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  • Eng Liat Kiang v Eng Bak Hern[1995] 3 SLR 97; [1995] SGCA 62
    a contract or equity between the parties This was also commonly known as the rule in Penn v Baltimore Counsel for the respondent submitted that the exception should not be applied as it was a product of judicial chauvinism and has no place in modern jurisprudence based on judicial comity The equitable jurisdiction is anomalous and as stated by Lord Esher in Companhia de Mocambique v British South Africa Co at pp 404 405 seems to be open to the strong objection that the court is doing indirectly what it dare not do directly 12 We are unable to accept counsel s submission The exception is generally well recognized today and given effect to In Cook Industries v Galliher the plaintiffs an assignee of a judgment debt arising from an action in New York initiated an action in England against the debtor and his friend claiming that they had removed the debtor s assets from New York to an apartment in Paris and that they held the assets in trust for the plaintiffs or alternatively they acted in fraud of the plaintiffs The plaintiffs having obtained an injunction against the friend restraining him from disposing of the assets sought an order for discovery A preliminary point was raised as to the jurisdiction of the court and it was held that the court had jurisdiction on the ground that there was an equity between the plaintiffs on the one hand and the debtor and the friend on the other Templeman J said at p 443 It is conceded that the court has no jurisdiction to entertain an action for the determination of the title to or right to possession of any immovable property situate out of England with certain exceptions One exception is where there is an equity between the parties and it is Mr Weeks s submission that there is no equity as between the plaintiffs and Mr Galliher the friend It seems to me that if the plaintiffs are right there is a personal equity There is clearly a personal equity between the plaintiffs and Mr Sarlie the debtor who if the plaintiffs are right has taken steps to defraud them of the benefit of their judgment debt and has taken steps to hide his property which ought to be made available to the plaintiffs and ought to be there for the plaintiffs to be able to impose a charging order and to get an order for sale and satisfy their judgment debt 13 The basis on which the court held that it had jurisdiction was that there was an equity between the parties and the defendants were within the jurisdiction 14 More recently in the case of Webb v Webb the court was again called to discuss this point but this time in relation to art 16 1 of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 The court held that it had jurisdiction to make an order directing a person within its jurisdiction to carry out his fiduciary duties arising under a trust notwithstanding that the order related to property abroad since the order operated in personam and as such did not have as its object rights in rem in immovable property for the purposes of art 16 1 of the 1968 convention but rather the establishment of the person s accountability as trustee to the party seeking the order The trial judge said at p 25 Indeed it reflects the ancient equitable jurisdiction expressed by the maxim that equity acts in personam One of the principal applications of that maxim is in relation to the court s jurisdiction over property abroad as exemplified in Penn v Baltimore 1750 1 Ves Sen 444 1558 1774 All ER Rep 99 and in many subsequent cases Where there is a defendant within a court s jurisdiction and there exists some relationship between him and the plaintiff arising out of contract trust or fraud or other fiduciary bond the court may make an order directed to the defendant to perform his contract carry out his fiduciary duties or undo the effects of his fraud Through the relationship the defendant s conscience is affected and bound The sanctions for failure to carry out the order are commitment for contempt and sequestration of any assets of his to be found within the jurisdiction It is no objection that the order relates to land abroad save only this that the order will not be made if the carrying of it out is illegal or impossible according to the lex situs 15 Later he said at p 26 The plaintiff in the present case does not rely upon any contract for sale He relies on a fiduciary relationship between him and his son The son he says is his trustee That is one of the foundations of equitable jurisdiction and here again the main method of enforcement is an order in personam against the defendant He can be required to execute the trust by transfers or rendering accounts The relief claimed does not include any form of vesting order or an order directing the rectification of some register of title or even a declaration that the plaintiff is the legal owner of the property What he claims is a declaration that the defendant holds the property and its contents on an express or resulting trust for him and an order to execute such deeds and documents as shall be required to vest the legal ownership in the plaintiff 16 Counsel for the respondent pointed out that in the discussion on the exception in Dicey Morris at p 954 it was stated that the jurisdiction could not be exercised if the lex situs would prohibit the enforcement of the English court s decree In particular counsel relied on the passage of Lord Cottenham in Re Courtney Ex p Pollard at p 250 Mont Ch pp 417 418 All ER Rep where his Lordship said If indeed the law of the country where the land is situate should not permit or not enable the defendant to do what the court might otherwise think it right to decree it would be useless and unjust to direct him to do the act but when there is no such impediment the courts of this country in the exercise of their jurisdiction over contracts made here or administering equities between parties residing here act upon their own rules and are not influenced by any consideration of what the effect of such contract might be in the country where the lands are situate or of the manner in which the courts of such countries might deal with such equities 17 But the lex situs here does not prohibit the enforcement of a court order and it seems to us that the National Land Code the legislation governing title to land in Malaysia does recognize trust over land in certain situations It is true that the existence and creation of a trust over land in Malaysia would be best dealt with by the Malaysian court But that is another matter which we shall address in a moment On the question of jurisdiction the respondent has not shown that the Malaysian court would not under any circumstances recognize a trust that is declared by a court other than its own and give effect to that order 18 As to the problems faced under the FIC guidelines we are disposed to agree with the learned judge that they do not prohibit or nullify the actual act of executing the transfers but are directed at the effect of the transfers executed by the respondent After all even if a Malaysian court declares a trust in favour of the appellant any transfer of title to the Malaysian land from one non resident to another would still be subject to FIC approval In any event the main relief which the appellant is seeking is a declaration of his interest There is nothing in Singapore law which makes it impossible or illegal for such a declaration to be made or which would be an impediment to the relief sought 19 Accordingly we are in entire agreement with the learned judge and reject the contention of the respondent that the court has no jurisdiction to determine the claims of the appellant involving the immovable properties in Malaysia Forum non conveniens 20 We now turn to consider the second main issue and that is whether the jurisdiction to determine the claims involving the Malaysian properties both lands and shares should be declined on the ground of forum non conveniens In relation to this issue there are two tests that have been laid down The first is that as set out in Spiliada Maritime Corp v Cansulex Ltd pp 476 478 which has been adopted by this court in Brinkerhoff Maritime Drilling Corp Anor v PT Airfast Services Indonesia The principles governing the application of such test have been fully discussed and set out in the speech of Lord Goff of Chieveley and we hope we would not be doing an injustice to the very clear and learned exposition there if we set them out in a compressed form as follows adopting substantially the words used by his Lordship with necessary modifications in Singapore context A stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available and appropriate forum for the trial of the action The burden of proof rests on the defendant and the burden is not just to show that Singapore is not the natural or appropriate forum but to establish that there is another available forum which is clearly or distinctly more appropriate than the Singapore forum The natural forum is that with which the action has the most real and substantial connection and the court will consider what factors there are which point in that direction If the court concludes at that stage that there is no other available forum which is clearly more appropriate for the trial of the action it will ordinarily refuse a stay If however the court concludes at that stage that there is some other available forum which prima facie is clearly more appropriate for the trial of the action it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should nevertheless be refused The court in this respect will consider all the circumstances of the case 21 The other test is that propounded in the judgment of Deane J of the High Court of Australia in Oceanic Sun Lines Special Shipping Co Inc v Fay at p 241 Deane J at the commencement of his judgment said A party who has regularly invoked the jurisdiction of a competent court has a prima facie right to insist upon its exercise and to have his claim heard and determined The common law itself has traditionally recognized certain special categories of case in which the exercise of jurisdiction must or may be refused in circumstances where diplomatic custom international comity public policy or considerations of justice require or may support that course In this country those special categories of case have not traditionally encompassed a general judicial discretion to dismiss or stay proceedings in a case within jurisdiction merely on the ground that the local court is persuaded that some tribunal in another country would be a more appropriate forum 22 His Honour then considered the various authorities and concluded with a summary of his views at pp 247 248 In the light of the foregoing and at the cost of some repetition it is possible to identify in summary form what I see as the modern content of the traditional principles governing the power of a court in this country to order that proceedings which have been regularly instituted within jurisdiction should be dismissed or stayed on inappropriate forum grounds That power is a discretionary one in the sense that its exercise involves a subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and to a significant extent matters of impression The power should only be exercised in a clear case and the onus lies upon the defendant to satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious to him Ordinarily a defendant will be unable to discharge that onus unless he can identify some appropriate foreign tribunal to whose jurisdiction the defendant is amenable and which would entertain the particular proceedings at the suit of the plaintiff Otherwise that onus will ordinarily be discharged by a defendant who applies promptly for a stay or dismissal if he persuades the local court that having regard to the circumstances of the particular case and the availability of the foreign tribunal it is a clearly inappropriate forum for the determination of the dispute between the parties 23 Both the tests were examined in some detail in a subsequent decision of the Australian High Court in Voth v Manildra Flour Mills Pty Ltd Anor The majority of the Court consisting of Mason CJ Dean Dawson and Gaudron JJ compared the test in Oceanic Sun which they referred to as clearly inappropriate forum test with the Spiliada test which they referred to as clearly more appropriate forum test They held that in most cases there was little practical difference between the two They said at p 558 The clearly inappropriate forum test Oceanic Sun test is similar to and for that reason is likely to yield the same result as the more appropriate forum test Spiliada test in the majority of cases The difference between the two tests will be of critical significance only in those cases probably rare in which it is held that an available foreign tribunal is the natural or more appropriate forum but in which it cannot be said that the local tribunal is a clearly inappropriate one But the question which the former test presents is slightly different in that it focuses on the advantages and disadvantages arising from a continuation of the proceedings in the selected forum rather than on the need to make a comparative judgment between the two forums That is not to deny that considerations relating to the suitability of the alternative forum are relevant to the examination of the appropriateness or inappropriateness of the selected forum The important point is that in those cases in which the ascertainment of the natural forum is a complex and finely balanced question the court may more readily conclude that it is not a clearly inappropriate forum 24 They then expressed their preference for the clearly inappropriate forum test They said at pp 559 560 In a context where the relevant test will fall to be applied in accordance with the individual perception of a primary judge the courts of this country are better adapted to apply a test which focuses upon the inappropriateness of the local court of which the local judge will have both knowledge and experience than to a test which focuses upon the appropriateness or comparative appropriateness of a particular foreign tribunal of which he or she is likely to have little knowledge and no experience As Deane J pointed in Oceanic Sun principle and authority in the form of the decision in Maritime Insurance favour the test adopted by his Honour The selected forum s conclusion that it is a clearly inappropriate forum is a persuasive justification for the court refraining from exercising its jurisdiction Granted that there is an obligation on the domestic courts of this country to exercise jurisdiction which is conferred upon them a matter on which the majority in Oceanic Sun was united it does not extend to cases where it is established that the forum is clearly inappropriate To say in line with the Spiliada approach that the selected forum is justified in refraining from exercising its jurisdiction when it concludes no more than that another available and competent forum is more appropriate is to acknowledge that a court can decline to perform its obligation to exercise jurisdiction even though it is an appropriate or not inappropriate court That proposition is by no means easy to sustain as a matter of legal principle though we acknowledge that the argument deriving from the obligation to exercise jurisdiction has less force in its application to cases falling within the extended jurisdiction where the plaintiff is required to obtain leave to serve outside the jurisdiction The court then has a discretion to exercise and in exercising that discretion it may have regard to appropriate forum considerations 25 Counsel for the appellant sought to set out the basis for the Spiliada test and submitted that it was formulated at the time to prevent forum shopping when the parties had little or no connection with the forum in which the case was brought On the strength of the Australian authorities counsel submitted that the test in Oceanic Sun and approved in Voth should apply and urged this court to depart from the principles enunciated in Spiliada Maritime Corp v Cansulex Ltd 26 On authority and on principle we cannot agree The Spiliada1 has been considered and approved in Brinkerhoff and we can see no reason for departing from that authority The underlying basis in this test is whether the local court is clearly an appropriate forum or not and whether there is another forum which is distinctly and clearly more appropriate It has a more liberal approach which cut down local parochialism as regards judicial adjudication and attaches greater importance to consideration of international comity 27 Reverting now

