Comprehensive review results in standalone SICC Rules that provide clarity and efficiency to parties to meet the demands of increasingly complex international commercial disputes.
The Singapore International Commercial Court Rules 2021 (“SICC Rules 2021”), gazetted on 2 December 2021, will be implemented from 1 April 2022. The SICC Rules 2021 enhance the dispute resolution process in the Singapore International Commercial Court (“SICC”) with new procedures aimed at the expeditious and efficient administration of justice according to international commercial law, while providing for procedural flexibility through fair, impartial and practical processes.
2. As a forum for the resolution of international commercial disputes, the SICC has established a reputation for neutrality and flexibility, where international judges may sit independently or with Singapore judges to adjudicate disputes, and foreign lawyers may represent parties in certain matters. The SICC Rules 2021 seek to enhance the SICC as a prime centre for dispute resolution by simplifying some of the definitions and rules, modernising the language, streamlining procedural steps, increasing procedural flexibility and enabling greater judicial control of the entire litigation process. This ensures that the SICC remains progressive and has procedures compatible with, and responsive to, the fast-changing needs and realities of international commerce.
3. Case Management Conferences are a key feature of SICC proceedings. The Judge continues to play a critical role in the process under the SICC Rules 2021 and there will be no change to the judge-led nature of SICC proceedings. There will continue to be robust case management, which will start at a very early stage of proceedings, to streamline the dispute for an orderly resolution, prevent dilatory practices and delays, and control overall costs.
4. The salient features and key highlights of the SICC Rules 2021 are in ANNEX A. Details of the SICC Rules 2021 are available on the SICC website at https://go.gov.sg/sicc-rules-2021 and on Singapore Statutes Online at https://go.gov.sg/sg-statutes-online-sicc-rules-2021.
5. Welcoming the introduction of the SICC Rules 2021, Chief Justice Sundaresh Menon commented, “When we launched the SICC in January 2015, we aimed to enhance Singapore’s position as a trusted, neutral venue for dispute resolution in Asia, and indeed, the world. The SICC offers commercial parties an excludable right of appeal, the ability to join third parties, the option of retaining their counsel of choice, including foreign counsel, flexible procedures, and adjudication by a panel of some of the most eminent and experienced jurists hailing from both the common law and civil law traditions. Following a comprehensive review of our rules of civil procedure, I am delighted that the SICC will now have its own, standalone set of procedural rules. The SICC Rules 2021 build on the hallmarks of litigation in the SICC – efficiency, procedural flexibility, fairness and impartiality, and the use of procedures responsive to the needs and realities of international commerce. We will review and improve on the SICC Rules to ensure that the SICC continues to offer commercial litigants the very best in international dispute resolution practice and procedure.”
6. Justice Quentin Loh, President of the SICC, added “The SICC Rules 2021 retain many key features of the existing SICC procedures, but we have introduced some very new and novel changes which we hope will enhance the SICC and make it more attractive for potential users. Prime considerations in these changes are to save parties time and costs throughout the entire dispute resolution process. The SICC takes prides in our model of robust judge-led Case Management Conferences, with the Rules expressly providing for very wide powers of the Court to do what is necessary or desirable for the just, expeditious and economical disposal of proceedings. This sets it apart from international dispute resolutions where adjudicators are reluctant to deal firmly with dilatory tactics, as they are concerned that their awards may be subsequently set aside for lack of a fair hearing in what the legal profession terms ‘due process paranoia’.”
7. When the SICC was launched in January 2015, the procedures were built on the existing Rules of Court (as modified by Order 110) and that, together with the SICC Practice Directions, facilitated the conduct of proceedings in the Court. Over the initial years, there were many discussions on case management and procedures, coupled with experience in the matters that were being heard. The time is now ripe to have a set of rules for the SICC, to be introduced in tandem with the changes to civil procedure rules for domestic cases under the Rules of Court 2021.
