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THE RESOLUTION OF DISPUTES BEFORE THE SINGAPORE INTERNATIONAL COMMERCIAL COURT

Published online by Cambridge University Press:  17 March 2016

Man Yip
Man Yip*
Affiliation:
Assistant Professor, School of Law, Singapore Management University, [email protected].
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Abstract

The jurisdictional framework of the Singapore courts has become more nuanced with the establishment of the Singapore International Commercial Court (SICC) on 5 January 2015 and the signing of the Hague Convention on the Choice of Court Agreements 2005 (Hague Convention) on 25 March 2015. Although the Hague Convention has yet to be incorporated in domestic law, it is expected this will happen in the near future. The SICC project, on the other hand, is part of Singapore's strategy to promote the jurisdiction as an international dispute resolution hub. In essence, the SICC is a domestic specialist court established to deal with international commercial litigation. Adapted from the arbitral model but underpinned by judicial control, central to the SICC framework are party autonomy and flexible procedural rules. The Hague Convention complements the SICC project by increasing the number of jurisdictions in which Singapore judgments will be recognized and enforced. These 2015 developments—key to establishing Singapore as the regional hub for dispute resolution—requires careful working out and an evaluation is needed of the jurisdictional regime that applies to the SICC and the internal allocation of jurisdiction as between the SICC and the Singapore High Court sans the SICC, as well as the impact of the Hague Convention. This article focuses on explaining the in personam jurisdictional rules of the Singapore High Court that now includes the SICC division. Its chief objective is to offer the international community an overview of the working framework of Singapore's version of an ‘international’ commercial court.

Keywords

dispute resolutionHague Convention on Choice of Court Agreementsinternational commercial disputesjurisdictionSingapore International Commercial Court
Type
Articles
Information
International & Comparative Law Quarterly , Volume 65 , Issue 2 , April 2016 , pp. 439 - 473
Copyright
Copyright © British Institute of International and Comparative Law 2016 

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References

1 For general information, see <http://www.sicc.gov.sg>. See also Wong, DH, ‘The Rise of the International Commercial Court: What Is It and Will It Work?’ (2014) 33 CJQ 205Google Scholar.

2 Bradley Lomas Electrolok v Colt Ventilation East Asia Pte Ltd [1999] 3 SLR(R) 1156 (SGCA).

3 Including transient presence: see Maharanee of Baroda v Wildenstein [1972] 2 QB 283 (CA).

4 Submission can be by way of an agreement or by taking a step in the Singapore proceedings.

5 See sections 16 and 17, Supreme Court of Judicature Act (Cap 322, Rev Ed 2007); Order 10 rule 2 and Order 62 rule 4, Rules of Court (Cap 322, R5); sections 376 and 387, Companies Act (Cap 50, Rev Ed 2006).

6 Cap 322, R5 [Rules of Court].

7 Zoom Communications Ltd v Broadcast Solutions Pte Ltd [2014] SGCA 44, [2014] 4 SLR 500 [Zoom Communications].

8 CIMB Bank Bhd v Dresdner Kleinwort Ltd [2008] SGCA 36, [2008] 4 SLR(R) 543; JIO Minerals FZC v Mineral Enteprrises Ltd [2010] SGCA 41, [2011] 1 SLR 391 [JIO Minerals].

9 Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (HL). cf the Australian approach which determines forum appropriateness by reference to the inappropriateness of the home forum only, thereby avoiding making judgments on foreign legal systems but arguably leading to a more chauvinist result. See Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (HCA).

10 JIO Minerals (n 8) [42].

11 See eg AK Investment CJSC v Kyrgyz Mobil Tel Ltd [2011] UKPC 7, [2011] 4 All ER 1027.

12 Yeo TM, Halsbury's Laws of Singapore (2013 Reissue, LexisNexis 2009) vol 6(2), [75.096] [Halsbury's Laws of Singapore].

13 Zoom Communications (n 7) [77].

14 ibid [79].

15 See section 16(1)(b) of the Supreme Court of Judicature Act. The presence of a Singapore jurisdiction agreement does not dispense with the need for service of process.

