singapore International Mediation Centre 2 the formation of the Singapore International Mediation Institute 3 the enactment of a Mediation Act 4 extension of tax exemptions and incentives to mediation 5 enhancing rules and court processes and 6 reaching out to target markets and key industries Return to the top SECTION 4 SINGAPORE MEDIATION CENTRE SINGAPORE INTERNATIONAL MEDIATION CENTRE SIMC AND SINGAPORE INTERNATIONAL MEDIATION INSTITUTE SIMI A History of SMC 3 4 1 SMC was incorporated on 8 August 1997 and officially launched by the Honourable Chief Justice Yong Pung How on 16 August 1997 SMC is a non profit organisation guaranteed by the Singapore Academy of Law It is linked institutionally with many professional and trade associations and receives the support of the judiciary and the Singapore Academy of Law B Roles and functions of SMC 3 4 2 SMC has successfully spearheaded the mediation movement in Singapore and is dedicated to the promotion of amicable and efficient settlement of disputes C Statistics on mediation cases referred to SMC 3 4 3 As at 30 September 2014 more than 25000 disputes were referred to SMC About 75 of the cases that are mediated at SMC are successfully settled Of those successfully resolved more than 90 were settled within one working day and of the disputants who participated in the mediations and provided feedback 83 reported cost savings 87 reported time savings and 94 would recommend the process to other persons in the same situation Very often parties save substantial legal court and hearing fees when agreements are reached by mediation 3 4 4 Almost all types of civil cases are mediated at SMC SMC has handled cases where the disputed amount is in excess of S 200 million To date the total quantum of disputes handled at SMC is in excess of S 3 2 billion About 40 of SMC cases are referred by the courts D Mediators in SMC 1 SMC maintains a panel of Principal Mediators that have undergone formal mediation training 3 4 5 SMC maintains its own panel of trained and experienced Principal Mediators comprised of distinguished members of different professions and fields They include Members of Parliament former High Court Judges Senior Counsel architects doctors engineers IT specialists project managers psychologists and university professors 3 4 6 All SMC Principal Mediators have undergone formal mediation training and a strict evaluation before being appointed to the panel 2 SMC maintains an international panel consisting of internationally renowned neutrals 3 4 7 There is also an international panel consisting of internationally renowned neutrals If disputes require technical expert knowledge SMC usually appoints two mediators to the case to co mediate the dispute One of these mediators will be a professional of the industry concerned who is familiar with the subject matter of the dispute The other mediator is generally a lawyer who will be familiar with the legal issues 3 Mediators are able to handle cases in languages other than English such as Tamil Malay Mandarin and other Chinese dialects 3 4 8 SMC will also try to match the language abilities of the mediators to the disputants to facilitate the free flow of conversation between the parties and to avoid the mediation of cases through translators who may hinder the building of rapport between mediator s and parties So far besides English cases have been successfully mediated in Mandarin and other Chinese dialects as well as Tamil and Malay 4 Mediators are bound by SMC s Code of Conduct 3 4 9 Mediations under SMC s auspices are governed by the provisions in the SMC Mediation Procedure Clause 4 of this Procedure states that a mediator has to subscribe to SMC s Code of Conduct These provisions are binding upon all mediators appointed by SMC to mediate They direct and guide the mediator through the mediation process with regard to issues such as confidentiality neutrality and impartiality E Mediation processes at SMC 1 The mediation process may be initiated by a reference by the courts or upon request of one or more parties 3 4 10 The mediation process at SMC may be initiated in two ways either the case may be referred to SMC by the courts or one or more of the parties may contact SMC directly with a request for mediation If only one party makes a request SMC will contact all the other parties and seek to convince them to attempt mediation 3 4 11 After SMC has assessed the suitability of the case for mediation and if all parties agree to mediate SMC may brief the parties on what mediation at SMC entails This is to ensure that the parties make an informed decision and are committed towards finding a suitable solution to their dispute via mediation 2 SMC s Agreement to Mediate must be signed by the parties 3 4 12 The first step for mediation at SMC is the signing of SMC s Agreement to Mediate By this Agreement the parties are bound by the terms of SMC s Mediation Procedure which requires them to give effect to the terms of any settlement reached 3 SMC will set a date and time for mediation 3 4 13 Then SMC will designate a date and time for the mediation process usually one week after initiation or on an urgent basis within 24 hours Mediation sessions are held at SMC s premises to ensure neutrality 4 SMC will appoint suitable mediators 3 4 14 Also SMC will appoint suitable mediators from its Panel of Principal Mediators A party may reject the proposed mediator if it has valid reasons such as conflict of interests Meanwhile the parties exchange concise summaries of their positions in the case and if necessary of important documents referred to in the summary 5 A brief description of the mediation process 3 4 15 On the day of the mediation the mediator will lead and guide the parties through a problem solving process The lawyers of the parties play an important role in assisting the mediator and advising the parties during the settlement process If the matter is settled the parties will reduce in writing the terms of their settlement with the assistance of their lawyers and this settlement agreement will be signed by or on behalf of the parties Return to the top SECTION 5 COURT BASED MEDIATION IN THE STATE COURTS A History of Court based Mediation 3 5 1 Court based mediation was first introduced as a pilot project in 1994 when specially selected District Judges mediated a range of civil disputes The Court Mediation Centre was established in 1995 following the pilot project It was renamed the Primary Dispute Resolution Centre in May 1998 In addition the multi door courthouse was established within the Primary Dispute Resolution Centre PDRC in 1999 Its purpose was to assist and direct disputants in finding the appropriate dispute resolution mechanism within or outside the court system Also it seeks to increase public awareness of dispute resolution processes 3 5 2 Court based mediation was gradually extended to other disputes within the Courts Mediation was introduced for minor criminal offences around 1996 Magistrate s complaints that involved interpersonal relationships such as disputes between neighbours were referred for mediation Since then mediation for these minor offences have been institutionalised within the State Courts 3 5 3 Mediation has similarly played a prominent role in family justice Court based mediation and counseling were introduced in the Family Justice Courts after the Family Court was established in 1995 The Family Resolutions Chambers were established in 2006 to consolidate the Family Justice Courts mediation programmes In addition the Child Focused Resolution Centre was set up in 2011 to carry out the legislative mandate of requiring divorcing parties with at least one minor child to undergo counseling and mediation I suggest adding a footnote here For more information refer to Joyce Low and Dorcas Quek An Overview of Court Mediation in the State Courts of Singapore in Mediation in Singapore A Practical Guide Sweet and Maxwell 2015 at paras 9 003 to 9 011 Or this chapter could be referred to at the end of the chapter B Roles and functions of court based mediation 3 5 4 Court based mediation refers to mediation which is held in court once legal proceedings have commenced With the introduction of the presumption of ADR in 2012 the vast majority of cases in the State Courts undergo CDR 3 5 5 The current Courts Model of Mediation has been described as containing the following elements a a facilitative approach in assisting the parties negotiations b an emphasis on joint problem solving between mediator parties and lawyers c the mediation usually involves discussion on legal merit of the case The last feature is especially prominent since court based mediation takes place in the context of pending legal proceedings and mediation is conducted in the shadow of the law This usually takes place during the more advanced stage of mediation and in private sessions when the mediator can conduct reality testing together with the lawyer and client Again I suggest adding a footnote For more information refer to Joyce Low and Dorcas Quek An Overview of Court Mediation in the State Courts of Singapore in Mediation in Singapore A Practical Guide Sweet and Maxwell 2015 at paras 9 054 to 9 085 C Statistics on mediation cases that have undergone CDR 3 5 6 Initially mediation was only applicable to civil cases Today however a wide range of cases are mediated including assessment of damages disputes over costs of civil proceedings maintenance applications applications by spouses for personal protection orders complaints to magistrates of offences involving neighbourhood and relational disputes and small claims 3 5 7 Court based mediation has had an enormous impact on the Singapore judicial system Between 2011 and 2013 more than 22 000 matters have undergone CDR Of these 85 were successfully settled In surveys conducted by the State Courts in 2013 94 5 agreed that mediation services provided by the courts at PDRC have contributed to early settlement of cases and 94 9 agreed that there were cost savings for litigants D Mediators in Court based Mediation 1 Judges were appointed due to high regard for persons in positions of authority in the Asian culture 3 5 8 Adapting Western Style mediation to the Asian Singaporean culture the Singapore Court Mediation Model was introduced by the Honourable Chief Justice Yong Pung How in 1997 In Asian culture there is a tendency to have high regard for persons in positions of authority In this connection retired Chief Justice Chan Sek Keong in Jonathan Lock v Jesseline Goh 2008 2 SLR R 455 observed how f eedback from litigants shows an overwhelming preference for district judges to act as mediators because of the public confidence and respect that they command as well as the convenience to the parties of being able to directly enforce a court mediated settlement by means of a court order The Honourable Chief Justice Chan highlighted how our model of court mediation is sui generis and is particularly suited to a jurisdiction where litigants respect the impartiality of judges in giving objective views on the merits of the claim and defence respectively 3 5 9 Judges have played a central role as mediators since court based mediation was introduced in the 1990s It has been commented in this regard that w hile judicial mediation is less formal compared to a trial the resultant ceremony of coming to court attending before a judge and having an opportunity to present one s case and views to the judge are an important part of the process of case resolution at the courts Currently court mediation is provided by a larger and diverse base of mediators including professional staff and volunteers from SMC Footnote Joyce Low and Dorcas Quek An Overview of Court Mediation in the State Courts of Singapore in Mediation in Singapore A Practical Guide Sweet and Maxwell 2015 at paras 9 031 to 9 040 2 Mediators are required to adhere to guidelines provided by the Courts and comply with the Courts Code of Ethics 3 5 10 Mediators are guided by the Code of Ethics and Basic Principles for Court Mediators the State Courts Justice Statement and the Courts Guide on Best Practice for Mediation These documents articulate the shared values that shape how mediations are conducted and deal with fairness accessibility independence impartiality integrity and responsiveness The State Courts also have an internal Guide on Best Practices for Court Mediation which sets out recommended practices for each stage of mediation All court mediators Judges staff and volunteers are required to comply with these guidelines E Other court based mediations Family Justice Courts Small Claims Tribunal and Magistrates Complaints 1 Mediation in the Family Justice Courts a A