8. The SICC Rules 2021 are the result of the efforts of a committee of Judges and International Judges, comprising leading jurists from a variety of jurisdictions (including a civil law Judge), and with the support of the SICC Registry. In formulating the SICC Rules 2021, the Committee drew from various sources and experiences, including the procedural rules of leading commercial courts around the world and the rules of leading international arbitral institutions, and sought to incorporate international best practices from international commercial litigation as well as international arbitration. These were followed by targeted consultations with stakeholders, academics, local and foreign lawyers, and corporate counsel. The valuable feedback provided was studied carefully and incorporated where appropriate.
About the Singapore International Commercial Court
The Singapore International Commercial Court (SICC) is a division of the General Division of the High Court and part of the Supreme Court of Singapore. Enhancing Singapore’s international standing as a key legal and business hub in Asia, as well as a leading centre for international commercial dispute resolution, the SICC was established in 2015 as a trusted neutral forum to meet the growing demand for effective transnational dispute resolution through litigation due to Singapore’s strategic location within Asia and the reputation of its world-class judiciary known for efficiency, competence and integrity. The SICC bench comprises a diverse panel of eminent international and local judges who are experienced specialist commercial judges in their own right. An important feature of the SICC is that it allows foreign lawyers to represent parties in certain circumstances, so long as they are registered with the Court and subject themselves to a Code of Ethics.
The SICC adopts international best practices for commercial disputes. Its procedures are flexible and may be tailored to suit parties’ preferences in several aspects. Yet, the SICC retains advantages of litigation like the availability of appeal and interim measures. Published judgments with clear grounds of decision will also aid in future disputes of a similar nature. And most vital in multi-party and multi-contract scenarios, the ability to join third and related parties. Finally, parties having their disputes adjudicated at the SICC will find that court fees are cost effective.
In essence, the SICC gives parties a truly unique dispute resolution option, which has been described as “arbitration in litigation”, combining the best practices of international arbitration with the substantive principles of international commercial law.
For more information, please visit www.sicc.gov.sg.
SICC Rules 2021 – Salient Features and Key Highlights
Salient features in the SICC Rules 2021:
1. The commencement of a case in the SICC has been simplified, and there is now a single mode of commencement of proceedings. The Court may thereafter order that a contested claim or counterclaim be decided by one of three default adjudication tracks – the pleadings adjudication track, the statements adjudication track, or the memorials adjudication track. In deciding the applicable adjudication track, the Court may have regard to any agreement between the parties in this regard.
2. The provisions of the SICC Rules 2021 are framed in a manner that encourages amicable resolution of disputes, such as mediation. Parties are expressly required to consider the possibility of alternative dispute resolution (“ADR”) and to be prepared to inform the Court of the suitability of the case for ADR. Where parties are agreeable to ADR, the Court may make directions at Case Management Conferences to facilitate the parties’ attempt at ADR. Where parties are not agreeable to ADR, the Court may direct that ADR be reconsidered at a subsequent time or make any order necessary to facilitate the amicable resolution of the dispute. The conduct of the parties, including conduct in undertaking or refusing to undertake ADR, may be a factor that the Court takes into consideration in determining costs at the end of the day.
3. A key change introduced under the SICC Rules 2021 is that parties now require the permission of the Court to adduce any expert evidence. Permission will only be granted if the expert evidence will contribute materially to the determination of any issue in the case and the issue cannot be resolved by an agreed statement of facts or by submission based on mutually agreed materials. Parties are required to attempt to agree on the common set of agreed or assumed facts that the experts are to rely on, and the list of issues referred for expert evidence.
4. As is presently the case, there will be no taxation of costs under the SICC Rules 2021. The quantum of costs awarded will generally reflect the costs incurred, subject to the principles of proportionality and reasonableness. The SICC Rules 2021 set out a list of non-exhaustive circumstances that the Court may have regard to in considering proportionality and reasonableness.
