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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.
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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.
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Navigating Global Jurisdiction: The Indian Courts’ Approach to Online IP Infringement
Written by Akanksha Oak, Jindal Global Law School, India
Introduction
The modern commerce landscape faces a significant challenge: the widespread infringement of intellectual property (“IP”) rights due to online interactions that enable instant global access. This issue is exacerbated by cross-border activities, necessitating the application of private international law (“PIL”). However, IP protection remains territorial, guided by the principle of “lex loci protectionis.” This results in complexities when it intersects with PIL. Online IP infringement further convolutes matters due to the internet’s omnipresence and accessibility, making the establishment of jurisdiction a complicated process for legal professionals. A pivotal development in this arena occurred in 2021 when the Delhi High Court rendered a judgement in the case of HK Media Limited and Anr v. Brainlink International Inc.,[1] illuminating India’s legal framework for determining jurisdiction in cases of online IP infringement within the context of cross-border disputes.
Pax Moot 2024 – Petar Šarcevic Round: case is out!
The Pax Moot case for 2024 is out! This year’s round is called Petar Šarcevic, and the competition will take place in Ljubljana from 24 to 26 April 2024.
Read all about MyStream and kidfluencer Giulia here: https://www.paxmoot.eu/case.
Further information and the time line is available on the Paxmoot website.
AMEDIP’s Annual Seminar: The program is available (in Spanish)
The Mexican Academy of Private International and Comparative Law (AMEDIP) will hold its annual XLVI Seminar entitled “Private International Law and the National Code of Civil Procedure. A critical analysis” (el Derecho Internacional Privado y el Código Nacional de Procedimientos Civiles. Un análisis crítico) from 8 to 10 November 2023. See our previous post here.
The program is available here.
Today there will be a book presentation entitled:
“Comentarios a la Normatividad Procesal en el Código Nacional de Procedimientos Civiles y Familiares” by Nuria González Martín and Jorge Alberto Silva.
Commenting: Magistrado Oscar Gregorio Cervera and Ligia Claudia González Lozano.
There is a fee for participation both in person and online.