Singapore International Commercial Court Research Articles

International commercial courts as new actors in adjudication business: Collaborators or competitors?

International commercial courts are a relatively new phenomenon that changes the configuration of the international adjudication business. As novel players on the dispute resolution scene, these courts challenge the notion of competition between the existing actors in the business. From the perspective of arbitration, international commercial courts tend to be perceived as both collaborators and competitors. Furthermore, various driving forces influenced the creation of these courts, which gave them a hybrid structure and a quite unique institutional appearance. This article examines three prominent courts in three different parts of the world: the Dubai International Financial Centre Courts (DIFCC), the Singapore International Commercial Court (SICC) and the Netherlands Commercial Court (NCC). The aim is to identify the main features of these adjudication actors that operate within three highly commercially relevant geographic regions in order to outline their character and role on the adjudication business stage. Eventually, through these examples this article addresses the puzzling question of competition versus cooperation in contrast to arbitration. Nevertheless, it is still hard to give a definitive answer - it seems too early for a firm prediction regarding the future of these projects. Jurisprudence must be developed in order to comprehensively test the success of international commercial courts

Advancing Thought-Leadership in Mediation: Highlights from the work of SIDRA

This chapter on mediation focuses on the work of the Singapore International Dispute Resolution Academy (SIDRA), a research centre at the Singapore Management University School of Law. It explores how SIDRA has created a platform for thought-leadership in international dispute resolution theory, practice and policy, and explains its three research programmes, namely, the International Dispute Resolution Survey Research Programme, the Singapore Convention on Mediation Research Programme and the Belt and Road Initiative Research Programme. The chapter also addresses how SIDRA’s three research areas complement one another as they explore the interlinks between international litigation, arbitration and mediation. For example, the International Dispute Resolution programme aims to fill a gap in the available data on user experiences of international dispute resolution with a view to informing policy and practice, with the key project being the SIDRA Survey on International Dispute Resolution (SIDRA Survey) commissioned by the Singapore Ministry of Law and administered with the support of PwC South East Asia Consulting. The chapter also explores how SIDRA is engaged in a number of collaborations that harness insights from the three programmes, such as through collaboration with the SMU Law Academy (SMULA) and the SMU Centre for AI and Data Governance. The chapter then outlines SIDRA’s networks to various stakeholders within and outside Singapore, including the Singapore International Commercial Court, the Singapore International Arbitration Centre, the Singapore International Mediation Centre, the Singapore Mediation Centre and the Singapore International Mediation Institute, and international organisations including the World Bank Group and national bodies such as the Vietnamese Judicial Academy.

Rethinking Mistake in the Age of Algorithms (Blog Post)

In our previous note: Cryptocurrencies and Code before the Courts ((2019) 30(3) King’s Law Journal 331 - 337), we discussed the Singapore International Commercial Court (High Court)’s decision in B2C2 Ltd v Quoine Pte Ltd. The case subsequently went on appeal, and the Singapore International Commercial Court (Court of Appeal), by a majority, affirmed the decision of the lower court in Quoine v B2C2 (“Quoine”). The case of Quoine represents the first time an apex court in the Commonwealth has ruled on the applicability of contractual principles to situations involving automated trading software. In our recent case note: Rethinking Mistake in the Age of Algorithms (forthcoming in the King’s Law Journal), we examine the decision in Quoine and argue that given that finding actual or constructive knowledge of an error necessary to invoke the doctrine of unilateral mistake may well be impossible in cases involving contracts formed by certain types of automated software, the approach set out by Lord Mance, who penned the dissenting judgment, may provide a viable solution.