process by which family related disputes may be resolved 3 5 13 Mediation is intended to be the process by which most family related disputes could be resolved 3 5 14 The Court provides in house mediation and counselling services free of charge This practice was legally entrenched in August 1996 with the passing of the Women s Charter Amendment Act where Section 50 1 provides for the court to refer the parties with their consent to mediation From 2011 onwards mediation and counselling are mandatory for divorcing couples with at least one minor child ss 50 3A to 50 3E of the Women s Charter Mediation is currently provided by the Family Resolutions Chambers and Child Focused Resolution Centre in the Family Justice Courts b Mediators usually have a legal social work psychology or family therapy background 3 5 15 The mediations are conducted by District Judges at the Family Court court staff or volunteer mediators c Mediations take place on a without prejudice basis 3 5 16 The mediations take place on a without prejudice basis and no matters disclosed during the sessions are admissible in court Lawyers and parties are to be prepared to discuss their cases during the mediation and have all necessary documents ready A similar provision exists for Muslim parties or parties married under Muslim Law who seek mediation or counselling for their family dispute 2 Mediation at the Small Claims Tribunals 3 5 17 The Small Claims Tribunals were established in 1985 with the passing of the Small Claims Tribunals Act It handles disputes relating to contracts for the sale of goods or services or damage caused to property by torts not exceeding S 10 000 in value Damages stemming from the use of motor vehicles are excluded from the provision 3 5 18 Upon request the Tribunals also deal with disputes not exceeding S 20 000 if the parties submit a written request Proceedings before the tribunals are conducted in a private setting and in an informal manner with several attempts to settle the dispute amicably before a referee hears the evidence and submissions of the parties and decides the case based on its merits 3 Magistrates complaints may be mediated by a judge a court volunteer mediator or at the Community Mediation Centre 3 5 19 Under section 151 of the Criminal Procedure Code Cap 68 a Magistrate can be informed of a criminal offence through a complaint These complaints generally concern minor criminal offences and may be mediated by the magistrate himself or a court mediator 3 5 20 Further subject to the consent of the parties Magistrates Complaints concerning interpersonal relationships may also be referred for mediation at the Community Mediation Centre If no settlement is reached and the complainant wants to proceed to trial a summons may be issued against the alleged offender Return to the top SECTION 6 LEGAL ISSUES IN MEDIATION A Status of settlement agreements arising from mediation 3 6 1 The legal status of settlement agreements will depend on the intention of the parties the context of the mediation and the existence and nature of relevant statutory requirements 1 Private mediations 3 6 2 In most private mediations parties would usually reduce the terms of the agreement in writing and sign on the document It would be a legally binding agreement As such the enforceability of such settlement agreements is subject to normal contractual principles 2 Where there are pending court proceedings 3 6 3 I Where there are pending court proceedings the settlement agreement may provide for its terms to be recorded as a consent judgment or court order It is also possible for parties to agree to have the terms of the settlement subsequently recorded as a consent arbitral award B The role of confidentiality in mediation 3 6 4 Mediation is often said to be a private and confidential process As a matter of law practice and policy confidentiality in mediation is not a straightforward matter In order to determine the scope of confidentiality the law in relation to common law privileges contractual principles equitable doctrines and statutory regulations have to be examined 1 The two levels of confidentiality in mediation 3 6 5 The first is in relation to the process itself and the second is in relation to private meetings between the mediator and one of the parties during the process The former is confidential in the sense that apart from the mediator and the parties no third party is to be privy to the proceedings The latter refers to confidentiality in that no matter raised in private sessions should be disclosed to the other party by the mediator 2 Confidentiality at common law a Statements made on a without prejudice basis are

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  • Ch.04 International and Domestic Arbitration in Singapore
    stay under the Arbitration Act is discretionary 34 b Ordering for a stay of court proceedings under the IAA 4 2 10 The conditions for the right to stay proceedings commenced in breach of an arbitration agreement under the IAA are generally similar to those under the Arbitration Act However the court s power is not discretionary and the court must grant a stay if the conditions are fulfilled and direct the parties to proceed to arbitration unless the the arbitration agreement is null and void inoperative or incapable of being performed 35 Apart from the loss of right to stay on the ground of having filed pleadings or taken steps in the proceedings as in domestic arbitration agreements challenges to applications for stay must be directed to the enforceability of the arbitration agreement This means that even in cases where there are allegations of fraud multiplicity of actions or difficult legal issues to be contested the court has no discretion to refuse a stay B Appointment of Arbitrators 1 Arbitrators are not required to have special qualifications 4 2 11 Apart from specific requirements imposed by the parties there are no special qualifications other than independence and impartiality required of any arbitrator 36 Arbitrators may be of any nationality 37 and need not be legally trained although many of the arbitrators in Singapore are lawyers Most arbitrators in Singapore would also have had some training in the law and conduct of arbitration 38 2 Ongoing duty imposed on arbitrators to disclose circumstances which may suggest an arbitrator s partiality 4 2 12 Disclosure of all circumstances likely to give rise to justifiable doubts as to the arbitrator s impartiality or independence is required of arbitrators acting under the Arbitration Act 39 the IAA 40 and the SIAC Rules 41 The duty to disclose is ongoing and runs from the time of appointment and continues throughout the arbitration proceedings 42 4 2 13 In domestic arbitration under the Arbitration Act although the court is empowered to remove an arbitrator due to his failure or impossibility to act it should be noted that the approach taken by Singapore court remains that of minimal judicial interference with ongoing process of the arbitration 43 a Such circumstances include any personal business or professional relationship with the parties 4 2 14 The arbitrator s appointment may be challenged only if circumstances exist which give rise to justifiable doubts as to his impartiality or independence or he does not possess the qualifications agreed to by the parties 44 Such circumstances include any personal business or professional relationship with the parties to the dispute or an interest in the outcome of the dispute 45 b The standard of bias is that of a reasonable man The standard of bias or partiality that has been applied by the Singapore courts is whether a reasonable and fair minded person sitting in court and knowing all the relevant facts would have a reasonable suspicion that the tribunal was biased 46 3 Parties are at liberty to agree on the number of arbitrators a Parties usually agree to either a single or a three man tribunal 4 2 15 Parties are at liberty to agree on the number of arbitrators In the absence of an agreed number a single arbitrator is presumed 47 There is no rule against having a tribunal of two or even numbers although in most cases parties agree to either a single or a three man tribunal Where an even number of arbitrators is agreed and there is a deadlock there can be no enforceable award 48 b Parties that fail to agree may apply to the Deputy Chairman of the SIAC for appointment 4 2 16 Parties are also free to choose the applicable procedure for appointment of arbitrators Where parties fail to agree on an appointing procedure or fail to jointly appoint a sole arbitrator either party in domestic or international arbitration may apply to the President of the Court of Arbitration of SIAC for appointment 49 Where the SIAC Rules are applicable the procedure for appointment of arbitrators is determined by the relevant rules 50 4 2 17 Where the reference which comes within the IAA is to a panel of three arbitrators and the parties have not agreed on an appointment procedure each party shall appoint an arbitrator and the third arbitrator shall be appointed by agreement of the parties 51 If the parties cannot agree on the appointment of the third arbitrator the appointment will be made upon the request of a party by the President of the Court of Arbitration of SIAC as the statutory appointing authority 52 4 2 18 In any other case where under an appointment procedure a party or contractual appointing body fails to take such steps as may be required and the parties have not agreed on a default procedure any party may apply to the President of the Court of Arbitration of SIAC to take the necessary measures 53 4 2 19 Under the IAA the decision of the President of the Court of Arbitration of SIAC with regard to the appointment of arbitrators is not subject to any appeal 54 However under the Arbitration Act appointments by the President of the SIAC may be challenged under the statutory grounds set out in Sect 14 3 Arbitration Act namely a justifiable doubts as to independence and impartiality and b lack of qualifications agreed by the parties 55 Having said that whilst the decision of the President with regard to the appointment of arbitrators under the IAA is not appealable the appointed arbitrator may still be challenged if the grounds under Article 12 2 Model Law exist C Arbitral procedure 1 Parties are generally free to choose the procedure of arbitration 4 2 20 Where Singapore is the place of arbitration the parties are generally free to choose the procedure of arbitration 56 If there is no agreement between the parties as to the procedure the tribunal conducts the arbitration in a manner that it considers appropriate 57 2 Filing and service of statements of claim and defence must take place within the time frame set out by the tribunal Both the Arbitration Act and the IAA require the filing and service of statements of claim and defence within the period of time agreed or prescribed by the tribunal 58 The SIAC Rules provide similarly in Rule 17 3 Oral hearings are usually held subject to the parties agreement or the tribunal s decision 4 2 21 Oral hearings are normally held in arbitrations unless parties have agreed to allow the tribunal to make its finding on documents only Under the Arbitration Act 59 the IAA 60 and or the SIAC Rules 61 the tribunal has the power to decide whether to hold oral hearings for the presentation of evidence or for oral arguments or to proceed on the basis of documents only subject to any contrary agreement The tribunal is required to hold a hearing where so requested by any party to the arbitration 62 4 Local arbitrators are not bound by judicial rules of evidence 4 2 22 Arbitrators in Singapore are not bound by judicial rules of evidence The Evidence Act which applies to all proceedings in court expressly excludes its own application to arbitral proceedings 63 Rules such as those against hearsay extrinsic evidence or illegally obtained evidence do not have application in an arbitration The power to determine the admissibility relevance materiality and weight of any evidence lies with the arbitral tribunal 64 5 Powers that may be exercised by the tribunal a Under the Arbitration Act 4 2 23 The Arbitration Act confers certain powers on the tribunal which are without prejudice to any powers conferred by the parties agreement 65 which include the power to make orders or give directions for security for costs discovery the preservation and interim custody of evidence for the purposes of the proceedings and to administer oaths or affirmations 66 b Under the IAA 4 2 24 The powers conferred by the IAA on the tribunal are similar 67 In addition under the IAA the tribunal has the power to grant an interim