“The evidence before me showed that each of the parties openly insisted that it did not want to accept the other party`s applicable jurisdiction or law and that it could not reach an agreement on another jurisdiction or applicable law. Consequently, [the agreement in question] does not contain an applicable law clause or a jurisdiction clause. Moreover, none of the parties wished to confer on the others an advantage with regard to the conclusion of the agreement. If their intention was to create darkness and difficulties for lawyers to debate in the coming years, they did well. “6.2.27 An agreement conferring jurisdiction may fulfil the additional function of exclusion from jurisdiction (exception function). The exclusive choice of the jurisdiction contract is an example of this. It is an agreement that involves the obligation for one or both parties not to initiate proceedings before a court other than the chosen court. In such a case, it would be contrary to a contractual obligation to initiate or continue proceedings before a court other than the court of the chosen country. Whether a jurisdiction agreement is exclusive or non-exclusive is a matter of interpretation of the agreement in accordance with its applicable law. The common law does not apply to a presumption as to whether the choice is exclusive or non-exclusive. On the other hand, the Singapore Statute considers an agreement submitted to the Singapore International Commercial Court to be an agreement of exclusive jurisdiction, unless the parties have expressly provided otherwise. Ms Serene Wee, Managing Director of SAL, added: “SAL is committed to promoting Singapore as a leading legal centre in Asia. With this in mind, we have seen the increasing use of Singaporean law as an alternative to contract law in Asia whenever a neutral law and jurisdiction is required.
We are pleased that these efforts are gaining momentum. The general rule in Rome II is that non-contractual obligations are governed by the law of the country in which the damage/loss in question occurs. There are a number of circumstances in which this general rule is not applied.9 The most relevant situation with regard to terms of applicable law is that, in accordance with Article 14 of Rome II, the parties may agree to “submit their non-contractual obligations to the law of their choice”. The following points should be observed about the right to make this choice: The parties to a contract are free to choose their applicable law: it does not have to be related to the location of the parties or the subject matter of the contract.3 If you set up a business in Singapore, you want singapore law to “govern” any contract you sign. This means that Singaporean law is used as a framework for deciding the disputes you have over your contract. Applicable law is used to determine whether the contract is valid and, if so, what rights each party has under the contract, what defense it has, and what remedies are available to the injured party. The laws of different jurisdictions may lead to different answers to each of these questions in relation to the same contract. 6.2.23 At common law, a jurisdiction agreement is like any other contractual agreement.
It must be valid under applicable law (see sections 6.3.15 – 6.3.16 below). The law governing the jurisdiction clause is usually the law governing the substantive agreement, although it is possible that the jurisdiction agreement may be governed separately by its own law. 6.3.10 However, the trend in other major common law countries, which has not yet been tested in Singapore, takes a functional approach, i.e. it is examined whether the application of foreign law in this case would cause undue inconvenience to the administration and judiciary in the court of the person seised (Tolofson v. Jensen [1994] 3 SCR 1022; John Pfeiffer Pty Ltd v. Rogerson (2000) 203 CLR 503; Harding v. Wealands [2005] 1 WLR 1539; First Laser Ltd v Fujian Enterprises (Holdings) Co Ltd [2012] HKCFA 52). The Singapore Court of Appeal found this modern approach convincing, although it did not have to rule on this point in Goh Suan Hee v. Teo Cher Teck [2010] 1 SLR 367. The Foreign Limitation Periods Act (Cap 111A, Rev Ed 2013) reverses the common law position on limitation periods; thus, the relevant limitation period for each application is that which forms part of the substantive law to which the application is subject. Therefore, after Brexit, the English courts will continue to apply the rules currently contained in the Rome I and Rome II Regulations when deciding to maintain a choice of law or, in the absence of a choice of law clause, to determine the law applicable to contractual and non-contractual obligations. Similarly, the rest of the EU should continue to apply the English clauses on the applicable law, given that the Rome I Regulation obliges Member States to implement the applicable law chosen by the parties, whether or not it is the law of a Member State or whether the parties come from outside the EU.
Singapore, 17 April 2019 – Singaporean law is increasingly accepted and is the second most applicable law in English law for cross-border transactions in Asia. That`s according to the results of an independent survey conducted by global research firm Ipsos Pte Ltd. In Beximco Pharmaceuticals Ltd -v- Shamil Bank of Bahrain EC,5, the applicable law clause provided that “Subject to the principles of glorious Sharia, this Agreement shall be governed by and construed in accordance with the laws of England”. The Court of Appeal ruled that the only applicable law was the law of England. 6.3.24 A contract that is unlawful under its ordinary law derives its consequences from this Act; it will generally not be enforceable in Singapore. A contract that is unlawful under the law of the place where it is entered into is always enforceable in Singapore. A contract, regardless of its applicable law, is unenforceable in Singapore if its performance violates Singapore`s fundamental public policy. A contract that is illegal under the law of the place of contractual performance may not be enforceable in Singapore. It is not clear whether this is the consequence of the application of contract law or public order of the law of the person seized. A contract may not be performed by the court of Singapore if it involves the commission of acts which, although not unlawful under the law of the country of performance, nevertheless infringe the internal public policy of that country, which is based on the general principles of morality and which is governed by the law of the contract itself and/or the law of the court seised. .
