the spiliada in singapore senttofedp3)pulle.pdf · the spiliada in singapore – time for the scrap...

The Spiliada in Singapore – Time for the Scrap Yard?

Austin I Pullé*

In the nearly two decades since the House of Lords decision in Spiliada Maritime Corp v Cansulex Ltd, most Commonwealth courts adopted the Spiliada framework for deciding forum non conveniens claims. The core of this framework consists of a deference to the natural forum,

a concept that privileges convenience over requirements promoting the ends of justice. This

framework, designed for use by specialist and experienced commercial law judges in England,

has outlived whatever use that it had elsewhere. It is premised on the preposterous assumption

of the equivalence of local and foreign forums, a premise that is belied by the large amount of

credible evidence that most developing country courts are incompetent and/or corrupt, the

accuracy of which is even acknowledged by the governments of these very same countries. The

decisions in Singapore that have relied on the Spiliada framework demonstrate the highly

unsatisfactory outcomes when a stay is granted in favour of a developing country forum. This

article proposes that the superficially attractive symmetry of Spiliada should be replaced by a

more realistic model. The conceptual integrity of this proposed model rests on its emphasis on

professional ethics, and its practical value lies in successfully navigating a terrain where

judicial reluctance to disparage foreign courts, in order to avoid charges of ‘judicial

chauvinism’, competes with the immediate needs of providing justice to the parties in the

litigation.

The common law of England almost invariably marches in step with common sense. If one examines the authorities and, at first sight, comes to the conclusion that they lead to a result which is contrary to common sense, it is advisable to re-examine them. (MacShannon v Rockware Glass Ltd [1978] AC 795 at 817 per Lord Salmon)

In Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 (Spiliada), the House of Lords enunciated the set of principles that English law courts currently follow when deciding whether to grant a stay in proceeding when the plea of forum non conveniens is taken.1 The decisions of the House of Lords have exerted enormous persuasive power on the common law courts of the Commonwealth and Hong Kong. Common law courts, especially in Asia, have followed English decisions not only because of the high quality of these decisions, but also because of the cost savings involved in not ‘re-inventing the wheel’ when confronted with an issue or problem that had already been addressed and resolved by the English courts. Given the wide incidence of abusive forum-shopping, it was to be

288 Asian Law [Vol 8

expected that the framework laid down by Lord Goff in the Spiliada would be welcomed both in England and elsewhere as a wise solution to a vexing problem and that was indeed what happened. With the prominent exception of the High Court of Australia (Oceanic Sun Line Special Co Inc v Fay (1998) 165 CLR 197; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; see Garnett, 1999), the common law courts both in the Asia Pacific region, as well as elsewhere, quickly embra-ced the Spiliada framework (McConnell Dowell Constructors v Lloyd’s Syndicate [1988] 2 NZLR 257; Amchem Products Inc v Workers’ Compen-sation Board (1993) 102 DLR (4th) 96; Syarikat Bumiputra Kimonis v Tan Kok Voon [1988] 3 MLJ 315; Aldington Shipping Ltd v Bradstock Ship-ping Corpn and Mabanaft GmbH, The Waylink and Brady Maria [1988] 1 Lloyd’s Rep 199; see also Ong, 1997: 571–99). The courts of Hong Kong and Singapore, which have for several decades been the busiest forums for cross-border litigation in the Asia-Pacific region, also adopted Spiliada at the first available opportunity (Brinkerhoff Maritime Drilling Corporation v PT Airfast Services Indonesia [1992] 2 SLR 776; The Adhiguna Meranti [1998] 1 Lloyds Rep 199). Although more than a decade and a half has elapsed since the House of Lords delivered the judgment, the framework for deciding questions of forum non conveniens laid down in Spiliada still holds unquestioned sway.2 This is so despite troubling questions about the current validity of the assumptions underlying the Spiliada decision. This article argues that the principal foundations of Spiliada have been seriously eroded by the pervasive judicial corruption and incompetence in many courts of develop-ing countries and the countries of the former Soviet bloc; the huge backlog of cases in many developing country courts; and the poor level of legal ethics enforcement in many of these countries, credibly documented in independent studies (Dakolias and Thachuk, 2000). The results of apply-ing the Spiliada framework to decide forum non conveniens pleas in the 21st century, without considering these factors, are, ironically, that abusive reverse forum-shopping is encouraged and the interests of justice – a core value emphasised by the classic forum non conveniens cases3 – are sacrificed. These classic cases enunciated principles that delicately balan-ced utilitarian concerns such as the ‘optimum forum’ with deontological values such as the ‘interests of justice’. The Spiliada framework, on the other hand, when utilised by the courts in Asia, has accorded undue weight to ‘convenience’ factors connoted by the term ‘natural forum’. This emphasis, which may have been suitable in an English context in order to discourage English courts from overzealously maintaining their jurisdic-tion, became wholly misplaced in the context of Asian common law courts operating in a region where many alternative forums have proved to be