The legal legitimacy of the China International Commercial Court: history, geopolitics, and law

ABSTRACT The academic contribution to the question of reforms to the China International Commercial Court (CICC) has essentially been based on classic comparative legal approaches. More precisely, two main schools of thought have emerged which compare the CICC with the international commercial courts established by Singapore (the Singapore International Commercial Court [SICC]) and Dubai (the Dubai International Financial Centre [DIFC]) because Chinese officials have presented these institutions as models for the CICC. This article breaks new ground by adopting a legal and geopolitical analysis. The article makes an interdisciplinary enquiry, which combines political-economy and sociological analysis. The political-economy approach emphasizes an institutional reform in line with China’s self-interested response to the commercial needs of Chinese investors along the Belt and Road Initiative. The sociological approach refers to China’s history and culture, appreciates China’s contemporary policies, and suggests that reform on mediation and arbitration under the CICC are likely to play the most prominent role at the new court. This article highlights the fundamental contradiction between geopolitics and judicial independence within the realm of the CICC, and argues that if the designers of the CICC treat SICC and DIFC courts’ procedural rules as templates for replication, any reform attempts are likely to fail, given that the CICC forms part of China’s geopolitical tactics rather than being a product of market orientation. Instead, this article argues that the CICC should be understood as a mechanism for domestic reform purpose and function.

Dispute Settlement in the Belt and Road Initiative: Lessons from the Singapore Experience

Abstract Historically, Singapore has played an important role in the growth and success of the old maritime Silk Road. Today, Singapore remains an important stop on the Belt and Road, though its advantages now also lie in its position as a trusted, neutral forum for the efficient resolution of disputes as well as a platform for the sharing of ideas for the development of a legal framework for dispute resolution in the Belt and Road Initiative. Three initiatives have been taken by Singapore to strengthen its new position, including the Asian Business Law Institute, the Singapore International Commercial Court, and the Singapore–China Annual Legal and Judicial Roundtable.

Ernest Lim, A Case for Shareholders’ Fiduciary Duties in Common Law Asia, Cambridge: Cambridge University Press, 2019, xxvi + 628 pp, hb £110.00.

The Modern Law ReviewVolume 83, Issue 4 p. 913-916 REVIEWS Ernest Lim, A Case for Shareholders’ Fiduciary Duties in Common Law Asia, Cambridge: Cambridge University Press, 2019, xxvi + 628 pp, hb £110.00. Anselmo Reyes, Anselmo Reyes International Judge, Singapore International Commercial Court, formerly Judge of the Hong Kong High Court.Search for more papers by this author Anselmo Reyes, Anselmo Reyes International Judge, Singapore International Commercial Court, formerly Judge of the Hong Kong High Court.Search for more papers by this author First published: 14 January 2020 https://doi.org/10.1111/1468-2230.12510 Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Volume83, Issue4July 2020Pages 913-916 RelatedInformation

Paradigm shift; the emergence of arbitral forum shopping in CPEC investment disputes

Purpose The phenomena of arbitral forum shopping to resolve a commercial investment dispute is still under development and more complicated in many states. However, for Pakistan, it seems in an evolutionary phase, where the country is struggling hard to adopt the best practice of dispute resolution through forum shopping clauses. This struggle is even more inflated with huge Chinese investment through China Pakistan economic corridor (CPEC) projects in Pakistan, which come alongside with commercial investment disputes. For this purpose, the current treaty or contract-based system between China and Pakistan and litigation based domestic civil court structure look obsolete, hence, appear to require reinstatement of forum shopping clauses under concerned treaties or contracts for CPEC investment-related issues. Design/methodology/approach The authors choose a legal research method. The research design is a comparative analysis between CPEC contracts and dispute resolution mechanism between China and Pakistan and also the domestic civil court’s litigation system. This analysis selected by the authors due to inefficient bilateral investment arrangements and efficient resolution of future commercial disputes in CPEC. While the international arbitration system is included in the assessment were particular in the time and space context. The comparison comprises on dispute resolution clauses in free trade agreement (FTA) and bilateral investment treaties (BIT) between China and Pakistan and the system of resolving disputes by CPEC clauses. Findings The authors finds that in the absence of CPEC forum shopping clause under dispute resolution system, Pakistan is highly at risk to lose foreign investors, and therefore, set back the goal of long term economic sustainability in the region. However, China has already made its investment policies safer with establishing three international commercial courts (also referred to as Belt and Road courts), one in Xi’an for the land-based Silk Road Economic Belt, one in Shenzhen for the Maritime Silk Road and one in Beijing that will serve as the headquarters. These courts will be offering litigation, arbitration and mediation services. According to one view, China aims to have all belt and road initiative (BRI) disputes resolved by these courts. This makes Pakistan position more awkward and needs proactive measures, as CPEC investment is based on Pakistan foreign direct investment policies and legal structure. Therefore, it will be complicated and less favourable for Pakistan to deal with such cases under Chinese Courts. Originality/value The paper’s primary contribution is finding that comprehensive analysis of alternative dispute resolution mechanism between China and Pakistan over CPEC investment is inevitable. A socio-legal research combine with an examination of Singapore International Commercial Court functions and mechanism and CPEC plans further contributes to ascertain the best model of the settlement of commercial disputes under investments in Pakistan. This research paper anticipates future economic and legal problems, which Pakistan may encounter.

