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AthleticSilver740

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NUS Faculty of Law

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jurisdiction conflict of laws Singapore legal lecture

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This document is a lecture on jurisdiction in conflict of laws. It discusses jurisdictional rules, connecting Singaporean courts to disputes. The focus is on the general structure of jurisdictional rules, and examining various kinds of jurisdictional rules.

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Takeaways The jurisdictional inquiry is crucial at the start of civil proceedings to determine if a case can be brought before Singaporean courts. Jurisdictional rules help establish a legal link between Singapore and a dispute, determining if Singapore courts can exercise jurisdiction over a part...

Takeaways The jurisdictional inquiry is crucial at the start of civil proceedings to determine if a case can be brought before Singaporean courts. Jurisdictional rules help establish a legal link between Singapore and a dispute, determining if Singapore courts can exercise jurisdiction over a particular case. The natural forum inquiry considers factors like parties\' connections, availability of witnesses and evidence, governing law, and other ongoing proceedings to determine if Singapore is the appropriate forum for trial. Jurisdiction can be established when the defendant is served in Singapore, served outside of Singapore with the court\'s leave, or through a jurisdiction clause. Submission by conduct occurs when the defendant takes clear and unequivocal steps in the proceedings that are inconsistent with an objection to Singapore\'s jurisdiction. Andrew Yip (00:01.292) Welcome to our second substantive lecture for the Conflict of Laws module, which will be covering jurisdiction. This lecture will proceed as follows. First, we\'re going to talk about the general structure of jurisdictional rules, certain common elements that they all share, and the purpose of these rules and why they exist. And then we\'re going to proceed to examine four heads of jurisdiction or kinds of jurisdictional rules which connect Singaporean courts to particular disputes. These are rules covering situations where the defendant is in Singapore and therefore served in Singapore, where the defendant is outside Singapore and therefore served out of jurisdiction, situations where over the defendant is secured by a jurisdiction clause and situations where jurisdiction is founded by the defendant\'s submission by conduct. Andrew Yip (00:55.064) Let\'s talk a little bit about the structure of jurisdictional rules. Now the jurisdictional inquiry arises at the very start of civil proceedings. When a claimant is trying to determine whether or not he has a case against the defendant worth bringing, he\'s not just determining whether or not on the merits he has a substantive cause of action that is likely to succeed, which is not going to be barred by a defence or whatever. He\'s also trying to determine whether or not he has a case which the Singaporean courts in particular will be willing to hear. If he does not, there\'s no point trying to sue the defendant in Singapore because the Singaporean courts, whether or not they agree with the merits of your case, will just throw it out because they say, well, whatever the merits of your case, we are not meant to hear it. We shouldn\'t be hearing it. So the jurisdictional inquiry is crucially important. It\'s the very inquiry that any claimant must cross when they decide to sue someone in Singapore. What does the conflict of laws have to do with all of this? Well, If a dispute can be tried in different jurisdictions because it is connected to several different jurisdictions, conflicts of law, jurisdictional rules, helps a Singapore court determine whether it is sufficiently connected to this dispute so that it can try it. In other words, even though various different jurisdictions, various different courts might be connected to this dispute, can the Singaporean court say, well, I\'m so connected to this dispute that it should be my business to say how it should turn should be my business to adjudicate upon it and to issue a judgment on its merits. Andrew Yip (02:26.102) I use the term sufficiently connected to describe the kind of link that jurisdictional rules are trying to establish between Singapore and a particular dispute. But we can break this down more specifically into two requirements. Can a Singapore court exercise jurisdiction over a particular dispute? And should it exercise that jurisdiction over a particular dispute? The question of whether Singapore\'s courts can exercise jurisdiction over a particular dispute is a question about the existence of that jurisdiction. Is there enough of a nexus between the subject matter of the dispute and Singapore\'s courts, which justifies the Singaporean court saying, okay, this dispute is linked somehow normatively to Singapore, it should be my business to try this dispute, maybe because defendant is domiciled in Singapore, maybe because the dispute relates to a contract governed by Singapore law, maybe because the dispute involves property within Singapore, whatever that might be and we\'ll get into the details later on, this creates a legal link between Singapore and the dispute. But just because there is this link, just because jurisdiction exists, doesn\'t mean the Singapore court should exercise that jurisdiction. Whether or not they should exercise that jurisdiction depends on whether or not Singapore is best placed to adjudicate on the dispute from a more pragmatic, practical point of view. Courts are meant to resolve disputes, and dispute resolution should happen, if at all, effectively and not\... in a manner which is impractical, disproportionately costly to parties and which is a very delayed and inefficient process. So if dispute resolution should be relatively efficient and effective, the question is whether or not Singapore\'s courts will be able to deliver the kind of dispute resolution that is effective given the nature of the dispute and the nature of parties\' pleadings before the court, which is a more pragmatic question of practical justice. And this goes towards the exercise of jurisdiction. Andrew Yip (04:24.984) We now turn to look at the first set of jurisdiction. Jurisdiction established when the defendant is served in Singapore. Andrew Yip (04:34.454) Now when a defendant is physically present in Singapore and is served the originating process in Singapore, this is generally sufficient to establish the jurisdiction of the Singapore courts. Note that the presence alone will not suffice, the defendant actually has to be served and how the defendant can be served in Singapore can be by personal service, ordinary service, substituted service and etc which