Keynote Address by Steven Gee KC at the SICC Seminar 2026

I begin by first giving thanks to the Singapore International Commercial Court as well as the Singapore Academy of Law for the opportunity to address all of you today.

Singapore ranks equally with the top states in the WJP Rule of Law review. It is a jurisdiction which consistently produces judgments of the highest calibre and which inspires public confidence in its courts tribunals and institutions.. Yesterday’s opening shows the level in Singapore of investment in people ideas and the public and planning for the future. In human affairs there is the force of Change. This is always there and it requires a willingness to embrace and provide for it. Plan ahead. One topic which constantly came up was AI.

On 22nd May 1975, in Nippon Yusen Kaisha v Karageorgis Greek charterers chartered 3 vessels with London jurisdiction clauses did not pay hire on one of them and disappeared. Maybe there was cash in a London bank account. The CA granted an injunction restraining withdrawal of the cash. Never before had the English court restrained a person from using his own assets prior to judgment. There were remedies for undoing fraudulent conveyances and in insolvency statutory provisions for avoidance of transactions. But a stitch in time saves nine and with the changes enabling swift transfer of assets internationally there was a problem to which Lord Denning provided a solution. It was followed a month later in Mareva.

Siskina was a different case. The shipowners had taken a cargo in Italy not paid Suez Canal dues there was an Italian jurisdiction clause and proceedings brought in Cyprus when the shipowners dumped the cargo there asserting a lien for claims against the cargo interests. There was a pot of money in London hull proceeds from the Mareva which sank 6 weeks later. The insurers paid. But there was no basis for service of a substantive claim out of the jurisdiction. There was no “cause of action” of cargo owners against the brokers who had received the money. The words “cause of action” are a lawyer’s label for when a remedy might be granted. So to say that an injunction can only be granted when there is or will be a cause of action is not necessarily helpful. It took 2 years to go through the courts about the injunction- still no judgment and no winding up proceedings in London.

In Siskina was that there was a definite fund in London. It belonged to the shipowners. How could there be any doubt that the English Court had power to direct how it was not to be used and had the power to do so by making orders against the insurance brokers? The answer to this is that argument in the Siskina accepted that a route had to be found to enable service of proceedings out of the jurisdiction on the defendant. It was a rule for substantive cases. No-one had heard of free standing proceedings for interim relief. There were no rules of court allowing service abroad of such proceedings. There was no “cause of action” of the cargo interests against the brokers. There was no claim to the money only an entitlement to damages against the shipowners. The writ could be served in England but not abroad It is a question of sovereignty. The courts in criminal proceedings will try a murder committed abroad. But unless there was a rule of court allowing service abroad the cargo interests conceded that the shipowners were immune from suit. The second question was the practice of the English courts not to grant a remedy. It has not been done before. This was evidenced by Kerr’s great treatise on Injunctions last published in 1925. Kerr deals at some length with the law of equitable waste an innovation to prevent tenants for life doing unjustified damage to settled property. A footnote listed cases in which prejudgment injunctions had not been granted. Anti-Suit injunctions which had been long established also attracted a small amount of text.

In Siskina the House of Lords never reached the question of whether the practice of the courts could be and should be changed on s. 45 of the 1925 Act. It was conceded by the plaintiffs that to succeed they first had to serve the defendant shipowners out of the jurisdiction and that could only be done if the rule of court allowing service of proceedings seeking an injunction was not confined to substantive proceedings. The background to that concession was that the courts, whether in Chancery or Common law, exercised jurisdiction over persons within England and Wales. The Court of Chancery had a general power as a matter of discretion to order service of the printed Bill which commenced proceedings, on a defendant overseas in any suit without restriction. The Courts of Equity Act 1834 (4 & 5 Will.4, c.82) removed the previous limitation on defendants, allowing for defendants worldwide. Service of the Bill was notice of proceedings, and not itself a procedure establishing personal jurisdiction over the defendant. It did not enable service of a writ of subpoena on a defendant outside the jurisdiction, or authorise an attachment of such a defendant to be issued. 7 Before 1852 for common law courts there was no provision made for the service of writs of summons out of the jurisdiction. Sections 18 and 19 of the Common Law Procedure Act 1852 allowed service out of the jurisdiction of a writ of summons in the superior courts of common law, 8 for a "cause of action, which arose within the jurisdiction, or in respect of the breach of a contract made within the jurisdiction". The Judicature Act 1875 contained in Sch.1 Ord.XI, the predecessor to RSC Ord.11, permitting service out of the jurisdiction of a writ of summons commencing proceedings.