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  • Brinkerhoff Maritime Drilling Corp and Another v PT Airfast Services Indonesia and Another Appeal[1992] 2 SLR 776; [1992] SGCA 45
    the territory of one of the High Contracting Parties either before the court having jurisdiction where the carrier is ordinarily resident or has his principal place of business or has an establishment by which the contract has been made or before the court having jurisdiction at the place of destination 16 We should at this juncture observe that it is also common ground between the parties that the articles of the Warsaw Convention have been incorporated as part of the municipal law of Singapore by virtue of the UK Carriage By Air Act 1961 17 We do not propose to examine the arguments of the appellant based on s 16 1 a and b of the SCJA We intend to confine ourselves to an examination of only art 28 1 of the Convention and even then only the fourth and last limb of it read with s 16 2 of the SCJA We think jurisdiction could quite clearly be founded on the fourth limb of art 28 1 18 In this regard the first point to consider is whether the Convention applied to those chartered flights provided by the defendants Article 1 1 provides that the Convention applies to all international carriage of persons baggage or cargo performed by aircraft for reward It also applies to gratuitous carriage Further art 1 2 defines international carriage as any carriage in which according to the agreement between the parties the place of departure and the place of destination whether or not there be a break in the carriage or a transhipment are situated either within the territories of two High Contracting Parties or within the territory of a single High Contracting Party if there is an agreed stopping place within the territory of another State even if that State is not a High Contracting Party Carriage between two points within the territory of a single High Contracting Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention 19 On the facts of the present case whichever view one may take of that fateful flight boarded by Acton whether it was intended to be a round trip flight that is Seletar Pekan Baru Seletar or whether there was just supposed to be a single flight from Seletar to Pekan Baru without the return journey the flight on the sector Seletar Pekan Baru is clearly an international carriage within the meaning of art 1 20 It was undisputed that the defendants were not airline operators involved in the provision of regular scheduled flights for the public They were just owners of aircraft which they chartered out The charter agreement related to the charter to Hudbay Oil of a DC 3 aircraft for a series of flights between Seletar Airport Singapore and Pekan Baru and return for a ten week duration The defendants claimed that they had no knowledge of the persons whom Hudbay Oil would be transporting on the flights and what the arrangements were between Brinkerhoff and Hudbay Oil For each flight Hudbay Oil would provide a list of passengers setting out their names nationalities and passport numbers With this list the defendants would obtain clearance from the immigration and customs departments Similarly a list of passengers would be provided for the return flight from Pekan Baru to Singapore The defendants said that they had no knowledge that the passengers were employees of Hudbay Oil No tickets were issued by the defendants to any of the passengers Indeed under Indonesian law the defendants were precluded from issuing any tickets 21 It seems to us quite clear and bearing in mind cl 29 of the charter agreement that each time an employee of Brinkerhoff agreed to travel on a flight of the defendants from Seletar to Pekan Baru and to return one or two weeks later he must be deemed to have accepted the terms of the arrangement set out in the charter agreement 22 We find on the evidence bearing in mind particularly the route specified in the charter agreement that the place of destination of each passenger who boarded the aircraft at Seletar Airport was Singapore with a break in journey of one or two weeks at Pekan Baru It was clearly the intention of the parties that each passenger would make a round trip Otherwise there would be no need for the charter agreement to provide for the return flight At the very most one could say that the date of the return flight for each passenger was left open But the fact that the date of the return journey was not fixed at the commencement could not alter the position that that was to be a round trip As is all too common one may buy a normal return airline ticket and yet leave the date when the return journey is to be made open 23 Counsel for the respondent sought to rely on the fact deposed to on behalf of the plaintiff that if an employee should miss the return flight at Pekan Baru he would take a regular Garuda flight back to Singapore to show that there was no such intention In our view what the intention of the parties was must be determined at the commencement of the journey In the situation when an employee missed a flight and returned to Singapore by Garuda that would merely mean that that employee had abandoned that return portion of the journey It also showed that the employee had the intention to return to Singapore all the time 24 It is clear that in the case of a return ticket or round trip it is always regarded from the outset as a single operation where the place of departure will also be the place of destination In the context of art 28 1 of the Convention the place of destination is the place of ultimate destination In support of this proposition we will quote from Air Law by Shawcross and Beaumont 4th Ed at para VII 142 as follows In the case of return ticket or round trip regarded from the outset as a single operation the place of departure will also be the place of destination Two decisions of district courts in California have taken a different view in the case of a ticket for flights Montreal Los Angeles and open return Los Angeles was held the place of destination and in a later case involving a series of flights Jeddah Santa Barbara Jeddah with immediate stops it was declared on a common sense interpretation of art 28 1 that at least two places of destination exist in the case of a round trip In the text of the convention place of destination is used in the singular and the weight of United States authority including more recent district court decisions in California favours the view that the single place of destination in such a case is the place of departure This view has been followed even where two passenger tickets were issued the intended flights were Madrid Malaga New York Madrid but as the tickets available contained only two passenger coupons the return leg New York Madrid was covered by a second ticket issued at the same time as the first it was held that Madrid was the place of destination there being a single contract despite the existence of two tickets Many of the cases involve successive carriage the place of destination is always the ultimate destination provided that the parties have regarded the successive carriage as a single operation It may however be otherwise if a change of itinerary involves a flight regarded by the parties as a separate enterprise 25 There is also the decision of the English court in Grein v Imperial Airways Ltd where the ticket issued was for London Antwerp London There the Court of Appeal by majority held that there was only one carriage and that it was an international carriage In that case the court was concerned with the composite expression place of departure and place of destination found in art 1 2 of the Convention But there cannot be any doubt that the term place of destination in art 28 1 and in art 1 2 must mean the same thing This was how Greene LJ construed the expression in Grein at pp 78 79 The use of the singular in this expression indicates that in the minds of the parties to the Convention every contract of carriage has one place of departure and one place of destination An intermediate place at which the carriage may be broken is not regarded as a place of destination Having regard to its context and particularly to the fact that it is in the contract that the place of departure and the place of destination are to be looked for the meaning of the expression appears to me to be the place at which the eventual carriage ends 26 After a review of all the relevant provisions of the Convention Greene LJ concluded as follows at pp 81 82 The conclusion to which I have come is that the contract by reference to which the place of departure and the place of destination are to be ascertained may be any contract of carriage whether for a single journey for a circular journey or for a return journey that the place of departure and the place of destination mean the places at which under the particular contract in question the contractual carriage begins and ends and that agreed stopping place means any place at which under the particular contract the aeroplane is to descend in foreign territory between the points of departure and destination In the case of a return journey this will be or include as the case may be the place out to and back from which by the contract the passenger is to be carried In the case of carriage of each type the same essential element is present namely the interposition between the beginning and the end of the contractual carriage of an agreed descent in the territory of another state In each case the mischief requiring to be remedied by the adoption of an international code is the same namely the possibility of questions arising between the parties as to the law applicable to the contract which they have made I cannot find any consistently intelligible meanings for the expressions which I have been discussing which stop short of those which I have placed upon them 27 In the American case Butz v British Airways where an excursion ticket was issued for London New York London it was held by the US district court in Pennsylvania that the place of destination was London The judge said I cannot accept plaintiff s contention that each place where a particular flight terminated is a place of destination since the application of the Convention would vary with each segment of the entire journey This of course would defeat a major goal of the High Contracting Parties for there would be no uniformity with respect to a single ticket 28 Accordingly we find that the place of destination of the flight which the plaintiff took on that fateful day was Singapore Thus the High Court here has jurisdiction over the claim Forum non conveniens 29 We now turn to consider the second main issue forum non conveniens There can be no question that the courts in Indonesia have jurisdiction over this claim The first three limbs of art 28 1 of the Convention would confer upon the courts in Indonesia that jurisdiction 30 In this connection counsel for the plaintiffs urged upon us to draw a line between the law before Spiliada Maritime Corp v Cansulex Ltd The Spiliada and the law after The Spiliada She seemed to contend that this court should only apply the law prior to The Spiliada as the cause of the present case arose in 1981 and the suit was filed in 1983 No authority has been cited to us to show that this is the correct approach to adopt in a matter concerning the common law where no legislative amendment is involved 31 Nevertheless we will first look at the law before The Spiliada This is set out in Dicey Morris Conflict of Laws 11th Ed at p 390 as follows Rule 33 2 As a general rule in order to justify a stay of English proceedings a there must be another forum to whose jurisdiction the defendant is amenable in which justice can be done between the parties at substantially less inconvenience or expense and b the stay must not deprive the plaintiff of a legitimate personal or judicial advantage which would be available to him if he invoked the jurisdiction of the English court 32 This statement of the law was literally lifted up from the speech of Lord Diplock in MacShannon v Rockware Glass Ltd The learned authors then went on to amplify that rule as follows at p 393 At the first stage the burden is on the defendant to point to another forum to whose jurisdiction he is amenable and in which justice can be done between the parties at substantially less inconvenience or expense This forum is sometimes called the natural or appropriate forum At this stage the court will take into account such factors as the relative connection of the parties and of the subject matter of the action with the foreign court or with England and the convenience of the parties and the witnesses If the defendant fails to show that some court other than the English court is the natural or appropriate forum the application to stay on this ground will fail Once the defendant has satisfied the English court that a foreign court is the natural or appropriate forum the court must consider whether a stay would deprive the plaintiff of a legitimate personal or juridical advantage The onus shifts to the plaintiff to put forward some reasonable justification for his choice of the English court The advantage must be real ie objectively demonstrated and not merely