16 The ‘Jian He’ [1999] SGCA 71, [1999] 3 SLR(R) 432; Golden Shore Transportation Pte Ltd v UCO Bank [2003] SGCA 43, [2004] 1 SLR(R) 6. In the converse case where the plaintiff has brought a dispute before the Singapore court in breach of an exclusive jurisdiction clause in favour of a foreign court, the plaintiff bears the burden of proving ‘strong cause’.

17 [2012] SGCA 16, [2012] 2 SLR 519.

18 ibid [25]. In coming to this view, the Court of Appeal was persuaded by Yeo's analysis regarding the impact of a jurisdiction agreement on the forum appropriateness inquiry in ‘The Contractual Basis of the Enforcement of Exclusive and Non-Exclusive Choice of Court Agreements’ (2005) 17 SAcLJ 306Google Scholar.

19 The English High Court has recently considered the effect of a non-exclusive choice of court agreement (in favour of English and Malaysian courts) coupled with a forum non conveniens waiver clause: Standard Chartered Bank (Hong Kong) Limited v Independent Power Tanzania Limited [2015] EWHC 1640 (Comm), [2015] 2 Lloyd's Rep 183. Flaux J held that the combination of the clauses does not preclude an English court from granting a stay of proceedings in favour of a foreign court where exceptional grounds amounting to a ‘strong cause’ justifying a departure from the agreement can be demonstrated.

20 See eg the jurisdiction clause that was in dispute in Hin-Pro International Logistics Limited v Compania Sud Americana De Vapores SA [2015] EWCA Civ 401, [2015] 2 Lloyd's Rep 1. Also, increasingly, parties in international financing agreements are favouring the use of a unilateral hybrid jurisdiction clause which essentially confers on one party (typically the lender) the right to sue in a number of jurisdiction while restricting the other party (the borrower) to sue in only one jurisdiction.

21 Yeo, ‘The Contractual Basis of the Enforcement of Exclusive and Non-Exclusive Choice of Court Agreements’ (n 18).

22 ibid.

23 ibid 352.

24 [2012] 2 SLR 519, [26]. The Court considered ([27]) that even if Yeo's contractual approach had been applied, the clause would still be characterized as non-exclusive in nature.

25 ibid [26].

26 [2014] 4 SLR 1042, [45]–[47].

27 A copy is the SICC Committee Report is available at: <https:// www.mlaw.gov.sg/content/dam/minlaw/corp/News/Annex%20A%20-%20SICC%20Committee%20Report.pdf>.

28 In conjunction with the Singapore International Mediation Institute.

29 See Sundaresh Menon (Chief Justice of the Supreme Court of Singapore), ‘International Courts: Towards a Transnational System of Dispute Resolution’ (Opening Lecture for the DIFC Courts Lecture Series 2015, 19 January 2015) <https://www.supremecourt.gov.sg/data/doc/ManagePage/5741/Opening%20Lecture%20-%20DIFC%20Lecture%20Series%202015.pdf>.

30 Jane Croft, ‘Three-quarters of litigants in UK Commercial Court are foreign’, The Financial Times (29 May 2014) <http://www.ft.com/cms/s/0/4c33f0c0-e716-11e3-88be-00144feabdc0.html#axzz3xOjZCIYM>.

31 ibid.

32 The Honourable Mrs Justice Carr, ‘Closing Address for British Turkish Lawyers Association seminar – The inner temple’ (13 September 2013) <https:// www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Speeches/justice-carr-btla-190913.pdf>.

33 Southwell, R QC, ‘A Specialist Commercial Court in Singapore’ (1990) 2 Singapore Academy Law Journal 274, 275Google Scholar.

34 ibid 284.

35 The DIFC Courts are common law courts. For general information, see <http://difccourts.ae>. See also the comparison between the two municipal court systems in Sundaresh Menon (Chief Justice of the Supreme Court of Singapore), ‘International Courts: Towards a Transnational System of Dispute Resolution’ (n 29).