injunction or any other interim measure or to secure the amount in dispute 68 Security may be furnished by any means considered appropriate by the tribunal e g cash deposits or by way of bank guarantees or solicitor s undertaking c Under both the Arbitration Act and the IAA Further arbitrators acting in arbitrations under the IAA the Arbitration Act or the SIAC Rules have been given specific powers to make orders for the interim preservation storage custody sale or other disposal of any goods or property which is or forms part of the subject matter of the reference 69 6 Orders or directions made by the tribunal are enforceable by leave of the High Court 4 2 25 Orders or directions made by the tribunal both under the Arbitration Act and the IAA are enforceable by leave of the High Court in the same manner as if they were made by the court Where leave is given judgment may be entered in terms of the order or direction 70 4 2 26 If urgent interim relief is required before the tribunal has been constituted the SIAC Rules now provide for the emergency arbitrator procedure 71 Any order made by the emergency arbitrator may be reconsidered modified or vacated by the tribunal when eventually constituted 72 4 2 27 The powers granted to arbitrators in the Arbitration Act and the IAA are concurrently exercisable by the High Court 73 Parties are therefore at liberty to apply either to the tribunal or the court as may be expedient The Court of Appeal has however made clear that assistance from the court is to be sought only when an application to the tribunal is inappropriate ineffective or incapable of securing the particular form of relief sought 74 However certain orders may be more appropriate to be granted by the court e g injunctions 4 2 28 Further any order of the court made ceases to have effect if the arbitral tribunal having power to act in relation to the subject matter of the order makes an order to which the court order relates In other words the arbitral order would prevail over the court order under the domestic regime 75 Return to the top SECTION 3 ARBITRAL AWARDS A About arbitral awards 1 Definition of an arbitral award 4 3 1 An award is defined in the IAA and the Arbitration Act as a decision of the arbitral tribunal on the substance of the dispute and includes any interim interlocutory or partial award 76 The definition specifically excludes any orders or directions made pursuant to the statutory powers conferred on the arbitrator in both Acts 77 Moreover any decisions orders or directions which do not determine matters in dispute shall not be considered awards even they are labeled as such by the tribunal 78 2 Types of awards interim partial and interlocutory 4 3 2 Interim awards refer to an award that is not the final last award in the arbitration The term interim award has been used on awards on the applicable law time bar defences joinder of parties and arbitral jurisdiction Partial awards generally mean awards in which only part of the claims submitted have been disposed of Interlocutory awards are interim awards that deal with issues such as liability being final on that issue leaving quantum to be decided Awards including interim awards are enforceable with leave of the High Court in the same manner as orders or judgments of court 79 3 Time limit for a tribunal to make its award 4 3 3 There is no statutorily imposed time limit for a tribunal to make its award either under the Arbitration Act or the IAA 80 Under the Arbitration Act the court may on the application of any party or the arbitral tribunal extend the time limit provided for in the arbitration agreement unless otherwise agreed by the parties 81 However all available tribunal processes for application of extension of time must first be exhausted before making the application 4 3 4 Further the court can only extend time if it is satisfied that substantial injustice would otherwise be done 82 The SIAC Rules require the tribunal to make the award within forty five days of the close of hearing unless the Registrar extends time or the parties agree otherwise 83 4 An arbitral award must be in writing and must be signed by the arbitrator s 4 3 5 An arbitral award must be in writing and must be signed by the arbitrator or the arbitrators 84 In an arbitration where there is more than one arbitrator the IAA and Arbitration Act require only a majority of the arbitrators to have signed the award if the reason for the omission is stated 85 The decision of the tribunal shall be made by a majority of the arbitrators on the tribunal 86 The award must give reasons unless the parties agree otherwise or the award is an award on agreed terms 87 The award must state the date and place of arbitration 88 5 The SIAC provides authentication and certification services that validate an award 4 3 6 Where the SIAC Rules apply the award is to be delivered to the Registrar of the SIAC who will cause certified copies 89 to be transmitted to the parties upon payment of all costs of the arbitration The SIAC also provides authentication and certification services to all arbitral awards issued pursuant to arbitration proceedings held in Singapore whether administered by the SIAC or not 4 3 7 An award once made 90 is valid and binding on the parties 91 and requires no further step of registration or fiat to give it effect However the law provides a party various remedies to challenge the arbitral award Further if any party fails to voluntarily adhere to the terms of the award the award may be enforced before the courts of Singapore B Correction Interpretation and Additional Award 1 Arbitrators are permitted to make corrections in certain awards 4 3 8 In both domestic and international arbitrations arbitrators are permitted to make corrections in any award of any errors in computation any clerical or typographical errors or other errors of similar nature 92 Corrections may be made on the tribunal s own initiative within thirty days of the date of the award or at the request of any of the parties to the tribunal within thirty days of the date of receipt of the award 93 4 3 9 Under the Arbitration Act and the IAA the period of thirty days may be extended by the tribunal on the ground of necessity The correction of awards refers only to obvious errors in calculation or phraseology or reference and the procedure cannot be used for a backdoor attempt to reopen the award on its merits 94 2 Parties may apply to the tribunal for an interpretation of the award 4 3 10 Parties may also apply to the tribunal for an interpretation of a specific point or part of the award 95 The correction or interpretation must be made by the tribunal within thirty days of the receipt of the request and the interpretation will form part of the award 96 3 Parties may request the tribunal to make additional awards as to the claims presented but omitted 4 3 11 Where any claim made in the proceedings has been omitted from the award and in the absence of any contrary agreement any party may by notice to the tribunal request the tribunal to make additional awards as to the claims presented but omitted within thirty days of receipt of the award with notice to the other party 97 If the tribunal considers the request to be justified the SIAC Rules state that the additional award must be made within forty five days of receipt of the request 98 The IAA and the Arbitration Act provide that the additional award may be made within sixty days 99 4 3 12 Under the IAA and the Arbitration Act the tribunal may if necessary extend the time period within which it makes a correction interpretation or an additional award 100 In an arbitration under SIAC Rules the time limit may be extended by the Registrar of SIAC 101 C Appeal against the award 1 No legal impediment against an appeal process within arbitration 4 3 13 There is no legal impediment against an appeal process from one arbitral tribunal to an appellate arbitral tribunal in the event the parties so agree However there is no known institution in Singapore which employs such a mechanism 2 Appeals to a court permissible only in arbitrations under the domestic Arbitration Act subject to various conditions 4 3 14 Appeals to a court against awards on a question of law arising are permissible only in arbitrations under the domestic Arbitration Act 102 The right of appeal can be excluded by agreement an agreement to dispense with reasons for the tribunal s award is deemed as an agreement to exclude the right to appeal 103 An appeal may be brought only if all the parties consent or with leave of the High Court and must be made within twenty eight days after the award has been made 104 4 3 15 Before granting leave to appeal the court must be satisfied that 105 the determination of the question will substantially affect the rights of one or more of the parties the question is one which the arbitral tribunal was asked to determine on the basis of findings of fact in the award the decision of the arbitral tribunal on the question is obviously wrong or the question is one of general public importance and the decision of the arbitral

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  • Ch.05 Singapore and International Law
    reach of a bilateral treaty between Singapore and the People s Republic of China regarding civil procedure and mutual judicial assistance to determine whether that treaty extended to Hong Kong Deciding that it did not extend to Hong Kong Sundaresh Menon JC made clear at 497 that it is not within the Singapore courts purview to question the executive branch s treaty making power Singapore courts do not assess the desirability of or the wisdom behind the treaties entered into by the executive The task for the courts is simply to construe the effect of what has been entered into Where treaties have been incorporated into domestic law by the legislative branch the Singapore courts have the power to review and declare a statutory provision null and void where it violates the Constitution This would include the power to review a treaty rule which has been transformed into Singapore law by way of statute 5 2 7 As such the executive branch could enter into a treaty which requires the implementation of certain rights and duties under Singapore s domestic law Parliament could consent to implement what the treaty requires by way of an Act of Parliament but the courts can review whether provisions of the Act and subsidiary legislation passed pursuant to it are ultra vires the constitution Return to the top SECTION 3 TREATY OBLIGATIONS BEFORE THE SINGAPORE COURTS A The Constitution limits the treaty laws that may be translated into Singapore law 5 3 1 As we have seen Parliament s power to translate treaty laws into Singapore law is limited by the Constitution as the Singapore Courts will ultimately determine the scope and extent of any repugnancy with the Constitution B Parliament may seek to implement any type of treaty in Singapore domestic law 5 3 2 There is no limitation as such in terms of the types of treaty which Parliament could seek to implement in Singapore domestic law 1 Parliament may incorporate provisions of treaties to which Singapore is not a party into Singapore law 5 3 3 Indeed Parliament could even legislate to give effect to treaties to which Singapore is not a party For example consider the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind Visually Impaired or Otherwise Print Disabled which was concluded under the auspices of the World Intellectual Property Organization WIPO in 2013 One of the stated objectives of the Copyright Amendment Act 2014 Act 22 of 2014 is to afford persons with reading disabilities greater opportunities to access copyrighted works in line with the Marrakesh Treaty even though Singapore is as yet not a signatory to the treaty 2 Parliament may expand the scope of the terms of the treaty while transforming treaty law into domestic law 5 3 4 Similarly a Parliamentary enactment transforming treaty law into Singapore law may expand the scope of the terms of the treaty so long as that does not conflict with the obligations imposed by the treaty itself No issue arises so long as the treaty s requirements are met but even if the treaty s requirements are not met such that the enactment conflicts with the treaty the domestic statute prevails so long as the domestic statute s words are clear If there is a real conflict between international law and national law national law must prevail Tan Ah Yeo v Seow Teck Ming 1989 1 SLR R 134 at 140 The responsibility on the international plane of a failure by a state to comply with international law is a distinct and separate matter from the operation of its domestic laws Tan Ah Yeo v Seow Teck Ming 