On the meaning of the rule the plaintiffs failed. That decision has been followed in two subsequent Privy Council Decisions, Mercedes Benz v Leiduck and now Broad Idea. It was about the purpose of the rule and its interpretation.

That the rule was not wide enough made the second question on the legitimacy of Mareva relief, irrelevant. This was just as well. Lord Diplock was known for the depth of his prehearing reading and formation of strong views. The Mareva injunction was criticized by Lord Diplock in the leading judgment in dicta. It was not ancillary to an accrued substantive cause of action. Lord Wilberforce said:

"Lord Diplock possessed the quality of persuading his colleagues to the extreme. It almost got to the stage of a mesmeric quality... Lord Diplock was a very persuasive man. He was a man who got his way in almost everything."

Lord Denning regarded Siskina as the worst reversal of his career. It was doubtful whether the remedy would survive. The first edition was a book on a subject which might no longer exist. Lord Denning wrote the foreword and invited me to tea in Whitchurch. The question was accurately identified by Lord Denning a question of practice before the courts and not a lack of jurisdictional powers. Parliament in 1981 consolidated earlier legislation into the Supreme Court Act and gave recognition to the Mareva Injunction.

It chose the doing of justice over historical case law outdated by change. These events starting 50 years ago led to today.

Had he been alive Lord Denning would have been the obvious choice to address you today. My words are no substitute. What might he have said?

In the early 1930s a British Naval officer was surprised by the number of Japanese fishing and research boats around Singapore, and considered that the Japanese were in a position where they were able to attack Singapore by land, rather than sea as the British defence plans assumed. He wrote a report and submitted it, but it was dismissed as him 'over-exercising his imagination'.

The naval officer became Admiral Sir Norman Denning. One of his brothers became a General another was the great judge. The Admiral was a realist who understood he was living in a changing world. So was his brother the judge.

The common law courts have around the world based on what was section 45 Supreme Court of Judicature (Consolidation) Act 1925 replicated in jurisdictions associated with England including in Singapore, adopted the Mareva injunction, granting pre-emptive relief both after and before judgment and in cases with limited connections to the territorial jurisdiction of the court.

The 1925 Act reproduced what had been s.25(8) of the Judicature Act 1873 (England) and s.2(8) the Straits Settlements Ordinance No.IV of 1878 which was based on it. The statute in Singapore is now s 4(10) of the Civil Law Act which uses the same words. There is also the inherent jurisdiction of the court derived from the unlimited jurisdiction of the old courts of Chancery. There were judges who thought the words meant what they said. They included Sir George Jessel MR and Palles CB. Others treated the absence of case law as restricting the statute itself.

It took nearly 50 years for the Privy Council in Broad Idea by a majority to consider whether the law had taken a wrong turn in Siskina. Nothing in the minority opinion disagrees with the majority’s opinion that it had. Broad Idea allowed service on an asset holder or controller and an order against them. It allowed free standing relief at common law in an appeal from BVI which unlike England had no legislation allowing for free standing relief. On the facts in Siskina it would have allowed service on and an injunction against the insurance broker in London. The majority has now been followed in unanimous Supreme Court authority.

Meagher Gummow and Lehane wrote in truth there is no such thing as a Mareva Injunction. The common law has sources not confined to cases in Chancery. In a trenchant rebuke Professor Peter Birks, the Vinerian professor at Oxford, asked in the Law Quarterly Review for no more books on Equity. In Australia this influence resulted in them being called Asset Preservation orders but the debate about what they should be called did not prevent Australian practice borrowing from the standard form orders in England used in Mareva cases. In the United States the Supreme Court split 5-4 holding in a majority opinion of Justice Scalia that the Judiciary Act of 1789 did not preserve to Federal Judges the capacity of Equity to develop new remedies for changed circumstances. It was a decision that this was reserved to Congress. Justice Ginsberg wrote for the minority. Courts and the justice system are affected by social change in that case the change from slow moving capital to international transfers made within minutes. She considered that the Founding fathers had intended Equity’s capacity for child birth to be vested in the federal judiciary.

The introduction of Mareva has resulted in England in amendments to the rules allow service out of the jurisdiction. Certain cases were attempts to extend them which eventually received criticism by the Privy Council in 1996 in Mercedes v Leiduck.

Early on it became very clear that there would be cases in which the plaintiff needed to know of the assets if the injunction was to be successfully policed by the plaintiffs.

[Asset disclosure orders] Central to Policing Injunction

Often it is the order for disclosure of information which is of more importance then the injunction. This is because that information may be important when it comes to enforcing the judgment.