36 Parties may apply for other rules of evidence to apply to their SICC proceedings, and these rules need not be part of foreign law.

37 Although the SICC model generally envisages open court hearings and the publication of its judgments, it is possible for a party to apply to the court for a confidentiality order. Importantly, the SICC takes a more liberal approach in making a confidentiality order where the case is an ‘offshore’ case (in essence, a case with no substantial connection to Singapore), as well as where there is an agreement between the parties regarding the making of such an order. See Order 110 rule 30, Rules of Court.

38 The traditional common law rule requires foreign law to be pleaded as facts and proved by expert evidence, giving rise to problem such as high costs as well as lack of objectivity or deficiency in evidence in some cases.

39 For a general discussion of the salient procedural features of the SICC, see M Yip, ‘Special Reports – Singapore International Commercial Court: A New Model for Transnational Commercial Litigation’ (2014) 32 Chinese (Taiwan) Yearbook of International Law and Affairs (forthcoming).

40 These are termed the ‘offshore’ cases, that is, where (a) Singapore law is not the law applicable to the dispute and the subject matter of the dispute is not regulated by Singapore law or (b) the only connection to Singapore is the parties’ choice of Singapore law as the governing law as well as their submission to the jurisdiction of the SICC. For more information on foreign representation, see Singapore International Commercial Court User Guides – Note 3 (Foreign Representation) <http://www.sicc.gov.sg/documents/docs/SICC_User_Guides.pdf>.

41 The judges hearing the SICC cases may be drawn from the Judges of Appeal, Judges, Senior Judges or the International Judges of the Supreme Court. For more information, see: <http://www.sicc.gov.sg/Judges.aspx?id=30>.

42 In general, proceedings before the SICC are to be heard either by a single judge or by three judges. In a case where three judges are appointed to determine the dispute, the Chief Justice shall appoint one of them to preside.

43 Section 18A, Supreme Court of Judicature Act.

44 O 110 r 7(1), Rules of Court.

45 O 110 r 2(a), Rules of Court.

46 O 110 r 2(b), Rules of Court.

47 Yeo TM, ‘Staying Relevant: Exercise of Jurisdiction in the Age of the SICC’ (Eighth Yong Pung How Professorship of Law Lecture 2015, Singapore, 13 May 2015) 7–8 <http://law.smu.edu.sg/sites/default/files/law/CEBCLA/YPH-Paper-2015.pdf>.

48 The statutory provision has been set out in discussion above, at text around fn 43.

49 [2014] SGCA 23, [2014] 3 SLR 357.

50 ibid [33].

51 ibid [34].

52 Section 18D of the Supreme Court of Judicature Act does not explicitly provide that the term ‘international’ is to be read objectively, even though the absence of explicit provision per se may lean towards an objective reading.

53 Yeo (n 47) 8. Please see Postscript.

54 Order 110 rule 1(2)(e), Rules of Court. Model SICC jurisdiction agreements are available at: <http://www.sicc.gov.sg/documents/docs/SICC_Model_Clauses.pdf>. Although the basic model clauses templates do not expressly prescribe that the jurisdiction agreement must be governed by Singapore law, it is briefly noted that ‘[h]aving an express provision for the jurisdiction clause to be governed by Singapore law would facilitate effective submission to the SICC’. The comprehensive model clauses templates, on the other hand, expressly specify that the jurisdiction agreement is to be governed by Singapore law. SICC's preference is therefore for the jurisdiction agreement to be governed by Singapore law; the main contract may, however, be governed by a different law.

55 Order 110 rule 1(2)(c), Rules of Court. It should be noted that Order 110 r 1(1) defines ‘High Court’ to refer to the Singapore High Court, excluding the SICC division. It is thus unclear whether submitting to the ‘Singapore High Court’ without more is not submission to the SICC. For prudence, parties should be very specific in the description of the desired court in drafting their jurisdiction agreement.