1989 1 SLR R 134 at 140 Public Prosecutor v Tan Cheng Yew and another appeal 2013 1 SLR 1095 at 1116 3 Presumption that Parliament intends to adhere to international law 5 3 5In interpreting Parliament s intent the courts have similarly applied the presumption that Parliament intends to adhere to international law and international comity Public Prosecutor v Taw Cheng Kong 2005 1 SLR 103 1998 2 SLR R 489 at 511 512 international comity and the sovereignty of other nations per Yong Pung How C J Tan Ah Yeo v Seow Teck Ming 1989 1 SLR R 134 at 140 per Chao Hick Tin J C as he then was accepting that it is a principle of legal policy that an Act should be interpreted to conform with international law This includes adherence to Singapore s international treaty obligations and the Singapore courts will as we have seen usually seek to construe a statute in line with such treaty obligations that bind Singapore s conduct on the international plane again subject only to conflict with the clear words of the Constitution or a domestic statute The Sahand and other applications 2011 2 SLR 1093 at 1107 per Quentin Loh J stating unequivocally that the courts will always strive to give effect to Singapore s international obligations within the strictures of our Constitution and laws 5 3 6 Furthermore section 9A 2 of the Interpretation Act Cap 1 permits recourse to any material not forming part of the written law It states that in the interpretation of a provision of a written law if any material not forming part of the written law is capable in assisting the ascertainment of the meaning of the provision consideration may be given to that material Article 9A 2 is the more general interpretative rule compared to section 9A 3 e which states in turn that Without limiting the generality of subsection 2 the material that may be considered in accordance with that subsection in the interpretation of a provision of a written law shall include any treaty or other international agreement that is referred to in the written law Section 9A 3 e is narrowly worded in requiring the statute to refer expressly to the treaty But this is cured by section 9 A 2 which is broader and sits more comfortably with the established English doctrine that a statutory provision should be interpreted in light of Singapore s treaty obligations unless the clear words of the statute demand otherwise The High Court in The Sahand has considered section 9 A 2 wide enough to encompass international law in appropriate cases The Sahand and other applications 2011 2 SLR 1093 at 1107 per Quentin Loh J but it might also be considered that this pronouncement ought to be read in the more specific context in which it appears i e in relation to subsidiary legislation that was expressly made to give effect to Singapore s international obligations at 1107 5 3 7 In all such cases the Singapore courts will therefore determine the proper meaning scope and application of such statutory rights and duties and the courts are likely to take into account the bilateral and multilateral treaties to which Singapore is a party In Public Prosecutor v Tan Cheng Yew and another appeal 2013 1 SLR 1095 the High Court accepted that the courts should endeavor to interpret a domestic statute in accordance with the state s treaty obligations under international law while noting that this canon of interpretation has defined limits per Lee Seiu Kin J at 1117 Return to the top SECTION 4 THE SINGAPORE COURTS AND INTERNATIONAL LAW A Customary international law before the Singapore courts 1 Local courts generally adhere to the doctrine that customary international law is part of the common law 5 4 1 The Singapore courts have generally adhered to common law orthodoxy in approaching customary rules of international law namely that customary international law may be invoked in the Singapore courts as part of the common law 2 An international law rule remains subject to the hierarchy of domestic legal sources 5 4 2 Nonetheless such reception of international law would remain subject to the hierarchy of domestic legal sources In other words an international law rule received into Singapore law by way of the common law remains subject to the contrary demands of statute and the Constitution in Singapore This accounts for the majority of cases in which it has been said that domestic law would prevail in the case of conflict with an incompatible rule of international law 5 4 3 However the basic proposition that Singapore law prevails in a conflict between international law and domestic law is said to apply more broadly to conflicts between an international treaty and any Singapore law But this seemingly broad doctrine must have its limits an international law rule contained in a statute which conflicts with a common law rule would prevail over the common law rule for example 5 4 4 Fidelity to the hierarchy of domestic sources requires the view that only where the international law rule is received by way of the Constitution itself can it be said that the international law rule would trump a rule found in a Singapore statute This argument was first raised before the Singapore Court of Appeal in Nguyen Tuong Van v Public Prosecutor 2005 1 SLR R 103 and subsequently in Yong Vui Kong v Public Prosecutor 2010 3 SLR 489 In Yong Vui Kong the Court of Appeal held that customary international law is not self executing per Chan Sek Keong CJ at 531 Put differently a rule of customary international law does not become part of domestic law until and unless it has been applied as or definitively declared to be part of domestic law by a domestic court or is incorporated into domestic law by the Legislature at 531 5 4 5 Even in cases where statute grants the Minister the right to make subsidiary legislation on the basis of Singapore s international law obligations that would according to the parent statute in this example prevail over any inconsistent statutory provision it is because the international law obligation in question derives its force ultimately from the parent statute see e g sections 2 1 and 2 3 of the United Nations Act Cap 339 B Reception of customary international law in Singapore law 1 Custom and the Constitution 5 4 6 In Yong Vui Kong v Public Prosecutor 2010 3 SLR 489 the Court of Appeal made clear that custom is not automatically to be considered to have been adopted in the Constitution There the reception of customary international law into Singapore law became a focal issue and had the benefit of extended judicial analysis In that case the defendant cited Article 9 1 of the Constitution which guarantees that no person shall be deprived of his life or personal liberty save in accordance with law The defendant challenged the constitutionality of the mandatory death penalty under the Misuse of Drugs Act Cap 185 2001 Rev Ed on the basis that such punishment is prohibited under customary international law and that customary international law norms constitute law for the purpose of Article 9 1 of the Constitution The Court of Appeal rejected the defendant s submission that customary international law rules are automatically received into Singapore law by way of the Constitution on two grounds a Custom Requires Proof 5 4 8 First a question was raised about whether the punishment of death by hanging falls under the customary international law prohibition of torture and cruel inhuman or degrading treatment or punishment In Yong Singapore s Court of Appeal stressed that a customary international law prohibition of the death penalty under the Misuse of Drugs Act Cap 185 must first be proven The Court of Appeal found that although a majority of states did not impose the mandatory death penalty it was insufficient to meet the standard of extensive and virtually uniform state practice required for a customary international law rule to be established 5 4 9 The consular rights of the accused under customary international law also arose for consideration in the earlier mentioned case of Nguyen These rights are contained in the Vienna Convention on Consular Relations 24 April 1963 Singapore was not a party to the Convention at the time and was not bound by the treaty rule but the Court of Appeal accepted that an identical rule applies nonetheless to Singapore under customary international law According to Kan J in the High Court the Government did not deny the application of the rule to Singapore as a rule of customary international law and this view appears also to have been accepted on appeal where the Court of Appeal went on to cite a recent decision of the International Court of Justice ICJ in determining the true meaning of the rule contained in the Vienna Convention b Interplay between customary international law and the Constitution 5 4 10 Second the Court of Appeal emphasized as noted above that although domestic law should as far as possible be interpreted consistently with Singapore s international obligations there are inherent limits on the extent to which Singapore courts may refer to international law norms such as where the express wording of the Singapore Constitution is not amenable to the incorporation of these norms 5 4 11 To seek to automatically adopt custom via the Constitution would mean that any rule of customary international law would be cloaked with constitutional status and would override any existing legislation providing for the death penalty per Chan Sek Keong CJ at 529 Giving effect to the doctrine of separation of powers the Court of Appeal cautioned that it would first be necessary for Parliament to enact new laws or amend the Constitution in order to do so It would not be appropriate for courts to legislate new rights into the Singapore Constitution under the guise of interpreting existing constitutional provisions at 519 This reasoning in Yong has more recently been quoted with approval and followed in a separate but related decision of the Court of Appeal in Yong Vui Kong v Public Prosecutor 2015 SGCA 11 C International law writings and international decisions may be persuasive before the Singapore courts 5 4 12 On occasion the Singapore courts have also considered and applied the writings of publicists In any event the views of such publicists are carefully scrutinized even if ultimately they are to be distinguished from the facts of the case Such writings particularly of the most qualified publicists should therefore be considered to be of some persuasive authority before the Singapore courts as are foreign especially English decisions involving questions of international law and the decisions of international courts or tribunals 5 4 13 Resort to the writings of publicists in the field may be justified to the extent that they provide cogent evidence of the established international legal rule D Judicial approach towards conflicts between international law and Singapore law 5 4 14 Mention has already been made of the fact that the Singapore courts have had occasion to refer to situations of conflict between international law and Singapore law see Section 5 4 2 above 5 4 15 In such cases much could still turn on the precise basis for invoking the international legal rule If that basis should lie at common law a Singapore statute would prevail in the hierarchy of domestic legal sources Likewise an international law rule embodied in statute must yield to the Constitution in case of conflict An interesting question which has been mentioned is whether the domestic force of an international law rule may have its basis in the Constitution itself see Section 5 4 4 above E Proof of international law distinguished from proof of foreign law 1 Proof of international law is not usually considered to involve proof of fact unlike proof of foreign law 5 4 16 It may be appropriate to mention also that proof of international law is not usually considered to involve proof of fact unlike proof of foreign law The point has not been tested in the Singapore courts 2 Reasons why local courts do not usually require expert evidence for proof of international law 5 4 17 The view has been taken in Malaysia that proof of international law is a matter that requires expert evidence Subject to the deference with which we are required to treat that Malaysian position as our own it may be suggested that this cannot be the correct view in Singapore Several reasons may be given for this 5 4 18 First common law judges do not usually treat issues of international law arising before them as those which always require recourse to expert witness even if that may be desirable We may take the argument further and say that insofar as international law is taken by the common law to be a part of it common law judges are presumed to know international law see also Sections 5 4 1 and 5 4 8 above 5 4 19 Second an appellate court may sometimes consider the view of international law taken in the courts below it to be incorrect It does so more freely than if what is involved is a question of fact 5 4 20 Third in private international law at least in the absence of proof to the contrary the rule under the foreign law is to be presumed to be the same as that under domestic law but this has never been recognised to be so where a rule of public international law is involved instead 3 Some special judicial and constitutional issues involving international law and foreign affairs cases 5 4 21 Having said that there are special considerations which may apply and which may make the case involving a point of international law in ways more complex than that which only involves a point of domestic law a Difficulties in obtaining reliable evidence of international law 5 4 22 First international lawyers have long acknowledged that domestic judges face a serious difficulty in finding reliable evidence on what international law is on a particular point absent formal proof and expert