2006] The Spiliada in Singapore 289

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incompetent, corrupt, politically subservient, or all of these. Another troubling consequence of applying the framework is that abusive reverse forum-shopping exercises are rewarded, because the plaintiff rarely files suit in the forum in favour of which the suit was stayed (Robertson, 1987). Accordingly, this article will argue that the Spiliada framework is a failed transplant in the common law courts of Asia and therefore should be discarded and replaced instead with a more robust framework that takes into account some of the unfortunate realities of the state of the courts of many Asian countries in the 21st century. Such a substitute framework must not only seek to identify the optimum forum for trying the case but also must situate the search in a larger context that considers the interests of justice as an initial consideration that should be positively satisfied by a defendant seeking a stay. An added benefit of such a framework is that litigants in international commercial transactions may increasingly use Asian common law courts as the preferred method of settling cross-border commercial disputes instead of opting for arbitration as the preferred method of dispute settlement because of concerns over the Spiliada framework. In other words, such parties would choose arbi-tration only because of its intrinsic merits and not merely because they fear that a common law forum applying the Spiliada framework might refer them to an incompetent forum in the event of a dispute.

Spiliada – An Unsuitable Transplant? The decision of the House in Spiliada has been subject to extensive com-mentary, but the significance of two features that contributed to the framework of analysis established by that decision that are of particular relevance to many Commonwealth courts has not been properly appre-ciated by courts that have borrowed the framework (Bell, 2003: 152) (see also Slater, 1998 and Merrett, 2005). Inquiry into the relevance of these two features for the societies in which the borrowing courts function should have raised serious doubts about the suitability of the decision for use by the common law courts in Asia. The first factor is the role that the ill-defined concept of ‘judicial chauvinism’ played in shaping the definitive framework established in Spiliada. The second factor is that an unstated premise of the Spiliada decision was that the framework it established was designed to be used by judicial benches specialising in commercial law and admiralty matters. Indeed, in a concurring speech, Lord Templeman even ventured to hope that trial judges would be able to use the framework in the solitude of their chambers to arrive at a decision within a day (Spiliada [1987] AC 460 at 465). Such confidence would have been unjustified if the judge


entrusted with this task is a generalist, like many of her counterparts in the common law courts of Asia. The mindset stigmatised as ‘judicial chauvinism’ is best remembered in the context of the stinging rebuke administered by Lord Reid to Lord Denning MR’s expressions of enthusiasm for the quality of the English courts (The Atlantic Star [1974] AC 436 at 453) and his thinly disguised disparagement of foreign courts.4 Despite this rebuke, the apex court in England in reconfiguring the framework for deciding forum non con-veniens issues would have had to be mindful of the lingering effects of this mindset. The House would have had to conclude that, if a proper evaluation of the competing forums were to be made possible, the ‘judicial chauvinism’ of English judges would have to be eradicated, root and branch.5 Accordingly, a policy of anticipating and curbing a possible bias in favour of an English court on the part of the trial judges in the Com-mercial Court and the Admiralty Courts found expression in the Stage II phase of Spiliada. In the Stage II phase, the plaintiff, trying to dislodge the defendant’s prima facie case (made for staying the action in favour of the alternative forum), had a huge barrier to surmount if he based his attack on the defects of the alternative forum because the second limb of the Spiliada framework tightly circumscribed the grounds on which a plaintiff could prevail. As Lord Goff observed in Connelly v RTZ Corporation plc [1998] AC 854 at 873, the plaintiff must establish that ‘substantial justice will not in the particular circumstances of the case be done’ if the plaintiff has to proceed in the alternative forum. ‘This’, as Lord Bingham observed, is ‘not an easy condition for a plaintiff to satisfy’. The ‘plaintiff must take a foreign forum as he finds it, even if it is in some respects less advanta-geous to him than the English forum’ (Lubbe v Cape plc [2000] 1 WLR 1545 at 1554). Judicial impatience with attempts by the plaintiff to attack the integrity or capacity of the alternative forum also sent a clear signal to the legal advisors of the plaintiff that they should steer clear of this territory (The Abidin Daver [1984] AC 398; PT Jaya Putra Kundur Indah v Guthrie Overseas Investments Pte Ltd [1996] SGHC 285).6 Given the difficulty of persuading a judge, sensitive to the charge of ‘judicial chau-vinism’, that the alternative forum is incompetent or corrupt, and the plaintiff’s all-too-understandable concern that if his allegations impugning the integrity of that forum failed the alternative forum would hardly be likely to be well disposed to him, the practical effect of raising the bar so high in Stage II of the Spiliada framework is that it is rarely invoked and reduces the utility of the model itself. Since its inception, ASEAN (Association of Southeast Asian Nations) has had as one of its basic tenets that member governments should refrain


