Jurisdiction of Law PDF

The Conflict of Laws A portion of the Part B Contemporary Legal Knowledge & Practice Module Marcus Teo, Sheridan Fellow, NUS Law Jurisdiction Overview The structure of jurisdictional rules Service in jurisdiction Service out of jurisdiction Jurisdiction clauses Submission by conduct...

The Conflict of Laws A portion of the Part B Contemporary Legal Knowledge & Practice Module Marcus Teo, Sheridan Fellow, NUS Law Jurisdiction Overview The structure of jurisdictional rules Service in jurisdiction Service out of jurisdiction Jurisdiction clauses Submission by conduct The structure of jurisdictional rules The structure of jurisdictional rules Jurisdictional rules determine whether Singapore courts can and should adjudicate on a particular dispute involving a particular defendant – the “first step” in the civil process However, disputes can be connected to several different jurisdictions – and conflicts jurisdictional rules determine whether Singapore is sufficiently connected to the dispute for its courts to adjudicate upon it The structure of jurisdictional rules Can and should Singapore’s courts exercise jurisdiction over a particular defendant in relation to a particular dispute? The existence of jurisdiction: whether there is a legal nexus between the defendant or dispute and Singapore The exercise of jurisdiction: whether, even if it has jurisdiction, the Singapore court is better-placed to adjudicate on the dispute than other courts which also have jurisdiction Service in jurisdiction Service in: existence of jurisdiction D’s presence in Singapore is sufficient to establish jurisdiction Supreme Court of Judicature Act 1969 s 16(1)(a)(i): “The General Division has jurisdiction to hear and try any action in personam … where the defendant is served with an originating claim or any other originating process … in Singapore in the manner prescribed by Rules of Court or Family Justice Rules” Modes of service include personal service, ordinary service, substituted service, etc (see relevant portions of Civ Pro Syllabus) Service in: existence of jurisdiction When is D “present” in Singapore? Individuals are “present” even if fleetingly so (Burgundy) Companies are deemed “present” if: It is a Singapore-incorporated company (Companies Act 1967 s 387); or It is a foreign company, and it has, or intends to, establish a place of business or carry on business in Singapore (CA ss 368 and 376) Whether a company “carries on business” in the forum depends on whether there was an agent carrying on the company’s business, from a fixed place in the forum, for a sufficient period of time – see Adams v Cape Industries for a list of relevant factors Service in: exercise of jurisdiction However, D’s (fleeting) presence in Singapore does not mean that Singapore courts should adjudicate on C’s dispute with D, if it is factually unconnected with Singapore The question is whether Singapore is also the natural forum for trial (i.e., the “forum conveniens”), as compared to other states which D alleges are more appropriate fora In service in cases, D bears the burden of proving that Singapore is not the natural forum (i.e., that Singapore is “forum non conveniens”) Service in: exercise of jurisdiction Whether Singapore, or another competing forum, is the natural forum turns on the balance of the Spiliada factors, such as: Parties’ connections: where are parties domiciled/resident/carrying on business? Availability of witnesses and evidence: are material witnesses/documents only compellable/discoverable in certain jurisdictions? Governing Law: what law governs the major issues in dispute? Other Proceedings: are there similar proceedings ongoing elsewhere, involving similar parties and issues? Service in: exercise of jurisdiction However, this is not a mechanistic balancing exercise (Lakshmi) – how important are these factors in parties’ dispute? Parties’ connections may be unimportant if dispute is transnational Witness and evidence availability may be unimportant if teleconferencing and e-documents are available, and if the relevant witnesses and evidence are compellable and discoverable The governing law may be unimportant in primarily factual disputes or if Singapore and foreign law are similar Service in: exercise of jurisdiction However, even if Singapore is not prima facie more appropriate, the court may still exercise jurisdiction if C would face a “real and material risk of injustice” in the foreign court Here, the burden of proof shifts to C The enquiry is whether, in essence, circumstances in the foreign jurisdiction are so onerous as to deny C a fair trial – such as: Very short limitation periods Severe delays Blatantly unfair evidential rules Threats to C’s personal safety A breakdown of law and order in the foreign state Service in: exercise of jurisdiction Thus, the natural forum enquiry, on whether the Singapore court should exercise jurisdiction, involves two stages: First: is Singapore prima facie