you will cover in your civil procedure module. Andrew Yip (05:03.426) The main question for us is then when a defendant can be considered to be present in Singapore. For natural persons, for individuals, this is easy. If a person is physically in Singapore, even fleetingly so, he is for that period of time considered to be present in Singapore. So if someone passes through Changi Airport on a connecting flight, he is for that short time present in Singapore and can be served a process in Singapore. A company has no physical presence technically, so it has to be deemed present by rules of law. If the company in question is a Singapore incorporated company, the fact of incorporation creates presence in Singapore. Otherwise, if it\'s a foreign incorporated company, it will be present in Singapore if it has or intends to establish a place of business or to carry on business in Singapore. Now whether or not a company carries on business in Singapore is determined by a multi -factorial test which has been laid out in two Sysin pages in Adams and Cape Industries and the test generally turns on whether or not the company has an agent in Singapore carrying on the company\'s business from a fixed place within Singapore for a sufficient period of time. So all these factors tend to turn on essentially the permanence and the gravity of the company\'s affairs in Singapore. And if it\'s sufficiently permanent and sufficiently serious, then the company will be deemed to be present in Andrew Yip (06:31.736) However, just because the defendant is present in Singapore, perhaps even fleetingly so, doesn\'t mean that Singapore\'s courts should exercise jurisdiction over parties\' dispute. That turns on the question as to whether or not the dispute is factually connected with Singapore, such that it would make sense pragmatically for Singapore\'s courts to hear the dispute. parties really physically connected to Singapore. There\'s a dispute in question really, one which is close enough to Singapore that Singapore\'s courts can meaningfully try in accurate and fair manner. So this is the question as to whether or not Singapore is the natural forum for the trial as compared to other states which the defendant alleges are appropriate forum. This is the natural forum inquiry or the forum convenience inquiry. Two points about this inquiry, which determines whether or not Singapore courts should exercise the jurisdiction that they have, should be highlighted. First is the mode of inquiry. It is a comparative inquiry. The existence of jurisdiction is simply a question as to whether or not Singapore has a legal nexus with the dispute. The exercise of jurisdiction, the forum convenience inquiry by contrast, is a question as to whether or not between Singapore and another jurisdiction which the defendant is saying should hear, should try the dispute instead. Between these two, comparatively, which forum is the more appropriate? one for trial. So the defendant must highlight the different alternatives, which are alternatives to the Singapore courts for trial. And then the question of the forum convenience inquiry or the natural forum inquiry is a question as to comparatively speaking, which of these two forum are better for trial. Andrew Yip (08:16.236) The second point to note concerns the substance of the inquiry. Whereas the existence of jurisdiction, the existence of the legal nexus between Singapore and the dispute is a normative question, the exercise of jurisdiction inquiry, the natural form inquiry, is a more pragmatic inquiry focused on questions of convenience, of efficiency, of availability of witnesses, so on and so forth, which we\'re going to get to in a bit. But note the pragmatic flavor of this inquiry. This might be a bit reductionist to say, and it\'s not The final point note is that where the defendant is served in Singapore, it is the defendant who must show that Singapore is not the natural forum. That Singapore is, in other words, forum non -convenience. This is different when the defendant is served out of Singapore, as we will see later on. all this is to say that where the defendant is served in Singapore, prima facie trial will happen in Singapore. It is for the defendant to show why a trial should not happen in Singapore on grounds that Singapore is not the natural forum. Andrew Yip (09:40.45) the Natural Forum Comparative Inquiry. turns on several factors which are commonly called dispiliada factors after the decision of the UK House of Lords. And these factors include several like parties connections, the availability of witnesses and evidence, the governing law of the major issues before the court and whether or not the other proceedings. Now parties connections, whether or not the plaintiff or defendant are domiciled or resident or carry on business in Singapore or another country is a relevant factor pointing towards Singapore or the other country respectively. Whether or not certain material or highly important witnesses or documents which may be submitted in evidence can only be compelled to testify or be produced in Singapore or elsewhere as a relevant factor pointing towards Singapore or elsewhere as the natural form respectively. The governing law. Where the major issues in the dispute are governed by a foreign law, for example, that is a major factor pointing towards or can be a major factor pointing towards the foreign court as the appropriate form because, prima facie, a foreign court is a better place to apply the foreign law in question. And finally, are there other proceedings which are ongoing in parallel to these proceedings, which are, be they fresh proceedings or proceedings which have been going on for some time, which are so closely connected to the proceedings that the claimant is trying to start Singapore, because maybe they involve the same parties and the same issues and the same witnesses and the same evidence that it would be impractical to fragment proceedings between Singapore and between these foreign jurisdictions because that would be gravely inconvenient to parties. So in that situation, if there were parallel proceedings ongoing elsewhere, that may be a factor that points towards the foreign court being a natural forum rather than Singapore. Andrew Yip (11:29.654) So the natural form inquiry being a multi -factorial inquiry is a very fact -based kind of question and there really isn\'t much else to be said about it except to look at the facts of each dispute and to see how the various factors I\'ve highlighted will fall one way or another. It should be pointed out that as with any other multi -factorial exercise, this is not merely a bean counting exercise. You don\'t merely say, okay, three factors point in one direction, one factor points in another, so the three factors jurisdiction is the natural form, right? No. In every situation, we need to look at which of the factors are particularly important given the