1. General Principles which guide the interpretation of, and the Court’s exercise of power under, the SICC Rules 2021
a. Expeditious and efficient administration of justice according to international commercial law;
b. Procedural flexibility;
c. Fair, impartial and practical processes; and
d. Procedures compatible with, and responsive to, the needs and realities of international commerce.
2. Changes in Terminology
a. Use of simplified terminology to facilitate understanding by lay persons.
3. Jurisdictional Requirements
a. Cases which are international and commercial in nature, where the original parties to the proceedings have submitted to the SICC’s jurisdiction in written jurisdiction agreements, and where no party in the proceeding is seeking any prerogative relief.
b. Cases that are transferred from the General Division of the High Court.
c. Proceedings under the International Arbitration Act, such as applications to set aside arbitral awards, applications for the enforcement of awards and to resist such enforcement.
d. Compulsory jurisdiction to join new parties to proceedings.
e. The existing jurisdiction rules (e.g. definitions of “international”, “commercial”, “place of business” and “jurisdiction agreement”) have been refined so as to enhance clarity and brevity, whilst ensuring that the underlying policy positions remain unchanged.
f. Where each party named in the case when it was first filed has submitted to the SICC’s jurisdiction under a written jurisdiction agreement, the new SICC rules provides for a rebuttable presumption that the action is of an international and commercial nature. The presumption does not affect the Court’s power to consider its jurisdiction and exercise of jurisdiction in any given case.
g. Applications for transfer from General Division of High Court to SICC no longer require the consent of all parties.
4. Representation by Registered Foreign Lawyers
a. As is presently the case, parties may be represented by foreign lawyers registered with the SICC in certain circumstances, such as in offshore cases with no substantial connection to Singapore.
b. Where leave is granted for questions of foreign law to be determined on the basis of submissions instead of proof, parties may continue to be represented by Registered Foreign Lawyers to make such submissions.
5. Commencement of Proceedings and Adjudication Tracks
a. There is a single mode of commencement of proceedings under the SICC Rules 2021. Proceedings are commenced by way of an originating application. Generally, the originating application is to be accompanied by a claimant’s statement, setting out a concise summary of the claims, as well as a copy of the written jurisdiction agreement to which the claimant and defendant are party.
b. The defendant must file and serve a defendant’s statement to indicate, among other things, whether the defendant intends to contest the claims or any part thereof, and to set out a concise summary of the defence.
c. The Court will order that a contested claim or counterclaim be decided by one of three default adjudication tracks:
i. Pleadings adjudication track – this is the equivalent of the writ action under the existing Rules of Court, and generally culminates in a trial of the matter;
ii. Statements adjudication track – this is the equivalent of the originating summons under the existing Rules of Court, and generally culminates in a hearing on submissions; and
iii. Memorials adjudication track – where parties file memorials which are generally required to set out in full detail the parties’ respective statements of facts, legal arguments, reliefs claimed, and are to be accompanied by witness statements, expert reports (if any) and supporting documents.
d. In making that order, the Court may have regard to any agreement between the parties on the applicable adjudication track.
e. Under the pleadings track, pleadings are required to be verified by a statement of truth signed by the party or, in certain specified circumstances, the party’s representative. The statement of truth requires a person to confirm that he/she believes that the facts stated in the pleading are true.
6. Case Management Conferences
a. Case Management Conferences will continue to be judge-led, and judges exercise close control over the manner in which a case progresses.
b. A broad discretion is given to the Court to tailor the procedures to suit the dispute at hand. In exercising such power, the Court must seek to achieve the General Principles (see above).
c. All parties have the duty to assist the Court and to conduct their cases in a manner which will go towards achieving the General Principles.
