The Singapore International Commercial Court: The Future of Litigation?

The Singapore International Commercial Court (‘SICC’) was launched on 5 January 2015, at the Opening of Legal Year held at the Singapore Supreme Court. What prompted the creation of SICC? How is the SICC model of litigation different from litigation in the Singapore High Court? What is the SICC’s track record and what does it tell us about its future? This article seeks to answer these questions at greater depth than existing literature. Importantly, it examines these questions from the angle of reimagining access of justice for litigants embroiled in international commercial disputes. It argues that the SICC’s enduring contribution to improving access to justice is that it helps to change our frame of reference for international commercial litigation. Hybridisation, internationalisation, and party autonomy, the underpinning values of the SICC, are likely to be the values of the future of dispute resolution. International commercial dispute resolution frameworks – typically litigation frameworks – that unduly emphasise national boundaries and formalities need not and should not be the norm. Crucially, the SICC co-opts a refreshing public-private perspective to the resolution of international commercial disputes. It illuminates on the public interest element of the resolution of such disputes which have for some time fallen into the domain of international commercial arbitration; at the same time, it introduces greater scope for self-determination in international commercial litigation.


Introduction
The Singapore International Commercial Court (SICC) was launched on 5 January 2015 at the Opening of Legal Year, held at the Singapore Supreme Court, before a curious audience comprising both local and foreign lawyers. 1 The SICC is not the first international commercial court that the world has seen. The famous Dubai International Financial Centre Courts (DIFCC) 2 were established in 2004 to cater to the resolution of civil and commercial disputes arising from the special economic zone, the Dubai International Financial Centre. 3 But the SICC is indubitably the first of its kind. It was not created to foster investor confidence by providing for a completely different system of administration of justice from the indigenous legal system. On the contrary, the SICC was established on the foundation of a mature and established legal system that investors already have confidence in. It was set in operation before the plans for establishing the international commercial courts in various European countries and China were formulated. What prompted the creation of SICC? How is the SICC model of litigation different from litigation in the Singapore High Court? What is the SICC's track record, and what does it tell us about its future? This article seeks to answer these questions in greater depth than does the existing literature. Importantly, it examines these questions from the angle of reimagining access to justice for litigants embroiled in international commercial disputes. It argues that the SICC's enduring contribution to improving access to justice is that it helps to change our frame of reference for international commercial litigation. Hybridisation, internationalisation and party autonomy, the underpinning values of the SICC, are likely to be the values of the future of dispute resolution. International commercial dispute resolution frameworks -typically litigation frameworks -that unduly emphasise national boundaries and formalities need not and should not be the norm. Crucially, the SICC co-opts a refreshing public-private perspective to the resolution of international commercial disputes. It illuminates the public interest element of the resolution of such disputes which have for some time fallen into the domain of international commercial arbitration; at the same time, it introduces a greater scope for self-determination in international commercial litigation. The discussion comprises four main parts. The first part (Section 2) analyses the reasons for creating a Singaporean model of international commercial court at different levels: national interests, regional needs and public interests. The second part (Section 3) discusses the salient features of the SICC litigation framework, highlighting the innovations in relation to jurisdiction, procedures, panel of judges, and foreign legal experts' participation. The third part (Section 4) critically examines the judgments handed down by the SICC to date to extract emerging patterns. The final part (Section 5) discusses two potential challenges that the SICC faces: competition from the Chinese international commercial courts and the international enforceability of Singapore judgments.

The Reasons for the Creation of the SICC
The idea of creating a Singaporean model of international commercial court was first mooted by the chief justice of Singapore, Sundaresh Menon, at the Opening of Legal Year 2013. As he recounted extrajudicially, his visit to the London Commercial Court in September 2012 brought fresh insights into how to further invigorate the dispute resolution landscape in Singapore. In his words, The London experience suggests that arbitration and commercial courts are not competing players in a zero-sum game. Rather, there is room for co-existence and development of these two systems of dispute resolution. 4 While the inspiration for the SICC originated from the London Commercial Court, the success of the London Commercial Court alone does not explain the need to create a new litigation model in Singapore. After all, the London Commercial Court is very much a national court in design and operation. What Chief Justice Menon's account does clarify is that his vision for the Singapore landscape is based on the coexistence of both litigation and arbitration in the resolution of international commercial disputes. In this part, we will critically review the reasons for the creation of the SICC from different perspectives.

National Interests
Let us start with the Singapore perspective. Legal services can be a highly profitable industry. According to Mr Shanmugam, Minister for Home Affairs and Law of Singapore, the value of the legal services section had grown by 71.5% from 2008 to 2013. 5  come as no surprise that investing in the expansion of the legal services industry -including the dispute resolution services subsector -would be a natural move to make. Nor was it coincidental that the Singapore International Mediation Centre (SIMC) and its training arm, the Singapore International Mediation Institute (SIMI), were launched in 2014. With a booming arbitration business sector helmed by the successful Singapore International Arbitration Centre (SIAC), 6 the obvious initiative to take up would be invigorating the litigation services subsector. Singapore was gearing up to become the leading one-stop shop for dispute resolution. The SICC, the SIAC and the SIMC (in tandem with the SIMI) are the hallmarks of the nation's three-pronged strategy to become a premium dispute resolution hub through a comprehensive offering of dispute resolution services. Singapore's game plan is to augment the menu of dispute resolution options for potential users. The next question is why a new court, as opposed to improving the existing one, namely the Singapore High Court, was created? Institutionally, there are two advantages of creating a new 'court'. First, a new litigation model provides a clean slate on which innovations may be made. Second, the creation of a new litigation model is a marketing strategy to highlight Singapore's thought leadership in dispute resolution and, accordingly, build a brand image. From the user perspective, the creation of a new court, while retaining the traditional Singapore court, represents a choice between two systems of litigation. It signals to the potential users that autonomy in litigation services is an important value under Singapore law.