more appropriate than other fora? Second: even if not, would C be denied substantial justice in the foreign court? If the answer to either question is “yes”, the Singapore court will exercise jurisdiction Service out of jurisdiction Service out: existence of jurisdiction Where D is not present in Singapore, jurisdiction only exists if there is a connection between parties’ dispute and Singapore Rules of Court 2021 O 8 r 1(1): “An originating process or other court document may be served out of Singapore with the Court’s approval if it can be shown that the Court has the jurisdiction or is the appropriate court to hear the action” Supreme Court Practice Directions 2021 PD 63(2): For the purposes of showing why the Court is the appropriate court to hear the action, the claimant should include in the supporting affidavit any relevant information showing that: (a) there is a good arguable case that there is sufficient nexus to Singapore; (b) Singapore is the forum conveniens; and (c) there is a serious question to be tried on the merits of the claim. Service out: existence of jurisdiction What counts as a “sufficient nexus”? Contractual disputes (PD 63(3)(d)-(e)) Tort disputes (PD 63(3)(f) and (p) Others not covered in course – but take a look at them Note: more than one jurisdiction may have a sufficient nexus to a dispute Service out: existence of jurisdiction The “sufficient nexus” in contractual disputes Where C’s claim is to enforce, rescind, annul, or interpret a contract that is Made in Singapore, or made as a result of an essential step being taken in Singapore (e.g., one substantially negotiated in Singapore; DJS Solutions) – PD 63(3)(d)(i) Made by or through an agent trading or residing in Singapore on behalf of a principal trading or residing out of Singapore – PD 63(3)(d)(ii) Is expressly or impliedly governed by Singapore law – PD 63(3)(d)(iii) Contains a Singapore jurisdiction clause – PD 63(3)(d)(iv) Where C’s claim is specifically to enforce a contract in relation to a breach (PD 63(3)(e)): Committed in Singapore; or Committed elsewhere, rendering performance of the contract in Singapore impossible – where Singapore was the only place the contract could be performed (Recovery Vehicle 1) Service out: existence of jurisdiction The “sufficient nexus” in tort disputes Where C’s claim is founded on a tort which has, as one of its elements, an act or omission in Singapore (PD 63(3)(f)(i)) Where C’s claim is wholly or partly founded on damage suffered in Singapore caused by the tort (PD 63(3)(f)(ii)) For tort claims where damage is “part of the [claim]” (e.g., negligence, conspiracy, nuisance) (MAN Diesel) “Damage” here refers to the “financial act of incurring loss” (MAN Diesel) For companies, damage is suffered at the place of incorporation, not where C had bank accounts (Man Diesel) Where C’s claim is for the recovery of damages in respect of damage suffered in Singapore caused by the tort (PD 63(3)(f)(ii)) For tort claims where damage is not part of the claim (e.g., battery, trespass) Where C’s claim is founded on a cause of action arising in Singapore (PD 63(3)(p)) I.e., where Singapore is the lex loci delicti (MAN Diesel) Service out: exercise of jurisdiction However, a nexus between Singapore and parties’ dispute is insufficient - again, Singapore must be the natural forum before the court will adjudicate Technically, in service out cases, the natural forum enquiry relates to the existence rather than exercise of jurisdiction – see PD 63(2) again: For the purposes of showing why the Court is the appropriate court to hear the action, the claimant should … show[] that: … (b) Singapore is the forum conveniens; However, this detail has only one practical consequence: in service out cases, the burden of proof lies on C to show that Singapore is the natural forum, rather than on D to show that Singapore is not (Spiliada) Jurisdiction clauses Jurisdiction clauses A jurisdiction clause is a contractual term which purports to give Singapore’s courts jurisdiction over parties’ dispute. Two broad types (with many intermediates in practice): “All disputes arising out of this contract shall be subject to the exclusive jurisdiction of the courts of Singapore” “All disputes arising out of this contract shall be subject to the non-exclusive jurisdiction of the courts of Singapore [and other state(s)]” Jurisdiction clauses: existence A jurisdiction clause can establish jurisdiction in two ways: A jurisdiction clause can expressly provide for service out in a particular manner, and such service will provide a basis for jurisdiction (ROC O 8 r 1(3)). A jurisdiction clause establishes a “sufficient nexus” between Singapore and the dispute for the purposes of PD 63(2)(a) – because such a nexus exists when C’s claim is: To enforce, rescind, annul, or interpret a contract that “contains a term to the effect that that Court will have jurisdiction to hear and determine any action in respect of the contract” (PD 