SINGAPORE Law and Practice Contributed by: Simon Goh and Wang Ying Shuang, Rajah & Tann Singapore LLP
the exclusive jurisdiction clause, and the breaching party would have to satisfy the “strong cause” test, which sets a high threshold for a court to refuse a stay of proceedings commenced in breach of an exclusive jurisdiction agreement. Non-Exclusive Jurisdiction Clause Where there is a non-exclusive jurisdiction clause, it indicates that the parties thought that the forum named in the clause was an appropriate forum, and that an agreement to submit to the non-exclusive jurisdiction of one forum does not entail an obliga- tion to sue in that forum ( Shanghai Turbo Enterprises Ltd v Liu Ming [2019] SGCA 11). Where Singapore is the forum named in the non-exclusive jurisdiction clause, the defendant must show strong cause why they should not be bound to their contractual agree- ment to submit. If Singapore is not the named forum in the non-exclusive jurisdiction clause, then the defend- ant may apply for a stay or to set aside service on the basis that Singapore is forum non conveniens. Hague Convention on Choice of Court Agreements The common law position on the exclusive jurisdiction clause has now been slightly altered with the prom- ulgation of the Hague Convention on Choice of Court Agreements (the “Hague Convention”) on 1 October 2005, and its ratification by Singapore on 2 June 2016 by way of the Choice of Court Agreements Act 2016 (CCAA). Under common law, the courts retain discre- tion to refuse a stay despite the existence of an exclu- sive jurisdiction clause; under the Hague Convention, however, the court is required to grant the stay if cer- tain conditions are fulfilled. This will have an impact on court proceedings involving exclusive jurisdiction clauses in favour of Hague Convention Contracting States (for example, the United States of America and some jurisdictions in the European Union). In the case of 6DM (S) Pte Ltd v AE Brands Korea Ltd and others and another matter [2021] SGHC 257, the High Court held that the question of whether the court is mandated to grant a stay under the CCAA involves a two-stage test: • first, the court must consider whether there is an exclusive jurisdiction clause that does not desig-
nate Singapore as a chosen court, and that applies to the proceedings at hand; and • second, if the exclusive jurisdiction clause is found to be applicable, the court must then consider whether any of the five exceptions provided in the CCAA (which the court found to be a closed category of exceptions) apply to justify the court’s refusal to order a stay or dismissal of proceedings. Dispute Over Choice of Law Where there is a dispute over choice of law, the approach to determining the governing law of the agreement is a three-stage test, as laid out in Pacific Recreation Pte Ltd v S Y Technology Inc and another appeal [2008] SGCA 1. • First, the court would determine if there was an express choice of governing law. • The second stage is to determine whether an intention of the parties to choose a governing law could be inferred. • If the court was faced with a multiplicity of factors, each pointing to a different governing law, then the proper approach would be to move on to the third stage, which is to determine the law with the closest and most real connection with the contract. This is not an exercise to divine any “intent” of the parties, but to consider, on balance, which law had the most connection with the contract in question and the circumstances surrounding the inception of that contract. 9.3 Litigation Process The litigation process for insurance coverage disputes depends on the dispute resolution clause provided in the insurance contract and the nature of the dispute – eg, whether the insurance contract contains an arbi- tration clause (which is not uncommon). For disputes referred to the Singapore court, civil proceedings are instituted in either the State Courts (which consist of the Magistrates’ Court and the Dis- trict Court) or the General Division of the High Court, depending on the nature and quantum of the claim. If the claim is of an international and commercial nature, and subject to the parties’ agreement, the dispute may be referred to the Singapore International Com-
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