Regional Needs?
The prelaunch SICC feasibility study -the Report of the Singapore International Commercial Court Committee (SICC Committee Report) -states: Cross border investment and trade into Asia and between Asian economies is expected to continue to grow, fuelling the need for a neutral and wellregarded dispute resolution hub in the region. 7 The SICC Committee Report further points out that arbitration alone cannot fulfil that important role of providing satisfactory dispute resolution services: Arbitration has thus far been the primary means of international commercial dispute resolution within the region, but its increasing currency has highligh-6.
In ted weaknesses that litigation in an international court is better placed to address -the coercive jurisdiction of a court may be necessary in a multiple party dispute; the subject matter of the dispute may not be amenable to arbitration (such as special torts arising from contract, international intellectual property or trust disputes); and the New York Convention, while wide in its reach, may not be fully effective for enforcement in some countries. 8 A study on legal systems in the Association of South-East Asian Nations (ASEAN) in 2018 9 highlighted that the domestic courts of a number of ASEAN countries adopt their indigenous language as the language of court proceedings, creating a language barrier for foreign litigants to access justice through litigation in the domestic courts. Further, litigation in domestic courts in a number of ASEAN countries is not favoured owing to perceptions of uncertainty, unpredictability in outcome, protracted processes and lack of judicial independence. As for arbitration, the study points out that there is a lack of judicial support for the recognition or enforcement of foreign arbitral awards in some ASEAN countries, even though some of these countries are Contracting States to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (New York Convention). The study also incorporates a survey component, one of whose findings is that slightly more than half of twenty-four respondents (businesses operating in ASEAN) saw the need for a 'new ASEAN-wide dispute resolution structure which specialises in hearing contract disputes between ASEAN businesses'. 10 Incidentally, in the same year that Chief Justice Menon mooted the idea of establishing an international commercial court in Singapore, China announced its ambitious plan for the transnational 'One Belt, One Road' project, which is now simply known as the Belt and Road Initiative (BRI). Although the SICC Committee Report made no mention of the impact of BRI on the dispute resolution needs of the region, it is envisaged that the BRI will further increase the volume of commercial dealings between parties in the BRI countries and that disputes are, therefore, likely to increase in the coming years. For this reason, China launched two Chinese international commercial courts, one in Xi'an and the other in Shenzhen (the CICC), in June 2018 to serve the dispute needs of the BRI. A review of the CICC jurisdictional framework reveals that the CICC is not designed to take on all commercial disputes arising from the BRI. 11 There is, therefore, a gap for the SICC to fill. Although there is a regional need for a well-regarded and efficient dispute resolution institution, it is too early to tell whether SICC can fulfil that function. Challenges would include the international enforceability of Singapore judgments as well as competition from other institutions, including arbitration centres 12 and other international commercial courts. We will look at these challenges in Section 5.

Public Interests?
The increasing popularity of using arbitration for the resolution of commercial disputes is affirmed by the Queen Mary University of London and White & Case LLP 2018 International Arbitration Survey (QMUL International Arbitration Survey 2018) findings. 13 Ninety-seven per cent of the respondents indicated international arbitration as their favoured dispute resolution mechanism, either as a stand-alone method or in combination with alternative dispute resolution (ADR). The perceived advantageous features of international arbitration, in descending order, are enforceability of awards, avoiding specific legal systems/national courts, flexibility, and ability of parties to select arbitrators. Ninetynine per cent of the respondents 'would recommend international arbitration to resolve cross-border disputes in the future'. 14 In a survey conducted by the Singapore Academy of Law's International Promotion of Singapore Law Committee in 2016, arbitration similarly emerged as the preferred dispute resolution mechanism. 15 The advantages of arbitration notwithstanding, from a public interest standpoint, the fact that the arbitral proceedings and awards are confidential would mean that the application and development of commercial law are hidden from the world. 16 As arbitral awards do not have a binding effect and the merits of the award are not open to review, there is no system of ensuring consistent application and development of commercial law in arbitral practice. While this may suit the parties inter se, a 'hidden from view' approach impedes the coherent development of commercial law. If the popularity of using arbitration continues, visible development of com- mercial law (in the courts) will continue to decline. The merits of the common law system depend critically on a steady stream of cases to enable incremental development (including refinement or correction) of the law. Crucially, the arbitral outcomes do not only affect the commercial parties to the proceedings. The outcomes will necessarily generate downstream effects on other parties (e.g. the parties who would ultimately bear the costs of the decision or third parties related to the dispute but did not consent to participate in the same arbitration). Finally, the fact that arbitral proceedings are not subject to public scrutiny raised issues of accountability. 17 According to the QMUL International Arbitration Survey 2018 findings, respondents 'think that arbitration rules should include provisions dealing with arbitrator conduct in terms of both standards of independence and impartiality and efficiency (or lack thereof)'. 18 In view of the foregoing concerns, there is a place for litigation. The practical question is the ways in which we can encourage commercial parties to choose litigation.
In Section 3, we consider the innovative litigation framework of the SICC, which borrows from the arbitration template.