subjective If the court is satisfied that a stay would not deprive the plaintiff of a legitimate personal or juridical advantage then the defendant will be entitled to a stay If however a stay would deprive the plaintiff of a legitimate personal or juridical advantage than a balance must be struck between advantage and disadvantage to the plaintiff and to the defendant and between the factors favouring a stay and those militating against a stay 33 In MacShannon the other two main speeches were made by Lords Salmon and Keith The approaches they took were not dissimilar to that of Lord Diplock Lord Salmon said that if the trial of the action in England would afford the plaintiff no real advantage and would be substantially more expensive and inconvenient than if it were tried abroad it would be unjust to refuse a stay If on the other hand a trial in England would offer the plaintiff some real advantage a balance would have to be struck In his view ultimately the real test for granting a stay depended on what the court in its discretion considers that justice demands Lord Keith at pp 644 645 seemed to think that in a case of this nature it would be necessary to weigh all the relevant considerations 34 We do not think that The Spiliada introduced radical changes to the law Admittedly in MacShannon there was no express acceptance of the doctrine of forum non conveniens which was of Scottish origin But even in MacShannon Lord Diplock recognized that there might well be very little difference between the statement of the law as he had enunciated and the Scottish doctrine of forum non conveniens By 1984 in the case The Abidin Daver at p 411 Lord Diplock had to admit that there was really no difference between the English and the Scottish positions This was what he said the essential change in the attitude of the English courts to pending or prospective litigation in foreign jurisdictions that has been achieved step by step during the last ten years as a result of the successive decisions of this House in The Atlantic Star 1974 AC 436 MacShannon 1978 AC 795 and Amin Rasheed 1984 AC 50 is that judicial chauvinism has been replaced by judicial comity to an extent which I think the time is now ripe to acknowledge frankly is in the field of law with which this appeal is concerned indistinguishable from the Scottish legal doctrine of forum non conveniens 35 The Spiliada was a case concerning the granting of leave under O 11 r 1 1 of the Rules of the Supreme Court 1970 to serve proceedings out of the jurisdiction The House of Lords held that the principles governing the granting of such leave were the same as those applicable to a stay of English proceedings Lord Goff who delivered the judgment of the House to which the other four Law Lords agreed restated the law and in so restating took into account the Scottish authorities as well which is summarized in the third cumulative supplement to Dicey Morris on Conflict of Laws 11th Ed at para 393 395 as follows a the basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum having competent jurisdiction which is the appropriate forum for the trial of the action ie in which the case may be tried more suitably for the interest of all the parties and the ends of justice b the legal burden of proof is on the defendant but the evidential burden will rest on the party who asserts the existence of a relevant factor c the burden is on the defendant to show both that

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  • PT Hutan Domas Raya v Yue Xiu Enterprises (Holdings) Limited and Another[2001] 2 SLR 49; [2001] SGCA 4
    principles governing the grant of such leave were the same as those applicable to a stay of English proceedings The main judgment there was delivered by Lord Goff The correct approach which a court should take in such a case is as follows The first stage is for the court to determine whether prima facie there is some other available forum having competent jurisdiction which is more appropriate for the trial of the action The legal burden of showing that rests on the defendant In determining that issue the court will look to see what factors there are which point in the direction of another forum as being the forum with which the action has the most real and substantial connection eg availability of witnesses the convenience or expenses of having a trial in a particular forum the law governing the transaction and the places where the parties reside or carry on business Unless there is clearly another more appropriate available forum a stay will ordinarily be refused If the court concludes that there is such a more appropriate forum it will ordinarily grant a stay unless in the words of Lord Goff there are circumstances by reason of which justice requires that a stay should nevertheless not be granted In this inquiry the court will consider all the circumstances of the case including circumstances which go beyond those taken into account when considering connecting factors with other jurisdictions hereinafter referred to as the unless question or unless proviso as may be appropriate in the context One such factor which would warrant a refusal of stay would be if it can be established by objective cogent evidence that the plaintiff will not obtain justice in the foreign jurisdiction But the mere fact that the plaintiff has a legitimate personal or juridical advantage in proceedings in Singapore is not decisive regard must be had to the interests of all the parties and the ends of justice We would emphasis that in determining the unless question all circumstances must be taken into account including those taken into account in determining the question of the more appropriate forum However in this stage of the inquiry the burden shifts to the plaintiff 17 Whether we consider the process contemplated by Lord Goff in The Spiliada to be a two stage process or a one stage process telescoping two into one as was suggested in the case Charm Maritime Inc v Kyriakou 1987 1 Lloyd s Rep 433 at 447 does not really matter The ultimate question remains the same where should the case be suitably tried having regard to the interest of the parties and the ends of justice 18 We note that in PT Hutan s submission it was stated that where there are strong factors favouring Indonesia as the appropriate forum for trial then the Singapore court will order a stay of proceedings in the absence of circumstances which militate against the grant of a stay It seems to us that was precisely the approach taken by the judge First she examined the relevant connecting factors to determine which jurisdiction would be more appropriate Having come to the conclusion that Indonesia would be the more appropriate forum she then went into the second inquiry to examine whether there were any circumstances which would make it wrong to grant the stay Personal or juridical advantage 19 What PT Hutan seems to be saying is that to determine the unless question in favour of the plaintiffs respondents they must show that they would be deprived of some advantages which they would have otherwise obtained from a trial in Singapore or putting it in the reverse that they would suffer an undue disadvantage if there is a stay and the trial held in the foreign jurisdiction This the respondents have not done Instead the judge seems to have concentrated on whether a trial in Singapore would inconvenience the parties PT Hutan further submitted that even if having a trial in Singapore would give the respondents some legitimate personal or juridical advantage this is not decisive 20 PT Hutan also contended that the expression circumstances by reason of which justice requires that a stay should nevertheless not be granted in Lord Goff s speech has been qualified by this court in Oriental Insurance supra to mean taking into account a legitimate personal or juridical advantage accruing to the plaintiffs together with considering the interests of all the parties and the ends of justice 21 It is true that this court had in Oriental Insurance remarked that the expression of Lord Goff was sometimes referred to as meaning a legitimate personal or juridical advantage But we do not think it was intended thereby to curtail the full import of this expression We must bear in mind what Lord Goff said in The Spiliada was that the fact that the plaintiff could show that he has a legitimate personal or juridical advantage in proceedings in UK in our case in Singapore is not decisive It does not mean from this that in order to persuade a court to rule in favour of a plaintiff on the unless question the plaintiff must show that he will obtain a personal or juridical advantage in having the proceedings heard in Singapore One does not follow from the other Lord Goff did not say that personal or juridical advantage is the only factor to be considered in the inquiry on the unless question What he said is clear the court will consider all the circumstances of the case including circumstances which go beyond those taken into account when considering connecting factors with other jurisdictions There are no words of limitation in what he said Illustrations should not be construed or mistaken to have a limiting effect A circumstance which Lord Goff identified and which would be compelling to warrant a refusal of a stay is if the plaintiff could clearly show that he will not be able to obtain justice in that

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  • JIO Minerals FZC and others v Mineral Enterprises Ltd
    to be determined in the Indonesian courts there is no need for experts Indeed Gzell J was of the view id at 52 that it was in the interests of the parties that a proper resolution of the issues be made in proceedings to be commenced in Indonesia 35 The factors and the arguments considered by Gzell J in the preceding paragraph although analysed in the context of the Australian approach to forum non conveniens apply equally in the context of the approach of this court as embodied in Spiliada 26 supra Indeed there is a considerable overlap between the factors and the arguments considered by Gzell J in Murakami and those discussed above in the context of the present proceedings There is in fact good reason to believe that this is one instance where there would be no difference in result regardless of whether the Australian approach or the approach in Spiliada is adopted see also above at 33 50 It should be noted that the decision of Gzell J in Murakami v Wiryadi 2006 NSWSC 1354 was in fact reversed on appeal in the decision of the New South Wales Court of Appeal decision of Murakami v Wiryadi Ors 2010 NSWCA 7 However the general principles as well as observations set out in the quotation in the preceding paragraph continue to represent the Australian approach towards the issue of forum non conveniens notwithstanding the following observations by Kirby J in the High Court of Australia decision of Regie Nationale des Usines Renault SA v Zhang 2002 210 CLR 491 Zhang at 525 Like the Pilgrim I have not lost faith One day Voth may be overruled and a principle of the common law may be established more appropriate to contemporary circumstances of global and regional disputes in which Australian courts like those of every country must now operate But until overruled by this Court or replaced by valid legislation Voth must be applied 51 Indeed a challenge mounted recently against the present Australian approach in the subsequent also High Court of Australia decision of Puttick v Tenon 2008 238 CLR 265 was rejected in no uncertain terms by the majority The challenge which was mounted by the Respondent was in fact framed by way of an invitation to the court to either overrule the clearly inappropriate forum test in Voth or to restate the test in Voth in a modified form by also permitting a stay when there was a more appropriate forum for the resolution of the dispute The latter was in effect an invitation to introduce the Spiliada test in addition to the clearly inappropriate forum test Not surprisingly perhaps French CJ Gummow Hayne and Kiefel JJ rejected this invitation and reaffirmed the clearly inappropriate forum test in Voth Heydon and Crennan JJ however whilst clearly of the view that Voth could not be overruled in that particular case did perhaps somewhat curiously add thus at 38 Voth s case should simply be followed until the time comes if it ever comes for full argument to be developed about its correctness and for an argument that it is wrong to be accepted The learned judges proceeded to give reasons as to why the test in Voth could not be challenged in that particular case These included first that there was no satisfactory forensic background against which to explore the correctness of Voth s case at 39 that it was not satisfactorily explained in detail how the considerations relevant to overruling prior authorities here Voth had been satisfied at 40 that the written submissions advanced by the Respondent in relation to the correctness of Voth were not developed in the detail which is desirable when a question of this important kind is presented at 41 that it was not demonstrated that even if the Voth test were overruled or modified there would be any difference in the result of the appeal and that i n the absence of that demonstration any observations making a change to the Voth test would in one sense be dicta only which was not in general a satisfactory method of developing the law at 42 52 The observations of both Heydon and Crennan JJ are on one reading at least ambiguous although it might on another reading be open to the interpretation that they were at least open to the clearly inappropriate forum test in Voth being revisted on an appropriate occasion in the foreseeable future Looked at in this light the following observations by the authors of a leading Australian textbook may appear a little too strong see Nygh s Conflict of Laws in Australia at para 8 24 Voth v Manildra Flour Mills Proprietary Limited 1990 171 CLR 538 has been part of Australian law for twenty years In Puttick v Tenon Ltd 2008 250 ALR 482 a new generation of High Court justices none of whom participated in Voth showed no inclination to reconsider the clearly inappropriate forum test Despite all the academic lamentation and complaint judicial reform of the Voth test appears to be past praying for Without legislative change the test is entrenched in Australian law and critics must just grin and bear it A final point relativity of natural forum 53 A final point might be noted Counsel for the Appellant Mr Cavinder Bull laid great emphasis upon the fact that there were in effect no substantive connecting factors in relation to Singapore He argued that this was a relevant factor as stage one of the Spiliada test was comparative in nature There is some force in this argument inasmuch as the defendant must under the first limb of the test in the Spiliada establish that there is another available forum which is clearly or distinctly more appropriate than Singapore