nature of parties\' dispute, right? So it\'s not just about the quantity, but about the quality of the connecting factors linking the dispute to one potentially natural form or the other. For example, if a dispute is really really transnational and if let\'s say parties of dispute were in different jurisdictions and the subject matter of dispute is in another jurisdiction and it\'s a governing law clause for yet another jurisdiction and the dispute is truly transnational, the fact that the claimant is domiciled in Singapore, the defendant is domiciled in Singapore isn\'t really that important a factor, right? Because territorial connections in this sense aren\'t really important in a transnational dispute. Likewise, although it\'s really important that witness be compelable before a Singaporean court or if a document be made available before a Singaporean court before the Singapore court is considered natural forum. If a witness is willing to testify anywhere and if the foreign court has video link evidence and the witness is happy to give evidence before the foreign court, the fact that the witness is physically in Singapore is much less important. Likewise, the evidence is available\... in soft copy and soft copy can be adduced before courts anywhere in the world. The fact that the physical copy of the evidence in question is in Singapore is much less important as it would otherwise be. Finally, the Governing Law is important Andrew Yip (13:21.172) If there are major legal questions which need to be resolved before the court, the dispute between parties is mainly legal in nature rather than factual in nature, and if the governing law is on a\... and if the issue, the legal issue between parties is on a point on which Singapore law and foreign law are likely to be quite different. On the other hand, if the two potentially available fora are both common law jurisdictions and the issue being resolved is one on which every common law jurisdiction is likely to resolved in the same way, or indeed if party\'s dispute is primarily factual rather than legal, then the governing law factor won\'t be such an important factor in the form of non -convenience analysis. All this is to say, When you look at the various factors for the natural form inquiry, you can\'t just count three factors one way, one factor another way and end at that. You need to look at how the factors play out on the facts of the dispute, how important they are given the nature of parties dispute and look at that and assess qualitatively as a whole which of the competing forum is the dispute more pragmatically connected to than the other. Andrew Yip (14:30.966) Let\'s say on the balance of disability -added factors, the Singapore court concludes that, prima facie, the foreign court is more appropriate than the Singapore court for trial. Does that mean it will definitely not exercise its jurisdiction and stay proceedings? Not necessarily. So there is an exception, I guess you could say, to a situation where, even where the Singapore court determines that it is prima facie not the appropriate form, it may still exercise jurisdiction. if the claimant can show that they would suffer a real and material risk of injustice before the foreign court. And here the burden of proving a real and material risk of injustice falls upon the claimant rather than defendant. And now, what is the content of this inquiry? It is essentially an exception for when, despite the fact that ordinarily it would seem more convenient for the foreign court to adjudicate upon the dispute, In substance, the foreign court is unlikely to be able to deliver justice to such a great extent, not just to a lesser extent which might be tolerated by the Singapore courts, but to such a great extent that although the claimant has a worldly claim, there is no way the claimant is even going to succeed at all. And this can happen, for example, when there are very, very onerously short limitation periods before which the foreign court would apply, where the foreign proceedings will be so slow and so delayed that delaying justice would essentially deny justice, when there are blatantly unfair or discriminatory evidentiary rules which the foreign court would apply, which, if so, would. disenfranchise the claimant to an egregious extent when after the TRI, the claimant is subject to some kind of threat of personal safety. Maybe he\'ll be physically or politically persecuted in the foreign jurisdiction if he tries to sue there. And if there\'s a breakdown of law and order in the foreign state, let\'s say the foreign court will be unable to hear the case because, well, there is no function in foreign court in the situation. In these kinds of extreme situations where essentially the claimant cannot get justice, cannot even have a meaningful trial in the foreign Andrew Yip (16:32.824) that despite the foreign court being prima facie the more appropriate forum Singapore\'s courts will nevertheless exercise jurisdiction because although it\'s not the convenient forum it is functionally the only forum where the claimant can get a real sense of justice by trying his claim Andrew Yip (16:54.263) To sum up then, the Natural Forum Inquiry involves two stages. First is Singapore Court, prima facie the more appropriate forum than other competing forums that the defendant raises based on these Peliada factors. Second, even if prima facie it is not the Singapore court but the foreign court which is the more appropriate form or the natural form, would the claimant be denied substantive justice or substantial justice in the foreign court if he were forced to proceed there and if so the Singapore court will exercise jurisdiction. So if the answer to either one or two is yes, again the Singapore court will exercise jurisdiction. Andrew Yip (17:34.519) We now consider a second hit of jurisdiction, jurisdiction established when the defendant is served outside of Singapore. Andrew Yip (17:45.131) Now when the defendant is not in Singapore, there is no connection based on presence, so jurisdiction can only exist if there is some kind of other normative connection between parties dispute or the defendant and Singapore. The rules of court say that Singapore\'s courts will have jurisdiction if an orientating process is served on the defendant outside Singapore. But in order to serve the defendant outside Singapore, the Singapore court must give leave to do so. And the Singapore court will only give leave to do so, inter alia, if the Singapore court is the appropriate court to hear the action. Now what does it mean to say that the Singapore court is the appropriate court to hear the action? Practice Direction 63.2 of the 2021 practice directions sets out three criteria which broadly map the test for service out of Singapore even before the 2021 rules of court and practice directions came into force. And these criteria are these. First, the claimant must show that