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  • Ch.06 The Conflict of Laws
    trial in the forum are so serious that it would amount to denial of substantial justice 6 2 18 The court has repeatedly emphasized that it will not compare legal systems Procedural differences will not be taken into account or at least will be given little weight Thus the fact that trial takes longer in the more appropriate foreign forum than in Singapore or that the plaintiff can get higher damages in Singapore than in the foreign but more appropriate forum only go to show structural differences in the legal systems and will not in themselves amount to denial of substantial justice d Judges exercise discretion when determining the natural forum 6 2 19 This is a discretionary exercise though of course the discretion is guided by principles laid down in The Spiliada and subsequent cases in England and Singapore An appeal from a decision on this basis is an appeal against discretion and can succeed only if wrong principles had been applied or right principles had been applied wrongly eg if the court had taken account of irrelevant factors or failed to take account of relevant factors or had reached a patently unreasonable conclusion Otherwise the exercise of discretion by a judge on the question of the appropriate forum will generally not be disturbed on appeal 3 Determining the natural forum in a case of territorial jurisdiction 6 2 20 A defendant who has been served within the jurisdiction see Section 6 2 4 6 2 7 above and who does not want the Singapore court to try the case may apply to stay the proceedings by showing that there is another available and competent forum which need not strictly be a court of law The Rainbow Joy 2005 3 SLR R 719 which is clearly the more appropriate forum to try the case The natural forum analysis is a relative one if the defendant has shown a foreign court to be clearly more appropriate the Singapore court does not become the natural forum simply because there is a third forum which has equal or greater claim to be the natural forum Jio Minerals FZC v Mineral Enterprises Ltd 2011 1 SLR 391 If the defendant cannot show that there is a clearly more appropriate forum available elsewhere then a stay will ordinarily be denied Even if the defendant can show that there is a more appropriate forum elsewhere the court may nevertheless decline to stay the proceedings if it is satisfied that the plaintiff will be denied substantial justice if the case is tried in foreign forum 4 Determining the natural forum in a case of extra territorial jurisdiction 6 2 21 The plaintiff who is seeking leave of the court to serve process on the defendant outside Singapore see Section 6 2 8 6 2 9 above must show that Singapore is the most appropriate forum to try the case This does not involve showing that the Singapre is clearly ahead of any foreign court as the most appropriate forum it is enough to show that it is the most appropriate forum on balance and in the final analysis Siemens AG v Holdrich Investments Ltd 2010 3 SLR 1007 Even if the plaintiff cannot show that the court may still grant leave if the plaintiff can show that he will be denied substantial justice if he is not able to sue in Singapore but has to sue in the prima facie more appropriate forum instead 6 2 22 Since the leave is necessarily applied for by the plaintiff in the defendant s absence once served the defendant can apply to set aside the service on the basis that Singapore is not the appropriate forum The arguments are heard afresh at this stage with the onus remaining on the plaintiff to convince the court that the leave was properly granted in the first place F Choice of court agreements 1 Under common law a choice of court agreement is treated as a contractual agreement 6 2 23 In the common law a choice of court agreement is like any other contractual agreement It must be valid according to its applicable law see below Section 6 3 15 6 3 16 The law governing the choice of court clause is usually the law that governs the substantive agreemenet although it is possible for the choice of court agreement to be governed separately by its own law 6 2 24 Whether a particular dispute falls within the choice of court clause is a substantive question of construction governed by the applicable law of the choice of court agreement The Jian He 1999 3 SLR R 432 On the other hand the effect of the contract on the court s jurisdiction is a question of procedure governed exclusively by the law of the forum Abdul Rashid bin Abdul Manaf v Hii Yii Ann 2014 SGHC 194 On the distinction between substance and procedure see below Section 6 3 8 6 3 10 2 Functions of a choice of court agreement 6 2 25 A choice of court agreement can serve two distinct functions a Prorogation function provides a basis for the local courts to assume jurisdiction 6 2 26 First it can have the function of providing a basis for the Singapore court to assume jurisdiction prorogation function In a choice of court agreement the defendant submits or agrees to submit to the jurisdiction of the Singapore court This provides the basis for service within jurisdiction if such a mode of service is specified in the agreement or if not then the contractual submission provides a legal connection for service out of jurisdiction In its basic form the choice of court agreement does not prevent action from being commenced in a jurisdiction other than the chosen jurisdiction This is commonly referred to as a non exclusive jurisdiction agreement b Derogation function helps to exclude jurisdiction 6 2 27 A choice of court agreement can serve the additional function of excluding jurisdiction derogation function The exclusive choice of court agreement exemplifies this This is an agreement that imports an obligation on one or both parties to the contract not to commence proceedings in any court other than in the chosen court In such a case it would be a breach of a contractual obligation to commence or continue proceedings in a court other than the court of the chosen country Whether a choice of court agreement is exclusive or non exclusive is a matter of construction of the agreement in accordance with its governing law The common law does not apply any presumption as to whether the choice is exclusive or non exclusive In contrast Singapore statute law deems an agreement to submit to the Singapore International Commercial Court to be an exclusive choice of court agreement unless the parties have expressly provided otherwise 6 2 28 Where a plaintiff commences proceedings in Singapore in breach of a choice of court agreement the Singapore court will not apply the natural forum test Although the factors considered are similar in such a case the question is whether there are exceptional circumstances amounting to strong cause why the plaintiff should be allowed to carry on his action in Singapore in breach of contract Amerco Timbers Pte Ltd v Chatsworth Timber Corp Pte Ltd 1977 1978 SLR R 112 Conversely where the plaintiff has commenced action in Singapore pursuant to an exclusive choice of Singapore court clause the defendant has to show strong cause why he should be allowed to breach his contract and force the plaintiff to take his proceedings to a country other than Singapore 3 The choice of court agreement may be unilateral or mutual 6 2 29 An obligation binding a party to a choice of court agreement may be unilateral or mutual The agreement is mutual if both are equally bound by their choice of a forum whether exclusive or not The agreement is unilateral if only one party is bound For example in a contract between A and B B may agree that A can sue B in X Y or Z country and that B agrees to whichever forum A chooses as the exclusive forum for that dispute In this case the agreement is an exclusive choice of court clause as far as B is concerned but not an exclusive one where A is concerned Only B is bound by the forum selected by A 4 Whether the court accepts the agreement as binding on jurisdiction depends on the facts of the case 6 2 30 What amounts to strong cause depends on the facts of the case The Eastern Trust 1994 2 SLR R 511 6 2 31 If the agreement is the product of actual close negotiations between the parties the court will be very slow to release the parties from their bargain If the agreement is a standard clause especially in complex transactions involving multiple parties where it may be difficult for the defendant to ascertain which country the choice of court clause may point to or where the defendant may not even be aware that there is a choice of court clause the court may require less to be shown by way of strong cause 6 2 32 In any event all factors will be taken into consideration by the court including factors which were foreseeable by the parties at the time they had agreed to the exclusive choice of court clause However such factors are likely to bear less weight than factors which had not been foreseeable 6 2 33 Moreover if the Singapore court is of the view that there is no defence to the plaintiff s claim it is likely to find that the defendant is not genuinely desiring to seek trial in the contractually chosen jurisdiction and this is an exceptional circumstance that is likely to amount to strong cause justifying the plaintiff suing in Singapore in breach of an exclusive choice of foreign court agreement The Hyundai Fortune 2004 4 SLR R 548 5 Applicability of the Spiliada test in cases of non exclusive choice of court agreements 6 2 34 This does not mean that the Spiliada test would apply in all cases of non exclusive choice of court agreements Sometimes the court may find that the defendant had impliedly agreed not to raise any natural forum objections to the plaintiff s right to sue the defendant in the chosen Singapore court Thus if the defendant argues that the plaintiff should not sue him in Singapore because another forum is more appropriate that is a breach of contract that needs to be justified 6 2 35 At other times the court may find by an express term or by inference that the defendant has agreed not to object to the chosen Singapore court exercising its jurisdiction it would be a breach of contract to argue that the Singapore court should not exercise its jurisdiction and at least something like strong cause would need to be shown to justify the breach of contract In every case it is a question of interpretation what the parties have agreed to Citibank NA v Robert 2011 3 SLR 465 Quite apart from the question of breach of contract the very existence of a non exclusive jurisdiction bears weight in the Spiliada test and the weight it bears depends on all the circumstances of the case Orchard Capital I Ltd v Ravindra Kumar Jhunjhunwala 2012 2 SLR 519 For example the choice would obviously bear more weight as a conscious choice by the parties of a neutral court than it would had it been just one of several jurisdictions listed as possible places where legal action could be taken G Anti suit injunctions 1 An order to prevent a party from commencing or continuing legal proceedings in a foreign country 6 2 36 An anti suit injunction is an order by the Singapore court to prevent a party from commencing or continuing legal proceedings in a foreign country It is an order that is made personally against the person subject to the injunction The court has no power and does not purport to give the foreign court any direct orders 2 Local courts takes into account comity in exercising its discretion to grant these injunctions 6 2 37 Nevertheless the anti suit injunction is