To that end the number as well as quality of connecting factors in the Singapore context is relevant from a comparative or relational perspective And to the extent that there are no substantive connecting factors in relation to Singapore that must surely weigh in favour of the defendant However as this court pointed out in CIMB Bank at 26 also reproduced above at 38 it is not enough just to show that Singapore is not the natural or appropriate forum which would of course be the situation if there were in the case concerned no substantive connecting factors in relation to Singapore The defendant must as we have already noted go further and establish that there is another available forum which is clearly or distinctly more appropriate than Singapore see also the decision of this court in Siemens AG v Holdrich Investment Ltd 2010 3 SLR 1007 at 4 Siemens AG Hence notwithstanding the fact that there might be few or even no substantive connecting factors in relation to Singapore this does not necessarily mean that the defendant would have discharged the burden that is placed upon it under the first limb of the test in the Spiliada This is in fact an excellent example of the more general principle that every perspective in a given legal test must be considered Indeed in so far as this particular issue is concerned the following summary by Prof Yeo is particularly helpful see Halsbury s Laws of Singapore at para 75 089 appropriately entitled Relativity of Natural Forum The principle of the natural forum does not seek to identify the most clearly appropriate forum in the absolute sense The search is for a natural forum not the natural forum Four implications follow Firstly there may be cases where no forum can be said to be comparatively more appropriate than any other In such a case stay will not be granted because it cannot be shown that there is another forum that is clearly more appropriate Similarly in a service out of jurisdiction case it cannot be rebutted that Singapore is the proper forum to hear the case The Singapore court will exercise its jurisdiction in such cases even if it means multiplicity of proceedings Secondly although the formulation in The Spiliada is that the defendant seeking a stay of proceedings must not only show that Singapore is not an appropriate forum but that there is clearly another more appropriate forum elsewhere it should be borne in mind that the inappropriateness of Singapore as a forum is relative to the existence of a clearly more appropriate forum elsewhere It is not necessary to show that Singapore is a clearly inappropriate forum Thirdly the defendant may show that two or more fora are clearly more appropriate than Singapore without having to identify one of them specifically as the most appropriate forum Fourthly if the parties have chosen not to have their dispute decided in the foreign forum with the strongest connections with the case and this alternative forum is not put forward to the court for consideration the court is still obliged to consider whether any other forum put forward by the defendant is a clearly more appropriate forum than Singapore A more difficult situation arises where the defendant applies to stay Singapore proceedings on the basis that forum X is clearly more appropriate than Singapore while the plaintiff presents evidence that forum Y is clearly more appropriate than either X or Singapore but neither the plaintiff nor the defendant is interested in litigating in Y In principle this does not affect the proposition that the court should prima facie stay the proceedings when the defendant has demonstrated that there is a clearly more appropriate and available forum elsewhere emphasis in original 54 We should note parenthetically that in contrast to the Singapore position the Australian position see above at 47 48 tends by its very nature to be focused instead on as Mason CJ Deane Dawson and Gaudron JJ put it in Voth at 565 the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum And in the same decision the learned judges also observed in a similar vein at 558 that the question which the clearly inappropriate forum test presents is slightly different from the approach in Spiliada in that it focuses on the advantages and disadvantages arising from a continuation of the proceedings in the selected forum rather than on the need to make a comparative judgment between the two forums Likewise Gleeson CJ Gaudron McHugh Gummow and Hayne JJ observed in Zhang at 503 that it should at once be noted that a court is not an inappropriate forum merely because another is more appropriate However we would think that on a practical level at least some comparative analysis is probably inevitable in most cases Indeed in Voth Mason CJ Deane Dawson and Gaudron JJ observed at 558 that The focus on the inappropriateness of the local forum is not to deny that considerations relating to the suitability of the alternative forum are relevant to the examination of the appropriateness or inappropriateness of the selected forum See also Voth at 564 565 and 47 above 55 Let us turn now to apply both the first limb as well as the second limb of the test in the Spiliada to the facts of the present appeal Before proceeding to do so it would be appropriate to review in summary form the main arguments proffered on behalf of both parties The parties arguments The Appellants arguments 56 The Appellants argued that as between Singapore and Indonesia Indonesia was the more appropriate forum for hearing the dispute between the parties The Appellants emphasised that the following connecting factors pointed towards Indonesia as the natural forum a Events relevant to the dispute occurred in Indonesia For example Indonesia was the place where Cyriac first met the Second and Third Appellants Indonesia is also the location of the mining concessions that are the subject of the dispute b The parties have connections with Indonesia The First Appellant is a UAE company but it has a registered office in Indonesia Both the Second and Third Appellants are resident in Indonesia The Respondent carries out projects in Indonesia and its representative Cyriac spends a significant amount of time there c The Appellants will have to rely on non party witnesses who are resident in Indonesia the Indonesian Witnesses Some of these witnesses may have to be compelled to testify In this regard the Judge erred in predetermining the witnesses that the Appellants wished to call for the trial on the merits d Documentary evidence relevant to the dispute is presently located in Indonesia e In so far at least as the Respondent s alternative claim for misrepresentation in tort is concerned the natural forum is Indonesia because that is the place where the tort occurred f The Respondent s claims are governed by Indonesian law The claim for misrepresentation is governed by Indonesian law because Indonesian law is the lex loci delicti Indonesian law is also the law governing the Investment Agreement because that is the law which has the closest and most real connection with the Investment Agreement In relation to the governing law of the Investment Agreement the Judge erred in suggesting that UAE law might govern the Investment Agreement even though neither party raised the applicability of UAE law in the hearing below g The Appellants sought leave to raise a new argument on the Respondent s claim under the Misrepresentation Act The Appellants argued that the Respondent has no claim under the Misrepresentation Act because the Misrepresentation Act does not have extraterritorial effect ie that this Act does not apply to misrepresentations occurring outside the territory of Singapore 57 On the whole the Appellants submitted that as between Singapore and Indonesia Indonesia is the more appropriate forum for hearing the dispute The Appellants further argued that even if the Investment Agreement was governed by UAE law the connecting factors were still overwhelmingly in favour of Indonesia In any case the Appellants urged us to only consider whether Singapore was a more appropriate forum than Indonesia since neither party was contending that the dispute should be heard in any forum apart from Singapore or Indonesia The Respondent s arguments 58 The Respondent submitted that the following connecting factors pointed towards Singapore as the more appropriate forum for hearing the dispute a The Appellants chose to receive the Investment Funds in Singapore b Both the Second and Third Appellants have connections with Singapore The Second Appellant studied in Singapore He also has a Singapore bank account and he previously owned an apartment in Singapore The Second Appellant also previously held shares and directorships in Singapore companies The Third Appellant also holds shares and directorships in Singapore companies The Respondent also has connections with Singapore in the form of a wholly owned subsidiary incorporated in Singapore c As for the location of witnesses the dispute is in relation to the discussions between the Appellants and the Respondent Therefore the party witnesses ie the Second and Third Appellants and the Respondent s representatives are the most relevant witnesses In any case the Appellants have not shown that adducing evidence via video link would be unsuitable Furthermore the travel time between Indonesia and Singapore is not long and so the inconvenience occasioned by having the case heard in Singapore is not significant As for the need to compel the witnesses the Appellants have not adduced evidence on whether the witnesses are compellable in Indonesia d The location of documents should not be given any weight The expense of transporting the documents to Singapore may be compensated with an appropriate costs order e Indonesian law is not the governing law of the Investment Agreement Rather the Investment Agreement is governed by Singapore law because the Singapore JVA was abandoned only because of the more advantageous tax benefits of using a UAE entity The parties always intended for Singapore law to govern the Investment Agreement Alternatively the governing law is UAE law As for the misrepresentation claim the Judge did not err in considering that the application of Indonesian law was not an insurmountable obstacle The Judge was merely ascribing the weight that he was giving to the governing law as a connecting factor In any event the Indonesian law issues for the tort claim are not complex f The place of the tort is indeed the prima facie natural forum for the misrepresentation claim However this is just one of the factors that the court should consider Furthermore this factor should be given less weight because Indonesian tort law has not been shown to be different from Singapore law g As for the Respondent s claim under the Misrepresentation Act the Respondent took issue with the Appellants raising of a new point that was not canvassed before the Judge On the merits the Respondent argued that the applicability of the Misrepresentation Act has no bearing on the forum non conveniens analysis because it is not a connecting factor h On balance the connecting factors do not point clearly and distinctly away from Singapore to Indonesia The connecting factors in favour of Indonesia should be given little weight Our decision Introduction 59 It is perhaps important to state an obvious point right at the outset Notwithstanding the principles stated above the facts of each case are of equal importance Put simply there is no mechanistic method that can be utilised in this indeed any legal context To adopt such an approach would be a sure recipe for legal disaster producing in the majority of cases at least great injustice Hence a close attention to the factual matrix of the present appeal is imperative The Judge s discretion 60 As we noted earlier at 40 a decision to grant or to refuse to grant a stay of proceedings is discretionary We were of the view that the appeal could not be allowed merely because we disagreed with the Judge s exercise of his discretion inasmuch as we might have arrived at a different conclusion on the facts To reiterate the guiding principles in this regard were as this court stated in CIMB Bank at 84 reproduced above at 40 that an exercise of discretion should not be interfered with by an appellate court unless the judge had misdirected himself on a matter of principle or he had taken into account matters which he ought not to have taken into account or had failed to take into account matters which he ought to have taken into account or his decision is plainly wrong In this regard the Appellants arguments suggested that the Judge might have misapplied certain principles For example the Appellants submitted that the Judge failed to correctly apply the Albaforth principle which as will be seen below at 106 is a principle that in a dispute involving a tort the place where the tort occurred is prima facie the natural forum It was therefore necessary for us to apply the Spiliada test afresh to the facts in order to ascertain whether or not the Judge had misapplied the principles just stated We pause to observe parenthetically that the relevant factors in the context of the facts of the present appeal fall as we shall see principally within the purview of the first three categories of connections identified by Prof Yeo above at 42 Stage one of the Spiliada test The residence and place of business of the parties 61 The First Appellant is a UAE corporation However it has a representative office in Jakarta The First Appellant appears to have conducted most of its business from that office as evidenced by the following facts i it sent the Letter of Offer to the Respondent from Indonesia ii it conducted its meeting of its board of directors to increase its share capital at the representative office and iiii it sent the Respondent a copy of the Exclusive Mining Agreement from Indonesia 62 As for the other parties the Second and Third Appellants are resident in Indonesia The Respondent is an Indian company with operations in Indonesia The availability of non party witnesses 63 We were of the view that the parties were conflating two factors i the convenience in having the case decided in the forum where the witnesses are ordinarily resident the Witness Convenience Factor and ii the compellability of those witnesses the Witness Compellability Factor We should analyse these factors separately because each may suggest that different forums are the natural forum In addition the Witness Compellability Factor could also be a relevant factor under the second stage of the Spiliada test as was the argument of counsel in Rickshaw Investments Ltd and another v Nicolai Baron von Uexkull 2007 1 SLR R 377 at 91 92 Rickshaw Investments In this regard we agreed with the following observations of Prof Yeo Halsbury s Laws of Singapore at para 75 091 The connections of relevant witnesses can be important too The physical locations of witnesses are generally of less significance today given the ease of travel and the