Singapore is renowned for its efficient, transparent and internationally well-regarded legal system. In 2019, Singapore was ranked 1^st out of 141 countries in the World Economic Forum’s Global Competitiveness Report for having the most efficient legal framework for settling disputes. In 2020, Singapore was placed 12^th globally and 1^st in Asia by the World Justice Project’s Index for adherence to the rule of law. Singapore’s excellent legal infrastructure makes it well poised as a dispute resolution hub for Asia and beyond.

To enhance its already impressive civil justice system, Singapore is making changes that are perhaps the most profound since its independence, with a view to position itself to meet future opportunities and challenges. Changes have been made to its court structure as well as its civil procedural rules to increase efficiency in litigation and minimise time and costs. There were also significant enhancements to the Singapore International Commercial Court (SICC), and to litigation funding. More about Singapore’s evolving arbitration and mediation landscape can be read here.

New Court Structure

On 2 January 2021, the High Court was restructured into the General Division of the High Court (GD) and the new Appellate Division of the High Court (AD). These reforms were made against the backdrop of growth in the number of appeals and increased complexity of matters that have come before the Court of Appeal (CA), Singapore’s apex court. The creation of the AD is intended to better deploy judicial resources and distribute the appeal caseload between itself and the CA.

With the reforms, the CA will hear all criminal appeals and prescribed civil appeals as set out in the Sixth Schedule of the Supreme Court of Judicature Act 1969 (SCJA). These include appeals from cases relating to the law of arbitration, patents, insolvency, restructuring or dissolution of companies, and appeals against decisions of the SICC.

That said, the CA has the power to transfer civil appeals between the CA and the AD in accordance with the revised SCJA and the Rules of Court. The principles engaged in determining if a transfer should be made were recently considered by the CA in a line of cases.

The CA also had occasion to rule on when the CA will permit further appeals from decisions of the AD and the relevant test that the CA will adopt.

There will no doubt be more cases examining the specific contours of these principles moving ahead.

New Rules of Court

A legal system’s civil procedural regime is a pivotal aspect of its ability to deliver justice. In tandem with the restructuring of Singapore’s court system, changes were also made to Singapore’s civil procedure regime.

A central feature of Singapore’s civil procedure regime is her Rules of Court. The Rules of Court in essence set out Singapore’s procedural rules governing the conduct of proceedings in court for civil cases.

A new Rules of Court 2021 (ROC 2021) was gazetted on 1 December 2021. Effective 1 April 2022, these new rules seek to transform, not merely reform, the court litigation process in Singapore by modernising it, enhancing the efficiency and the speed of adjudication, and maintaining costs at reasonable levels. They were a result of blue-sky thinking, informed by international best practices. The ROC 2021 was designed around 5 key ideals which are:

• Fair access to justice;
• Expeditious proceedings;
• Cost-effective work that is proportionate to:
  • the nature and importance of the action;
  • the complexity of the claim as well as the difficulty or novelty of the issues and questions it raises; and
  • the amount or value of the claim;
• Efficient use of court resources; and
• Fair and practical results suited to the needs of the parties.

To achieve these ideals, a key aspect of ROC 2021 is its heightened emphasis on case management. Case conferences will play a key role in this framework, with judges and registrars having close supervision over the manner in which a case progresses.

The principal changes in ROC 2021 giving effect to the ideals include:

• Introducing a Single Application Pending Trial to deal with all interlocutory matters necessary for the case to proceed expeditiously at that stage of the proceedings, replacing the common practice of litigating in a systematic fashion.
• Exchanging affidavits of evidence-in-chief before (instead of after) the production of documents, to crystallise and streamline the issues in dispute.
• Appointing a single expert, via a court-supervised process when previously, parties would typically appoint their own experts.
• Requiring parties to consider amicable resolution of the dispute before the commencement and during the course of any action or appeal. With this, the earlier process prescribed for the making of an Offer to Settle will be replaced by this less formulistic provision.
• Modernising terminology to increase accessibility.

The ROC 2021 applies to all civil proceedings, including appeals, commenced on or after 1 April 2022, save for certain exceptions.

The significance of the changes highlighted above lies in a marked shift in the overall approach to court litigation. The court litigation process has been streamlined considerably, and will be a judge-led process with the 5 key ideals at its core guiding the court in its management of the process.