The Singapore International Commercial Court: The Future of Litigation?

The Singapore International Commercial Court (‘SICC’) was launched on 5 January 2015, at the Opening of Legal Year held at the Singapore Supreme Court. What prompted the creation of SICC? How is the SICC model of litigation different from litigation in the Singapore High Court? What is the SICC’s track record and what does it tell us about its future? This article seeks to answer these questions at greater depth than existing literature. Importantly, it examines these questions from the angle of reimagining access of justice for litigants embroiled in international commercial disputes. It argues that the SICC’s enduring contribution to improving access to justice is that it helps to change our frame of reference for international commercial litigation. Hybridisation, internationalisation, and party autonomy, the underpinning values of the SICC, are likely to be the values of the future of dispute resolution. International commercial dispute resolution frameworks – typically litigation frameworks – that unduly emphasise national boundaries and formalities need not and should not be the norm. Crucially, the SICC co-opts a refreshing public-private perspective to the resolution of international commercial disputes. It illuminates on the public interest element of the resolution of such disputes which have for some time fallen into the domain of international commercial arbitration; at the same time, it introduces greater scope for self-determination in international commercial litigation.

Joinder of Non-Consenting Parties: The Singapore International Commercial Court Approach Meets Transnational Recognition and Enforcement

In this article we explore the approach of the Singapore International Commercial Court (the SICC) to jurisdiction and joinder of non-consenting parties and the way that any resulting judgments are likely to be treated by foreign enforcing courts. This novel juncture arises as international commercial courts, such as the SICC, rely predominantly upon party autonomy to enliven their jurisdiction over disputants. This does not require any territorial link of the parties or the dispute to the host jurisdiction (Singapore). At the same time, however, the SICC is granted a mandate under Singaporean law to join non-consenting parties, again with no necessary territorial link. Where such joinder occurs, any resulting judgment is likely to face significant difficulties if recognition and enforcement is sought outside of Singapore. To support this argument, we first set out the ways in which non-consenting disputants may be joined to proceedings before the SICC and offer some initial thoughts on how these powers are likely to be exercised. Second, we argue that any such exercise of jurisdiction – that lacks either territorial or consent-based jurisdiction grounds – is unlikely to gain support internationally, by reference to transnational recognition-and-enforcement approaches, and the SICC’s most likely recognition-and-enforcement destinations. Finally, we offer some concluding remarks about the utility of international commercial court proceedings against non-consenting parties, including the possibility they may impact on domestic recognition-and-enforcement approaches in foreign States.