possible use of information and communication technology A more important consideration is the compellability of the witnesses This has been considered as a Stage One factor although it involves a comparison of the procedures of different legal systems Arguably it sits more naturally as a Stage Two factor a juridical advantage of trial in a particular forum However the benefit of considering this as a Stage One factor is that compellability of the defendant s witnesses in the foreign court will be weighed in the equation as well whereas as a Stage Two factor the defendant would have to prove that non compellability in Singapore is a denial of substantial justice a very difficult case to make out This point while illustrating the different objectives of the two stages also demonstrates the need to take a holistic view emphasis added 64 Given the differences between the two factors we considered them separately 1 The Witness Convenience Factor 65 In so far as the Witness Convenience Factor was concerned our view was that the Judge had with respect erred for two reasons in holding that the Appellants had not shown that the evidence of the Indonesian Witnesses is material 66 First as this court in Good Earth Agricultural Co Ltd v Novus International Pte Ltd 2008 2 SLR R 711 has held at 21 the court hearing an application for a stay should not predetermine the witnesses that the parties should call In fairness to the Judge he did not hold that the evidence of the Indonesian Witnesses was not necessary for the Appellants defence Rather the Judge indicated that the Appellants had failed to demonstrate that the evidence of the Indonesian Witnesses would be material However we were of the view that the Judge had in substance predetermined that the Appellants did not need testimony from the Indonesian Witnesses to advance their defence 67 Second the Appellants have endeavoured to explain the reasons why they require the testimony of the Indonesian Witnesses It would not be appropriate to require the Appellants to demonstrate exactly how they would use the testimony of the Indonesian Witnesses at this interlocutory stage The Appellants have not yet prepared their Defence We acknowledge on the other hand that a defendant applying for a stay should not be permitted to assert without substantiation that it requires foreign witnesses because that would make it easy for defendants to manufacture a connecting factor Our view was that a defendant should at least show that evidence from foreign witnesses is at least arguably relevant to its defence The Appellants have in our view met that threshold 68 Since the Appellants require the testimony of the Indonesian Witnesses it appears that this factor points to Indonesia as the natural forum However our analysis did not end there It was necessary for us to consider whether i the possibility of obtaining evidence from the Indonesian Witnesses through video link and ii the fact that Indonesia is relatively close to Singapore suggest that this factor should not be given substantial weight Our view was that both considerations were persuasive and hence operated against the Appellants on this particular sub issue 69 With regard to the first consideration this court has endorsed the views of the High Court in Peters Rogers May v Pinder Lillian Gek Lian 2006 2 SLR R 381 at 26 on how the possibility of obtaining video link evidence should impact the stage one analysis of the Spiliada test see Good Earth at 21 The Appellants have not explained why the evidence of the Indonesian Witnesses cannot be given via video link 70 As for the second consideration we note that this court in Chan Chin Cheung v Chan Fatt Cheung 2010 1 SLR R 1206 held at 35 that the availability of witnesses should not be a significant factor if the witnesses are from Malaysia because of the proximity of Singapore to Malaysia This consideration applies with equal force to Indonesia which as the Respondent has argued is also relatively near to Singapore 2 The Witness Compellability Factor 71 In so far as the Witness Compellability Factor is concerned a Singapore court cannot compel a foreign witness to testify in a Singapore court see Order 38 rule 18 2 of the Rules of Court Cap 322 R 5 2006 Rev Ed Therefore the fact that the Indonesian Witnesses cannot be compelled by a Singapore court to either testify in person in Singapore or to give evidence via video link is a factor that points to Indonesia as being the natural forum The Appellants have argued that the Indonesian Witnesses may need to be compelled to testify 72 A countervailing consideration is as the Respondent has argued that the Appellants have not shown that the Indonesian Witnesses would be compellable in an Indonesian court if this dispute were heard in Indonesia The Respondent cited the recent Singapore High Court decision of Sun Jin Engineering Pte Ltd v Hwang Jae Woo 2010 SGHC 111 Sun Jin Engineering in support of the argument that the Appellants should have led evidence on the compellability of the Indonesian Witnesses in the Indonesian courts In Sun Jin Engineering the court had the benefit of expert evidence on whether foreign witnesses were compellable in the alternative forum the Maldives 73 With respect the Respondent has misunderstood this particular aspect of the decision in Sun Jin Engineering The Appellants have correctly explained that in Sun Jin Engineering the court considered that the expert evidence on whether witnesses were compellable in the Maldives was unclear Notwithstanding this the court considered that it was more likely that the Maldivian witnesses would testify if the case were heard in the Maldives see Sun Jin Engineering at 40 74 We took a similar view in this appeal Although it would have been preferable to have had expert evidence on whether the Indonesian Witnesses are compellable to testify in an Indonesian court it is more likely that the Indonesian Witnesses would testify if the dispute were heard in an Indonesian court The governing law of the claims 75 As this court has observed in Rickshaw Investments at 42 the governing law of the claims raised by the parties is a significant factor in stage one of the Spiliada test 1 Characterising the issues 76 Before determining the governing law of the claims it is necessary for us to characterise the issues raised by the claims The first stage of any choice of law analysis is to characterise the issues that the parties have raised see for example the English Court of Appeal decision of Macmillan Inc v Bishopsgate Investments plc No 3 1996 1 WLR 387 at 407 77 The Respondent has made claims see also above at 34 for the following i a declaration that the contract was validly rescinded ii restitution of the remainder of the Investment Funds iii damages for misrepresentation in contract iv damages for misrepresentation in tort and v damages for misrepresentation under the Misrepresentation Act 78 The first and the third claims are claims in contract The second claim is a claim in restitution However the choice of law analysis for the restitutionary claim is the same as the choice of law analysis for the contract claims because the restitutionary claim is consequential on the failure of the Investment Agreement see CIMB Bank at 41 The fourth claim is a claim in tort and the fifth claim is a statutory claim 2 The governing law for the contractual and restitutionary claims a The choice of law rule 79 It is well established that a three stage approach is applied to determine the governing law of a contract see for example the decision of this court in Pacific Recreation Pte Ltd v S Y Technology Inc and another appeal 2008 2 SLR R 491 Pacific Recreation at 36 At the first stage the court considers if the contract expressly states its governing law the Express Law If the contract is silent the court proceeds to the second stage and considers whether it can infer the governing law from the intentions of the parties the Implied Law If the court is unable to infer the parties intentions it moves to the third stage and determines the law which has the closest and most real connection with the contract the Objective Law b analysis 80 It is clear that there was no Express Law We were of the view however that it is possible to determine the Implied Law It is reasonable to infer that the parties intended that UAE law govern the Investment Agreement given the choice of that law in a closely related contract viz the Exclusive Mining Agreement The Exclusive Mining Agreement was in fact sent to the Respondent The Letter of Offer also refers to the Exclusive Mining Agreement three times Furthermore the Exclusive Mining Agreement was essential to the Investment Agreement Without it the First Appellant would have had nothing of value to offer the Respondent in exchange for its provision of expertise 81 As the editors of the 11th Edition of Dicey and Morris on the Conflict of Laws Stevens Sons 11th Ed 1987 Dicey and Morris 11th Ed note it is possible to infer that the parties intended that a contract be governed by the same law that governs a closely related contract at 1185 The legal or commercial connection between one contract and another may enable a court to say that the parties must be held implicitly to have submitted both contracts to the same law The editors of the 11th Edition of Chesire and North s Private International Law Butterworths 11th Ed 1987 make a similar assertion at 459 460 82 The editors of Dicey and Morris 11th Ed cite a number of cases for this proposition including the English Court of Appeal decision in Re United Railways of Havana 1960 Ch 52 Re United Railways of Havana Re United Railways of Havana involved two related contracts that were part of a transaction for an English railway company to obtain finance to purchase rolling stock The English railway company incorporated a subsidiary in Pennsylvania and sold the rolling stock to that subsidiary The subsidiary then leased the rolling stock to the English railway company the First Contract Under the terms of the First Contract the English railway company was to pay rentals to the subsidiary The subsidiary entered into a contemporaneous contract with a trust company the Second Contract Under the terms of the Second Contract the subsidiary assigned its rights under the First Contract to the trust company In effect this arrangement meant that the English railway company would pay the rentals to the trust company which would in turn pay the rentals to holders of trust certificates 83 One of the issues in Re United Railways of Havana was the governing law of the First Contract Having held that the Second Contract was governed by Pennsylvanian law the English Court of Appeal proceeded to hold that the First Contract was also governed by Pennsylvanian law because that was both the Implied Law and the Objective Law The following portion of the court s judgment is instructive Re United Railways of Havana at 94 It has been material to consider the agreement in this connection because it was held by the judge and argued before us by counsel for the respondents that the proper law of the agreement and of the lease was intended to be the same This is probably though not we think inevitably true In the words of the judge The lease is expressly recited in the agreement and in the lease there is a recital of the intention immediately to assign the benefit of the lease to the trustee The two documents are essential parts of the same transaction namely the Philadelphia Plan In those circumstances one would expect that they would each have the same proper law and I hold that they have One certainly cannot ignore the fact that each of the two documents constituted essential parts of one entire transaction and it would we think be unusual if the parties concerned in that transaction should desire one part to be governed by the law of Cuba which is in many relevant respects totally different from American law and the other part to be governed by the law of Pennsylvania emphasis added It should be noted that Re United Railways of Havana proceeded on appeal to the House of Lords see In re United Railways of Havana and Regla Warehouses Ltd 1961 AC 1007 Re United Railways of Havana HL On this particular point the House of Lords considered that the Objective Law was Pennsylvanian law see Re United Railways of Havana HL at 1068 per Lord Denning and 1081 per Lord Morris The judgment at the House of Lords did not consider whether the Implied Law was Pennsylvanian law and was incidentally one of the rare decisions that was overruled pursuant to the House of Lords Practice Statement Judicial Precedent 1966 1 WLR 1234 by the House of Lords in Miliangos v George Frank Textiles Ltd 1976 AC 443 albeit with Lord Simon of Glaisdale dissenting on the issue as to whether or not the breach date conversion rule in Re United Railways of Havana HL ought to be departed from and be substituted with the rule that an English court was entitled to give judgment for a sum of money expressed in a foreign currency in the case of obligations of a money character to pay foreign currency under a contract the proper law of which was that of a foreign country and when the money of account was that of that country or possibly some country other than the United Kingdom 84 We also considered decisions such as the English High Court decisions in The Njegos 1936 1 P 90 The Njegos and The Adriatic 1931 P 241 to be relevant because they consider that it is possible to infer that the parties concerned intended that a contract be governed by the same law as the governing law of a related contract In The Njegos for example a bill of lading incorporated the terms of a charterparty The charterparty contained an arbitration clause providing for arbitration in England The parties agreed that the proper law of the charterparty was English law The issue related to the governing law of the bills of lading The court found that the bills of lading did not incorporate the arbitration clause and hence the governing law could not be inferred from the arbitration clause However the court nevertheless held that English law governed the bills of lading because the parties should be presumed to have intended that the bills of lading be governed by the same law as the law governing the charterparty The Njegos at 107 It might also be noted that the Singapore High Court in Las Vegas Hilton Corp trading

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  • The "Rainbow Joy"[2005] 3 SLR 719; [2005] SGCA 36
