Views
Mareva injunctions under Singapore law
Whether the Singapore court has the jurisdiction or power to grant a Mareva injunction in aid of foreign court proceedings was recently considered by the Singapore High Court in PT Gunung Madu Plantations v Muhammad Jimmy Goh Mashun [2018] SGHC 64. Both plaintiff and defendant were Indonesian and the claim related to alleged breaches of duties which the defendant owed to the plaintiff. The plaintiff had obtained leave to serve the writ in Indonesia on the defendant. The defendant thereupon applied, inter alia, to set aside service of the writ and for a declaration that the court has no jurisdiction over him. In response, the plaintiff applied for a Mareva injunction against the defendant in respect of the defendant’s assets in Singapore. The plaintiff had, after the Singapore action was filed, commenced actions in Malaysia and Indonesia covering much the same allegations against the defendant.
Under Singapore law (excluding actions commenced in the Singapore International Commercial Court where different rules apply), leave to serve the writ on the defendant abroad may be granted at the court’s discretion if the plaintiff is able to show: (i) a good arguable case that the claim falls within one of the heads of Order 11 of the Rules of court; (ii) a serious issue to be tried on the merits; and (iii) Singapore is forum conveniens. On the facts, the parties were Indonesian and the alleged misconduct occurred in Indonesia. As the plaintiff was unable to satisfy the third requirement, the court discharged the order for service out the writ out of the jurisdiction. Other orders made in pursuant of the order for service out were also set aside.
On the Mareva injunction, the Singapore High Court adopted the majority approach in the Privy Council decision of Mercedes Benz v Leiduck [1996] 1 AC 284. Lord Mustill had distinguished between two questions, to be approached sequentially: first, the question of whether the court has in personam jurisdiction over the defendant; secondly, the question of whether the court has a power to grant a Mareva injunction to restrain the defendant from disposing of his local assets pending the conclusion of foreign court proceedings. Valid service is required to found in personam jurisdiction under Singapore law. In PT Gunung Madu Plantations, as in Mercedes Benz itself, as the answer to the first question was in the negative, the second question did not arise.
Justice Woo was cognisant of the difficulties caused by hewing to the traditional approach of viewing Mareva relief as strictly ancillary to local proceedings but stated ‘that is a matter that has to be left to a higher court or to the legislature’ (para 54). His Honour referenced developments in the UK and Australia, where freestanding asset freezing orders in aid of foreign proceedings are permitted. Further, the Singapore International Arbitration Act was amended in 2010 to give the court the power to grant an interim injunction in aid of a foreign arbitration. It is likely that legislative intervention will be required to develop Singapore law on this issue.
The judgment may be found here: http://www.singaporelaw.sg/sglaw/laws-of-singapore/case-law/free-law/high-court-judgments/23135-pt-gunung-madu-plantations-v-muhammad-jimmy-goh-mashun
Nori Holdings: England & Wales High Court confirms ‘continuing validity of the decision in West Tankers’ under Brussels I Recast
Earlier this month, the English High Court rendered an interesting decision on the (un-)availability of anti-suit injunctions in protection of arbitration agreements under the Brussels I Recast Regulation (No 1215/2012). In Nori Holdings v Bank Otkritie [2018] EWHC 1343 (Comm), Males J critically discussed (and openly disagreed with) AG Wathelet’s Opinion on Case C-536/13 Gazprom and confirmed that such injunctions continue to not be available where they would restrain proceedings in another EU Member State.
Read more
Double Counting the Place of the Tort?
In common law Canada there is a clear separation between the question of a court having jurisdiction (jurisdiction simpliciter) and the question of a court choosing whether to exercise or stay its jurisdiction. One issue discussed in the Supreme Court of Canada’s recent decision in Haaretz.com v Goldhar (available here) is the extent of that separation. Does this separation mean that a particular fact cannot be used in both the analysis of jurisdiction and of forum non conveniens? On its face that seems wrong. A fact could play a role in two separate analyses, being relevant to each in different ways.
Justice Cote, with whom Justices Brown and Rowe agreed, held that “applicable law, as determined by the lex loci delicti principle, should be accorded little weight in the forum non conveniens analysis in cases where jurisdiction is established on the basis of the situs of the tort” (para 90). She indicated that this conclusion was mandated by the separation of jurisdiction and staying proceedings, which extends to each being “based on different factors”. So if the place of the tort has been used as the basis for assuming jurisdiction, the same factor (the place of the tort) should not play a role in analyzing the most appropriate forum when considering a stay. And since the applicable law is one of the factors considered in that analysis, if the applicable law is to be identified based on the connecting factor of the place of the tort, which is the rule in common law Canada, then the applicable law as a factor “should be accorded little weight”.
In separate concurring reasons, Justice Karakatsanis agreed that the applicable law “holds little weight here, where jurisdiction and applicable law are both established on the basis of where the tort was committed” (para 100). In contrast, the three dissenting judges rejected this reason for reducing the weight of the applicable law (para 208). The two other judges did not address this issue, so the tally was 4-3 for Justice Cote’s view.