there is a good arguable case that is a sufficient legal nexus parties dispute in Singapore, second, that Singapore is the forum convenience, and third, that there is a serious question to be tried on the merits of the claimants claim. Now the third requirement is not really important for us because it basically just reproduces the test for the claimants claim to survivors tracking out application, which you will go through in the civil procedure module. requirements A and B are important because these mirror or essentially make up what are effectively the tests for the existence and the exercise of jurisdiction in a service out case. I should also point out that service out or applications to get leave to serve the defendant out of Singapore are generally ex -party applications and again as you will find out in your civil procedure course or you would have found out already Andrew Yip (19:41.695) Ex parte applications require full and frank disclosure on the part of the claimant of all the relevant facts of the case. Let\'s look first at the practice direction 63 2A requirement of a sufficient nexus between Singapore and the dispute in question. What counts as sufficient nexus between Singapore and the dispute? So it depends really on the dispute that parties are bringing before the Singapore court. We\'re only gonna look at two kinds of claims here in this course, as I mentioned, contract claims and tort claims. So we\'re only gonna look at the kinds of nexus requirements that exist in practice direction 63 -3 between contractual disputes and tort disputes on one hand and Singapore\'s courts on the other. But keep in mind that there are many, other kinds of connections that exist and that you should be aware of what these are for practice, but we\'re not gonna cover them in this course. Note that as a consequence of the fact that there are many potential connections that can exist between courts and disputes. That therefore, there can be many different courts with a sufficient nexus to a single dispute. What happens then is that the Singapore courts will engage in a natural forum or forum non -convenience inquiry again to determine whether or not, not only whether the Singapore court is\... a court with a sufficient nexus to the dispute, but also whether or not it is the natural form for dispute, and only if so will it have jurisdiction over the dispute under Practice Direction 63 -2. Now, what kind of nexus or connections exist between contractual disputes on one hand and the Singaporean courts on the other? There are two broad headings Andrew Yip (21:24.973) nexus for contracts, for contractual disputes, and these are contained in practice direction 63 3D and 63 3E respectively. Looking at the first one under practice direction 63 3D, is the connection exists when the claimant brings the claim to enforce, rescind, annul, or interpret a contract, and the contract is one of four kinds of contract. First, contract is made in Singapore or made as a result of an essential step taken in Singapore, such as where the contract, for example, is substantially negotiated in Singapore. Second, the contract is made by or through an agent trading or residing in Singapore on behalf of a principal trading residing outside of Singapore. Third, the contract in question is expressly or impliedly governed by Singapore law. Fourth and finally, the contract contains the Singapore Jurisdiction Clause. This really is a separate head of jurisdiction which we\'re going to be talking about at the end of this lecture, but just bear in mind that this exists here. Now the second kind of sufficient nexus that can exist between a contractual dispute and a Singapore court arises when the claimant brings a claim to enforce a contract in relation to a breach of that contract which is either committed in Singapore or committed elsewhere in relation to a contract which can only be performed in Singapore and the bridge renders the performance of that contract in Singapore impossible. Andrew Yip (22:57.377) What about tort disputes? When is there a sufficient nexus between tort disputes and Singapore\'s courts? So a sufficient nexus exists in four situations. The most straightforward is when the claimant\'s claim is founded on a tort which has one of its elements, an act or a mission, and on the facts that act or a mission has occurred in Singapore. The second situation, slightly more complex, is where the claimant\'s claim is founded on a tort, which involves damage suffered in Singapore which is caused by the tort. Now this hit of drifts of this sufficient nexus should be invoked by the claimant in relation to a tort where damage is an element of the tort in question. So, torts like negligence, conspiracy and nuisance are not actionable per se. They require damage to be proven to even found the cause of action in the first place. And note that damage here refers to the financial act of incurring loss. The third situation where there\'s a sufficient nexus between the dispute and Singapore is where the claimant brings a claim for the recovery of damages in respect of damage suffered in Singapore caused by the tort. Now what\'s the difference between this and the second situation? The claimant should only invoke this sufficient nexus where the claimant is relying on a tort claim where damage is not part of the claim, i.e. the claim is actionable per se for battery and trespass. Where the claim is actionable per se, the dispute is connected to Singapore by virtue of the damage that the defendant caused to the claimant in Singapore. And the claimant\'s claim will be limited to recovery of damages for the damage suffered in Singapore. Finally, there\'s a situation where the claimant\'s claim is followed on a cause of action arising in Singapore. Now this simply refers to a situation where the claimant\... relies on a tort claim and the next local idyllic tie of the tort claim is Singapore Law based on the tests that we covered in the choice of law lecture. Andrew Yip (25:00.685) So we\'ve covered the practice direction 63 to A requirement that there be a sufficient nexus between the dispute and Singapore. We now turn to the 63 to B requirement that Singapore be forum convenience before the claimant is given leave to serve the defendant out of jurisdiction. If you look at the structure of practice direction 63 to again, you realize that the forum convenience requirement, unlike for the service in situation is actually a prerequisite to the court granting the claimant leave to serve on the defendant. And so it\'s a prerequisite for the court having the existence of jurisdiction rather than a test for the exercise of jurisdiction. So technically, convenience in a service out case goes to the existence rather than the exercise of jurisdiction. But this distinction doesn\'t really need to bother us right now because conceptually, we can think about it as analogous to the form convenience