56 Order 110 rule 1(2)(d), Rules of Court.

57 The contractual approach to jurisdiction agreements can invite a very vigorous analysis with many factors to be weighed up and considered, thereby contributing to a lack of certainty. See eg Hin-Pro International Logistics Limited v Compania Sud Americana De Vapores SA (n 20).

58 This is only a partial solution for it does not completely avoid uncertainty. For instance, if the jurisdiction clause is explicitly described as ‘non-exclusive’, such drafting would prima facie rebut the presumption under section 18F of the Supreme Court of Judicature Act and the court must proceed to interpret what is the precise promissory content of the clause, assuming the proper law of the contract applies a contractual analysis of such clauses.

59 Halsbury's Laws of Singapore (n 12) [75.116].

60 See generally A Briggs, Agreements on Jurisdiction and Choice of Law (OUP 2008) ch 3. See also FAI General Insurance Co Ltd v Ocean Marine Mutual P & I Assoc Ltd [1998] Lloyd's Rep IR 24; CIMB Bank Bhd v Dresdner Kleinwort Ltd [2008] 4 SLR(R) 543, [30].

61 See eg art 3(d) of the Hague Convention which provides: ‘An exclusive choice of court agreement that forms part of a contract shall be treated as an agreement independent of the other terms of the contract. The validity of the exclusive choice of court agreement cannot be contested solely on the ground that the contract is not valid.’

62 Credit Suisse First Boston (Europe) Ltd v Seagate Trading Co Ltd [1999] 1 Lloyd's Rep 784 (Com Crt).

63 Halsbury's Laws of Singapore (n 12) [75.116].

64 ibid.

65 Introducing a presumption of exclusivity as part of the lex fori is not an innovative technique, See eg Council Regulation (EC) No 44/2001 of 22 December 2000 on Jurisdiction and Recognition and Enforcement of Judgments in Civil and Commercial Matters [2001] OJ L 12/1, art 23 and the draft Hague Convention on Exclusive Choice of Court Agreements, art 3(b). However, the presumption introduced in these two instruments is of greater impact and therefore utility owing to its application by a group of countries as a result of agreement or otherwise.

66 Where parties fail to prove the content of the foreign governing law of the contract, the relevant foreign law is presumed, as a rule of convenience, to be the same as Singapore law. See D'Oz International Pte Ltd v PSB Corp Pte Ltd [2010] SGHC 88, [2010] 3 SLR 267, [25]; Abdul Rashid bin Abdul Manaf v Hii Yii Ann [2014] 4 SLR 1042, [44].

67 Parties may, of course, explicitly provide that the jurisdiction agreement is governed by a foreign law. In such circumstances, the presumption under section 18F(1)(a) is rebutted by provision to the contrary (see section 18F(2)). See also fn 54.

68 J Hill and A Chong, International Commercial Disputes: Commercial Conflict of Laws in English Courts (4th edn, Hart Publishing 2010) [14.3.5].

69 Yeo (n 47) 10, citing Beluga Chartering GmbH (in liquidation) v Beluga Projects (Singapore) Pte Ltd [2014] SGCA 14, [2014] SLR 815, [48] (a case concerning the interpretation of a statutory provision on insolvency).

70 ibid 10.

71 ibid 10.

72 Cap 396, Rev Ed 1994.

73 Fawcett, J, ‘Evasion of Law in Private International Law’ (1990) 49 CLJ 57CrossRefGoogle Scholar.

74 ibid 60. See also Hill and Chong (n 68) [14.3.2].

75 If there is no breach of agreement, the anti-suit injunction is available on very limited grounds: where Singapore is the natural forum for the dispute and where the commencement/continuation of the foreign proceedings amounts to vexatious, oppressive or unconscionable behaviour. See Halsbury's Laws of Singapore (n 12) [75.127]–[75.132]. See eg Sabah Shipyard (Pakistan) Ltd v Islamic Republic of Pakistan [2003] 2 Lloyd's Rep 571 and the detailed analysis of that case by the Singapore High Court in UBS AG v Telesto Investments Ltd [2011] 4 SLR 503 at [111]–[127].