The SICC Litigation Framework
This part of the discussion reviews the innovative features of the SICC litigation framework, which may be broadly grouped into three categories: (a) jurisdiction; (b) procedural features and (c) international judges. All three aspects are critical to the delivery of justice.
To begin with an overview, the SICC was established as a division of the Singapore High Court. 19  tures of the SICC are set out in the Supreme Court of Judicature Act (SCJA) 21 and the Rules of Court, a subsidiary legislation of the SCJA. 22 As Singapore is a common law jurisdiction, the Singapore courts' interpretation and application of the legislative provisions -producing what may be described as a body of statute-based common law -is a binding source of law on the application of these legislative rules. Supplementing and clarifying the operation of the legislation are the SICC Practice Directions, 23 the SICC User Guides 24 and the SICC Procedural Guide. 25 However, these supplementary materials 26 are not formal sources of law.

Jurisdiction Over International and Commercial Actions
Existing literature has dealt extensively with the jurisdictional rules of the SICC from a private international law perspective. 27 The present analysis shall instead focus on highlighting the innovations and how they have improved access to justice for litigants.

Subject Matter Jurisdiction
The SICC hears 'international' and 'commercial' claims. 28 The term 'international' is generally defined by reference to parties' places of business: if they are in different states; if neither is in Singapore; or if one party's place of business is in a different state from either the state in which a substantial part of the obligations arising from the parties' commercial relationship is to be performed or the state with which the subject matter of the dispute is most closely connected. 29 Further, the definition 'international' allows parties to expressly agree that 'the subject matter of their claim relates to more than one State'. 30 As for the meaning of 'commercial', a claim is considered 'commercial' if it arises from a commercial rela- tionship, 31 if it pertains to an in personam intellectual property dispute or if parties have expressly agreed that the claim is commercial in character. 32 A striking commonality of the statutory definitions for 'international' and 'commercial' is that it admits parties' agreement on the nature of the claim. From a policy perspective, this approach upholds the value of party autonomy. Pragmatically, this approach also relieved the Singapore legislature of the difficult task of laying down workable and comprehensive definitions. It implicitly acknowledges that the distinction between 'international' and 'domestic' as well as between 'commercial' and 'non-commercial' is not a bright-line exercise. The SICC approach is, thus, to favour characterising the claim as 'international' or 'commercial' in the first instance for the purpose of commencement of proceedings in the SICC by according to the parties the right of determination. Overly technical definitions are thereby avoided. As will become clear in the discussion later on the SICC's in personam jurisdictional rules, where the SICC suit was commenced pursuant to an SICC jurisdiction clause, the SICC may decline to assume jurisdiction on exceptional grounds, in particular, by considering the character of the claim before it. 33

Written Jurisdiction Agreement
There are two main ways in which international and commercial claims would come before the SICC. 34 The first way is by the parties' submission to the SICC's jurisdiction through a written jurisdiction agreement. 35 Consensual jurisdiction is a well-established basis of jurisdiction under Singapore law, even pre-SICC. What is novel is that even if the defendant is based abroad and service of legal process out of Singapore is therefore required, leave of court for extraterritorial service is not required. 36 By contrast, under the traditional Singapore High Court procedural regime, even where the dispute arises out of a Singapore jurisdiction agreement, leave of court for service out of jurisdiction is mandated, 37 save where there is a contractually stipulated mode of local service. 38 This procedural liberalisation under the SICC framework implicitly recognises that the exercise of extraterritorial jurisdiction is not as 'exorbitant' as traditionally perceived to be 39 and that parties' choice alone with foreign or international elements. In fact, the SICC framework recognises a category of cases known as 'offshore cases', that is, cases with no substantial connection to Singapore. 45 As will be explained below, there is greater scope for procedural flexibility in this category of cases, in order to attract disputes that would not otherwise be heard in the Singapore courts. On another view, party autonomy is used as a means to favour the SICC hearing international commercial disputes. This view is bolstered by other pro-SICC provisions. For instance, unless there is provision to the contrary, a written jurisdiction agreement in favour of the SICC is considered to be exclusive in nature. 46 For jurisdiction agreements entered into, on or after 1 October 2016, 47 unless 'a contrary intention appears in the agreement', an agreement to submit to the jurisdiction of the Singapore High Court shall be construed as 'including an agreement to submit to the jurisdiction of the [SICC]'. 48 While these pro-SICC provisions may be justified on pragmatic concerns to avoid uncertainty, it cannot be denied that the overall effect is to favour the SICC hearing the claims in dispute.