requirements. in the service -in cases. both situations, we\'re just asking first whether or not there is a link between Singapore and the dispute in question for service -in cases by presence, for service -out cases by the sufficient nexus, and second, whether or not Singapore is a natural forum. The only relevant difference for us between service -in and service -out cases is that in service -out cases, the burden of proof lies on the claimant who is trying to establish jurisdiction to show that Singapore, in fact, is the natural forum rather than the burden being on the defendant to tell that Singapore is not the natural Andrew Yip (26:34.241) Let\'s move on now to the third head of jurisdiction. Jurisdiction founded on a Jurisdiction Clause. Let\'s start with the concept of a jurisdiction clause. Jurisdiction clause is a term of parties contract which purports to give Singapore\'s courts jurisdiction over parties dispute. So we\'ll read something along the lines of, disputes arising out of this contract shall be subject to the jurisdiction of the courts of Singapore or Singapore\'s courts. Now there are two types of jurisdiction clauses in practice or rather two ideal types with many jurisdiction clauses falling in between these two types in reality. but we\'re just gonna focus on these two ideal types for the purposes of this course because the principles that apply to them are different and it\'s clear as to see in these two paradigms. First, there is the exclusive jurisdiction clause which purports to give Singapore\'s courts and only Singapore\'s courts jurisdiction over parties dispute. Then there is the non -exclusive jurisdiction clause which purports to give Singapore\'s courts and other defined, undefined courts jurisdiction over parties dispute. So in practice, Sometimes, jurisdiction clauses will say that they\'re exclusive or non -exclusive. Sometimes they won\'t, and it\'s a matter of contractual interpretation which of the two they are or whether or not there\'s something in between. But for the purposes of this course, we\'re not going to focus on the interpretive bit. We\'re just going to focus on the situation where it\'s clear that the clause is either exclusive or non -exclusive jurisdiction clause. Andrew Yip (28:04.961) Now, how does the Jurisdiction Clause affect the existence and exercise of a Singapore Courts jurisdiction over parties in their dispute? On the existence of jurisdiction, a Jurisdiction Clause can establish the jurisdiction of Singapore Courts over parties or a dispute in one of two ways. First, the Jurisdiction Clause not only purports to give the Singapore Courts jurisdiction, but also provides for a means of service out over the defendant. then if the plaintiff serves the defendant in accordance to the jurisdiction clause, that in itself, according to Order 8, Rule 13, is the head of jurisdiction that the Singapore Court has over the defendant. There is no need to ask for the court\'s leave to allow service out, service out is allowed automatically. On the other hand, if a jurisdiction clause simply confers jurisdiction over parties in their dispute on the Singapore Court, but doesn\'t provide for service out on the defendant in a particular manner, then the jurisdiction clause itself amounts to a sufficient nexus between Singapore and the dispute for the purposes, as we mentioned, of practice direction 6328. Andrew Yip (29:12.833) Now turning to the exercise of Singapore Court\'s jurisdiction when there is a jurisdiction clause. How this jurisdiction will be exercised depends again on the nature of the jurisdiction clause at issue. If the jurisdiction clause does not simply purport to give the Singapore Court\'s jurisdiction but also provides for a manner of service out on the defendant, then the court will have jurisdiction and will invariably exercise that jurisdiction because as just mentioned, the court\'s approval is not required if service of Singapore is allowed under a contract between the parties, i.e. a jurisdiction clause. On the other hand, if the jurisdiction clause files Singapore Court\'s jurisdiction in another way, i.e. under a practice direction 63 -3 hit, then the Singapore Courts will still have to apply a certain test to determine whether or not it should grant the claimant leave to serve the defendant out Where the Singapore Court\'s jurisdiction is established on the jurisdiction clause, which simply gives the court jurisdiction without providing for service out, the question as to whether or not Singapore\'s courts should exercise the jurisdiction in this given still remains. There\'s a complication here though, because the test that applies at the forum convenience stage is not exactly the same test of natural forum or forum -run convenience that is applied when jurisdiction is established by service without the jurisdiction clause. Instead, Singapore\'s courts apply a different test other than the natural forum test. And this is called the strong cause test. The test goes something along these lines. Singapore\'s courts will exercise the jurisdiction that they have in line with the jurisdiction clause, choosing either Singapore\'s courts or the foreign court, unless there is strong cause not to. So the presumption is that the courts will exercise jurisdiction in line with the jurisdiction clause, unless there good reason or very strong cause not to. And in determining whether or not there is strong cause to depart from the jurisdiction clause, the courts will look at various factors. Now, most of these factors are the same factors that the courts will consider at the natural forum inquiry. Parties connections, availability of witnesses and evidence, governing law, other proceedings, the question of substantial justice, whether it be denied in the non -contractual forum. Andrew Yip (31:30.103) But there is another element, or maybe one could say a different overarching tone to the strong cause inquiry that separates it from the natural forum inquiry, which is that even if all the other factors which I just mentioned point towards trial in a forum other than the contractually chosen forum, the court will nevertheless exercise its jurisdiction in line with the jurisdiction clause, in line with the needs of the contractually chosen forum, unless insisting on the contractually chosen forum. would be an abuse of process. Now this raises the bar very high for any party seeking to depart from the jurisdiction clause to justify why the court, Singapore court should depart from the jurisdiction clause. And in that sense, the Singapore law is skewed towards giving effect to jurisdiction clause rather than otherwise. where there is an abuse of process by the party seeking to rely on the jurisdiction clause, where the reliance on a prima facie entitlement to trial in that chosen form, would be an abuse of process, the courts would nevertheless find that there is strong cause to depart from