63(3)(d)(iv)); and “In respect of matters in which the defendant has … agreed to submit to the jurisdiction of the Court” (PD 63(3)(r)) Jurisdiction clauses: exercise If a jurisdiction clause expressly provides for service out in a particular manner, the court will invariably exercise its jurisdiction: ROC O 8 r 1(3) “The Court’s approval is not required if service out of Singapore is allowed under a contract between the parties Cf ROC O 8 r 1(1): “An originating process or other court document may be served out of Singapore with the Court’s approval if it can be shown that the Court has the jurisdiction or is the appropriate court to hear the action.” PD 63(2)(b): “For the purposes of showing why the Court is the appropriate court to hear the action, the claimant should … show[] that [inter alia] … Singapore is the forum conveniens” Jurisdiction clauses: exercise If the clause does not expressly provide for service, the question whether Singapore’s courts should exercise its jurisdiction remains. But the test is not exactly forum non conveniens – instead, Singapore courts will exercise jurisdiction in line with parties’ agreement unless there is “strong cause” not to, based on these factors (Vinmar Overseas): Parties’ connections: as in FNC stage 1 Availability of witnesses and evidence: as in FNC stage 1 Governing Law: as in FNC stage 1 Other Proceedings: as in FNC stage 1 Substantial Justice: as in FNC stage 2 Abuse of process: does D only seek to enforce the jurisdiction clause to avoid the consequences of liability he already conceded? Jurisdiction clauses: exercise The “strong cause” test is stricter than the natural forum test, i.e., a stay is harder to get Only factors which were unforeseeable when parties made the jurisdiction agreement will be given significant weight, given the importance of “party autonomy and commercial certainty” (Vinmar Overseas) If parties choose a foreign court, the “strong cause” test also applies the other way round (i.e., Singapore’s courts will stay Singapore proceedings unless there is “strong cause” not to) Jurisdiction clauses: exercise But does the “strong cause” test – which exists to give effect to parties’ agreement – apply when parties agree to submit to the non-exclusive jurisdiction of the chosen court? Shanghai Turbo: when parties submit to the non-exclusive jurisdiction of: A foreign court: Singapore proceedings will not be stayed unless Singapore is not the natural forum The jurisdiction clause is a merely a relevant factor suggesting that Singapore might be the natural forum The Singapore courts: Singapore proceedings not be stayed unless there is strong cause to I.e., a forum bias in favour of Singapore courts! Jurisdiction clauses: COCAA2016 The Choice of Court Agreements Act 2016 – not covered in this course, but good to know in practice Incorporates the Hague Choice of Courts Convention 2005 Effect on jurisdiction clauses: If a jurisdiction clause points in favour of one Convention state party, it is deemed to be an exclusive jurisdiction clause unless parties expressly state otherwise If Singapore is the chosen court, it must exercise jurisdiction unless the clause is invalid If Singapore is not the chosen court, it must not exercise jurisdiction unless the clause is invalid Submission by conduct Submission by conduct Submission by conduct is itself a head of jurisdiction, without service – see SCJA s 16: “The General Division has jurisdiction to hear and try any action in personam where – (a) the defendant is served with an originating claim or any other originating process … (b) the defendant submits to the jurisdiction of the General Division.” Submission by conduct thus cures imperfections in service Even if D is outside Singapore, there is connection between parties’ dispute and Singapore, and there is no Singapore jurisdiction clause, submission can still establish the Singapore court’s jurisdiction over D Note: not ”submission by agreement”, i.e., a jurisdiction clause What amounts to submission by conduct? Where D takes a “clear and unequivocal” “step” in the proceedings that is inconsistent with an objection to Singapore’s courts having and exercise jurisdiction (Reputation Administration) A useful (if inexact) analogy: estoppel What amounts to submission by conduct? Some examples: Filing a defence on the merits (Reputation Administration) Contesting summary judgment applications on the merits (Reputation Administration) Seeking interim injunctions preserving the status quo (Shanghai Turbo) Cf contesting interim injunctions, which amount to submission if D cannot simply avoid them by challenging the court’s jurisdiction over him Not acts objecting to the existence or exercise of the Singapore court’s jurisdiction, like: Filing a notice to contest (O 6 r 6(4)) Challenging the existence of jurisdiction, by denying presence or fulfilment of PD 63(2) requirements (O 6 r 7(6)) Challenging the exercise of jurisdiction on natural forum grounds (O 6 r 7(6)) End