Amendments to the Singapore International Commercial Court Regime to strengthen Singapore as an international arbitration seat of choice

On 9 January 2018, amendments were passed to the Supreme Court of Judicature (Amendment) Act (“SCJA “) which clarify that the Singapore International Commercial Court (“SICC“) has jurisdiction to hear proceedings relating to international commercial arbitration.  The amendments also abolish the pre-action certificate procedure for applications to the SICC.

Established in 2015 as the ‘international’ division of the Singapore High Court, the SICC has gone from strength to strength in a short span of time, gaining a reputation for the quality and speed of judgments rendered. Since its establishment the SICC has heard 17 cases on matters ranging from construction, investment, banking and finance, and shipbuilding, all of which are high value cases involving international parties and counsel.

These latest amendments, along with the addition of four new esteemed international jurists to the SICC bench, are intended to further increase the popularity and usage of the SICC, and Singapore as a preferred seat of international arbitration.

Key provisions of the SCJA Bill

• Jurisdiction of SICC

A new section 18D(2) of the SCJA will be included to provide that “…the Singapore International Commercial Court (being a division of the High Court) has jurisdiction to hear any proceedings relating to international commercial arbitration that the High Court may hear and that satisfy such conditions as the Rules of Court may prescribe“.

The new provision expressly empowers the SICC to hear any matter relating under the Singapore International Arbitration Act (“IAA“), which will include applications to set-aside awards, jurisdictional challenges and enforcement applications.  Whilst Senior Minister of State for Law and Finance Ms Indranee Rajah (“Minister Rajah“) expressed in moving the bill that “it has always been the intention that parties should be able to appear before the SICC for IAA-related matters“, it is noteworthy that none of the 17 matters involve applications under the IAA, and that Singapore practitioners had continued to bring international arbitration applications in the ordinary courts.  The latest amendments therefore provide helpful clarification to litigants looking to bring an application under the IAA.

Consequential amends have also been made to section 80(2A) of the SCJA allowing the Rules of Court to prescribe what constitutes “international commercial arbitration” and any proceedings that such a dispute must satisfy before being heard before the SICC.

• Removal of pre-action certification procedure for application to the SICC

Currently, parties wishing to have their matters heard by the SICC could apply for a “pre-action certificate” which, if granted, represents early acknowledgment by the court that the claim in question is international and commercial in nature (and, where applicable, was an “offshore case”, which would allow foreign counsel representation). Our previous article which describes in greater detail the specific processes of the SICC can be found here.

However, feedback collated by the Supreme Court determined that this process has been of limited utility and so has been removed.  Accordingly, parties wishing to avail of the SICC’s jurisdiction must now provide the necessary justification at the same time that the action is commenced.

New international judges

At the Opening of the Legal Year 2018 on 8 January 2018, the Chief Justice Sundaresh Menon confirmed that 11 out of 12 of the SICC international judges appointed in 2015 had been reappointed for a period of three years (Justice Irmgard Griss has not sought and will not be offered reappointment as she had been elected to the Austrian Parliament). In addition, four new foreign jurists have been appointed:

• The Honorable Robert French (retired Chief Justice of the High Court, Australia)
• The Honorable Beverley McLachlin (retired Chief Justice, Canada)
• The Right Honorable Lord Neuberger of Abbotsbury (retired President of the Supreme Court, United Kingdom)
• The Honorable Sir Jeremy Cooke (former judge overseeing the Commercial Court, United Kingdom)

Comment

Singapore is widely acknowledged as one of the most popular seats of arbitration globally. A 2015 report of the International Chamber of Commerce (ICC) for example ranks Singapore as the number one preferred seat for arbitration in Asia and among the top five preferred seats globally.

The recent developments represent a further step to reinforce this status. Parties opting for Singapore as the seat of their arbitration now do so in the knowledge that curial support is available through the SICC, with its vastly experienced and internationally renowned bench of jurists. The addition of the four new jurists, three of whom served as immediate past Chief Justice of their respective jurisdictions (Judges McLachlin, Lord Neuberger and French) further adds to the confidence and stature of the SICC, and arbitration in Singapore more generally.

One caveat remains in relation to counsel entitled to represent parties in arbitration-related matters before the SICC. In introducing the amendments to the SCJA, Minister Rajah made it clear that “parties which have arbitration related matters heard in the SICC must be represented by Singapore-qualified lawyers” practicing in Singapore law practices, and that the Rules of Court will be amended to clarify that an “offshore case” (in which registered foreign counsel can appear before the SICC) does not include matters under the IAA.  This will be the position even if foreign lawyers, including those registered with the SICC, had represented the parties in the original international arbitration, where Singapore law freely allows foreign counsel to make submissions on substantive and procedural aspects of Singapore law, including on the IAA.

It is unlikely that the requirement for parties to engage Singapore counsel in an IAA application before the ICC will adversely impact upon parties’ choice of Singapore as the seat for their arbitrations. Having said that, there is something to be said, both in terms of costs, continuity and (from parties’ perspective) familiarity with counsel, for parties to be allowed to retain their international counsel from the underlying arbitration in proceedings before the SICC. The government has indicated that it will continue to monitor, “refine and develop this offering to meet the needs of parties“, and further developments will be keenly watched.

For further information, please contact Alastair Henderson, Managing Partner – SE Asia, Emmanuel Chua, Senior Associate, or your usual Herbert Smith Freehills contact.