Speech by Mr. Louis Ng Kok Kwang, MP for Nee Soon GRC at the Second Reading of the Supreme Court of Judicature (Amendment) Bill [Bill No. 47/2017]
Sir, I stand in support of this Bill.
The Bill relate to proposed amendments to the Supreme Court of Judicature Act. It deals with matters relating to the operation and jurisdiction of the Singapore International Commercial Court (“SICC”).
The SICC was officially launched on 5 January 2015. The idea behind it was to grow the legal service sector and to internationalise and export Singapore law. Since its launch, we have seen several cases go through the SICC and it is important that legislation be updated to promote its efficiency.
Clarification on rationale for abolition of pre-action certificate
It is in this light that I welcome, in particular, the proposed repeal, by way of this Bill, of Section 18E of the Supreme Court of Judicature Act, which requires the obtaining of a pre-action certificate before an action is brought in the SICC.
The pre-action certificate was intended to be an option for parties to obtain early indication on the jurisdictional issues thus saving time and costs. My understanding is that in practice it has become required for every case, regardless of whether there is clear jurisdiction, which has led to the converse effect of time being wasted on application even for the most straightforward of cases. Can the Minister confirm if this is the rationale for removing the pre-action certificate?
While I have no visibility on how long the process for obtaining this certificate has taken in the past, the mode of application implies that there is a process to go through. If it indeed is the case that the certificate is now required for every case, the removal of the requirement and the process will surely result in a smoother and faster journey of cases through the SICC.
To strike a balance between the original rationale of the certificate and the benefit of expediting most cases that do not have jurisdictional issues, are there alternative procedures available to parties to obtain early determination on these issues?
International Commercial Arbitration cases – Jurisdiction
The other primary amendment that the Bill seeks to pass relates to Section 18D of the Act which deals with the jurisdiction of the SICC. It is in this context that I seek certain clarification.
As currently formulated under Section 18D of the Act, the SICC has jurisdiction to hear and try actions that satisfy all of the following conditions:
Clause 2 of the Bill seeks, amongst other things, to introduce the following sub-section to Section 18D:
“(2) Without limiting subsection (1), 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.”
Within the context of International Commercial Arbitrations, recourse to the High Court is available under the International Arbitration Act (“the IAA”). Given that such recourse to the High Court is already provided for in the IAA and Section 18D of the Act already provides that the SICC has jurisdiction where the High Court has jurisdiction, why is there a need for this amendment?
I note from the Explanatory Statement to the Bill that the amendments sought are to, amongst other things, “provide for clarity that the [SICC] has jurisdiction to hear any proceedings relating to international commercial arbitration that the High Court may hear”, but is this necessary given the current language of Section 18D of the Act?
My concern is that the proposed amendment may be interpreted as conferring additional jurisdiction to the SICC when this is not the intention. Can it be clarified that this amendment does not seek to confer additional jurisdiction, but simply to clarify the jurisdiction that the SICC already has? If so, to avoid misinterpretation of intent, can I suggest that the following language be adopted:
“(2) For the avoidance of doubt, the Singapore International Commercial Court (being a division of the High Court) has jurisdiction under subsection (1) 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.”
What constitutes an International Commercial Arbitration?
Next, Clause 4(b) of the Bill seeks to delete Section 80(2A)(c) of the Act and substituting it with the following:
“(c) to prescribe, for the purposes of Section 18D(2), what constitutes an international commercial arbitration, and any conditions that any proceedings must satisfy before that Court may hear those proceedings;”
Essentially, within the context of Section 80(2A) of the Act, if the amendment is passed, Rules of Court may be made to define what an International Commercial Arbitration is for the purpose of the proposed Section 18D(2).
The IAA already has several references to the term “international commercial arbitration”. I think it is fairly clear what an arbitration is. Section 5(2) of the IAA sets out when an arbitration is international. Finally, when it comes to defining the term “commercial”, the footnote to Article 1(1) of the First Schedule of the IAA mandates a wide interpretation and provides guidance as to what amounts to relationships of a commercial nature.
Given the approach that has been adopted in primary legislation, is there a need for the current amendment whereby Rules of Court may be made to set out what may constitute an International Commercial Arbitration? Is there a possibility that such Rules of Court may adopt a separate definition and create difficulty with the approach taken in the IAA?
Sir, notwithstanding the above clarifications, I stand in support of this Bill.