7. Amicable Resolution of Disputes
a. Parties are expressly required to consider the possibility of alternative dispute resolution (“ADR”) such as mediation with the goal of amicable resolution and to be prepared to inform the Court of the suitability of the case for ADR.
b. Where parties are agreeable to ADR, the Court may make directions at Case Management Conferences to facilitate the parties’ attempt at ADR.
c. Where parties are not agreeable to ADR, the Court may direct that ADR be reconsidered at a subsequent time, or make any order necessary to facilitate the amicable resolution of the dispute.
d. The conduct of the parties, including conduct in undertaking or refusing to undertake ADR, may be a factor that the Court takes into consideration in determining costs at the end of the day.
8. Flexible Disclosure Rules
a. By default, there is no general discovery process. Instead, parties are to produce documents that they intend to rely on and may serve a request to produce specific categories of documents on any person.
b. The Court is empowered to make an order for general discovery in addition to or in place of the default procedure. The Court is also empowered to dispense with the disclosure of documents altogether.
a. By default, evidence is adduced by way of witness statements. The aim is to save the time and costs incumbent on the formalities of deposing affidavits.
b. There are, however, some specified exceptions where affidavits are required, e.g. where sworn evidence is required by law, where evidence is being adduced in support of applications for injunctions, or where the evidence is being adduced in support of an application for an order against the person for contempt of court.
10. Expert Evidence
a. Permission of the Court is required before any expert evidence may be adduced.
b. In granting such leave, the Court will have regard to two questions:
i. Whether the evidence contributes materially to the determination of any issue; and
ii. Whether the issue may be resolved by other means, such as an agreed statement of facts or submissions on mutually agreed materials.
11. Trials and Hearings
a. A single trial bundle is the default under the SICC Rules 2021. All documents to be relied on or referred to in the trial by any party is to be included in this bundle. The documents are to be included only once and exhibits to witness statements or expert reports are to be cross-referenced. This addresses the issue of proliferation of trial bundles and duplication of documents.
b. The Court may dispense with the attendance of the parties and decide any matter after reading the documents filed without the need for oral arguments. However, the Court may only do this with the parties’ consent where oral evidence is given at any part of the proceedings (including any part of a trial of an action).
a. Different processes apply to:
i. appeals against decisions made in respect of applications; and
ii. appeals against decisions made after a trial or hearing on the merits.
b. Appeals in applications:
i. Generally a quicker process.
ii. Parties are to file and exchange a set of written submissions. No further submissions without the leave of the Court.
c. Appeals after trial or merits hearing:
i. Appellant’s Case – 8 weeks.
ii. Respondent’s Case – 4 weeks.
iii. Appellant’s Reply – 2 weeks.
iv. No skeletal submissions unless Court of Appeal orders otherwise.
d. The Court of Appeal may decide any matter without hearing oral arguments.
e. Parties will continue to be able to restrict or limit their right to appeal by agreement, unless exceptional circumstances exist such as fraud, illegality and fundamental breach of natural justice.
a. There remains no taxation of costs under the SICC Rules 2021. The quantum of costs awarded will generally reflect the costs incurred, subject to the principles of proportionality and reasonableness.
b. The SICC Rules 2021 set out a list of non-exhaustive circumstances that the Court may have regard to in considering proportionality and reasonableness, e.g. any agreement that parties may reach on costs, including the basis for determining costs or the mechanism for determining costs.
14. Filing Fees and Court Fees
a. Filing fees are applicable to cases transferred from the General Division of the High Court.
b. Court fees comprise:
i. Milestone fees;
ii. Hearing fees; and
iii. Miscellaneous fees.
c. Milestone fees and Hearing fees dependant on size of coram, and are not ad valorem in nature.
d. Separate sets of Milestone fees and Hearing fees apply to appeals to the Court of Appeal.
These Key Highlights serve to provide general information on certain points of note and are for reference purposes only. Reference should always be made to the relevant provisions in the SICC Rules 2021. These Key Highlights are not in any way binding on the SICC. They are not intended to be, and should not be construed as, legal advice and should not be relied upon as such. For further information, please refer to the SICC Rules 2021 and information on the SICC website at www.sicc.gov.sg.