recognised as a rather extreme measure amounting to an indirect interference with foreign legal proceedings and the court will apply great caution in exercising its discretion to grant such an injunction Djoni Widjaya v Bank of America 1994 2 SLR R 898 John Reginald Stott Kirkham v Trane US Inc 2009 4 SLR 428 6 2 38 As a matter of comity generally the court would only consider granting an anti suit injunction if it is the natural forum to try the case Airbus Industrie GIE v Patel 1999 1 AC 119 The Ever Glory 2004 2 SLR R 457 this justifies the exercise of power which could indirectly interfere with foreign proceedings On the other hand the court will not grant an anti suit injunction simply because it is the natural forum to try the case It must also be shown that the party to be enjoined the respondent has in pursuing the foreign legal proceedings behaved in a vexatious oppressive or unconscionable manner against the applicant H Breach of contract 1 Comity bears little weight when the court chooses to enforce the agreement 6 2 39 However comity bears comparatively less weight when the court is enforcing an agreement between the parties WSG Nimbus Pte Ltd v Board of Control for Cricket in Sri Lanka 2002 1 SL R R 1088 John Reginald Stott Kirkham v Trane US Inc 2009 4 SLR 428 Donohue v Armco Inc 2002 1 Lloyd s Rep 425 Thus the breach of an exclusive choice of forum court agreement in the pursuit of foreign proceedings is a sufficient reason for an anti suit injunction without further inquiry as to the vexatiousness or oppressiveness of the foreign conduct unless exceptional circumstances amounting to strong cause are shown to justify the breach of contract 6 2 40 The test here is the mirror of that above in the enforcement of exclusive choice of court agreements within the forum This is not surprising since in both cases the court is enforcing an agreement Nevertheless considerations of comity are necessarily weightier when considering whether to grant an anti suit injunction than when the court is considering the exercise of its own jurisdiction The Singapore court has refused to enforce an exclusive choice of court agreement where it was not the contractually chosen court People s Insurance Co Ltd v Akai Pty Ltd 1997 2 SLR R 291 I Jurisdiction of the Singapore International Commercial Court 6 2 41 The Singapore International Commercial Court SICC is a division of the Singapore High Court It has jurisdiction over any action which the High Court may try if the action is international and commercial in nature and satisfies such other conditions that may be prescribed in the Rules of Court 6 2 42 The SICC will have jurisdiction if the parties have agreed to its jurisdiction either before after the dispute has arisen The SICC will not apply principles of natural forum or strong cause to stay proceedings in respect of defendants who have agreed to its jurisdiction Instead the SICC has discretion to transfer a case to the High Court if the subject matter is more appropriately tried there In addition the High Court may transfer suitable cases within its jurisdiction to the SICC whether or not the parties have agreed to the jurisdiction of the SICC 6 2 43 In addition an agreement to submit to the jurisdiction of the SICC has the following consequences under Singapore law unless the contracting parties have expressly provided otherwise a the parties are taken to have agreed to submit to the exclusive jurisdiction of the SICC b the parties are taken to have agreed to carry out the judgment or order of the SICC and c the parties are taken to have agreed to waive any recourse to any court or tribunal outside Singapore against any judgment or order of the SICC or its enforcement insofar as such recourse can be validly waived Return to the top SECTION 3 CHOICE OF LAW A Introduction and methodology 6 3 1 Choice of law problems can arise when a dispute involves parties from or facts occurring over different countries The underlying basis of choice of law is the recognition of the pluralism of legal values and its corollary that the application of the forum law may not do justice to the parties in all cases involving foreign elements 6 3 2 Another important objective of choice of law analysis is as far as possible to promote the uniformity of outcome whichever country happens to try the case Singapore follows the common law choice of law methodology Generally the court analyses the situation in these steps B International mandatory rules must be applied irrespective of any choice of law rule 6 3 3 If there is a rule of the forum that is mandatory in the international sense ie it peremptorily directs itself to apply to the facts irrespective of the foreign elements in the case then such a rule must be applied irrespective of any choice of law rule 6 3 4 Generally it is a question of construction whether a statutory provision bears this character Some provisions are express Otherwise the forum engages in an exercise of construction often by asking whether the rule is intended to protect some fundamental value or interest of the forum or if the statutory objective was not intended to be circumvented by the existence of foreign elements in the dispute C An issue concerned with choice of law must be characterised before the court 1 The objective of characterisation is to identify the nature of the problem in the private international law sense 6 3 5 If the issue is one to which choice of law analysis is relevant the first step is to characterise the issue before the court The objective is to identify the nature of the problem in the private international law sense At this stage while domestic classifications are helpful they are not determinative 2 An example involving the doctrine of consideration 6 3 6 In domestic Singapore law the doctrine of consideration is an essential ingredient of a contract not made under deed Nevertheless an agreement not supported by consideration can be characterised as a contract for choice of law purposes in recognition that other legal systems do not use consideration to resolve the problems that the common law uses that doctrine to resolve Re Bonacina 1912 2 Ch 394 6 3 7 Issues will be characterised into categories which are delineated for choice of law purposes Every category has its own connecting factor which will indicate the applicable law see below Section 6 3 11 6 3 12 3 The basic level of characterisation is between substance and procedure 6 3 8 The most basic level of characterisation is that between substance and procedure Matters of procedure are always governed by the law of the forum Issues of substance are amenable to further characterisation for choice of law purposes The distinction is not necessarily drawn in the same manner as in domestic law a Local courts are concerned with the existence or enforceability of the content of the right 6 3 9 The traditional common law approach Huber v Steiner 2 Bing NC 202 132 ER 80 which appears to be the applicable approach in Singapore is that the distinction depends on whether the matter goes to the existence and content of the right or to its enforceability the former is substantive the latter is procedural Star City Pty Ltd v Tan Hong Woon 2002 1 SLR R 306 Dynasty Line Ltd in liquidation v Sukamto Sia 2014 3 SLR 277 b Other common law countries adopt a functional approach 6 3 10 However the trend in other major common law countries which has yet to be tested in Singapore take a functional approach that is the inquiry is whether the application of foreign law in the case would cause undue inconvenience to the administration and machinery of justice in the court of the forum Tolofson v Jensen 1994 3 SCR 1022 John Pfeiffer Pty Ltd v Rogerson 2000 203 CLR 503 Harding v Wealands 2005 1 WLR 1539 First Laser Ltd v Fujian Enterprises Holdings Co Ltd 2012 HKCFA 52 The Singapore Court of Appeal regarded this modern approach as persuasive though it did not have to decide the point in Goh Suan Hee v Teo Cher Teck 2010 1 SLR 367 4 If the issue is substantive the substantive category of choice of law it belongs to must be determined 6 3 11 If the issue is substantive the next step is to determine which substantive category of choice of law it belongs to The common law has developed a large number of categories and sub categories and they are being continuously redefined and reshaped Examples are contracts with sub categories of formal validity essential validity formation etc torts restitution property inter vivos succession family etc 6 3 12 Associated with each category or sub category are connecting factors pointing to the applicable law Once an issue is identified as belonging to a particular category the question of what law to apply is usually quite straightforward but complications can arise if a reference is made to the foreign legal system s choice of law rules This can create difficulties when the reference is returned renvoi but this problem generally does not affect most commercial transactions in contract and nothing more will be said about it D Foreign law is excluded 6 3 13 The application of foreign law is always subject to the fundamental public policy of the forum Contravention of domestic public policy is not enough there must be contravention of some essential moral social or economic value of the forum Moreover the forum will not enforce directly or indirectly any foreign penal revenue or other public laws The Republic of the Philippines v Maler Foundation 2014 1 SLR 1389 E Choice of law for contracts 1 Most issues arising in contract are governed by the proper law of the contract 6 3 14 The common law choice of law rules apply in Singapore but the rules are very similar to those in many civil law jurisdictions as well as the rules embodied in the Rome Convention applicable in the European Union especially in the respect for party autonomy The choice of law rules were considered by the Law Reform Committee of the Singapore Academy of Law Reform of the Law Concerning Choice of Law in Contract which recommended the retention of the common law Most issues arising in contract in the private international law sense are governed by the proper law of the contract 2 The proper law of contract is determined in the following stages 6 3 15 The proper law of the contract is determined in three stages 1 If the parties to the contract have expressly selected a law to govern the contract that will be the proper law the subjective proper law unless the choice was not made in good faith Pacific Recreation Pte Ltd v S Y Technology Inc 2008 2 SLR 491 Peh Teck Quee v Bayerische Landesbank Girozentrale 1999 3 SLR R 842 The exception is narrowly construed The choice of an unconnected law is not in itself objectionable 2 If the parties have not made any express selection the court may infer a choice from the contract and the surrounding circumstances at the time of the making of the contract 3 If the court cannot find any choice by the parties then the proper law is the law of the country or system of law with the closest and most real connection with the transaction and the parties the objective proper law 6 3 16 Although the second and third stages are conceptually different as the second is still a search for the subjective proper law while third is purely an examination of objective connections the same factors are scrutinised Practically the Singapore court may skip stage 2 in the absence of an express choice and go straight to stage 3 in cases where the factual circumstances are such that any inference of the parties intentions as to choice of law to be drawn from the fact is likely to be speculative Overseas Union Insurance Ltd v Turegum Insurance Co 2001 2 SLR R 285 6 3 17 The subjective proper law is found by the usual ascertainment of objective facts in the common law approach to the determination of the objective intention of the contracting parties It is not a reference to the subjective thinking of the parties 3 The doctrine of depeçage 6 3 18 Different parts of a contract may be governed by different laws although generally the court would be slow to arrive at such a conclusion 6 3 19 The proper law of the contract governs issues of essential validity interpretation whether consideration or causa in some civil law contracts is required content of the obligation mode of performance and the discharge of the obligation or of the contract 4 Formal validity of a contract 6 3 20 A contract is formally valid if it is valid either by the proper law of the contract or the law of the place of execution of the contract PT Jaya Putra Kundur Indah v Guthrie Overseas Investments Pte Ltd 1996 SGHC 285 5 Formation of contract 6 3 21 Formation of contract raises one of the most