The Impact of Rules of Court 2021 on the Service-Out Jurisdiction in Singapore
The new Rules of Court (ROC 2021) in Singapore were gazetted on 1 December 2021, and will come into operation on 1 April 2022. This entry assesses the impact of the new civil justice regime on the Singapore courts’ approach to assuming jurisdiction over defendants present outside Singapore (the service-out jurisdiction). The issues raised in this entry are discussed more fully in a forthcoming article in the March 2022 edition of the Singapore Journal of Legal Studies.
The new civil procedure rules for the General Division of the High Court in Singapore, excluding the Singapore International Commercial Court, (ROC 2021) were gazetted on 1 December 2021, and will come into operation on 1 April 2022. The new regime signifies the first major overhaul of the civil justice system in Singapore since the 1990s. ROC 2021 is the result of a collective effort that began with the establishment of the Civil Justice Commission (CJC), in January 2015, and the Civil Justice Review Committee (CJRC), in May 2016. Thereafter, the CJC and CJRC each published separate reports containing proposals for the reform of Singapore’s civil litigation practices.1Report of the Civil Justice Committee (https://www.mlaw.gov.sg/files/Annex_B_CJRC_Report.pdf/); Civil Justice Commission Report (https://www.mlaw.gov.sg/files/Annex_C_Civil_Justice_Commission_Report.pdf). In late October 2018, a public consultation was held to receive feedback on the two committees’ proposals. The release of the response to public feedback on the recommendations of the CJC and the CJRC in June 2021 was the penultimate step before the publication of ROC 2021.
ROC 2021 sets out to enhance various aspects of civil procedure in Singapore by streamlining the process of litigation, and making court hearings speedier and more cost-effective. Various online publications, including an entry in the January 2022 feature in the Law Gazette, have sought to outline and comment on some of the main changes which will be brought in under ROC 2021. For the most part, their aim has been to provide a broad overview of the main developments under the incoming civil justice regime. This entry, though, has a much narrower focus. In particular, it sets out to examine the impact of the new rules of court on the Singapore courts’ approach to assuming jurisdiction over foreign-based defendants (the service-out jurisdiction) in private-international-law disputes.
II. The Service-Out Jurisdiction in Singapore
The bases for the Singapore courts to assert in personam jurisdiction in international private disputes are well known to those with an interest in the subject. The defendant’s submission to the proceedings in Singapore is usually sufficient to afford jurisdiction to the Court.2Supreme Court of Judicature Act, s.16(1)(b). Similarly, courts in Singapore are competent to entertain proceedings against a defendant who has been served with the proceedings while present in Singapore.3Supreme Court of Judicature Act, s.16(1)(a)(i). Finally, courts are able to serve proceedings on defendants who, at the time of the service, are outside Singapore.4Supreme Court of Judicature Act, s.16(1)(a)(ii). Unlike submission and presence, courts in Singapore have a discretion whether to exercise the service-out jurisdiction. As reiterated by Sundaresh Menon CJ in Zoom Communications Ltd v Broadcast Solutions Pte Ltd,5(2014) 4 SLR 500; (2014) SGCA 44, (26). to persuade the Court to assert the service-out jurisdiction, the plaintiff must establish that: (a) the claim fits one of the heads of claim (widely known as the “gateways”) under Rule 1 of Order 11 of the Rules of Court 2014 (“ROC 2014, Ord 11 r 1(a)-(t)”); (b) the claim has a sufficient degree of merit; and (c) Singapore is the proper forum for the trial of the action – ie, Singapore is forum conveniens.
III. Proposals for Reforming the Approach to the Service-Out Jurisdiction
In the course of outlining its recommendations for the reform of the civil justice system in Singapore, the CJC indicated that the approach to the service-out jurisdiction should remain mostly unchanged.6Report of the Civil Justice Review Committee, Chapter 6(1), p 16. Nevertheless, this remark appeared to be overshadowed by the CJC’s subsequent statement that a party seeking to obtain leave to commence an action against a foreign-based defendant should no longer be required to show that the claim fits at least one of the jurisdictional grounds listed under ROC 2014, Ord 11 r 1(a)-(t).7Report of the Civil Justice Review Committee, Chapter 6(2), p 16. According to the CJC, all that the plaintiff had to show was that “the court [in Singapore] has jurisdiction or is the appropriate court to hear the case.”8Report of the Civil Justice Review Committee, Chapter 6(2), p 16.
Therefore, despite the remarks in the CJC’s report to the contrary, in the immediate run-up to the publication of ROC 2021, it seemed as though the Singapore courts’ approach to exercising the service-out jurisdiction was about to change markedly: the gateway precondition for obtaining service-out orders looked destined to be abandoned, and whether Singapore is forum conveniens appeared set to become the sole basis for serving proceedings outside the forum on the grounds that the Court in Singapore is appropriate to hear the case.9See, eg, Yeo Tiong Min, “Exit, Stage 2, for the Plaintiff in Service Out of Jurisdiction?” (2021) 33 S Ac LJ 1237, pp 1249-1250, and Adrian Briggs, Civil Jurisdiction and Judgments (Abingdon: Informa Law from Routledge, 7th ed, 2021), (24.06) (fn 46).
IV. The Service-Out Jurisdiction Under ROC 2021
Surprisingly, this is not how things unfolded when the final version of ROC 2021 was published. The relevant provisions concerning the service-out jurisdiction in Singapore are now to be found under ROC 2021, Order 8. In this context, Rule 1(1) of Order 8 (“Ord 8 r 1(1)”), is the main provision to consider. On the face of it, the provision is modelled on the CJC’s proposals. It states that “[a]n originating process or other court document may be served out of Singapore with the Court’s approval if it can be shown that the Court has the jurisdiction or is the appropriate court to hear the action.” Under Ord 8 r 1(1), Singapore courts could serve proceedings on defendants outside the forum in two broad situations.