Transfer Jurisdiction
A second main way by which disputes will come before the SICC is through the transfer of proceedings from the Singapore High Court to the SICC. 49 The rules on transfer jurisdiction have been made more complex by Singapore's ratification of the Hague Convention on Choice of Court Agreements (Hague Convention). 50 Pursuant to Order 110, rule 12(4) of the Rules of Court, a non-Hague Convention case may be transferred from the Singapore High Court to the SICC if the action concerns international and commercial claims; if the parties are not seeking any form of prerogative relief; it is more appropriate for the action to be heard in the SICC; and if all the parties consent to the transfer or the High Court orders the transfer on its own motion after hearing the parties. As for Hague Convention cases, Order 110, rule 12(3B) provides for the same criteria, save that  54 Based on the foregoing, the overall tenor is that the SICC is especially suitable for dealing with cases with international elements, as they lend themselves to the SICC's unique capabilities. By extension, it may be argued that the characteristics of a claim and whether they lend themselves to the SICC's capabilities are relevant factors in determining whether it is more appropriate for the SICC, as compared with the High Court, to resolve the dispute 55 -a question of internal jurisdiction. We will consider the capabilities of the SICC in Section 3.3.

Jurisdiction Over International Commercial Arbitration Matters
With effect from 1 November 2018, the SICC is conferred 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'. 56 According to the Rules of Court, the only requirement in respect of the SICC's jurisdiction to hear international commercial arbitration matters is that the 'proceedings must be proceedings that the High Court may hear' under the International Arbitration Act (IAA). 57 These applications include stay of proceedings, interim measures, challenges to arbitrators, challenges to awards, recognition and enforcement of awards, appeals on ruling of jurisdiction and subpoenas. The term 'international' in this context adopts the meaning set out in section 5(2) of the IAA; and the meaning of 'commercial' is to be guided by that provided in the UNCITRAL Model Law on International Commercial Arbitration. 58 Further, IAA proceedings commenced in the High Court may be transferred to the SICC, pursuant to the requirements provided in Order 110, rule 58 of the Rules of Court. The expansion of the SICC's jurisdiction to hear international arbitration matters had been predicted 3 years ago, when the SICC was launched into operation. 59 The parliamentary intention was to 'increase Singapore's attractiveness as a seat of arbitration', in part, through the enhanced appeal of the Singapore bench, which now includes international judges. 60 This legislative reform iterates that the Singapore vision for its dispute resolution landscape is based on the coexistence of arbitration and litigation. However, in line with the position in respect of IAA applications before the High Court, only Singaporequalified lawyers may appear before the SICC in respect of IAA applications. 61 As such, the definition of an 'offshore' case 62 -matters in which the SICC will take a more generous approach in granting foreign representation -does not include IAA proceedings brought before the SICC. The exclusion of foreign representation in IAA proceedings was explained in the second reading of the bill in parliament: 63 The IAA is part of Singapore law, with features that are tailored for the Singapore arbitration landscape, and there is a developed body of local jurisprudence based on our Courts' interpretation and application of the IAA provisions, which Singapore lawyers are well versed in.

Procedural Features
The SICC has been described as 'a careful marriage between litigation and arbitration'. 64 In other words, it is a hybrid design, drawing from the advantageous features of both processes. This does not, however, mean that the SICC is the sum of the advantages of both processes. The hybridisation of litigation and arbitration inevitably results in a different mechanism. All in all, it may be said that the SICC procedural framework admits a greater scope for the consideration of parties' preferences than the traditional litigation process. Given Chief Justice Menon's vision to optimise the coexistence of both litigation and arbitration, the SICC was not established to be a direct competitor with arbitration. For this reason, it is unfair to assess the merits of the SICC by a simplistic comparison with arbitration on the parameters of procedural flexibility and party autonomy. More importantly, the SICC provides a platform for the innovation and experimentation of procedural reform. Some of the innovations may in due course be adapted for or applied in non-SICC proceedings; they can also serve as a reference template for other jurisdictions interested in embarking upon similar reforms. As such, the SICC and Singapore High Court bifurcation need not be viewed as an immutable 'business class' and 'economy class' treatment of litigants. 65 But the bifurcation, by reason of the nature of the cases that are to come before the SICC, does emphasise the point that one size does not fit all. 66 We now consider the unique procedural features of the SICC, each in turn.

Rules of Evidence
In SICC proceedings, parties may by agreement apply to the SICC for the disapplication of Singapore rules of evidence 67 and for other rules of evidence (including rules of evidence that may not constitute part of foreign law) to be applied instead. 68 In granting the order, the SICC may, 'for the just, expeditious and economical disposal' of the dispute, modify the parties' agreement with parties' consent or stipulate supplementary terms that are consistent with the parties' agreement as it sees fit. 69 This procedural feature amply demonstrates the balance between party autonomy and judicial control that the SICC seeks to strike. The SICC User Guides further explain, using examples, what the outcome might be if Singapore evidence rules are disapplied in the SICC proceedings. 70 For example, parties may apply to the SICC for the disapplication of the Singapore rule on hearsay without stating which rule should apply in its place. According to the SICC User Guides, if the order is granted, this means that evidence that would otherwise be considered hearsay under Singapore law may be admitted in the proceedings and the issue of reliability of the evidence will be addressed as a matter of the weight of evidence. 71 It is also useful to note that parties to SICC proceedings may apply for the disapplication of all the rules on evidence under Singapore law and for the IBA Rules on the Taking of Evidence in International Arbitration (IBA Rules), as appropriately adapted, to apply instead. 72