the jurisdiction clause. And one example given in Myanmar overseas of when this might be the case, is the case where the party insisting on the jurisdiction clause has basically conceded liability already on the facts and on the law. And it\'s just really insisting on trial in the contractually chosen forum again to prolong proceedings to avoid the consequences of liabilities he\'s already and so to oppress the plaintiff that is suing him so that he can avoid the consequences of his liability. Andrew Yip (33:11.991) The upshot of all this is simply that the strong cause test is stricter than the natural forum test. In other words, if parties have chosen a court under jurisdiction clause, the courts will stick with the jurisdiction clause unless the strong cause not to. And the test for whether there is strong cause to depart from the jurisdiction clause will be much harsher than the test to determine whether or not a prima facie forum is in fact the natural forum. Why is the strong cause test so strict? The idea here is simply that because parties have chosen to have trial in a certain forum, Singapore\'s courts should not be really so concerned with the practicalities of litigation and fairness and procedural justice in this right, because, well, parties can\'t really complain enough of having a slightly inefficient, slightly inconvenient mode of trial if they\'ve chosen it, if they\'ve foreseen it at the time they\'ve contracted. Consequently, the only factors in the slide that I mentioned prior to this one, which will be given much weight in the strong cause inquiry, were those which were unforeseeable at the time when parties entered into the jurisdiction clause. So for example, if it were clear that a key witness in any dispute would have been in one jurisdiction rather than another, and this was known to parties at the time they contracted, then this factor will hold very little weight. If the governing law is a foreign law, but parties already at the time of contracting that they entered into a Singapore jurisdiction clause, but a governing law clause for English law, for example, or for New York law, then that fact will not be a very strong factor at all in the strong cause test because parties completely foresaw this. However, if for example, the nature of the dispute is such that there was a key witness which parties could not have foreseen at the time they entered the jurisdiction clause, and this key witness is only compelable in a foreign state where there\'s a Singapore jurisdiction clause on the facts. and the witness is not agreeable to be compelled to testify or rather not agreeable to testify in Singapore voluntarily, then that factor, which was unforeseeable at times of contracting, will become very significant in the Strong Cause Test. Now note that I\'ve been talking about the Strong Cause Test as departing from the Jurisdiction Clause\'s chosen court. This can apply both ways, right? So if a Jurisdiction Clause chooses the Singapore court, Andrew Yip (35:36.941) then Singapore\'s courts won\'t exercise their jurisdiction unless there is strong cause and not two, because Singapore courts are prima facie the chosen court. On the other hand, I mean not prima facie the chosen court, the actual chosen court. On the other hand, course, if Singapore\'s courts have jurisdiction over a dispute, perhaps because the defendant is present in Singapore or perhaps under another head of jurisdiction under practice direction 63 -3. But there is a jurisdiction clause pointing to a foreign court, let\'s say in this case, an English court. The Singaporean courts will generally stay their proceedings even if Singapore is the natural forum, unless there is strong cause not to give effect to the jurisdiction clause and have trial in Singapore. All this is to say that Singaporean courts treat jurisdiction clauses even -handedly. If a clause chooses Singapore, the Singapore courts will exercise the jurisdiction that they have, unless there\'s strong cause not to. The clause points away from Singapore. Singapore\'s courts\... will not exercise the jurisdiction that they might have unless there\'s strong cause to. Andrew Yip (36:42.679) There is a final complication with regards to the Strong Cause test and that is that it doesn\'t always apply whenever there is a jurisdiction clause between parties. In particular, when the jurisdiction clause is a non -exclusive jurisdiction clause choosing either Singapore or the foreign court, it may be that the Strong Cause test doesn\'t apply and that whether or not courts adhere to or don\'t adhere to the jurisdiction clause will simply be determined on the basis of the normal natural forum -forum non -convenience test. Let me explain. In the court of appeals decision of Shanghai Turbo, the court set out two alternative fact patterns which give rise to two different tests. We\'ll go through this in some detail now. Let\'s say hypothetically that parties to a dispute had entered into a jurisdiction clause and there are proceedings which could happen in Singapore or in a foreign court. The Singapore court has jurisdiction over parties, the question is whether or not it should exercise it. Now the third, whether or not it should exercise it. And in particular, what test the court should use to determine whether it should exercise this jurisdiction depends on what the content of the non -exclusive jurisdiction clause is, in particular, where the non -exclusive jurisdiction clause points to. If the non -exclusive jurisdiction clause says something along the lines of, submit to the non -exclusive jurisdiction of the foreign court, then when the Singapore court is trying to determine whether or not to stay proceedings in favor of the foreign court, the Singapore court will simply apply the natural forum test, i.e. the test of forum -run convenience that generally applies in ordinary service -in and service -out test cases where there is no jurisdiction clause. Here, the jurisdiction clause, which is not exclusively points towards the foreign court, is merely a relevant factor that points towards Singapore, but doesn\'t point so strongly towards Singapore, or rather, sorry. It\'s just a merely relevant factor that points towards the foreign court, but it\'s not such a strong factor that points towards the foreign court that Singapore courts will stay proceedings unless there are strong courts not to. The test is still the general form non -convenience test, albeit there is a slight tick in favour of the foreign court by virtue of the foreign court choosing non -exclusive jurisdiction clause. But things differ radically if the non -exclusive jurisdiction clause selects the Singapore courts. In this situation, Andrew Yip (39:04.833) the Singapore courts will not stay their proceedings, will exercise their jurisdiction in line with the non -exclusive jurisdiction clause choosing the Singapore court, unless there is