    forum non conveniens must determine whether at 476 there is some other available forum having competent jurisdiction which is more appropriate for the trial of the action 20 We would observe that no authority has been cited by the appellant in support of his assertion that the doctrine only applies where the alternative forum is a court of law On the other hand the respondent brought to our attention authorities from Canada and the United States which held that an action could be stayed in favour of a foreign forum which was not an ordinary court of law 21 In Karin A Ruggeberg v Bancomer SA 1998 OTC Lexis 329 where the claim was for damages arising out of termination of employment the Ontario Court of Justice General Division stayed a proceeding brought by a Mexican claimant in favour of the Mexican Federal Conciliation and Arbitration Board On appeal 1999 OAC Lexis 511 the Ontario Court of Appeal upheld the decision given by the court below 22 The next case is Larry McLaughlin v Bankers Trust Company of New York 1998 US Dist Lexis 9703 Larry McLaughlin a decision of the United States District Court of New York There the plaintiff a citizen and resident of England brought an action in New York against his former employer for breach of contract Following a disciplinary hearing the plaintiff was given the option of either resigning on his own volition or facing dismissal He accordingly tendered his resignation and thereafter sued in New York In England such a labour dispute would have to be taken up before the Industrial Tribunal After considering all the pertinent factors the district judge stayed the New York proceedings in favour of the Industrial Tribunal It should be noted that one of the arguments advanced by the plaintiff to urge the New York court not to order a stay was that the remedies available before the Industrial Tribunal was limited The judge ruled that an adequate alternative forum need not provide for precisely the same remedies that were available in the chosen forum 23 The third case cited to us is Ivan Jones v Raytheon Aircraft Services Inc 120 SW 3d 40 Ivan Jones a decision of the Court of Appeal of Texas Fourth District There the plaintiffs who were relatives of the victims of a plane crash in New Zealand sought to sue in the United States The defendants were involved in the manufacture and modification of the private plane which crashed What was then in operation in New Zealand was a no fault accident insurance system covering all accidental injuries and deaths sustained by any individual A special tribunal called the Accident Compensation Commission was created and it would handle all such claims No action in tort could be instituted in New Zealand for such injuries or death Notwithstanding this restriction by majority the Texan Court of Appeal upheld the decision of the trial judge who ordered a stay of the US proceedings in favour of a claim being made in New Zealand before the Accident Compensation Commission 24 Accordingly as a matter of principle and on the basis of the authorities cited above we were of the opinion that the first contention of the appellant must fail No defence 25 We now move to consider the appellant s other main argument which involved several sub points The first point was that the court should not have ordered a stay as the respondent would not have any defence to the appellant s claim The appellant averred that what remained to be decided was only the question of quantum of damages In making this argument the appellant relied on a number of cases involving foreign jurisdiction clauses where this court had refused a stay where the defendant has no defence to the claim eg The Jian He 2000 1 SLR 8 The Hung Vuong 2 2001 3 SLR 146 The Hyundai Fortune 2004 4 SLR 548 The appellant submitted that where an application for a stay was made on the ground of forum non conveniens the court should more readily refuse a stay 26 It is settled law that where a party seeks to bring an action in our courts in breach of an exclusive jurisdiction clause he must show strong cause why the court should exercise its discretion in his favour and assist him in breaching his promise to bring the action in the contractual forum see Amerco Timbers Pte Ltd v Chatsworth Timber Corp Pte Ltd 1975 1977 SLR 258 Amerco Timbers What is strong cause and what are the circumstances the courts would take into account were set out in The El Amria 1981 2 Lloyd s Rep 119 at 123 124 and adopted by this court and stated in Amerco Timbers at 11 as follows The court in exercising its discretion should grant the stay and give effect to the agreement between the parties unless strong cause is shown by the plaintiff for not doing so To put it in other words the plaintiff must show exceptional circumstances amounting to strong cause for him to succeed in resisting an application for a stay by the defendant In exercising its discretion the court should take into account all the circumstances of the particular case In particular the court may have regard to the following matters where they arise a In what country the evidence on the issues of fact is situated or more readily available and the effect of that on the relative convenience and expense of trial as between the Singapore and foreign courts b Whether the law of the foreign court applies and if so whether it differs from Singapore law in any material respects c With what country either party is connected and if so how closely d Whether the defendants genuinely desire trial in the foreign country or are only seeking procedural advantages e Whether the plaintiffs would be prejudiced by having to sue in the foreign court because they would i be deprived of security for their claim ii be unable to enforce any judgment obtained iii be faced with a time bar not applicable here or iv for political racial religious or other reasons be unlikely to get a fair trial 27 Admittedly while the circumstances which the court should take into account in determining whether an action commenced in Singapore should not be stayed in spite of an exclusive jurisdiction clause are to some extent similar to those which the court would take into consideration in determining whether the action should be stayed on the ground of forum non conveniens they are not the same In weighing the balance of convenience under the doctrine of forum non conveniens the issue of whether there is a defence to the claim is not a relevant consideration as the court should not be required to go into the merits This is because the juridical basis of a stay based on forum non conveniens is different from that of a stay based on an exclusive jurisdiction clause Under the doctrine of forum non conveniens the object is in determining which forum is the more appropriate forum On the other hand for a party to be excused from his commitment to the exclusive jurisdiction clause he must show exceptional circumstances and the averment that the defendant has no defence to the claim could constitute exceptional circumstances to enable the court to excuse the plaintiff from complying with the jurisdictional clause 28 In any event we could not see how the appellant could seriously contend that its common law claim in tort could be determined without a trial Obviously evidence would be required to show the scope and responsibility of the appellant s work on board the vessel the training he received the nature of the repair job whether the appellant had been briefed on the repair to be undertaken and what were the standard safety measures which the appellant ought to have taken Indeed there was evidence to suggest that it was the appellant s duty to brief the workers under him on safety requirements Moreover there is a further claim in negligence based on the allegation that the respondent had failed to provide the appellant with urgent medical treatment In addition there is also the question as to whether the current state of his right eye was caused by his own default in refusing to go for a corneal transplant as recommended by the Philippine ophthalmologist It is clear that if this case were to proceed in Singapore the trial judge would have to address both the issues of liability and the appropriate quantum of damages It would not be an open and shut case Governing law 29 The appellant s next point was that the judge was in error in considering some of the connecting factors He submitted that the judge was wrong to hold that the governing law of the employment contract was that of the Philippines The judge relied on s 31 of the POEASTC in making his determination It reads Any unresolved dispute claim or grievance arising out of or in connection with this Contract including the annexes thereof shall be governed by the laws of the Republic of the Philippines international conventions treaties and covenants where the Philippines is a signatory 30 The appellant submitted that the governing law relating to his contract of employment was the law of the flag of the vessel namely Hong Kong law Moreover the instant claim could be framed either in contract or in tort and the tort having been committed on board the vessel Hong Kong law should apply 31 As a general proposition it is probably correct to say that the law of the flag country should apply in relation to a tort committed on board a vessel which is then on the high seas However where in the contract of employment the parties have specified the governing law the contract term should prevail Dicey and Morris on The Conflict of Laws Sweet Maxwell 13th Ed 2000 Dicey and Morris states at para 32 005 At common law the starting point was that every contract was governed at its outset by its proper law a term coined by Westlake When the parties had expressed their intention as to the law governing the contract their expressed intention in general determined the proper law of the contract at any rate if the application of foreign law was not contrary to public policy and the choice was bona fide and legal Where there was no express selection of the governing law an intention with regard to the law to govern the contract could be inferred from the terms and nature of the contract and from the general circumstances of the case When the intention of the parties to a contract with regard to the law governing it was not expressed and could not be inferred from the circumstances the contract was governed by the system of law with which the transaction had its closest and most real connection 32 Notwithstanding this clear statement of principle in Dicey and Morris that where the contract provides for the governing law that should be the applicable law the appellant relied on the Canadian Federal Court of Appeal s decision in The Ship Mercury Bell v Amosin 1986 27 DLR 4th 641 Mercury Bell to contend that the proper law of this contract of employment between the appellant and the respondent was the law of the flag However we do not understand Mercury Bell as having held that the flag state law should apply in any event even in the face of an express governing law provision This can be seen from the main judgment in the case delivered by Marceau J at 644 There is no doubt that to determine the rights of seamen against the owners of the ship on which they are serving which is the subject matter of the action the law of the ship s port of registry is to be looked at This is required by the well established rule of international law that the law of the flag state ordinarily governs the international affairs of a ship McCulloch v Sociedad Nacional de Marineros de Honduras 1962 372 U S 10 at p 21 U S Sup Ct 1963 a rule formally confirmed in s 274 of the Canada Shipping Act R S C 1970 c S 9 as amended which reads as follows 274 Where in any matter relating to a ship or to a person belonging to a ship there appears to be a conflict of laws then if there is in this Part any provision on the subject that is hereby expressly made to extend to that ship the case shall be governed by that provision but if there is no such provision the case shall be governed by the law of the port at which the ship is registered That this action must be disposed of on the basis of the law of Liberia is therefore without question emphasis added It did not appear to us that Marceau J was there considering a case where the contract had a forum selection clause 33 A case which is somewhat similar to the instant is Rizalyn Bautista v Star Cruises 396 F 3d 1289 a decision of the Court of Appeal for the United States Eleventh Circuit which involved Philippine seamen and where there was a similar clause like our s 31 which provided for claims and disputes to be submitted to the NLRC or arbitrators At first instance 286 F Supp 2d 1352 the judge noted that the POEA supervised regulated promoted and monitored overseas employment programs for the purpose of ensuring the best terms and conditions of employment for Filipino contract workers In response to the further assertion that the claim in tort was distinct from the claim in contract the judge said Finally Plaintiffs assertion that their tort claims are not claims and disputes arising from this employment and thus are not subject to arbitration under Section 29 is without merit The employment contract in question specifically obligates the shipowner to provide a seaworthy vessel and further regulates the payment of sick pay repatriation and medical care As Plaintiffs Complaints seek damages for inter alia failure to use reasonable care to provide and maintain a safe workplace and failure to provide prompt and adequate medical care the Court finds that the claims and disputes arise directly from their employment with NCL and from NCL s obligations to Plaintiffs under the Standard Terms of the employment contract 34 In Ernany De Joseph v Odfjell Tankers USA Inc 196 F Supp 2d 476 Ernany De Joseph the plaintiff a Filipino seaman working on board a Norwegian vessel who had executed the POEA contract fell and broke two vertebrae in his neck while doing cleaning work He sued in the United States The POEA contract incorporated the POEASTC standard terms for seafarers There the Texas District Court granted the defendant s motion for a stay The court construed the relevant clauses of the POEA contract as follows Section 28 provides that the Philippine Overseas Employment Administration POEA or the National Labor Relations Commission NLRC shall have original and exclusive jurisdiction over any and all disputes or controversies arising out of or by virtue of this Contract Additionally the MWOFA grants the Labor Arbiters of the NLRC the exclusive jurisdiction to hear claims arising out of an employer employee relationship or by virtue of any law or contract involving Philippine workers for overseas employment including claims for actual moral exemplary and other forms of damages Because both of these provisions vest exclusive jurisdiction over seamen s disputes in the POEA and the NLRC they lend further and perhaps even more formidable credence to the view that the appropriate authority mentioned in the last sentence of Paragraph 4 refers only to the POEA and the NLRC not every permissible venue in the world 35 An English case which is highly illustrative of the correct approach to viewing such a contract where Filipino seamen are involved is the case of Dimskal Shipping Co SA v International Transport Workers Federation 1989 1 Lloyd s Rep 166 The Evia Luck No 2 There the vessel registered in Panama had on board 20 Filipino nationals employed under the POEA contract Also employed on board were ten Greek seamen The owner of the vessel sued the International Transport Workers Federation ITWF for moneys paid pursuant to a new contract of employment with the crew which the owner allegedly executed in Sweden under duress because of threat of industrial action Each of the new contracts of employment with the Philippine crew contained no choice of law clause The owner argued that the new contract was governed by the law of the flag ie Panama ITWF contended that it was Philippine law Phillips J agreed with ITWF and held at 172 Under English principles of private international law those contracts are governed by the system of law with which the transactions have their closest connection I am in no doubt that this is Philippine law Filipino seamen are widely employed on foreign flag vessels and Philippine law has provisions that are designed to protect their welfare In particular foreign shipping companies are required to engage Filipino crewmen only through authorized shipping or manning agents who are required to submit employment contracts and salary scales to a regulatory body That body was the National Seamen s Board and is now the Philippine Overseas Employment Agency I shall refer to it as the NSB Seamen s contracts have to be approved and registered by the NSB before they can be enforced in the Philippines The old crew contracts were so registered The new contracts were intended to be registered with the NSB and were so registered In these circumstances I consider that Philippine law is clearly the