complex problems in private international law because it is an issue that precedes the existence of the contract Authorities from other common law jurisdictions suggest that the debate is likely to be between the proper law of the putative contract ie what the proper law would be assuming the contract to exist and the law of the forum Generally it may make practical sense to apply the former CIMB Bank Bhd v Dresdner Kleinwort Ltd 2008 4 SLR 543 6 The rule for choice of law for capacity of natural persons in contract is unclear 6 3 22 The common law has no clear rule on the choice of law for capacity of natural persons for contracting Various authorities in the past have suggested either the law of the domicile residence place of contract or the proper law of the contract 6 3 23 Many writers argue against using the law selected by the parties as it would amount to the parties pulling themselves up by the bootstrap Domicile and residence are seen by some writers as inconvenient connecting factors in commercial transactions Some writers have suggested that capacity should be validated by the objective proper law of the contract or alternatively the law of the residence A corporation has capacity to enter into a contract if it has capacity both by the law of its incorporation and the proper law of the contract 7 Illegal contracts are generally not enforceable 6 3 24 A contract that is illegal by its proper law will take its consequences from that law it will generally not be enforceable in Singapore A contract that is illegal by the law of the place where it is made will nevertheless be enforceable in Singapore A contract whatever its governing law will not be enforceable in Singapore if its enforcement will contravene the fundamental public policy of Singapore A contract that is illegal by the law of the contractual place of performance may not be enforceable in Singapore Whether this is the consequence of the application of the proper law of the contract or the public policy of the law of the forum has not been resolved A contract may not be enforced by the Singapore court if it involves the commission of acts which although not illegal by the law of the country of performance nevertheless contravene the domestic public policy of that country which is based on general principles of morality and which is shared by the proper law of the contract and or the law of the forum A contractual claim may not be enforced if it is tainted by a collateral illegality F Choice of law for torts 1 Local courts usually apply the double actionability rule for wrongs committed abroad 6 3 25 Singapore applies the double actionability rule for wrongs whether committed abroad or in Singapore Rickshaw Investments Ltd v Nicolai Baron von Uexkull 2007 1 SLR 377 Thus the plaintiff can sue in Singapore for a wrong wherever committed if 1 the wrong is actionable as a tort by the law of the forum if the tort had been committed in the forum and 2 the wrong gives rise to civil liability by the law of the place where the tort is committed 6 3 26 However in an exceptional case the court may apply the law of the forum to the exclusion of the law of the place of the wrong or the law of the place of the wrong to the exclusion of the law of the forum or the law of a third country which has the closest connection with the parties and the occurrence to the exclusion of both the law of the forum and the law of the place of the wrong in respect of specific issues or the entire cause of action Rickshaw Investments Ltd v Nicolai Baron von Uexkull 2007 1 SLR 377 Where the tort is committed is not always easy to determine but the court would look back at the series of events constituting the tort and ask itself where in substance the tort had occurred Jio Minerals FZC v Mineral Enterprises Ltd 2011 1 SLR 391 2 Other countries have dropped the requirement of the law of the forum and local courts may be receptive to such reform 6 3 27 In several major common law countries eg England Private International Law Miscellaneous Provisions Act 1995 Canada Tolofsen v Jensen 1994 3 SCR 1022 and Australia Regie National des Usines Renault SA v Zhang 2002 210 CLR 491 the requirement of the law of the forum has been dropped as being a relic of the past which is inconsistent with modern choice of law approaches towards civil obligations generally and which also encourages forum shopping The protection of the interest of the forum is today generally seen as something which can be dealt with by its fundamental public policy and international mandatory rules 6 3 28 The Court of Appeal in Rickshaw Investments Ltd v Nicolai Baron von Uexkull 2007 1 SLR 377 has observed that with the judicious application of the flexible exception to the general rule of double actionability results in Singapore will not be vastly different from the results in these other countries Choice of Law for Restitutionary Obligations 6 3 29 Restitutionary claims on a restitutionary obligation are claims seeking the reversal of the unjust enrichment of the defendant at the expense of the plaintiff Such claims are governed by the proper law of the restitutionary obligation The proper law of the restitutionary obligation is determined by the following guidelines a if the obligation arises from a contractual relationship between the parties the proper law is the law governing the contractual relationship b if the obligation arises out of an immovable property the proper law is the law of the country where the immovable property is situated c in other cases the proper law is the law of the place of where the enrichment occurred unless the obligation is more closely connected with some other legal system CIMB Bank Bhd v Dresdner Kleinwort Ltd 2008 4 SLR 543 Where there is an express choice of law in a contract the chosen law may be the proper law of a restitutionary obligation arising from the contractual relationship even if the contract is void or rescinded so long the reason for the non existence or avoidance of the contract does not directly affect the agreement between the parties with respect to that choice of law CIMB Bank Bhd v Dresdner Kleinwort Ltd 2008 4 SLR 543 Choice of Law for Equitable Obligations 6 3 30 Equitable obligations have their origins in the chancery jurisdiction in common law systems Today the important equitable obligations that may arise in the commercial context include the fiduciary obligation the obligation of confidentiality and obligations not to intermeddle with trust or fiduciary institutions In the Commonwealth there is considerable uncertainty relating to the choice of law for such obligations The question is settled in Singapore law to the extent that where such an equitable obligation arises from a factual matrix governed by a relationship recognized by the law eg in contract or tort the law which governs that underlying relationship will apply to the equitable obligation Rickshaw Investments Ltd v Nicolai Baron von Uexkull 2007 1 SLR 377 G Foreign currency obligations 6 3 31 The Singapore courts can and do regularly enter judgments in foreign currency where that is the currency in which the relevant loss or gain is felt and such a judgment is converted to local currency at the date of execution of the judgment Indo Commercial Society Pte Ltd v Ebrahim 1992 2 SLR R 667 Proof of Foreign Law 6 3 32 The correct application of foreign law in accordance with choice of law rules depends on the proof of foreign law before the Singapore courts As a rule of convenience in the absence of proof of foreign law Singapore law will be applied by default D Oz International Pte Ltd v PSB Corp Ltd 2010 3 SLR 262 Foreign law is regarded as a fact which needs to be proven under the common law In Singapore foreign law may be proven by the use of secondary sources like law reports and textbooks but generally these should be introduced and explained to the court by an expert familiar with that legal system Pacific Recreation Pte Ltd v S Y Technology Inc 2008 2 SLR 491 The Singapore court may direct the parties to refer a question of foreign law to be determined by a foreign court Westacre Investment Inc v The State Owned Company Yugoimport SDPR 2009 2 SLR 166 The Singapore Supreme Court signed a Memorandum of Understanding with the Supreme Court of New South Wales in 2010 for such mutual references but the power of the Singapore court extends to directing parties to proceed in any other foreign court Return to the top SECTION 4 FOREIGN JUDGMENTS A Introduction 1 Foreign judgments may be recognised or enforced by action in Singapore 6 4 1 A foreign in personam judgment may be recognised in Singapore or enforced by action at common law in Singapore A foreign judgment that is recognised may be used to raise an estoppel on a specific issue or on a cause of action 2 Conditions to be met for foreign judgments to be recognised or enforced 6 4 2 The common law allows foreign judgments to be recognised or enforced if the following conditions are met A judgment from a court of law of a foreign country on a matter of substance which is final and conclusive by the law of that country where the court had international jurisdiction as defined by Singapore law over the party sought to be bound in the local proceedings binds that party to obey that judgment In addition a foreign judgment must be for a fixed or ascertainable sum of money to be enforceable Poh Soon Kiat v Desert Palace Inc 2010 1 SLR 1129 6 4 3 In enforcement proceedings the judgment

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  • Ch.09 Domestic Sale of Goods
    goods are in his possession to see if risk has passed from the seller to the buyer since risk generally passes with property and establish the seller s entitlement to sue for the price Intention of the Parties 9 4 2 The general rule under section 17 is that property in specific or ascertained goods passes according to the intention of the parties having regard to the terms of the contract the conduct of the parties and all the circumstances of the case Under section 16 property in unascertained goods cannot pass until they are ascertained regardless of the intention of the parties This is subject to section 20A which will be discussed below Section 18 provides five default rules which apply unless a different intention appears to determine when property in goods passes These rules are divided according to the type of goods and the sale contract concerned Section 18 Rule 1 9 4 3 Rule 1 provides that in an unconditional contract for the sale of specific goods in a deliverable state i e such a state that the buyer would be bound under the contract to take delivery of them property in the goods passes when the contract is made even if payment or delivery or both might be postponed This rule might apply for instance when a customer selects an item in a shop However rule 1 might not accord with the parties expectations in modern consumer contracts A shopkeeper might not intend property in goods to pass to the customer before payment has been made Conversely a customer might not wish property and therefore risk in the goods to pass to him before the goods are delivered as he might then have to bear the loss if the goods are accidentally damaged in the interim In appropriate cases the courts will probably be prepared to find in Singapore as they have in England that rule 1 has been displaced because the parties have displayed a contrary intention Section 18 Rule 2 9 4 4 Rule 2 governs the sale of specific goods where the seller is bound to do something to the goods for the purpose of putting them in a deliverable state and it provides that property passes when the thing is done and the buyer has notice that it has been done An example might be the sale of a complicated machine that is still in its dismantled state and has to be assembled by the seller before delivery Section 18 Rule 3 9 4 5 Under rule 3 where there is a sale of specific goods in a deliverable state but the seller is bound to weigh measure test or do some other act to the goods for the purpose of determining their price property passes under this rule when the thing is done and the buyer has notice that it has been done Section 18 Rule 4 9 4 6 Rule 4 applies where goods are delivered on sale or return or on approval or other similar terms Here property in the goods will pass to the buyer when the buyer signifies his approval to the seller or does any other act adopting the transaction or he retains the goods beyond a certain time without giving notice of rejection Section 18 Rule 5 9 4 7 Rule 5 applies to the sale of unascertained goods or future goods by description Property will pass when goods of that description and in a