strong cause to, unless there is strong cause to disregard the the jurisdiction clause and stay proceedings and allow proceedings to happen in the foreign jurisdiction. It doesn\'t matter whether or not the foreign jurisdiction is prima facie, the foreign convenience or the natural forum. The Singapore courts will exercise the jurisdiction in favour of the non -exclusive Singapore Choosing Jurisdiction Clause unless there is strong cause not to. This might seem uneven, and indeed it is. And the outcome of this is that outcome of Shanghai Turbo, which is now a good authority, is that there will be a foreign bias in favour of Singapore courts even when there is a non -exclusive Jurisdiction Clause, as long as the non -exclusive Jurisdiction Clause selects the Singapore court rather than the foreign court. Andrew Yip (39:58.061) As I mentioned in the introductory lecture, this course will be covering only the common law rules on jurisdiction rather than the statutory rules, but I will be highlighting the latter where they are important for you in practice. So on the topic of jurisdiction clauses, there is this statute called the Choice of Courts Agreements Act 2016, which I will not be covering in this course and I will be not be examining you on in this course, but which is important for you to know about in practice. Now this statute incorporates the Hate Choice of Courts Convention 2005, and it has a significant effect on jurisdiction clauses entered into relating to contracting states of the, or rather relating to parties which choose the courts of contracting states of the convention. And the effect is threefold, right? First, the jurisdiction clause points in favor or is chosen to point in favor of one of the state\'s parties at the convention. The clause is deemed to be an exclusive jurisdiction clause unless parties expressly state otherwise. As I mentioned, whether or not generally a clause is an exclusive or non -exclusive jurisdiction clause depends on contractual interpretation. But if the clause points towards a contracting party of the Hate, Choice of Courts Convention, what this means is that it will be deemed to be an exclusive jurisdiction clause unless parties expressly state otherwise. So the presumption is in favor of exclusive jurisdiction. Second, there is an effect on the Singapore courts will choose to exercise its jurisdiction if it has it. If Singapore is the chosen court under a jurisdiction clause which falls under this Act, then it must exercise its jurisdiction unless the clause is invalid. i.e. there is no strong cause test in situations where if there\'s strong cause not to exercise jurisdiction, the Singapore courts will nevertheless stay proceedings. The courts must exercise jurisdiction unless the clause is invalid. Conversely, if Singapore is not the chosen court under an exclusive jurisdiction clause that falls under this act, then the courts must not exercise jurisdiction unless the clause is invalid, right? The courts must stay proceedings. There is no situation where Singapore courts won\'t exercise jurisdiction if there is strong cause two. There is no such test. The Singapore courts must not exercise jurisdiction unless the clause is invalid. So as I mentioned, we\'re not gonna be covering this in the course, but it\'s really, really important for you to know this in practice because the convention is quite wide. It covers a fair amount of states. And when there\'s a jurisdiction clause between two parties where it Andrew Yip (42:20.749) a court of one of these states, which are parties to the convention, the rules that apply are not the common law rules of first -ditching clauses, which we just went through. No, they are the rules contained in the Troits of Courts Agreements Act 2016. Andrew Yip (42:35.105) Finally, we move on to the fourth and final head of jurisdiction, jurisdiction founded upon the defendant\'s submission by conduct. Andrew Yip (42:45.089) Now submission by conduct is itself head of jurisdiction and it\'s particularly powerful because it requires no connection whatsoever between the defendant or the dispute of Singapore. As long as the defendant has submitted by its conduct to the jurisdiction of Singapore\'s courts, Singapore\'s courts will have jurisdiction. It cures what you might call imperfections in service or rather it cures the lack of the meeting of other requirements in heads of jurisdiction one, two, three, which we covered earlier on. So submission in a sense is itself a head of jurisdiction perfec in itself and it\'s quite powerful. So we need to understand what it\'s precisely means for a defendant to have submitted to Singapore\'s jurisdiction by conduct. Note that we talk about submission by conduct, we\'re not talking about what might be called submission by agreement, which is essentially the act of entering into a jurisdiction clause. Submission by conduct is not when parties agree to submit to the jurisdiction of Singapore\'s courts, but\... when they act in a certain way or they carry out themselves in Singapore\'s proceedings in a particular way, which essentially admits or submits to the jurisdiction of the courts of Singapore. Now, what amounts to submission by conduct? This question is hard to respond to in the abstract because the essential question is when should the defendant be taken to have submitted to civil proceedings before the Singapore courts? And the answer, the only general answer we can give is when the defendant takes a clear and unequivocal step in the proceedings that is inconsistent with an objection to the Singapore\'s courts having and exercising jurisdiction. In other words, there comes a point in time if the defendant engages in civil proceedings in Singapore, where the defendant can\'t really complain of the Singapore courts not having jurisdiction or not exercising jurisdiction. Because really the defendant has become so engaged in the proceedings that it is, well, a good analogy is that it\'s stopped from saying, that the Singapore courts don\'t have jurisdiction or shouldn\'t exercise jurisdiction because by taking steps in a proceeding, by engaging the proceedings as the defendant has done, the defendant has basically admitted, okay, I\'m more or less okay with the courts trying the proceedings. And in that situation, the defendant has to be taken to have submitted to the proceedings by conduct. Andrew Yip (45:03.245) Now, usefully, the new rules of court 2021 gives us a list of situations which do not amount to submission by conduct. And the cases give us some examples of situations which do amount to submission by conduct. So let\'s start with the latter first. An example of situation where there is submission by conduct is when the defendant files a defense on the merits. So if the defendant files a defense on the merits and says, okay, look, I\'m being sued, this is my defense, I\'m not liable. Because of these reasons, the defendant