76 Union Discount Co Ltd v Zoller [2002] 1 WLR 1517. The English Court of Appeal recently confirmed a damages award for breach of a jurisdiction agreement: Starlight Shipping Company v Allianz Marine & Aviation Versicherungs AG [2014] EWCA Civ 1010; [2014] 2 Lloyd's Rep 544.

77 See Yeo (n 47) fn 47; although of course that may be of no practical effect if the breaching party has no assets in the Singapore jurisdiction.

78 O 110 r 6, Rules of Court.

79 [2013] UKSC 44, [2013] 1 WLR 2043, [53].

80 See Dickinson, A, ‘Service abroad – an inconvenient obstacle?’ (2014) 130 LQR 197Google Scholar.

81 See Dickinson, A, ‘Restrained no more? Service out of jurisdiction in the 21st century’ [2010] LMCLQ 1Google Scholar; Dickinson, A, ‘Service out of jurisdiction in contract cases: straightening out the deck chairs’ [2012] LMCLQ 181Google Scholar.

82 See also Singapore International Commercial Court User Guide – Note 1 (Jurisdiction), para 4 which explains that ‘the fact that there are few or no connecting factors to Singapore does not constitute a basis to ask the Court to decline to assume jurisdiction’ <http://www.sicc.gov.sg/documents/docs/SICC_User_Guides.pdf>.

83 For instance, where an exclusive jurisdiction agreement is concerned, it can be reasonably argued that the threshold to meet for proving that it is ‘not appropriate’ for the SICC to hear the case is higher than where parties have agreed to a non-exclusive jurisdiction agreement.

84 The Herceg Novi [1998] SGHC 303; Evergreen International SA v Volkswagen Group Singapore Pte Ltd [2003] SGHC 142, [2004] 2 SLR(R) 457, [62]. cf Halsbury's Laws of Singapore (n 12) [75.101]. Yeo has persuasively argued that in theory such arguments could be raised without being critical of the forum legal system. After all, owing to concerns of international comity, the forum court generally avoids passing judgments on foreign legal systems, and yet it could make the finding that the plaintiff will not be able to obtain substantial justice in the foreign court. He also observed that such arguments are in principle not foreclosed by Lord Goff's judgment in the Spiliada.

85 SICC Committee Report (n 27) [26]–[27].

86 Yeo (n 47) 13.

87 Yeo has pointed out also that ‘[t]he fact that fresh rules are drafted on international jurisdiction indicates an intention to depart from the pre-existing law’: see ibid.

88 AS Bell, Forum Shopping and Venue in Transnational Litigation (OUP 2003) ch 5. See also Donohue v Armco Inc [2001] UKHL 64, [2002] 1 All ER 749.

89 Re Schuppan (a bankrupt) (No 2) [1997] 1 BCLC 256 (Ch); Petrodel Resources Ltd v Prest [2013] UKSC 34; [2013] 2 AC 415; Luo v The Estate of Hui Shui See, Willy, Deceased [2008] HKEC 996 (CFA (HK)); Favor Easy Management Ltd v Wu [2002] EWCA Civ 1464. See also Lee, R and Ho, L, ‘Disputes over Family Homes Owned through Companies: Constructive Trust or Promissory Estoppel’ (2009) 125 LQR 25Google Scholar.

90 See O 110 r 39, Rules of Court.

91 The pre-action certificate is liable to be set aside if the SICC decides that it has no jurisdiction on the basis that the action is not international or commercial in nature: see Order 110 rule 10(2), Rules of Court.

92 See Order 110 rule 10, Rules of Court.

93 See Order 110 rule 11, Rules of Court. It is important to note that Order 110 rule 11(1)(b) provides that where there is exhibited a pre-action certificate certifying that the action is of an international and commercial character, no challenge to jurisdiction can be brought on the basis the action is not of such character, unless the party applies to set aside the certificate.

94 It is also noteworthy that for the converse transfer of proceedings from the High Court to the SICC (discussed below), Order 110 rule 12(4)(b)(ii) of the Rules of Court explicitly provides that a transfer may be made without the parties’ consent. Please see Postscript.