Foreign Law
Following the convention of common law, foreign law is regarded as an issue of fact under Singapore law. Accordingly, foreign law must be pleaded and proved like facts, 73 notwithstanding the obvious 'legal quality inherent in this "fact"'. 74 As a rule of convenience, if the parties fail to prove the content of the applicable foreign law, Singapore courts will presume the content of foreign law to be identical with Singapore law (referred to as the presumption of similarity of laws), unless 'it is unjust and inconvenient to do so'. 75 However, the common law mode of proof of foreign law is far from perfect. Reliance on expert evidence, in particular, is expensive, and the expert evidence is at times partisan or even deficient in quality. 76  to 'curious consequences'. 77 For example, one party may decide to prove the content of some rules of foreign law but not prove the other relevant rules in the hope of relying on the operation of the presumption of similarity, so as to 'mix a cocktail of the two' to arrive at an outcome available under neither legal system. 78 The SICC framework, while retaining the traditional common law mode of proof, allows for the possibility of dealing with foreign law by way of direct submissions (oral, written or both), 79 as per the practice in international arbitrations. This reform is strategic, as explained in the SICC Committee Report: In line with the international character of the SICC, foreign law need not be pleaded and proved as fact in proceedings before the SICC, as the Judges can take judicial notice of foreign law with the assistance of oral and written legal submissions, supported by relevant authorities. The SICC would then apply foreign law to determine the issues in dispute. This would facilitate buy-in from foreign counsel to bring their disputes to the SICC and, at the same time, aligns SICC procedure with the practice in international arbitra-tion… 80 (emphasis added) Importantly, the 'buy-in from foreign counsel' is also forged on other aspects of liberalisation in the SICC framework: the appointment of foreign judges and the greater scope for representation by foreign counsel in SICC proceedings. We will consider these two matters in greater detail in a moment. For present purposes, it suffices to highlight that before ordering the determination of foreign law on the basis of submissions, the SICC must be satisfied that all parties are or will be represented by 'a counsel, 81 restricted registration foreign lawyer or registered law expert 82 who is suitable 83 and competent to submit on the relevant questions of foreign law'. 84

Representation by Foreign Lawyers
As the SICC is a division of the High Court, the general rule is that parties to SICC proceedings are to be represented by lawyers called to the Singapore bar. In  discretion of the High Court, a foreign lawyer, who is a Queen's Counsel or of equivalent standing, may be granted a right of audience before the High Court on an ad hoc basis. 85 Considerations that the High Court would need to balance in this discretionary exercise are '(a) nurturing the local Bar; (b) allowing litigants to engage counsel of their choice to advance their case as well as possible; and (c) ensuring the proper and timely administration of justice'. 86 In sharp contrast, in SICC proceedings, less restrictive conditions apply in respect of representation by foreign lawyers. 87 To represent parties in SICC proceedings, foreign lawyers would need to be registered under section 36P of the Legal Profession Act. The SICC foreign lawyer registration regime differentiates between full registration and restricted registration. The type of registration will determine the requisite qualifications of the foreign lawyer as well as the scope of work that the foreign lawyer may undertake on behalf of a party in an SICC case. 88 In short, only foreign lawyers who have been granted full registration may represent parties in SICC proceedings. Foreign lawyers who have been granted restricted registration may only represent parties for the purposes of making submissions on matters of foreign law as permitted by the SICC or the Court of Appeal. By way of reference, to qualify for full registration, the following criteria must be met: 89 a. The foreign lawyer is duly authorised or registered to practice law in a foreign jurisdiction. b. The foreign lawyer has at least 5 years' experience in advocacy before any court or tribunal. c. The foreign lawyer is sufficiently proficient in English for the purpose of conducting proceedings or appeal. d. The foreign lawyer has not been disbarred, struck off, suspended, fined, censured or reprimanded in the capacity of a legal practitioner. e. The foreign lawyer is to give an undertaking that he or she will appear and perform the scope of work that he or she is permitted to undertake on behalf of a party to the SICC proceedings.
At the time of writing this article, seventy-eight foreign lawyers from different jurisdictions have been granted full registration; one English lawyer has been granted restricted registration. 90 The SICC Practice Directions set out the circumstances under which representation by foreign lawyers in SICC proceedings may be permitted. 91  Guides go on to explain that the 'main category of cases' in which foreign representation would be allowed is offshore cases. 92 As explained previously, 93 these are cases with no substantial connection to Singapore. Taking a more generous approach in allowing foreign representation in this category of cases may attract foreign counsel to advise their clients to choose the SICC as the dispute resolution forum in cases that are otherwise unlikely to come before the Singapore courts. Conversely, a more restrictive approach towards allowing foreign representation in non-offshore cases protects business for Singapore practitioners and, thus, facilitates buy-in from them to bring their clients' international commercial disputes to the SICC.