is basically admitting that, okay, yes, I may not be connected to this jurisdiction or dispute might not be connected to this jurisdiction, but I\'m willing to challenge the plaintiffs or the claimants\' claims against me here. And so they\'re really admitting that they\'re kind of okay with the court\'s exercise in the jurisdiction that they have over them or even exercising jurisdiction they ordinarily wouldn\'t have over Similarly, if the defendant contests a summary judgment application against it on the merits, it\'s kind of equivalent to the situation of filing a defense of the merits. You\'re essentially admitting that the court could have issued summary judgment against you if the claimant\'s claim had merit or your defense had no merit whatsoever. And thereby, you\'re implicitly admitting that the Singapore courts have the jurisdiction to determine the dispute on the merits. A third situation is when the defendant seeks an interim injunction preserving the status quo before trial and in that situation invokes the powers of the court to preserve, let\'s say, funds that the defendant can get to recover costs from the plaintiff if it turns out that the defendant wins that trial. Now in invoking these kinds of powers of the court to issue interim or protective injunctions in its favor, the defendant is essentially accepting that the court can legitimately and force its procedural powers to preserve trial because there will be trial in Singapore. So the defendant is thereby implicitly admitting that it\'s okay with trial in Singapore. The situation is slightly different if the defendant is simply contesting an interim injunction that the claimant has gotten against the defendant leading up to trial because that is simply still consistent with the defendant saying, look, there should never have been trial in Singapore because the courts don\'t have jurisdiction or shouldn\'t exercise jurisdiction and therefore this interim injunction shouldn\'t exist at all because Andrew Yip (47:21.729) you don\'t have jurisdiction to trial my case, there shouldn\'t be an injunction preserving the status quo from you in relation to my case at all. So these are three situations where the defendant will be taken to have submitted by conduct. Conversely, if the defendant simply challenges the existence or exercise of the Singapore Courts jurisdiction, then the defendant cannot have submitted by conduct because all these acts are simply situations where the defendant is saying, hang on, making a submission to the Singapore court, but the submission relates to the very existence of access to the jurisdiction that the Singapore court is purporting to have over me. Now, it would be impossible for the defendant to not submit by conduct if even these acts would be taken to be submitted by submission by conduct, right? Because these are acts where the defendant is essentially saying, don\'t exercise the jurisdiction on me. You don\'t even have jurisdiction on me, maybe even. And so these are entirely consistent with the defendant saying, precisely that Singapore Courts don\'t have jurisdiction, shouldn\'t exercise it. And therefore, submissions to the effect will never amount to submission by conduct. Conflict of Laws - Lecture 3: Jurisdiction of law - Is there **[sufficient connection]** between Singapore jurisdiction and the dispute? - A. **[Service within Jurisdiction]** - Existence of jurisdiction - Existence of jurisdiction: natural persons - Supreme Court of Judicature Act 1969 s 16(1)(a)(i) - Rules of Court 2021 O 7 r 1-3 - Burgundy Global Exploration Corp v Transocean Offshore International Ventures Ltd \[2014\] 3 SLR 1 (SGCA), \[94\] - Existence of jurisdiction: **[corporations]** - Supreme Court of Judicature Act 1969 ss 16(1)(a)(i) and 16(2) - Adams v Cape Industries plc \[1990\] 1 Ch 433 (EWCA), 530-531 - Companies Act 1967 ss 368, 376 and 387 - s368 - s376 - s387 - **[Exercise of jurisdiction]**: **[forum non conveniens; Burden on Defendant to show that Singapore is not the natural forum]** - **[ 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]** - Spiliada Maritime Corp v Cansulex Ltd \[1987\] 1 AC 460 (UKHL), 474-478, 482-484 - The Spiliada factors - Lakshmi Anil Salgaocar v Jhaveri Darsan Jitendra \[2019\] 2 SLR 372 (SGCA), \[53\]-\[58\], \[71\]-\[78\] - If there is real and material risk of injustice arising from the matter being heard by the foreign court, then the **[burden shifts to the Claimant]** - B. **[Service out]** of Jurisdiction **[\[Claimant bears the burden to show natural forum\]]** - Existence of jurisdiction - Supreme Court of Judicature Act 1969 s 16(1)(a)(ii) - Rules of Court 2021 O 8 r 1(1)-(2) and 2(1) - What counts as a **[\'sufficient nexus]**\'? - **[Contractual disputes]** (PD 63(3)(d)-(e)) - Where C's claim is to enforce, rescind, annul, or **[interpret]** a contract that is - Where C's claim is specifically to enforce a contract in relation to a **[breach]** (PD 63(3)(e)): - **[Tort disputes]** (PD 63(3)(f) and (p) - 4 scenarios - DJS Solutions Engineering Pte Ltd v AGR 1 Ltd \[2021\] SGHC 19, \[19\]-\[25\] - **[essential step within the meaning of O11r1(d)(i)]** - Recovery Vehicle 1 Pte Ltd v Industries Chimiques Du Senegal \[2021\] 1 SLR 342 (SGCA), \[72\]-\[90\] - MAN Diesel & Turbo SE v IM Skaugen SE \[2020\] 1 SLR 327 (SGCA), \[76\]-\[80\], \[95\] - Exercise of jurisdiction: forum non conveniens **[\[Burden on Claimant\]]** - Spiliada Maritime Corp v Cansulex Ltd \[1987\] 1 AC 460 (UKHL), 478-482 - C. Jurisdiction Clauses - **[Existence]** of jurisdiction - Supreme Court of Judicature Act 1969 s 16(1)(a)(ii) - Rules of Court 2021 O 8 r 1(1) and 1(3) - Supreme Court Practice Directions 2021 PDs 63(3)(d)(iv) and 63(3)(r) Exclusive and non-exclusive jurisdiction clauses - Shanghai Turbo Enterprises Ltd v Liu Ming \[2019\] 1 SLR 779 (SGCA), \[81\]-\[85\] - **[Exercise]** of jurisdiction: the "strong cause" test - Vinmar Overseas (Singapore) Pte Ltd v PTT International Trading Pte Ltd \[2018\] 2 SLR 1271 (SGCA), \[71\]- \[73\], \[112\]-\[113\], \[128\]-\[141\], \[146\]-\[147\] - Shanghai Turbo Enterprises Ltd v Liu Ming \[2019\] 1 SLR 779 (SGCA), \[86\]-\[88\], \[90\], \[93\]-\[102\] - submit to the non-/exclusive jurisdiction of the singapore/foreign courts - **[Choice of Courts Agreements Act 2016]** - D. Submission by Conduct - **[What]** amounts to submission by conduct? - Supreme Court of Judicature Act 1969 s 16(1)(b) - Rules of Court 2021 O 2 r 5(4), O 6 r 6(1)-(4) and 7(4)-(6) - Defence or affidavit and challenge to jurisdiction (O. 2, r. 5) - Form and service of notice of intention to contest or not contest (O. 6, r. 6) - Form and service of defence (O. 6, r. 7) - Shanghai Turbo Enterprises Ltd v Liu Ming \[2019\] 1 SLR 779 (SGCA), \[25\]-\[48\] - Reputation Administration Service Pte Ltd v Spamhaus Technology Ltd \[2021\] 2 SLR 342 (SGCA), \[20\]-\[32\]

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