deliverable state are unconditionally appropriated to the contract In order for unconditional appropriation to take place case law requires that the contract goods must be identified separated from other goods where applicable and irrevocably attached to the contract In practice it is often difficult to decide if this has taken place and the cases show a range of results depending on the type of goods and the general circumstances of the case Two cases from England illustrate this In Aldridge v Johnson 1857 7 E B 885 the buyer agreed to buy 100 quarters of barley out of 200 quarters which he had inspected and sent some sacks to contain the goods The court decided that property passed as soon as the seller filled the sacks even before the goods left the seller s possession In contrast in Carlos Federspiel Co SA v Charles Twigg Co Ltd 1957 1 Lloyd s Rep 240 property in bicycles manufactured to the buyer s order by the seller was held not to have passed even after the bicycles were made and packed into containers with the buyer s name and address probably because the seller had yet to ship them as it was supposed to do Reservation of the Right of Disposal 9 4 8 Where there is a contract for the sale of specific goods or where goods are subsequently appropriated to a contract section 19 allows the seller to reserve the right of disposal to the goods until certain conditions are fulfilled In this case property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled notwithstanding delivery of the goods to the buyer or to a carrier for transmission to him This section confers validity on reservation of title clauses also known as Romalpa clauses whereby a seller retains title to the goods sold until these have been paid for by the buyer Armour v Thyssen Edelstahlwerke 1991 2 AC 339 Transfer of an Undivided Share in a Bulk 9 4 9 In 1996 a new section 20A modelled on similar amendments to the English statute was enacted to protect buyers who had bought goods which formed part of an identified bulk and who had paid for these goods or part of them An example might be where a buyer has agreed to buy 100 crates of wine out of 1000 similar crates stored in a particular warehouse Prior to section 20A if the seller became insolvent before the buyer s goods were separated from the bulk the goods would still be unascertained and property would not have been able to pass to the buyer 9 4 10 The effect of section 20A was to give the buyer in such a situation an undivided share in the bulk so that he could look directly to the proceeds of sale of the bulk and was not relegated to merely having a personal right against the insolvent buyer The undivided share of the buyer would be such share as the quantity of goods paid for and due to him out of the bulk bears to the quantity of goods in the bulk at that time If a buyer has agreed to buy and has paid for 100 out of the 1000 items in the bulk his share at that point in time would be one tenth of the bulk The buyer s undivided share may fluctuate depending on the quantity of goods he has paid for the quantity of goods already delivered to him the quantity of goods in the bulk at the relevant time the number of other buyers who have a right to share in the bulk and whether the goods in the bulk are sufficient to meet the shares of all the buyers 9 4 11 Once the unascertained goods are appropriated to the contract property in them will pass to the buyer in the normal way and he will no longer be a co owner of the bulk Return to the top SECTION 5 RISK AND PERISHMENT OF THE GOODS Passing of Risk 9 5 1 Where goods are at the risk of one party he has to bear the loss if the goods are damaged lost or destroyed Section 20 1 provides that the goods remain at the seller s risk until the property in them is transferred to the buyer and that risk passes to the buyer once property passes regardless of whether the goods have been delivered This section is subject to a contrary agreement between the parties and in such cases property and risk may be separated Where delivery is delayed through the fault of either the buyer or the seller section 20 2 provides that the goods are at the risk of the party at fault as regards any loss which might not have occurred but for such fault Specific Provisions where Goods have Perished 9 5 2 Where in a contract for sale of specific goods the goods without the knowledge of the seller have perished at the time of the contract section 6 provides that the contract is void This is the only type of mistake which is governed by the SGA Other instances of mistake are covered under the general law of contract 9 5 3 Section 7 provides that where in an agreement for the sale of goods the goods perish without fault of the buyer or the seller after agreement to sell but before risk passes to buyer the agreement is avoided This is a statutory statement of the doctrine of frustration as applied to the specific situation In line with the approach taken in section 6 other frustrating events are left to be considered under the general law of contract Return to the top SECTION 6 TRANSFER OF TITLE BY NON OWNER General rule Nemo Dat 9 6 1 The general rule under section 21 is that where a person who is not their owner sells goods the buyer acquires no better title to the goods than the seller had This rule is often expressed in Latin as nemo dat quod non habet According to this rule a thief cannot pass good title to stolen goods and the original owner of the goods does not lose his title to them In a conflict between the ownership interest of the true owner and the legitimate expectations of a buyer who buys in good faith and without notice of his seller s lack of title the law chooses to protect the former Exceptions to the Nemo Dat Principle 9 6 2 Although the general rule prefers property rights over commercial interests there are exceptions to the rule and a non owner might in certain circumstances transfer a better title than he himself had These exceptions are set out in sections 21 to 25 of the SGA and sections 2 8 and 9 of the Factors Act Cap 386 1994 Rev Ed which is a re enactment of the English Factors Act 1889 52 53 Vic c 45 9 6 3 The nemo dat rule does not apply where i a non owner sells goods under the authority or with the consent of the owner an agency situation ii the owner of the goods is by his conduct precluded from denying the seller s authority to sell an estoppel situation iii a mercantile agent sells goods in certain circumstances under section 2 of the Factors Act iv there is a contract of sale under any special common law or statutory power of sale or under a court order v where a person with a voidable title sells goods before the contract is avoided to a buyer who buys in good faith and without notice of the seller s defect in title vi where there is a sale by a seller in possession of the goods and vii where there is a sale by a buyer in possession of the goods Return to the top SECTION 7 DUTIES OF THE SELLER AND BUYER Payment and Delivery 9 7 1 Under section 27 it is the duty of the seller to deliver the goods and the duty of the buyer to accept and pay for them in accordance with the terms of the contract Section 28 provides that delivery of the goods and payment of the price are concurrent conditions The seller must be ready and willing to give possession of the goods to the buyer in exchange for the price and the buyer must be ready and willing to pay the price in exchange for the goods Neither party can claim that the other is in breach if he himself is not ready and willing to perform his obligations Buyer s Right to Reject the Goods 9 7 2 The buyer has the duty to accept goods only in accordance with the terms of the contract If there is a breach of condition or if the breach of an innominate term is sufficiently serious the buyer may be entitled to reject the goods and terminate the contract under the general law Delivery of Wrong Quantity 9 7 3 Under section 30 the buyer can choose to reject the goods if the seller delivers the wrong quantity Other than deviations which fall under the de minimis principle limited to microscopic deviations where precise accuracy is not commercially reasonable this section generally operates strictly against the seller unless the buyer does not deal as a consumer and the excess or shortfall in quantity is so slight that it would be unreasonable for the buyer to reject the goods section 30 2A Further the buyer is not bound to accept delivery by instalments unless this is agreed between the parties section 31 Loss of Right to Reject the Goods Because Buyer has Accepted Them 9 7 4 In a non severable contract section 11 3 provides that a buyer will lose his right to reject the goods and terminate the contract for breach of condition once he has accepted the goods Section 35 sets out the situations where a buyer is deemed to have accepted goods These are i where the buyer intimates to the seller that he has accepted the goods ii where the buyer does an act inconsistent with the ownership of the seller and iii where the buyer retains the goods beyond a reasonable time without intimating to the seller that he has rejected them However a buyer is not to be deemed to have accepted goods merely because he requests or agrees to have the goods repaired by the seller or resells and re delivers the goods to a sub buyer Partial Acceptance 9 7 5 Section 11 3 is subject to section 35A which provides that where there is a breach by the seller that affects some or all of the goods a buyer who accepts part of the goods does not necessarily lose the right to reject the rest However in a contract for the sale of goods making up one or more commercial units i e a unit the division of which would impair the value of the goods or the character of the unit such as a pair of shoes or a set of encyclopaedia if the buyer accepts any goods included in the unit he is deemed to have accepted all the goods making the unit section 35 7 Severable Contract 9 7 6 Rejection of goods in a severable contract is only dealt with partially by the Act A defective instalment can be rejected if for instance there is a breach of condition or a shortfall or excess but it does not always follow that the rest of the contract can be discharged for this isolated breach Section 31 2 provides for the situation where there is a contract for the sale of goods by stated instalments which are to be separately paid for and there is a breach by the buyer or seller in respect of one or more instalments In such cases it is a question in each case depending on the terms of the contract and the circumstances of the case whether the breach of contract is a repudiation of the whole contract or whether it is a severable breach giving rise to a claim for compensation but not a right to treat the whole contract as repudiated English case law suggests that this section should be applied by looking at the ratio quantitatively which the breach bears to the contract as a whole and the degree of probability that such a breach will be repeated Maple Flock Co Ltd v Universal Furniture Products Wembley Ltd 1934 1 KB 148 Return to the top SECTION 8 UNPAID SELLER S REAL REMEDIES AGAINST THE GOODS Introduction 9 8 1 Sections 38 to 48 provide an unpaid seller with real rights against the goods themselves A common requirement before any of these rights would be available is that the seller has to be an unpaid seller Under section 38 1 a seller is unpaid when the whole of the price has not been paid or tendered and this could be the case even if partial payment has been made or the seller has sold on credit Right of Lien Stoppage in Transit and Resale 9 8 2 Where property has passed to the buyer an unpaid seller might in certain circumstances have a right of lien over the goods a right to stop the goods in transit or a right to resell the goods section 39 1 A right of lien is a right of an unpaid seller who is in possession of the goods to retain them until payment or tender of the price This right is available provided that the goods are sold without any stipulation as to credit or the credit has expired or the buyer has become insolvent Even where the seller has lost possession of the goods he would have a right of stoppage in transit if the buyer becomes insolvent and this entitles him to resume possession of the goods as long as they are in the course of transit and to retain them until payment or tender of the price An unpaid seller who has exercised his right of lien or stoppage in transit may pass a good title to his buyer if he resells the goods section 48 2 9 8 3 Where property has not passed to the buyer the seller has rights to withhold delivery

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