Right of Appeal
As the SICC is established as a division of the Singapore High Court, SICC cases may be appealed to the Singapore Court of Appeal. However, parties may by writing agree to waive, limit or vary the right to appeal against an SICC judgment. 94 Instead of mandating a no-appeal litigation model or a traditional litigation model that entails an appeal mechanism, the SICC accords the parties the right to determine for themselves the extent of appeal that they desire. While it may be said that the traditional litigation process enables parties to decide for themselves if they would like to appeal after the trial judge has handed down the judgment and on what issues, the SICC model accords parties the right of determination pre-dispute. Parties may opt for the wholesale exclusion of the right of appeal if they desire a prompt resolution of their dispute and finality of outcome, as per the international commercial arbitration practice.

Confidentiality
The default position for SICC cases is open court proceedings and publication of its judgments. Transparency is perceived to be 'important for the branding of the SICC'. 95 The SICC Committee, clearly in recognition of the public interest element in dispute resolution, agreed that confidentiality would '[militate] against the development of a body of jurisprudence, which will be necessary to enable prospective users of SICC dispute resolution to model their future commercial relations'. 96 Nevertheless, parties may apply to the SICC for a confidentiality order under Order 110, rule 30(1) of the Rules of Court, which provides for three different kinds of confidentiality orders: that the case be heard in camera; no disclosure or publication of any information or doculibrary/sicc-practice-directions-(with-effect-from-1jan-2016)f7782f33f22f6eceb9b0ff0000fcc945.pdf. 92. SICC User Guides Note 3, at para. 3. A declaration of 'offshore' status was sought in Teras Offshore Pte Ltd v. ment relating to the case; and the sealing of the court order. In deciding whether to grant the confidentiality order sought for, the SICC shall take into account two factors: first, whether the case at hand is an offshore case, and, secondly, whether the parties have agreed to the making of the order. 97 The SICC User Guides state that 'the [SICC] will generally give due weight to the fact that the case is an offshore case and the parties agree that such an order should be made'. 98

Coram
Every SICC case shall be heard by a single judge or a panel of three judges. 99 Where the case is to be heard by a panel of three judges, one of the appointed judges shall be appointed by the chief justice to preside over the proceedings. 100 The case shall be decided in accordance with the majority opinion of the three-judge panel. 101 Exceptionally, an SICC case may be heard by two judges. 102 This occurs where one of the three judges originally appointed to decide the case cannot continue in the proceedings and the parties have consented to the proceedings continuing with two judges. An appeal against an SICC judgment will be heard by the Singapore Court of Appeal. Following the rules applying to Court of Appeal hearings, appeals will be heard by a panel comprising three or 'any greater uneven number of Judges of Appeal'. 103 An international judge may be appointed by the Chief Justice to sit in the Court of Appeal to hear an appeal against an SICC judgment or order. 104

Discovery
Order 110, rule 21 of the Rules of Court provides that the default position is that the Order 24 procedure that applies in High Court proceedings does not apply in SICC proceedings. 105 As Thorley IJ noted in B2C2 Ltd v. Quoine Pte Ltd ('B2C2 Ltd'), '[t]here are material differences in language and approach between the discovery provisions in O 110 and O 24'. 106 Under the SICC regime, the discovery process is referred to as 'production of documents'. The provisions for the SICC regime for production of documents are found in Order 110, rules 14-20 of the Rules of Court. The traditional process under Order 24 that applies to High Court proceedings requires the parties 'to disclose all documents which are relevant to the issues in the suit, including those of which are or have at any time been in their possession, custody or power'. 107 For general discovery, parties are to disclose documents on which the parties rely or will rely, as well as documents that could adversely affect his or her own case, adversely affect the case of another party and support another party's case. 108 In contrast, under the SICC regime, the obligation on parties is more limited -each party is only required to provide 'all documents available to it on which it relies'. 109 In B2C2 Ltd, Thorley IJ explained that the SICC discovery process is intended to institute a simplified process compared to [Order 24]. Disclosure is only required of documents that are relevant and material and there is no general discovery. 110 Relevantly, the SICC provisions on discovery are 'largely' based on the IBA rules. 111 For example, Order 110, rule 17(2)(b) is based on the wording of Article 9(2) of the IBA Rules. 112

Costs
Costs recovery is an important aspect of litigation. Order 110, rule 46(6) of the Rules of Court makes clear that the SICC regime precludes the application of the Order 59 procedure on taxation of costs by the High Court which applies to traditional High Court proceedings. By way of background, Order 59 provisions are expressed in the terminology of 'costs in in the cause', 'costs in the application', 'costs thrown away', 'costs in any event', 'standard costs', 'indemnity costs' and the like -language which parties from civilian jurisdictions are unaccustomed to. 113 By contrast, the SICC regime on costs is stated in clear and simple language that may be readily understood by parties from both common law and civil law jurisdictions. Indeed, Vivian Ramsay IJ emphasised in CPIT Investments Ltd v. Qilin World Capital Ltd 114 that the SICC costs regime is different and simpler than the traditional Order 59 regime. Order 110, rule 46(1), which applies in the SICC, states that: The unsuccessful party in any application or proceedings in the Court must pay the reasonable costs of the application or proceedings to the successful party, unless the Court orders otherwise. (emphasis added) Order 110, rule 46(3) continues to set out the broad discretion which the SICC has in respect of costs orders. Pursuant to the said provision, the SICC may apportion costs between the parties; consider all relevant circumstances (including conduct of the case); order costs to be paid by a lawyer, law expert or a non-party; order interest on costs; or make an ancillary order, including one on time and manner of payment. Supplementing Order 110, rule 46 of the Rules of Court is the guidance provisions in the SICC Practice Directions on costs. At paragraph 152, the SICC Practice Directions reiterates that costs issues 'shall be in the discretion of the Court and the Court shall have the full power to determine by whom and to what extent the costs are to be paid'. Paragraphs 152(3) and 152(5), in particular, prescribe nonexhaustively the matters which the SICC may take into account in ordering costs. Notably, the use of wide discretion, the concept of 'reasonable costs' and the principle of the unsuccessful party paying costs are commonly employed in arbitration. 115