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  • Siemens AG v Holdrich Investment Ltd
    of jurisdiction to show that Singapore is clearly the forum conveniens if by this it is meant that Singapore must be not only the most appropriate forum in the final analysis but also the most appropriate forum by far No doubt there will be cases where the forum conveniens is clear beyond contest But in the case of an international dispute where the connecting factors are finely balanced a requirement that there must be a forum which is clearly the most appropriate forum would necessarily condemn the dispute to jurisdictional limbo Such a result does the doctrine of forum non conveniens no credit In our view therefore it is sufficient for a plaintiff seeking leave for service out of jurisdiction to show that Singapore is on balance and in the final analysis the most appropriate forum to try the dispute and it matters not whether Singapore is the most appropriate forum by a hair or by a mile Application to the facts 9 In this case the connecting factors point to diverse jurisdictions Siemens AG was incorporated in Germany and has its principal place of business there while Holdrich was incorporated in Hong Kong and has its principal place of business there The parties dispute in the main action arises from a consultancy agreement entered into between the parties on 21 August 2003 the Consultancy Agreement whereby Siemens AG agreed to pay commission to Holdrich for its consultancy services if orders were received by SIEMENS note 1 from certain entities in Sweden Israel Austria and India The Consultancy Agreement was later amended to remove Israel and to include the Nordic regions and was thereafter amended again to include Indonesia It was expressed to be governed by Singapore law there was however no express choice of forum 10 In its statement of claim Holdrich is claiming commission in respect of its services in helping to secure a contract between two Indonesian entities viz PT Hutchinson CP Telecommunications and PT Siemens Indonesia The main issue is whether Holdrich is entitled to commission when contracts are concluded with members of the Siemens group in this case PT Siemens Indonesia other than Siemens AG itself Holdrich says yes and in support of its claim refers to correspondence from an employee of Siemens Network GmbH Co KG Siemens GmbH which according to Holdrich amounted to an admission of liability on behalf of Siemens AG Siemens AG says no and proposes to call two of its ex employees to explain the context in which the Consultancy Agreement was concluded Siemens AG also intends to call the employee of Siemens GmbH who is said to have made the admission of liability These persons are said to be located in Germany There was some mention before the Judge of the need to call witnesses from the two Indonesian entities but this was not emphasised by either side on appeal In addition Dr Ingo Gehring a senior legal counsel of Siemens AG deposed that Siemens AG is currently being investigated by German public prosecutors in relation to possibly illegal agreements including the Consultancy Agreement No further details were given 11 Against this factual backdrop Mr Vijayendran raised several practical points which he said militated in favour of Germany as the forum conveniens He said that the two ex employees proposed to be called by Siemens AG as witnesses were located in Germany and the same applied to the documentary evidence proposed to be adduced by Siemens AG He also mentioned that there would be a need for Siemens AG s evidence to be translated into English if that evidence were to be received by a Singapore court We were unable to attach much significance to these points The physical location of witnesses is no longer a vital or even very material consideration with the advent of video link technology see eg Peters Roger May v Pinder Lillian Gek Lian 2006 2 SLR R 381 at sub para e of 26 and 27 This applies a fortiori to the physical location of documents The translation point which Mr Vijayendran raised was at best ambivalent or neutral since it was not suggested that translation would pose insuperable difficulties and since there would also be a need for Holdrich s evidence to be translated if the trial were to take place in Germany We also took note of the fact that the Consultancy Agreement and the documentary evidence exhibited thus far including the documents emanating from Siemens AG itself are all in English thus suggesting that English is the lingua franca of the parties and that if anything an English speaking forum is preferable 12 With regard to the ongoing investigations by German public prosecutors into Siemens AG s agreements see 10 above in the absence of further details we were unable to make anything out of the fact that such investigations are currently underway Nothing specific was shown as to how the outcome of the German investigations would impact the civil claim in the Singapore proceedings The point was also made that the German authorities might not release the documents which were held by them This was purely speculative and no real reasons were addressed to us as to why that would be so or why the German authorities would not allow copies of documents in their possession to be made for the purposes of foreign proceedings 13 It seemed clear to us that the only factor which decisively connected both parties and their dispute to a jurisdiction was the parties choice of Singapore law as the governing law for the Consultancy Agreement In this regard Mr N Sreenivasan argued on behalf of Holdrich that in the absence of any express choice of jurisdiction the choice of Singapore law was an implied choice of Singapore jurisdiction note 2 On the other hand Mr Vijayendran argued that specifying a choice of governing law was not quite the same as specifying a choice of forum not least because the parties to a contract

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  • The "Jian He"[2000] 1 SLR 8; [1999] SGCA 71
    Liu Chong Hing Bank 1986 AC 80 Their Lordships do not believe that there is anything to the advantage of the law s development in searching for a liability in tort where the parties are in a contractual relationship This is particularly so in a commercial relationship Though it is possible as matter of legal semantics to conduct an analysis of the rights and duties inherent in some contractual relationships including that of banker and customer either as a matter of contract law when the question will be what if any terms are to be implied or as a matter of tort law when the task will be to identify a duty arising from the proximity and character of the relationship between the parties their Lordships believe it to be correct in principle and necessary for the avoidance of confusion in the law to adhere to the contractual analysis on principle because it is a relationship in which the parties have subject to a few exceptions the right to determine their obligations to each other and for the avoidance of confusion because different consequences do follow according to whether liability arises from contract or tort eg in the limitation of action 26 Equally pertinent is the following observation of Oliver J in Midland Bank Trust Co Ltd v Hett Stubbs and Camp 1979 Ch 384 which observation was approved by the House of Lords in Henderson v Merrett Syndicates Ltd 1994 3 WLR 761 A concurrent or alternative liability in tort will not be admitted if its effect would be to permit the plaintiff to circumvent or escape a contractual exclusion or limitation of liability for the act or omission that would constitute the tort Subject to this qualification where concurrent liability in tort and contract exists the plaintiff has the right to assert the cause of action that appears to be the most advantageous to him in respect of any particular legal consequence 27 In a case such as the present to allow a claim in tort to proceed in a different forum on the ground that such a claim is outside the jurisdiction clause would only give rise to a forensic nightmare see per Steyn LJ in Continental Bank v Aeakos Compania 1994 1 Lloyd s Rep 505 at p 508 Strong cause 28 It is trite law that when a party seeks to bring an action in our courts in breach of an exclusive jurisdiction clause he must show strong cause The El Amria 1981 2 Lloyd s Rep 119 why the court should exercise its discretion in his favour and assist him in breaching his promise to bring the action in the contractual forum What is strong cause and what are the circumstances the courts would take into account were addressed by this court in Amerco Timbers Pte Ltd v Chatsworth Timber Corp Pte Ltd 1975 77 SLR 258 at p 260 citing from a passage of Brandon LJ in The El Amria supra at pp 123 124 as follows The court in exercising its discretion should grant the stay and give effect to the agreement between the parties unless strong cause is shown by the plaintiff for not doing so To put it in other words the plaintiff must show exceptional circumstances amounting to strong cause for him to succeed in resisting an application for a stay by the defendant In exercising its discretion the court should take into account all the circumstances of the particular case In particular the court may have regard to the following matters where they arise a In what country the evidence on the issues of fact is situated or more readily available and the effect of that on the relative convenience and expense of trial as between the Singapore and foreign courts b Whether the law of the foreign court applies and if so whether it differs from Singapore law in any material respects c With what country either party is connected and if so how closely d Whether the defendants genuinely desire trial in the foreign country or are only seeking procedural advantages e Whether the plaintiffs would be prejudiced by having to sue in the foreign court because they would i be deprived of security for their claim ii be unable to enforce any judgment obtained iii be faced with a time bar not applicable here or iv for political racial religious or other reasons be unlikely to get a fair trial 29 With regard to factor a listed above the circumstances in the present case favour neither Singapore nor China as the evidence touching on the main issue of breach of duty is to be found in South Africa Of course questions touching on ownership and shipment would be found in Singapore Factor b prima facie favours China because the jurisdictional clause provides that Chinese law shall apply to the bill of lading Factor c is neutral in relation to the parties because the plaintiffs are a Singapore company and the defendants a Chinese company It seems to be in relation to factors d and e iii that the learned judge below felt that exceptional circumstances had been shown 30 There is a limitation period of one year under Chinese law which may not be extended by mutual consent of the parties It would be too late for the plaintiffs to commence any action in China While these circumstances may on first impression seem quite compelling we must point out an even stronger contrary argument In Citi March v Neptune 1997 1 Lloyd s Rep 72 at p 75 Colman J stated the point in this manner The feature of the time bar consideration which differentiates it from all the others is that its existence arises from the omission of the plaintiff to take the steps necessary to preserve time in the Courts of the contractual jurisdiction Therefore when having failed to take such steps he invites the English Court to refuse a stay on the grounds that he would be prejudiced by the claim then being time barred in the contractual forum what he is really doing is praying in aid of the jurisdiction of an uncontractual forum his own failure to pursue his claim in the contractual forum in sufficient time In essence his prejudice is self induced emphasis added 31 In the later case The MC Pearl 1997 1 Lloyd s Rep 566 at p 570 Rix J expressed a view in similar vein as follows In the absence of any authority I would have regarded the failure of a plaintiff to commence proceedings in time within the contractual jurisdiction as prima facie a factor assisting the defendant in enforcing the parties jurisdictional bargain After all those who contract for an exclusive jurisdiction must be taken to be aware of the limitation law of that jurisdiction a fortiori if the time limit is a contractual one If therefore a plaintiff fails to bring proceedings in the contractual jurisdiction within time the defendant has an accrued right of limitation which prima facie ought to protect him The idea that one could escape the limitation period applicable in the contractual jurisdiction by commencing proceedings is another ex hypothesi uncontractual jurisdiction seems strange and contrary to principle The further idea that the existence of a time bar in the contractual jurisdiction which does not apply in England should actually assist the plaintiff to preserve his action in England seems even stranger 32 The rationale for such a judicial approach was elaborated in an earlier case The KH Enterprise 1994 1 Lloyd s Rep 593 where Lord Goff quoted with approval at p 606 the following passage taken from the judgment of the Hong Kong Court of Appeal If you find yourself bound to litigate in a forum which is more expensive than the one you would prefer deliberately to choose the latter rather than the former seems