New bill clarifies that the Singapore International Commercial Court can hear arbitration-related cases
On 9 January 2018, Singapore passed a bill providing that parties may submit international arbitration-related cases to the Singapore International Commercial Court (the SICC).
As we previously have reported here and here, the SICC was established three years ago as an alternative forum for international commercial cases with little or no connection to Singapore to be heard by experienced judges, including 12 international judges who come from a mix of civil and common law jurisdictions. The SICC has an increasingly active docket, having heard nearly 20 cases.
The new bill does not give the SICC any additional jurisdiction; rather, it clarifies that the SICC has jurisdiction to hear international commercial arbitration-related cases. It provides that “the Singapore International Commercial Court (being a division of the High Court) has jurisdiction to hear any proceedings relating to international commercial arbitration that the High Court may hear and that satisfy such conditions as the Rules of Court may prescribe”. The broad wording of the bill means that any arbitration-related applications may be heard by the SICC, including requests for:
- enforcement of international arbitration agreements;
- stay of proceedings;
- default appointment of arbitrators;
- appeal from an arbitral tribunal’s ruling in relation to its jurisdiction;
- interim measures in support of an arbitration;
- subpoenas to summon witnesses for an arbitration;
- enforcement of arbitral awards; and
- setting aside of arbitral awards.
As we previously have reported, the SICC is particularly appropriate to hear cases involving issues related to international arbitral awards because of its international character, including international judges who may have particular expertise in the law governing the underlying dispute and its flexible procedural rules.
Some aspects of the SICC’s jurisdiction remain to be clarified. For instance, the bill provides that the SICC has jurisdiction to hear cases related to “international commercial arbitration”. This may be distinguished from international investment treaty arbitration-related cases. “Investment treaty arbitration” typically refers to arbitrations involving disputes between a foreign investor and a host State within the framework of a treaty between the host State and the investor’s home State. Unlike international commercial arbitration, investment treaty arbitration will involve a State party, may not include a dispute over a commercial contract and typically will be governed by international law. It is unclear from this bill whether the SICC can assert jurisdiction over international investment treaty arbitration-related cases. This issue is likely to turn on the court’s interpretation of “commercial” and its finding on whether investment treaty arbitration is commercial in nature.
While the Singapore Government has indicated that arbitration-related proceedings will not be considered “offshore” and so only Singapore-qualified lawyers will be able to appear before the SICC for those cases, a more flexible approach allowing parties to be represented by SICC-registered foreign lawyers may be considered in the future. Such a development could be considered for cases where the only nexus with Singapore is the parties’ selection of Singapore as the seat of arbitration.
Another potential future development related to the SICC may be to permit third-party funding in all cases heard before the SICC. Third-party funding is the financing by a third‑party of the costs of dispute resolution proceedings in exchange for a share of the judgment or settlement amount. In Singapore, third‑party funding has remained generally prohibited under the common law doctrines of maintenance and champerty. However, last year, in March 2017, Singapore adopted new legislation which provided that third‑party funding by qualifying third‑party funders in relation to international arbitration and related court or mediation proceedings is not illegal or contrary to public policy. Chief Justice Sundaresh Menon has indicated recently that Singapore may consider broadening third-party funding to all cases before the SICC. Currently, third-party funding is permitted for arbitration-related cases, including any such cases before the SICC.
We will continue closely to monitor these developments as we assess the attractiveness of the SICC as a dispute resolution option for transnational disputes.