International Judges
The SICC panel comprises both local and foreign judges (known as 'International Judges'). 116 The International Judges are appointed for a fixed term as the chief justice specifies. 117 The formal power of appointment of International Judges lies with the president of Singapore; 118 and the President of Singapore is to act with the advice of the Prime Minister of Singapore who shall in turn consult the chief justice on the appointment. 119 There are no legislative provisions on the qualifications of the International Judges. In practice, the matter lies at the discretion of the Chief Justice as he/she is the person to make recommendations for appointment. 120 The International Judges are assigned by the chief justice to hear SICC disputes on an ad hoc basis. Unlike in arbitrations, there is no scope within the SICC framework for parties to appoint their preferred adjudicator or express a preference for a certain judge to be appointed. To date, sixteen International Judges have been appointed to the SICC (see table on the next page).
The appointments thus far indicate a trend of favouring the appointment of retired judges. Further, the number of foreign jurists from the UK and Australia appointed as International Judges is significantly higher as compared with jurists from other jurisdictions. This is unsurprising given that English and Australian cases -by reason of common law heritage and legislative influence -are most referred to and followed in Singapore cases, as compared with case law developed in other jurisdictions. 121 As will be discussed in greater detail in Section 4, many of the SICC cases to date are governed by Singapore law or the relevant applicable foreign law which, in the absence of proof, was presumed to be identical with Singapore law. Given the strong jurisprudential links between Singapore law and English law as well as Australian law, former English and Australian judges are well suited for deciding such disputes and may be (as indeed have been) appointed as sole judges at first instance. Going forward, it remains to be seen if more jurists from Asian jurisdictions will be appointed to the SICC, in view that a primary aim of the SICC is to become the leading Asian dispute resolution centre. Casting a sideway glance at the SIAC's panel of arbitrators, while there are many Australian and UK arbitrators, the SIAC panel also boasts arbitrators from many Asian jurisdictions, including India, Philippines, Indonesia, Korea, China and Malaysia. 122

Review of SICC Judgments
At the date of writing, a total of thirty-four SICC judgments, comprising both procedural orders and judgments on the merits of the disputes, have been handed down. Of course, a number of the orders and judgments pertain to (different aspects of) the same cases. Of the thirty-four judgments, seven were appellate judgments rendered by the Singapore Court of Appeal. All thirtyfour judgments related to cases transferred from the Singapore High Court to the SICC. 123 This is unsurprising. In the initial years of the SICC's operation, many potential users of the SICC are likely to take a 'wait and see' approach, generally resistant to the idea to be the first ones to try out something new and untested. Moreover, even if parties are willing to insert an SICC clause into their contract, it will be some time before a dispute arises. In February 2018, marking an important milestone for the SICC, a case was directly filed with the SICC. While we wait for more cases to be filed directly with the SICC on the basis of an SICC clause, the transfer cases would play a crucial role in establishing the initial track record for the SICC. For this rea- son, the last part of the discussion reviews the SICC judgments.

Profile of Cases
By way of a quick overview, the following is a summary of the profile of SICC cases decided to date: a. In all cases, at least one of the parties was based in an Asian jurisdiction. b. In all cases, the party and event connections of the dispute were distributed across at least two different jurisdictions. c. The substantive legal issues that have been raised include contract, 124 tort, 125 trust, 126 fiduciary duties, directors' duties and minority oppression. d. Most of the cases involved Singapore law as the governing law of the issues in dispute. 127 Two matters raised issues governed by French law. 128 One matter involved issues governed by English law. 129 One matter involved Bahamas law as the governing law but the parties agreed that the content of Bahamas law did not differ from Singapore law. 130 One matter raised an issue governed by Indonesian law. 131