Cryptocurrencies and Code Before the Courts (Blog Post)

In the rapidly developing cyber sphere of e-commerce and Fintech, dominated by cryptocurrencies and code, it is perhaps not uncommon for firms to focus on cutting-edge technological developments, leaving the law behind as an afterthought. However, the case of B2C2 Ltd v Quoine Pte Ltd (“B2C2”) may serve as a timely reminder of the importance of the legal principles supporting e-commerce and Fintech. In the first case of its kind, B2C2 raised several key questions before the Singapore International Commercial Court, seeking clarification on how the established legal concepts of breach of trust, mistake and unjust enrichment might apply in the context where an automated contract-forming software had produced unusual results. This decision represents the most comprehensive treatment by a Commonwealth court of the legal nature of cryptocurrencies and automated contract-forming software to date; a harbinger of further and more complex litigation to come, as disputes involving e-commerce and Fintech gradually start to reach the courts. In our recent case note, Cryptocurrencies and Code before the Courts (forthcoming in Kings Law Journal), we examine the decision in B2C2 and argue that while the case appeared novel, proper characterisation of the facts allowed existing legal doctrines to be applied.

COMPARING THE INTERNATIONAL COMMERCIAL COURTS OF CHINA WITH THE SINGAPORE INTERNATIONAL COMMERCIAL COURT

AbstractThe article critically reviews the litigation framework of the Chinese International Commercial Court (‘CICC’) using a comparative approach, taking as a benchmark the Singapore International Commercial Court (‘SICC’)—another Asian international commercial court situated within the Belt and Road Initiative (‘BRI’) geography. It argues that the CICC, despite being lauded as a visionary step toward an innovative, efficient and trustworthy dispute resolution system, does not live up to those grand claims on closer scrutiny. The discussion shows that the CICC is in many respects insular and conservative when compared with the SICC. The distinctions between the two litigation frameworks may be explained by the differences in objectives. Whereas the SICC was created to compete for international judicial business and bolster Singapore as a leading dispute resolution hub, the CICC is presently designed to provide a legal safeguard in BRI disputes with Chinese elements. This article also identifies major challenges confronting the CICC and sets out proposals for change.

싱가포르의 분쟁해결문화와 ADR제도

Singapore has witnessed rapid economic growths for a couple of decades due to the inward foreign direct investment. To accomplish this purpose, Singapore tries to transform a small island into the international business hub in East Asia. Concomitantly, Singapore government implements strategy to construct this country as the international dispute resolution hub during last couple of decades. In line with this strategy, Singapore has established Singaporian dispute resolution system, such as Singapore court annexed mediation system, Community Resolution Center, Singapore Mediation Center(SMC), Singapore International Mediation Center(SMIC), Singapore International Mediation Institute(SIMI), Singapore International Arbitration Centre(SIAC), and Singapore International Commercial Court(SICC). Furthermore, Singapore provides an unique Arb-Med-Arb service to disputants. The spectrum of dispute resolution institutions indicates that Singapore is expected to implement a vision of multi-door court house in Singapore.

Singapore as a centre for international commercial litigation: party autonomy to the fore

This article considers two recent developments in Singapore private international law: the establishment of the Singapore International Commercial Court and the enactment of the Hague Convention on Choice of Court Agreements 2005 into Singapore law. These two developments are part of Singapore’s strategy to promote itself as an international dispute resolution hub and are underscored by giving an enhanced role to party autonomy. This article examines the impact of these two developments on the traditional rules of private international law and whether they achieve the stated aim of positioning Singapore as a major player in the international litigation arena.

Cryptocurrencies and Code Before the Courts

In the rapidly developing cyber sphere dominated by cryptocurrencies and code, it is perhaps not uncommon for firms to focus on cutting-edge technological developments leaving the law behind as an afterthought. B2C2 Ltd v Quoine Pte Ltd (“B2C2”) may serve as a timely reminder of the importance of the legal principles supporting e-commerce and Fintech. In the first case of its kind, B2C2 raised several key questions before the Singapore International Commercial Court (“SICC”), seeking clarification on how the established legal concepts of breach of trust, mistake and unjust enrichment might apply in the context where an automated contract-forming software had produced unusual results. This decision represents the most comprehensive treatment by a Commonwealth court of the legal nature of cryptocurrencies and automated contract-forming software to date; a harbinger of further and more complex litigation to come, as disputes involving e-commerce and Fintech gradually start to reach the courts.