95 The first transfer case to be heard by the SICC is BCBC Singapore Pte Ltd v PT Bayan Resources TBK, SIC/S 1/2015, a US$809 million dispute between an Australian company and an Indonesian company over their joint venture agreement. The case was transferred from the High Court to the SICC. A panel of three judges has been appointed to hear the case: Justice Quentin Loh, Justice Vivian Ramsey and Justice Anselmo Reyes.

96 Order 110 r 12(4)(b), Rules of Court

97 Order 110 r 12(4)(a), Rules of Court

98 Hearing fees and court fees are not relevant considerations as even when the proceedings are transferred from the High Court to the SICC, the parties will pay the fees applicable to High Court proceedings, unless the High Court orders otherwise. See Order 110 r 12(5)(c), Rules of Court.

99 Order 110 r 12(5)(b), Rules of Court.

100 In CKR Contract Services Pte Ltd v Asplenium Land Pte Ltd [2015] SGCA 24, [2015] 3 SLR 1041, [18], the Singapore Court of Appeal observed that contracts have been held to be void and unenforceable on the basis of ousting of the jurisdiction of the courts in very exceptional circumstances and such a category of public policy has only thus far been applied in two areas: (1) agreements to exclude recourse to the court in favour of dispute resolution by a private tribunal or expert; and (2) a wife's covenant to not apply to the court for maintenance from the husband for herself and/or a child.

101 See discussion above at text to and around nn 90–93.

102 Order 110 r 12(5)(a), Rules of Court.

103 In light of the separate provision for internal allocation of jurisdiction based on comparative appropriateness (requirement (iv)), it would seem pointless to construe requirement (iii) regarding whether SICC will assume jurisdiction over the case as a matter concerning internal allocation of jurisdiction. Please see Postscript.

104 Yeo (n 47) 17.

105 ibid 17–18.

106 Singapore International Commercial Court User Guides – Note 1 (Jurisdiction) (n 82).

107 Yeo (n 47) 19–20.

108 ibid 20.

109 ibid.

110 Singapore International Commercial Court User Guides – Note 1 (Jurisdiction) (n 82) paras 9 and 10. It is important to note that the SICC may but it is ‘not bound’ to consider and ascribe weight to arguments based on connections by the party sought to be joined to the SICC proceedings.

111 [2010] NSWCA 196; 79 ACSR 383.

112 ibid [79].

113 Chong, A, ‘The “Party Scope” of Exclusive Jurisdiction Clauses’ [2011] LMCLQ 474–6Google Scholar.

114 For example, under Singapore law, section 2 of the Contracts (Rights of Third Parties) Act (Cap 53B, Rev Ed 2002) sets out the circumstances in which a third party may enforce a contractual term.

115 Chong (n 113) 477.

116 Nevertheless, it should be borne in mind that the point of joining third parties to SICC proceedings is underlined by the policy of having related proceedings heard in the contractually chosen forum.

117 All Member States in the European Union, with the exception of Denmark, will be bound by the Hague Convention.

118 On 19 January 2015, the Supreme Court of Singapore and the Dubai International Financial Centre Courts signed a non-binding ‘Memorandum of Guidance’ concerning the reciprocal enforcement of money judgments <http://difccourts.ae/memorandum-guidance-enforcement-difc-courts-supreme-court-singapore/>.

119 For this to happen, there are three further steps: (1) the Convention must enter into force internationally; (2) ratification by Singapore; and (3) Singapore must enact legislation to give the Convention the force of law domestically. See Yeo (n 47) 23.

120 Yeo, TM, ‘Hague Convention on Choice of Court Agreements 2005: A Singapore Perspective’ (2015) 114 Journal of International Law and Diplomacy 50Google Scholar.