Assignment of International Judges
Based on a review of the SICC judgments handed down to date, it is clear that the international judges -touted as a distinctive capability of the SICC -have been actively deployed to hear the cases brought before the SICC by way of exercise of transfer jurisdiction. They have been appointed as either a single judge or a member of a three-judge panel to hear SICC appeals, trials and procedural/interlocutory matters. When appointed as a member of a three-judge panel, 132 the international judges had also taken on the responsibility to deliver the judgment of the court in a number of cases. 133  In the two matters which had connections with France and in which French issues were raised, Dominique Hascher IJ was appointed as a member of the threejudge panel. 135 In the matter in which issues governed by English law were raised, Sir Henry Bernard Eder IJ was appointed as the sole judge. 136 Interestingly, international judges from the UK and Australia have been appointed as a single judge to hear cases which involved issues governed by Singapore law 137 or where the matter raised issues of Singapore procedural law. 138 In these disputes concerning Singapore law as the applicable law, it is evident from the judgments that the presiding international judge ensured that relevant Singapore cases were cited and discussed.
In light of the foregoing review, one could surmise that the Singapore judiciary is unafraid of allowing foreign jurists to directly participate in the application and development of Singapore law. As the SICC is a division of the High Court, its judgments on Singapore law are binding authorities on the High Court.
A number of interesting questions may be asked in the future when there is a sizeable pool of SICC judgments on Singapore law for a more in-depth study. First, whether the development of Singapore law in the SICC has proceeded on a more transnational (and less English law-biased) trajectory, with the participation of non-UK international judges. 139 Indeed, a similar question may be asked in respect of the development of commercial law in general in the SICC. Second, whether the creation of the SICC has led to a two-track development of Singapore law: one in the SICC and one in the High Court. For example, the SICC judges, being aware of their capacity as a judge in an international commercial court, might be more inclined towards applying 'hard and fast rules' and 'fixed' criteria, as opposed to discretionary approaches. 140 Third, whether the international judges are adept at grappling with questions of Singapore public policy? Fourth, whether the presence of international judges would enhance the global influence of the SICC judgments? For example, these judgments may be more persuasive or more frequently referred to by the courts of the home jurisdictions of the international judges.

Challenges Ahead
We now consider the challenges confronting the SICC going forward.

Competition from CICC?
To provide a judicial safeguard for the BRI, on 29 June 2018, China established the CICC to serve the dispute needs of the BRI. Presently, the Supreme People's Court of China (SPC), in charge of the creation of the CICC, is 'in the final stages of formalising its rules and procedures'. 141 A judicial interpretation document issued by the SPC, entitled 'Provisions of the Supreme People's Court on Several Issues Regarding the Establishment of the International Commercial Courts' sets out the CICC framework, the jurisdiction of its courts, judicial panel and numerous procedural provisions (the 'Judicial Interpretation on the CICC'). 142 The creation of the CICC may raise some concern as to whether it would compete for judicial business with the SICC. 143 A review of the CICC framework deserves detailed treatment in a separate article. 144 It suffices, for present purposes, to highlight the main competitive advantages which the SICC has over the CICC. It is argued that the SICC is a far more attractive litigation option than the CICC. First, unlike the SICC, the CICC's jurisdictional framework is much more constrained. Notably, a written jurisdiction agreement in favour of the CICC is insuffi-cient by itself to establish the CICC's jurisdiction over a dispute, unless the amount in dispute exceeds RMB 300 million and the case has an actual connection with China. 145 As such, party autonomy is clearly less valued within the CICC's jurisdictional framework, as compared with the SICC regime. Second, the CICC judges are Chinese judges drawn from the SPC. 146 Currently, fifteen SPC judges have been appointed to the CICC. 147 Chinese law (Judges' Law and the Law on the Organisation of the People's Courts) does not permit the appointment of foreigners as judges of the Chinese courts. The absence of an international bench may affect user confidence in the impartiality and trustworthiness of the CICC, especially because the CICC disputes will likely involve at least one non-Chinese party. Further, it is envisaged that many of the disputes arising from the BRI would involve foreign law elements. An international bench (such as the SICC panel) would boost greater confidence in the more accurate interpretation and application of foreign law, where there are foreign judges on the bench who are trained in the relevant foreign law. The decision to appoint only Chinese nationals as CICC judges reflects a strong desire for ensuring forum control in the dispute resolution process. Perhaps, this shortcoming of the CICC could be mitigated to some extent by the establishment of the CICC's International Commercial Expert Committee. To date, thirty-two experts from different countries have been appointed. 148 However, the precise remit of the Expert Committee remains unclear, and its utility cannot, thus, be fully assessed at this point. Third, current Chinese law does not grant foreign lawyers a right of audience before the Chinese courts (including the CICC). 149 This limitation diminishes the CICC's appeal to the international business community who are very much used to the procedural flexibility of arbitration practice. Indeed, in cases which raise foreign law issues, litigants (especially non-Chinese nationals) would likely prefer to engage foreign counsel who are familiar with the relevant foreign law. Finally, pursuant to existing Chinese legislation, proceedings of cases involving foreign elements must be conducted in 'languages commonly used in China' -in other words, in Chinese or the native languages of the tition from other dispute resolution institutions, the degree of the international enforceability of the SICC judgments, and the willingness of lawyers and in-house counsel to insert SICC clauses into commercial contracts. More interestingly, the mid-to long-term impact of the SICC, domestically and internationally, merits an indepth study in due course. Section 4 highlights questions concerning the impact of foreign judges on the development and influence of Singapore law. But there are other equally interesting facets to consider, for instance, whether other international commercial courts would base their design on the SICC or adopt successful procedural reforms from the SICC. This will be a measure of SICC's influence on the design of dispute resolution mechanisms. Further, what is the impact of the liberalisation of the criteria for foreign lawyers to appear as counsel in SICC proceedings? Does this reform bring in more dispute business for Singapore? How do local lawyers support litigation in which foreign lawyers appear as counsel, and do these interactions inspire healthy competition and better litigation practices? We await the full impact of the SICC.