In Australia a series of cases concerned the positon of wives,more accurately wives who might hold assets for husbands or owe them repayment of money advanced. Those cases led to what became called a Chabra order.This was an order applying to assets held by a third party but might be held on trust forn the defendant.

The wife , the Australian Taxman – Chabra, Chief Aiyela and his wife and relief against non parties.

Asset disclosure against non parties Arcelormittal but now Broad Idea.

Not interfering with foreign Courts and problems of Sovereignty.

[Babanaft Proviso. Lakatamia – civil liability can be incurred by persons abroad who assist in steps to defeat a judgment] There has been extensive refining of the law practice and procedure on Contempt of court to accommodate the new jurisdiction.

In England s. 25 CJJA 1982 was originally brought in to enable the English Court to act in aid of courts in the EU. It was limited to the grant of interim relief in support of proceedings in a Contracting State party to the Brussels or Lugano Convention. However, by 1997 when Crédit Suisse Fides Trust SA v Cuoghi [1998] QB 818 was decided, this limitation had been removed by the Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997 (SI 1997 No. 302 ). The effect is that by statute in England there can be free standing proceedings in aid of proceedings anywhere in the world. There is a jurisdiction under s. 2 Arbitration Act 1996 to grant interim relief in support of claims in arbitration.

In Switzerland where there was total lack of a remedy the CA felt no inhibition about providing a remedy see Crédit Suisse Fides Trust SA v Cuoghi [1998] QB 818. In contrast for Scotland where the remedy of WWO is not granted as a matter of “policy” by the courts see Mex Group [2024] EWCA Civ 959. Van Uden requires a connecting link between the territorial jurisdiction and the order , such as assets in London or a person there against whom orders could be enforced What happens when the assets are unlocated? In England a distinction is drawn “.. between cases where the foreign court seised of the substantive claim has no power to grant the interim relief in question and cases where it is the policy of that court not to grant such relief. In the latter case, this will generally be a factor telling against the grant of a freezing order..”

The need for an existing cause of action to justify Mareva relief drew a distinction in tension with the purpose of the jurisdiction. It was a requirement that came from the idea that Mareva relief is ancillary to the enforcement of a substantive claim. In England there came to be recognised so many exceptions that the rule came into disrepute and was abandoned. In Singapore there is the decision in Bi Xiaoqiong (in her personal capacity and as trustee of the Xiao Qiong Bi Trust and the Alisa Wu Irrevocable Trust) v China Medical Technologies, Inc (in liquidation) and another [2019] SGCA 50, a five-member panel of the Court of Appeal was concerned with the Singapore Court’s power to grant Mareva injunctions in support of foreign litigation. Ms Bi was a defendant to proceedings in Hong Kong. Substantive proceedings were also commenced in Singapore and Mareva relief granted in those which were stayed as a matter of case management. The CA held an injunction could be granted against her even though there were proceedings on the merits in Hong Kong. It did not go as far as holding there could be free standing proceedings limited to claiming an injunction in Singapore and there are words rejecting this. It was not necessary to decide the point because there were substantive proceedings in Singapore based on an accrued cause of action. Those words have fallen away with s 4(10A) of the Civil Law act.

In Mercedes v Leiduck [1996] A.C. 284 the defendant could be and was sued in Monaco, but the means for satisfying the judgment were thought to be in Hong Kong. Monaco granted an attachment limited to assets there. Lord Nicholls in his celebrated dissenting judgment said “The first defendant's argument comes to this: his assets are in Hong Kong, so the Monaco court cannot reach them; he is in Monaco, so the Hong Kong court cannot reach him. That cannot be right. That is not acceptable today. A person operating internationally cannot so easily defeat the judicial process. There is not a black hole into which a defendant can escape out of sight and become unreachable.”

Broad Idea confirmed by the Supreme Court has decided that at common law there can be free standing proceedings for an interim injunction. This has been reviewed in Singapore with s. 10(4A) Civil Law Act. This is the modern approach- see DIFC Trafigura CA case,. It decouples the injunction from a cause of action an existing cause of action or the need to have a platform based on service within the jurisdiction of a substantive claim.

What is Cryptocurrency? What is an asset? It depends upon the purpose of asking the question. Cryptocurrency can be used to obtain cash to satisfy a money judgment. This suffices to constitute an asset. Under English law it is a type of property. What challenges does it present for enforcement of judgments and for granting effective relief? One challenge is that it is not easy to find it . Another is the Wallet password. May be able to enforce if you have the password. Another is where is it? Can a court effectively enforce? What does one do about service in a Crypto fraud by Persons unknown. Can one get a remedy against a platform? What about where it has parted with the cash? Does it really help to bring proceedings against persons unknown?