The Singapore International Commercial Court

The Singapore International Commercial Court

The Implications of International Commercial Courts on Arbitration

The recently created Dubai International Financial Centre’s (DIFC) Courts and the Singapore International Commercial Court (SICC) aim to grant the same benefits to parties as international commercial arbitration, offering something of a hybrid; not quite arbitration, but not quite litigation in a national court either. However, their current model is little more than a national court in an arbitral tribunal’s clothing. Nevertheless, the advantages and disadvantages of the two systems seem to balance each other out overall, with the notable exception of the enforceability of the outcome. The DIFC Courts’ proposed mechanism to transform its judgments into arbitral awards raise the question of definition for arbitral awards and disputes, and raises dilemmas with regard to the impact it has on the review of the decision solving the initial dispute. The broader implication of this innovative process is that it can create an enforcement mechanism of foreign court judgments in all New York Convention states, broadening the scope of the Convention beyond what it was envisaged to cover, while also essentially eliminating the judicial review intended to be performed under the Convention over decisions rendered on disputes. Whether this innovative procedure will result in a more efficient form of harmonization, circumventing the difficulties posed by the absence of global harmonization on the recognition of foreign court judgments, or the risk of abuse will result in damaging already harmonized laws, will remain to be seen.

THE RESOLUTION OF DISPUTES BEFORE THE SINGAPORE INTERNATIONAL COMMERCIAL COURT

AbstractThe 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.

The Emergence of Hybrid International Commercial Courts and the Future of Cross Border Commercial Dispute Resolution in Asia

The bulk of international commercial disputes are resolved by national courts. In Asia, regional international arbitration centres in places such as Shanghai, Hong Kong, Singapore, and Tokyo have also been partaking in these exercises albeit at varying levels of popularity. While commercial arbitrations remain pop­ular, the influence of these bodies in driving convergence has been questioned. This has been in part due to the confidential nature of their awards and their ad hoc nature. The uptake of international commercial instruments in the region is growing, but the extent of harmonization of international commercial law remains weak. Even in countries such as Australia that have taken steps to adopt international commercial instruments, the efficacy of international law has been called into question. Application of these international rules have not been prom­ising. In this regard, the lacklustre performance of the Convention for the Interna­tional Sale of Goods (CISG) could be cited. There is no doubt that judicial institutions play a crucial role in achieving the lofty ideal of harmonisation. At the other end of the spectrum, the establishment of fully blown regional interna­tional courts for commercial disputes is further away. This has been hampered by the obvious sovereignty concerns and the relative success of international commercial arbitration. It has been a little over a year since Singapore, a country that is already one of the most preferred arbitration destinations in the world, moved to establish an International Commercial Court, a unique institution that pushed the frontiers of cross border commercial dispute resolution. The Court heard its first case in May 2015 on a referral from the High Court. This case involved a dispute between Indonesian and Australian mining companies. The court is unique in that it allows appointment of foreign judges and dispenses with the application of Sin­gapore's Rules of Evidence. Naturally all Singapore regular courts are expected to apply the Singapore Rules of Evidence in disputes before them. However, an exception is made in regards to matters coming before the Singapore International Commercial Court (SICC), where on application of the parties the Singa­pore Rules of Evidence may be disapplied pursuant to Order 110, Rule 23.2 as will be discussed later in this essay, this hybrid institution promises to combine the best of international commercial arbitration and that of judicial settlement of disputes. Elsewhere in Asia, we have had the Dubai International Financial Cen­tre Courts of First Instance and Appeal, the Qatar International Court and Dispute Resolution Centre and, most recently, the Abu Dhabi Global Market Courts. The need for specialised commercial division has long been recognised in places like London, Delaware North, and Victoria in Australia. It is one thing to have a commercial division and yet another to make these divisions have an interna­tional orientation. This paper seeks to put these developments in comparative perspectives and examine normative, procedural, institutional issues and practical challenges that such endeavours entail. It will also assess and critically examine the legal/legis­lative infrastructure required to accommodate the establishment of hybrid judicial organs for cross border commercial disputes.