121 See eg RA Brand and PM Herrup, The 2005 Hague Convention on Choice of Court Agreements: Commentary and Documents (CUP 2008); Keyes, M, ‘Jurisdiction under the Hague Choice of Courts Convention; Its Likely Impact on Australian Practice’ (2009) 5 Journal of Private International Law 181Google Scholar; T Hartley, Choice-of-Court Agreements under the European and International Instruments (OUP 2013); Beaumont, P and Walker, L, ‘Recognition and enforcement of judgments in civil and commercial matters in the Brussels I Recast and some lessons from it and the recent Hague Conventions for the Hague Judgments Project’ [2015] 11 Journal of Private International Law 31Google Scholar.

122 Art 1(1), Hague Convention.

123 A separate definition of ‘international’ is provided under art 1(3) of the Hague Convention in the context of recognition or enforcement of judgments. In that context, a case is considered ‘international’ where it concerns the recognition or enforcement of a foreign judgment. See also T Hartley and M Dogauchi, Explanatory Report (HCCH Publications 2005) <http://www.hcch.net/index_en.php?act=publications.details&pid=3959&dtid=3> para 11 [Explanatory Report]. According to the Explanatory Report, the two definitions of ‘international’ in the different contexts mean that ‘a case that was non-international when the original judgment was given may become international if the question arises of recognizing or enforcing the judgment in another State’.

124 Art 1(2), Hague Convention.

125 Art 3(c), Hague Convention.

126 Art 3(a), Hague Convention.

127 Art 3(b), Hague Convention.

128 RA Brand and PM Herrup, The 2005 Hague Convention on Choice of Court Agreements: Commentary and Documents (CUP 2008) 175–6.

129 Explanatory Report (n 123) para 18.

130 For a discussion on the meaning of ‘null and void’ under the Hague Convention, see Brand and PM Herrup (n 128) 79–80.

131 See Explanatory Report (n 123) para 3.

132 See art5(2) of the Hague Convention and Explanatory Report (n 123) para 3.

133 Yeo, ‘Hague Convention on Choice of Court Agreements 2005: A Singapore Perspective’ (n 120) 63.

134 Yeo (n 47) 26.

135 Under Singapore law, the court draws a distinction between foreseeable factors and unforeseeable factors; the former are ascribed less weight in the ‘strong cause’ test (The Hyundai Fortune [2004] 4 SLR(R) 548 at [8]). Importantly, more weighty factors include that the jurisdiction agreement is a standard form agreement; the contractual forum cannot be easily determined at the time of contracting; there are very strong connections with a non-chosen forum; the defendant is not genuinely desiring trial in the contractual forum. See discussion in Halsbury's Laws of Singapore (n 12) [75.121].

136 See Donohue v Armco Inc [2002] 1 All ER 749. In that case, Lord Bingham said that ‘the interests of justice are best served by the submission of the whole litigation to a single tribunal which is best fitted to make a reliable, comprehensive judgment on all the matters in issue’ ([34]). cf Konkola Copper Mines plc v Coromin Ltd (No 2)[2006] EWHC 1093 (Comm), [2006] 2 Lloyd's Rep 446.

137 However, note art 22, Hague Convention.

138 Yeo (n 47) 27.

139 ibid 24.

140 See art 5(3), Hague Convention.

141 Art 5(3)(a), Hague Convention.

142 It has been argued above that the power is to be exercised only in very exceptional circumstances.

143 In other circumstances, the SICC may nonetheless order a non-consensual transfer and take the risk of its judgment being refused recognition or enforcement abroad (which possibility is acknowledged in art 8(5) of the Convention). For example, it may choose to do so if the defendant's assets are substantially in Singapore. The factual context of the dispute is thus very important.

144 Where the parties wish to submit applications for interlocutory relief to the SICC, it should be noted that according to the Singapore International Commercial Court Practice Directions (SICC PD), ‘[a]s far as possible, the SICC Registry will assign all interlocutory applications in matters before the [SICC] to the Judge who will be hearing the trial or other dispositive matter of the matter’. A copy of the SICC PD is available at: <http://www.supremecourt.gov.sg/docs/default-source/default-document-library/rules/singapore-international-commercial-court-practice-directions.pdf>.