to me although the judge thought otherwise to be forum shopping in one of its purest and most undesirable forms And if in pursuance of your deliberate decision to litigate here instead you let time run out in the jurisdiction in which you are bound to litigate without taking the trouble because of the expense even to issue a protective writ there you are not as I think acting reasonably at all you are gambling on the chance of a stay on being refused here and you cannot complain if you then lose that gamble That may seem to you at the time a justifiable commercial risk to take But that in the context of the litigation does not make your decision a reasonable one 33 Thus the mere fact that the action would be time barred in China is not of itself a sufficient ground for the court to exercise its discretion in favour of a plaintiff It is really a neutral point as refusing a stay would deprive the defendants of their accrued rights and granting a stay would defeat the plaintiffs claim altogether The plaintiffs must justify their conduct in allowing limitation to arise in the contractual forum They must show that they did not act unreasonably in failing to commence proceedings within time in the contractual forum such as by issuing a protective writ see also Spiliada Maritime Corp v Cansulex Ltd 1987 AC 460 and The El Amria 1981 2 Lloyds Rep 119 They must explain fully and fairly to the court why they allowed time to lapse in the contractual forum The Bergen 1997 2 Lloyd s Rep 710 Therefore the factor of time bar in the contractual forum is a two edged sword depending very much on the reasons given No explanation for non issue of protective writ in contractual forum 34 We must point out that the plaintiffs have not filed any affidavit explaining their failure to file a protective writ in China However their counsel submitted here and below that they had not filed any protective writ in China because the appellants misled them into thinking that the appellants would not contest the jurisdiction of the Singapore courts The learned judge accepted that argument as she stated in her grounds of decision It was obvious that the defendants repeated requests for one document after another were completely irrelevant to the issues of their liability and the plaintiffs entitlement to sue they were ruses to delay the matter until the time bar in China had lapsed 35 There is a need to look at this ground It is true that the defendants did request for documents including those pertaining to the details of the plaintiff s set up correspondence between the plaintiffs and the consignee and the equipment exchange receipts EIR issued by the Port of Singapore Authority The court below accepted the plaintiffs evidence that an EIR is issued when a container enters a port and will not normally be provided to the shipper by his forwarder The court below agreed with the plaintiffs that there was no rationale behind the defendants request for the EIR as there was no dispute that the goods were indeed shipped on the vessel and discharged at Johannesburg Accordingly the learned judge concluded that the repeated requests for the documents were ruses to delay the matter until the time bar in China had lapsed 36 In our view this may be reading too much into the requests for documents In considering a claim of this nature it is logical for a shipowner to request for all documents which are deemed relevant not just on the question of liability but also on the claimant s entitlement to sue The requests for documents were on a without prejudice basis Nothing in the correspondence indicated that the defendants would not be enforcing the jurisdiction clause 37 When the plaintiffs filed their writ here the limitation period had not expired in China It is true that the defendants could have made an application for a stay between the time when the writ was served on them on 16 June 1997 and 24 July 1997 when the time bar in China would arise which was a period of over five weeks Such an application might then have prompted the plaintiffs to commence proceedings in China But in our view such a failure on the defendants part could not in itself provide the plaintiffs with any good reason for failing to protect their position in China In The Biskra 1983 2 Lloyd s Rep 59 at p 62 Sheen J opined There is no obligation on a person who may become a defendant in proceedings to tell the plaintiff where to issue those proceedings or to spur the plaintiff into commencing proceedings 38 In The Zhi Jiang Kou supra the bill of lading contained a limitation period within which the parties were to bring their action in the contractual forum Prior to the lapse of the limitation period there had been some correspondence between the parties concerning the settlement of the plaintiffs claim By the time limitation set in the plaintiffs had yet to commence any action in the contractual forum The plaintiffs pleaded that the correspondence estopped the defendants from relying on the time bar The learned judge at first instance agreed This was reversed on appeal Kirby P held at p 514 LHC But did conscience nonetheless require that the solicitors for the defendants should have alerted his opponent s solicitor about an advancing time bar Ordinarily there would be no such duty Indeed in some cases to do so would be in breach of the duty to the solicitor s own client 39 Even the plaintiffs have to concede before us and we think rightly that the defendants had no duty to warn them of the impending time bar So there can be no question of the plaintiffs being misled But even looking at the circumstances as a whole the conduct of the defendants was also consistent with the fact that they themselves could also have overlooked the limitation point in the contractual forum If the defendants were really waiting for limitation to set in before they applied for a stay surely they would have done it much earlier well before the O 14 application of the plaintiffs They would not have waited for more than a year 40 Accordingly we hold that although limitation has set in in the contractual forum that per se is really a neutral factor Delay 41 The learned judge below also noted that the defendants made the stay application inordinately late and that was a factor the court could take into account in deciding whether to grant a stay 42 The defendants argued that there was no delay on their part and relied upon O 12 r 7 which provides Dispute as to jurisdiction O 12 r 7 7 1 A defendant who wishes to dispute the jurisdiction of the Court in the proceedings by reason of any such irregularity as is mentioned in Rule 6 or on any other ground shall enter an appearance and within the time limited for serving a defence emphasis added apply to the Court for g a declaration that in the circumstances of the case the Court has no jurisdiction over the defendant in respect of the subject matter of the claim or the relief or remedy sought in the action or h such other relief as may be appropriate 43 They said that while the writ was first served on them on 16 June 1996 the statement of claim was only filed and served on 24 October 1998 Under O 18 r 2 1 the defendants would only be required to serve their defence within 14 days of that date that is by 7 November 1998 As the application for stay was filed on 4 November 1998 it was well within the time period prescribed under O 12 r 7 Accordingly there was no delay by the defendants 44 In our opinion this argument is misconceived O 12 r 7 only applies where the jurisdiction of the court is being challenged A stay application on the ground of a foreign jurisdiction clause does not challenge the jurisdiction of the court It is asking the court to exercise its discretion not to assume jurisdiction over the case but to let the case be heard in another more appropriate forum in this instance a contractual forum In The Sydney Express 1988 Lloyd s Rep 257 at p 262 Sheen J said Lord Fraser pointed out in the case of Williams Glyn s Bank v Astro Dinamico 1984 1 Lloyd s Rep 453 that Order 12 r 8 1 h ie the equivalent of our O 12 r 7 1 h although wide in its terms must be read in its context and is not appropriate to include an order to stay O 12 r 8 deals with the case in which a defendant wishes to dispute the jurisdiction of the court An application for a stay is the appropriate procedure for enforcing an agreement to litigate in some other jurisdiction when a writ has been issued and served without irregularity other than a breach between the parties 45 In Dicey and Morris on The Conflict of Laws 12th ed at p 289 the learned authors stated that an application to stay proceedings is not a challenge to the jurisdiction of the court 46 In this regard we would observe that in the section in The Supreme Court Practice 1999 dealing with stay on the ground of an exclusive jurisdiction clause no mention of the English equivalent of our O 12 r 7 was made It seems to us clear that the power of the court to grant a stay is pursuant to the provisions of para 9 of the First Schedule to the Singapore Court of Judicature Act which read Power to dismiss or stay proceedings where the matter in question is res judicata between the

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  • Amerco Timbers Pte Ltd v Chatsworth Timber Corp Pte Ltd[1975-1977] SLR 258; [1977] SGCA 6
    The second point urged by the respondents is on the Hague Rules By cl 2 of the bills of lading this contract was subject to the Hague Rules as adopted by the International Convention in 25 August 1924 Now Indonesia has not adopted the Hague Rules as part of their domestic law The Indonesian courts it would appear have also not had occasion to deal with a case where the contract at issue was subject to the Hague Rules On the other hand the Hague Rules form part of the laws of Singapore and cases concerning the interpretation of the Hague Rules have been dealt with before by the courts here Besides English decisions on various issues involving the interpretation of the Hague Rules can be relied on in proceedings before the courts here Therefore they say this is another reason why the court in Singapore rather than the court in Djakarta would be a more appropriate forum to hear this action 19 Thirdly they referred to the circumstances of the casualty out of which this action stems It would be convenient to set out here what Mr Chew Charm Pan had to say in his affidavit on this aspect of the case because this is practically all the information that is available to this court regarding it besides the Singapore Salvage Engineers report and the annexures to it which have also been exhibited to his affidavit He says From investigations carried out on behalf of my company by two marine surveyors based in Singapore it appears that the tug and tow left Bandjarmasin Indonesia at about 00 30 hours on 19 September 1974 At about 06 00 hours on 20 September 1974 the tug and tow were diverted to Sampit Bay and the tug and tow arrived at Sampit Bay at about 02 00 hours on 21 September 1974 at which time the barge was heavily listing to port and a few hours thereafter the barge was grounded Singapore Salvage Engineers a Singapore firm were engaged by or on behalf of the third defendants to salvage the barge and now produced shown to me and marked CCP1 is a copy of their report 20 The report from the Singapore Salvage Engineers also revealed that there were four holes at the bottom of the barge which had to be repaired before the barge was able to resume its voyage to Singapore 21 From these circumstances the respondents allege what would be most relevant and in issue regarding the appellants liability on the claim here would be the seaworthiness of the barge Apparently they would be contending that as a result of the unseaworthiness of the barge water got in and damaged the cargo 22 They submit that all the evidence concerning the issue of seaworthiness of the barge would come from the experts mentioned here who had investigated and inspected the barge and from the maintenance records of the barge All the witnesses who can speak on this issue are in Singapore or readily available in Singapore 23 The only other important issue in this claim would be the extent of the damage and loss to the respondents cargo Messrs Bork Singapore Pte Ltd who belong to an International Group and who are experts in timber were asked soon after the casualty to inspect the state of the logs in question and their evidence would be very relevant to establish the extent of damage and loss to the respondents cargo 24 The respondents assert that as practically all if not all the witnesses and other evidence on the likely issues involved in this claim are in Singapore for both the respondents and the appellants the court in Singapore rather than the one in Djakarta would be the more appropriate one to hear this action It will mean less costs and less trouble to all the parties and the appellants will in no way be prejudiced by it 25 The final point the respondents urge in their favour why this application should be refused is because they are time barred to commence proceedings in Indonesia Under the Hague Rules which apply to this contract of carriage they should have brought this action within one year and they were out of time at the time appellants made their application here 26 Those are the respective stands of the appellants and the respondents regarding this application both in the High Court before Mr Chua J and also before this court but with this qualification that the appellants through their counsel Mr Grimberg made three slight modifications to their original stand during the course of the hearing before us We have already referred to one of these modifications as the fresh additional point to support their application We shall refer to the other two modifications in due course 27 We now state our views on the arguments put forward by the parties 28 The respondents first point was that as the appellants are a Singapore incorporated company if they proceeded in the Djakarta court and obtained judgment against them on their claim they may still not see the fruits of the judgment and may have to further proceed against them in Singapore To our mind this is a factor which merits some consideration in their favour though the weight to be attached to it would be slight This was one of the points where counsel for the appellants at the hearing before us modified his stand and said that in the event of this court granting the application the appellants would undertake to furnish sufficient security in Indonesia to meet the respondents claim should they succeed in their action here This modification though late negatives any advantage the respondents would have had earlier from it 29 We next considered the point that as their contract was subject to the Hague Rules the Singapore court would be the more appropriate one to hear such a matter Both parties in their affidavits had referred to legal

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