Commercial courts and international arbitration--competitors or partners?

Drawing on the author's extensive personal experience as an international arbitrator, Senior Counsel in Singapore, and the non-resident Chief Justice of the Dubai International Financial Centre (DIFC) Courts, this article examines the relationship between commercial courts and international arbitration in two jurisdictions, Singapore and Dubai. The author discusses the impact that the newly established Singapore International Commercial Court (SICC) will most likely have upon the Singapore International Arbitration Centre (SIAC) to conclude that these two dispute resolution forums will most likely complement one another. The article then moves on to discuss a novel, mutually beneficial interaction between the courts and arbitral institutions through the new Practice Direction of the DIFC which seeks to ‘convert’ court judgments into arbitration awards, thereby allowing successful parties to enforce their court judgments through either arbitration or litigation. United Arab Emirates Civil Procedure Code, Federal Law No. 11 (1992) (Hague) Convention on Choice of Court Agreements (2005) GCC (Gulf Cooperation Council) Convention for the Execution of Judgments, Delegations and Judicial Notifications (1996) Riyadh Arab Agreement for Judicial Cooperation (1983) Singapore Rules of Court, Order 110 (2015) DIFC (Dubai International Financial Centre) Arbitration Law No. 1 (2008) (New York) Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) Tjong Very Sumito v Antig Investments Pte Ltd [2009] 4 SLR(R) 732. Dalian Hualiang Enterprise Group Co Ltd v Louis Dreyfus Asia Pte Ltd [2005] 4 SLR 646. Halki Shipping Corporation v Sopex Oils Ltd [1998] 1 LLR 465. Hayter v Nelson Home Insurance Co [1990] 2 LLR 265. Ellerine Brothers (Pty) Ltd v Klinger [1982] 1 WLR 1375.

Handbook Vienna Rules: A Practitioner's Guide

Handbook Vienna Rules: A Practitioner’s Guide , VIAC, 2014. This article reviews the Handbook Vienna Rules: a Practitioner's Guide (VIAC 2014) . After a brief overview of the evolving landscape of international arbitration and the role of arbitral institutions, the article discusses the Handbook and the main features of the 2013 Vienna Arbitration Rules. Written by a group of the most distinguished Viennese and German arbitration practitioners, the Handbook offers a comprehensive analysis and commentary whose primary audience is arbitration practitioners who are involved in an arbitration under the Vienna Rules or simply want to remain updated on the new features of the 2013 Vienna Rules. To this audience, the Handbook provides a clear, helpful and indeed essential guide. International arbitration has been constantly changing, indeed evolving, in more than one ways. It has become specialized, with the fields of investment, construction, maritime, and, growingly, energy and financial arbitration becoming distinct areas of arbitration practice. It has also become more complex and multipolar, where a single dispute is often submitted to different dispute resolution fora, including commercial tribunal, investment tribunal and national courts. In two well-discussed cases, namely the Yukos case and the Lago Agrio case (albeit admittedly not the typical arbitration disputes), parts of the dispute were submitted to commercial arbitration, investment arbitration, state-to-state arbitration, the national courts of a wide range of jurisdictions, even the European Court of Human Rights. The progressing evolution of international arbitration has even pushed national courts to become more efficient and more competitive, with developments at a regional level (see the new Brussels I Recast) or at a national level (see the new Singapore International Commercial Court). Against this exciting but highly competitive background, arbitration institutions have been working hard to respond to the new challenges that the latest developments in international arbitration have brought about and adapt to the increasingly more …