There are many wealthy people who do not own assets. One purpose of freezing injunctions is to preserve assets for enforcement should that eventually be possible. The relevance of “Control” of assets to injunctions and enforcement- see LCMLQ Article. Equitable execution and appointment of receivers.

The standard form of order has extensions beyond simply freezing assets belonging to a named party. One concerns assets whether or not beneficially owned which appears to catch trust assets. This has raised concerns. It has been justified on the basis there might be a sham trust i.e an arrangement which looks like a trust but on analysis is not. There is still scope for catching sham trusts but in practice at least for trusts established bilaterally with a professional it has been difficult to say both parties overtly agreed something different.

A problem with the standard form order concerns a common form of structure – an individual who owns and controls his own company, It has been suggested that the standard injunction does not prevent the individual acting as a director of a company. We need to be constantly vigilant that the standard form of order is crystal clear and free from ambiguity.

Two particular types of modes of enforcement are to avoid what has been called equitable execution. and avoidance of fraudulent transfers. Equiable execution is not execution and nor is it equitable. It is the usually the appointment of a receiver who can get in assets and use them to pay the creditor, This can be done over powers which a debtor has to realise cash. One example is a power to obtain a capital payment from a pension fund. The power may be to reverse a transfer and take then proceeds. This has been applied where the debtor has a power a nd also where on the evidence he has de facto control of assets in a wealth structure and the reality is on the evidence the professionals are acting on his instructions, One way of looking at the position is to regard the assets as if they were owned by the debtor.

There are limits. In general fiduciary powers are subject to an enforceable duty owed to other which has to be respected. The trustee of a discretionary trust owes duties to the class of beneficiaries.

Another area is fraudulent conveyances. Local statutes have their own wording which require proof of subjective intent to prejudice people who are or may become creditors. Many statutes historically have a source in the 1571 Statute of Eliz 1. In recent litigation in England a bank had not been paid on a guarantee . and sought to unwind property gifts made some years earlier. The family ultimately won because of failure to prove the subjective purpose. This jurisdiction is related to that of freezing injunctions because the injunction prophylactically stops such transfers. I would like to make 2 points. 1. Tracing after the transfer is set aside for the benefit of the creditors, 2, Attribution and agency the points not argued in England. There is some useful Australian case law/

The Metaverse?

At common law there could be an action brought to enforce a foreign judgment or an action brought on an award based on the underlying arbitration agreement to carry out the award. But there was no cause of action to enforce an interim order. Mareva orders are interim orders to safeguard a position. Before Brexit there was enforcement of Interim orders of other EU courts in England- without the need for an English court order an exequatur. There is no equivalent for interim orders to the regimes for recognition and enforcement of final judgments on the merits. No equivalent to the New York Convention on recognition and enforcement of arbitration agreements and awards.

In Trafigura v Gupta [2025] DIFC CA 001, the Court of Appeal in Dubai sitting in the DIFC consisted of a former Chief Justice of Australia Chief Justice of Westerm Australia and a former Lord Justice from England. They granted an application against a defendant to English proceedings and his wife who was not a defendant in England, holding that under the statutory provisions the court could grant relief regardless of the presence of assets within Dubai. Those provisions were in Arabic. In reaching its decision interpretation of the Arabic enabling provisions was with a presumption.

The court recognised the importance of safeguarding assets so that judgments including future judgments from abroad can be enforced and will be satisfied. Conflicts rules and principles founded on sovereignty which apply to substantive claims do not translate when it comes to orders safeguarding enforcement of judgments whether actual or prospective. This is fundamental to the due administration of justice and upholding the rule of law.

That should be based on relevant courts which can grant an effective remedy co-operating. In Broad Idea and in Trafigura the scope of the jurisdiction and how it should be exercised took into account how wealth may be held and what is necessary to do justice.

A convention for interim orders like the New York Convention. Out of respect for the respect for the rule of law in Singapore- the Singapore Convention. The purpose is to facilitate cross border co-operation for granting interim orders. Freezing injunctions are a species there are other types of interim order information orders are another. I suggest it includes freezing injunctions and information orders . I think search orders are a step too far.

The Convention could apply to

(1) direct enforcement of an interim order made elsewhere, (a) without exequatur or (b) with it.

(2) 3rd parties – building on interim order from abroad.

(3) New Interim orders s11(4A). Cuoghi orders. In practice many states have restricted what interim orders are involved under their local law.

The time has now come to explore the possibilities of international co-operation not confined to common law courts. There should be an attempt to agree between States a convention on interim remedies enabling the upholding internationally of the rule of law