The first is where the Singapore court has “jurisdiction”. Jurisdiction has not been defined, but it is understood to encompass a basis for adjudicatory competence other than presence, submission and service out. One prominent example of where the Court would be deemed to have jurisdiction for the purpose of Ord 8 r 1(1) is if its adjudicatory competence is rooted in the Choice of Court Agreements Act 2016. The second (alternative) basis under Ord 8 r 1(1) for Singapore courts to allow for claims to be served outside the forum exists where Singapore is the “appropriate court” for hearing the dispute. For this purpose, Practice Direction 63 of the Supreme Court Practice Directions 2021 (“PD 63”), contains the relevant details regarding applications for service out of Singapore. The requirements that must be satisfied to obtain permission to sue the foreign-based defendant are set out in PD 63(2). According to PD 63(2), the onus is on the claimant to show that:
“(a) there is a good arguable case that there is sufficient nexus to Singapore;
(b) Singapore is the forum conveniens; and
(c) there is a serious question to be tried on the merits of the claim.”
PD 63(3)(a)-(t) contains a non-exhaustive list of factors which claimants “should refer to” in order to fulfil the requirement under PD 63(2)(a). The paragraphs within PD 63(3)(a)-(t) are identical to the jurisdictional gateways which featured within ROC 2014, O 11 r 1(a)-(t). Although not legally binding, courts have always upheld practice directions, and they are intended to be read together with the provisions under ROC 2021. Thus, despite the fact that the jurisdictional gateways which featured under ROC 2014, Ord 11 r 1(a)-(t) do not appear in the final version of ROC 2021, they continue to play broadly the same role as they did under ROC 2014, albeit that they are now to be found within the practice directions.
In practice, the claimant would have to show that the claim fits one of the paragraphs listed within PD 63(3)(a)-(t), or, instead, point to another connecting factor which signifies a sufficient nexus between the claim and Singapore. If successful in establishing a sufficient nexus with Singapore, the claimant would also need to show that Singapore is forum conveniens, and that the issue at the heart of the claim raises a serious question.
Separately, there is a new basis under the new civil justice regime for Singapore courts to assert jurisdiction over foreign-based defendants: Ord 8 r 1(3). Based on this provision, “[t]he Court’s approval is not required if service out of Singapore is allowed under a contract between the parties.” To be able to summon a defendant outside Singapore under Ord 8 r 1(3), an agreement to this effect must exist between the parties. Otherwise, the claimant would require the court’s permission to initiate proceedings against the defendant.
The fact that the gateways have remained relevant under the new regime, and will continue to play a role in the Singapore courts’ exercise of the service-out jurisdiction, is to be welcomed. After all, significant conceptual and practical problems would have arisen had the decision whether to summon a foreign-based defendant turned entirely on Singapore being forum conveniens.
Conceptually, the gateway and forum conveniens preconditions play distinct roles in the service-out enquiry. The gateway requirement ensures that the court in Singapore only proceed to summon a defendant outside the forum where the claim, or the defendant’s alleged conduct, is sufficiently connected with Singapore. The forum conveniens precondition, though, is about deciding between two competent fora, rather than determining whether a forum is competent. From a practical perspective, the Canadian courts’ experience, in the early part of the 21st century, of exercising jurisdiction over defendants outside the forum highlights that sole reliance on the factors at the heart of forum conveniens in deciding whether to serve proceedings outside the forum could lead to unpredictable and costly litigation.10See Ardavan Arzandeh, “‘Gateways’ within the Civil Procedure Rules and the future of service-out jurisdiction in England” (2019) 15 Journal of Private International Law 516, 528-534. The fact that problems of this kind could have arisen had the gateways been abandoned altogether should be borne in mind, in the event that there is another attempt at reforming the Singapore courts’ service-out jurisdiction in the future.
For now, though, the retention of the gateways under the new regime, albeit as a non-exhaustive list of connecting factors within the practice directions, is to be regarded as a positive development. Despite certain apparent differences, the mechanism and approach to the service-out jurisdiction under ROC 2021 remain substantially the same as they were before. Consequently, they are liable to lead to similar outcomes in practice.
|↑1||Report of the Civil Justice Committee (https://www.mlaw.gov.sg/files/Annex_B_CJRC_Report.pdf/); Civil Justice Commission Report (https://www.mlaw.gov.sg/files/Annex_C_Civil_Justice_Commission_Report.pdf).|
|↑2||Supreme Court of Judicature Act, s.16(1)(b).|
|↑3||Supreme Court of Judicature Act, s.16(1)(a)(i).|
|↑4||Supreme Court of Judicature Act, s.16(1)(a)(ii).|
|↑5||(2014) 4 SLR 500; (2014) SGCA 44, (26).|
|↑6||Report of the Civil Justice Review Committee, Chapter 6(1), p 16.|
|↑7||Report of the Civil Justice Review Committee, Chapter 6(2), p 16.|
|↑8||Report of the Civil Justice Review Committee, Chapter 6(2), p 16.|
|↑9||See, eg, Yeo Tiong Min, “Exit, Stage 2, for the Plaintiff in Service Out of Jurisdiction?” (2021) 33 S Ac LJ 1237, pp 1249-1250, and Adrian Briggs, Civil Jurisdiction and Judgments (Abingdon: Informa Law from Routledge, 7th ed, 2021), (24.06) (fn 46).|
|↑10||See Ardavan Arzandeh, “‘Gateways’ within the Civil Procedure Rules and the future of service-out jurisdiction in England” (2019) 15 Journal of Private International Law 516, 528-534.|