As Vaughan Black has pointed out in discussions about the decision, the majority approach, taken to its logical conclusion, would mean that if jurisdiction is based on the defendant’s residence in the forum then the defendant’s residence is not a relevant factor in assessing which forum is more appropriate. That contradicts a great many decisions on forum non conveniens. Indeed, the court did not offer any supporting authorities in which the “double counting” of a fact was said to be inappropriate.
The majority approach has taken analytical separation too far. There is no good reason for excluding or under-weighing a fact relevant to the forum non conveniens analysis simply because that same fact was relevant at the jurisdiction stage. Admittedly the court in Club Resorts narrowed the range of facts that are relevant to jurisdiction in part to reduce overlap between the two questions. But that narrowing was of jurisdiction. Forum non conveniens remains a broad doctrine that should be based on a wide, open-end range of factors. The applicable law, however identified, has to be one of them.
News
Out Now: Torts in UK Foreign Relations by Dr Ugljesa Grusic
Oxford University Press officially released the recent book authored by Dr Ugljesa Grusic (Associate Professor at UCL Laws) titled Torts in UK Foreign Relations.
The book offers a comprehensive account of private international law aspects of tortious claims arising out of the external exercise of British executive authority.
Can English courts hear tortious claims for wrongs allegedly committed by British armed forces and security services during their overseas operations? Should English courts hear such claims? What law governs issues raised by such claims? Can foreign judgments given on such claims be recognised and enforced in the UK?
Many questions such as these have arisen in relation to cases dealing with the tortious liability of the UK government and its officials for extraterritorial public acts committed during the conflicts in Kosovo, Afghanistan, and Iraq, and the ‘war on terror’. Torts in UK Foreign Relations examines the English courts’ treatment of such issues and offers a better understanding of this contested area of private international law. It shows that a defining characteristic of such tortious claims is that they are often subjected to the choice-of-law process and lead to the application of foreign law. Further, Dr Grusic clarifies the nature of the doctrines operating in this field, maps out the relationship between different jurisdictions and rules that are engaged, and criticises the current approach to choice-of-law, while arguing that English tort law should play a more prominent role.
Torts in UK Foreign Relations will appeal widely to academics, practitioners, and students in the fields of private international law, foreign relations law, tort law, and public law.
Torts in UK Foreign Relations:
- Offers the first comprehensive account of private international law aspects of tortious claims arising out of the external exercise of British executive authority
- Segregates issues raised by such tortious claims and clarifies the principles, rules and practice that determine the law governing these issues
- Maps out the relationship between different jurisdictions and rules that are engaged
- Discusses important developments and case law affecting the field, including the Supreme Court judgments in Rahmatullah, Belhaj, Maduro and Brownlie
Torts in UK Foreign Relations is available to order on the OUP website.
Lancaster Workshop on Challenges in Contemporary International Litigation – 21 June 2023
The University of Lancaster has organised a workshop on Challenges in Contemporary International Litigation on Wednesday, 21 June 2023, 12.30 – 5 pm UK time (in person and online via Teams). Some well established and emerging experts will discuss cutting edge issues of practical significance in private international law (broadly understood).
12.30 pm
Welcome remarks by Dr Mukarrum Ahmed and Professor David Milman (Co-chairs – University of Lancaster)
Professor Paul Beaumont FRSE (University of Stirling), ‘HCCH Jurisdiction Project’
Professor Paul Torremans (University of Nottingham), ‘CJEU case law on Article 7.2 Brussels I Regulation and its application to online copyright cases’
Dr Kirsty Hood KC (Discussant)
1.45 pm – 3.00 pm
Professor Zheng Sophia Tang (Wuhan University), ‘The challenge of emerging technology to International litigation’
Professor Veronica Ruiz Abou-Nigm (University of Edinburgh), ‘Sustainability and Private International Law’
Dr Mihail Danov (University of Exeter), ‘Private International Law and Competition Litigation in a Global Context’
3.00 pm – 3.15 pm Break
3.15 pm – 5.00 pm
Dr Jayne Holliday (University of Stirling), ‘The non-recognition of transnational divorces’
Dr Chukwuma Okoli (University of Birmingham), ‘Implied Jurisdiction Agreement in International Commercial Contracts’
Dr Michiel Poesen (University of Aberdeen), ‘The interaction between UK private international law and liability arising out of the use of artificial intelligence’
Mr Denis Carey (University of Lancaster), ‘The Consultation on the Reform of the Arbitration Act 1996’
The workshop is free to attend, but registration is required via email. A Teams link will be provided for remote attendees.
No Recognition in Switzerland of the Removal of Gender Information according to German Law
This note has been kindly provided by Dr. Samuel Vuattoux-Bock, LL.M. (Kiel), University of Freiburg (Germany).
On 8 June 2023, the Swiss Federal Supreme Court (Bundesgericht) pronounced a judgment on the removal of gender markers of a person according to German Law and denied the recognition of this removal in Switzerland. Read more