These reforms are likely to, in conjunction with the Singapore judiciary’s continued emphasis on leveraging technology, further enhance efficiency in the court resolution process.

2021 case law also saw a number of key refinements to Singapore’s jurisprudence on both substantive and procedural issues. On the procedural front, the Singapore courts continue to rule on variety of notable issues notably. These included questions pertaining to the admission of fresh evidence on appeals, the addition of third parties after judgment, the introduction of new points on appeal, quantification of damages, enforcement of judgments, issue estoppel, and important matters concerning appeals and other proceedings.

On the substantive front, the Singapore courts have likewise ruled on a wide-range of issues. 2021 witnessed several landmark judgments, perhaps most notably on the law of restitution / unjust enrichment, contractual principles such as the incorporation of terms into contract and no-oral modification clauses, and corporate law issues touching on directors’ duties and shareholder disputes. Significant decisions in insolvency surrounding the collapse of industry giants, as well as in the construction, insurance and employment space, also are of note.

SICC

The Singapore International Commercial Court (SICC) was established in 2015 to enhance Singapore’s standing as a key legal and business hub in Asia and a leading centre for international commercial dispute resolution. It seeks to hybridise the best features of both international arbitration and national court litigation, and has established a reputation as a trusted forum for dispute resolution. Distinguished international judges from both civil and common law traditions serve as SICC judges (including several former chief justices). Recent appointments to the SICC bench include the appointment of Justice Carolyn Berger who was previously a Justice of the Delaware Supreme Court and a foremost authority on insolvency and corporate and commercial disputes.

There are two significant developments to the SICC in 2021, both with the aim to better enable the SICC to fulfil its role as a choice venue for the hearing of international commercial disputes:

• The Technology, Infrastructure and Construction (TIC) List was established to deal with complex disputes, such as technology-related disputes, and disputes relating to infrastructure and construction projects. Cases in the TIC List benefit from additional case management features suited to the expeditious resolution of technically complex disputes, resulting in time and costs savings. The use of specialised case lists is consonant with existing practice adopted by the Supreme Court, which adopts a docket system wherein cases are classified and assigned to judges with specialised expertise in relation to the subject matter of each case.
• SICC’s procedural rules are modernised with a new set of SICC Rules 2021, effective 1 April 2022. As is the case with ROC 2021, the rules seek to simplify terminology, definitions and rules, streamline procedural steps, increase flexibility and enable greater judicial control of the entire litigation process, thereby ensuring that the SICC remains progressive and up to speed with the fast-changing needs of international commerce. Significant changes include simplifying the commencement of proceedings by providing a single mode of commencement. The court may thereafter order that a contested claim or counterclaim be decided by one of following three default adjudication tracks: by pleadings, statements or memorials.

Expansion of third party funding framework and conditional fee agreements

The third party funding framework for civil commercial matters was expanded to include more categories of proceedings in June 2021. Previously, third party funding was only available in the following specific scenarios: (i) international arbitration and related court and mediation proceedings and (ii) liquidators seeking litigation funding to enable companies in liquidation to commence recovery claims. The expanded categories of proceedings include domestic arbitration and related court and mediation proceedings, as well as SICC proceedings.

Conditional fee agreements will be introduced in Singapore for litigation and arbitration proceedings. These are arrangements whereby a lawyer receives payment of the whole or part of his legal fees only when certain specified circumstances happen. It should be noted that contingency fee arrangements, where remuneration is payable as a percentage of damages awarded, continue to be prohibited under Singapore law. Initial prescribed proceedings where conditional fee agreements are permitted include international and domestic arbitration, certain proceedings in the SICC and related court and mediation proceedings. These developments will no doubt be of interest for parties seeking to resolve disputes in Singapore but are constrained by costs.

The above are but a snapshot of the key developments in Singapore’s court dispute resolution landscape. These developments have the potential of ensuring that Singapore remains a choice venue for domestic and international players and an optimal environment for dispute resolution moving ahead.

Dentons Rodyk thanks and acknowledges Practice Trainee Wei Teng Lee for his contributions to this article.

This article was first published by Chambers and Partners on 1 April 2022.