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from criticising the conduct of fellow member governments.7 Until recently, this understanding has been scrupulously followed. When recently breached, it was in respect of particularly egregious conduct by the Myan-mar government. These particular sensitivities in relation to ASEAN nations commenting about the internal affairs of fellow members will surely also act as a brake on a common law court in ASEAN counties considering the infirmities of a fellow ASEAN court if these were asserted by a plaintiff attempting to rebut the defendant’s prima facie case during Stage II of the Spiliada analysis. It is thus unreasonable to expect the common law courts of an ASEAN country to make the type of adverse finding about the courts of another ASEAN country that would allow a plaintiff’s attack on the integrity or competence of another ASEAN forum under Stage II of the framework to succeed. The literature on legal transplants offers various reasons why coun-tries and their courts adopt the laws and decisions of foreign countries (Miller, 2003). Because the Singapore courts are arguably the premier forums for transnational commercial litigation in Asia8 and Singapore legislation once authorised the importation of English law and continues to keep pace with legal reforms in England, it has been advantageous for the Singapore courts to rely on English judicial precedent, especially in commercial cases.9 Such a practice permits the common law in Singapore to keep abreast of developments in England, as well as provide a measure of certainty for those planning commercial transactions that would be governed by Singapore law. While generally advantageous, this practice has significant draw-backs when the precedent to be imported is itself shaped by developments and values that were largely idiosyncratic to conditions prevailing in England. It is argued that this was the case with Spiliada, where the House of Lords had to fashion a pragmatic solution to the problem of an increase in transnational litigation in England that involved the strategic use of forum-shopping and exploited the self-perception of English judges that an English forum was in most instances superior to foreign forums, especially those in civil law countries. Such factors did not apply in the common law courts of Asia because, unlike the English courts, these had rarely, if at all, been the object of abusive forum-shopping. Many of these courts in Asia, some operating in multi-ethnic and multi-religious societies, and some with mixed systems of law (as in Sri Lanka), were comfortable with the coexistence of the common law with religious and personal laws. Moreover, for several decades after independence, many countries permitted appeals to the Judicial Committee of the Privy Council and their courts were comfortable with the use of Commonwealth precedents. Judges of courts that apply systems of law in addition to the


common law and are not flooded with international commercial lawsuits, as was, and is, the case with English courts, are hardly persons whose disinterested evaluation of the merits of competing forums will be impaired by ‘judicial chauvinism’. The analysis of the Singapore decisions that rely on the Spiliada framework to resolve forum non conveniens issues illustrates the dangers of path dependence in mirroring English decisions relevant to specific English conditions and circumstances that may not prevail in Asian Com-monwealth countries. Unlike decisions on pure substantive law, decisions that have a strong procedural component cannot be divorced from the particular court environment in which they are expected to operate, and it is widely recognised that common law solutions to such litigation issues need no longer be monolithic (B v Auckland District Society [2002] 2 AC 736 at 759). The post-Spiliada decisions of the Singapore courts show that these courts readily accepted the viewpoint of the English decisions that the only antidote to rampant ‘judicial chauvinism’ was a healthy dose of ‘judicial agnosticism’ with regard to the capacities of the alternative forums. The commonly accepted justification for this approach was that, if the trial judge could avoid the narcissistic trap of ‘judicial chauvinism’, he or she would possess the necessary level of disinterest that is a pre-condition to determining objectively the more appropriate forum. In prac-tice, however, this process went far beyond any reasonable agnosticism, because the trial court was directed to presume that the alternative forum was comparable in quality, both in terms of competence and integrity, without necessarily having good reasons for making this assumption. In other words, if the alternative forum could be characterised as the ‘natural forum’ by applying criteria that were largely based on convenience, then that forum would be regarded as ‘appropriate’ despite strong indications that the alternative forum manifestly lacked integrity or was incompetent to hear a complex commercial dispute.

The Reception of Spiliada in Singapore In Brinkerhoff Maritime Drilling Corporation v PT Airfast Services Indonesia [1992] 2 SLR 776 (Brinkerhoff),10 the Singapore Court of Appeal adopted, without any modification, the principles relating to a stay on the basis of the plea of forum non conveniens set forth in the speech of Lord Goff. This Court of Appeal decision merits analysis for two reasons: first, it provides a useful context for analysing the phenomenon of legal trans-plants, illustrating the powerful influence of English decisions on Commonwealth courts in Asia several decades after the countries in which these courts function became independent. It also invites reflection on the


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larger question of whether the time has come for these courts to adopt an approach that unshackles former colonial courts from English decisions that are country-, institution- and transaction-specific and instead gene-rate a body of decisional law that is truly relevant and responsive to local conditions. Such reflection would include not only an acknowledgment of the historic role of the English Commercial and Admiralty courts in international litigation that does not find a parallel in the common law courts of Asia; but also an awareness of the difference between those courts and courts in Asia, especially in terms of judicial capacity in the field of international commercial litigation. Second, the outcome of the case illustrates the perils of the common law courts in Asia applying the radical judicial agnosticism of Spiliada, because the outcomes in Brinkerhoff and many of the important cases that followed it were mani-festly inconsistent with the ends of justice. Brinkerhoff concerned an air crash that occurred in Pekanbaru, North Sumatra, Indonesia. The first plaintiff, an employee of the second plain-tiff, sustained injuries and sued his employer. The employer plaintiff then sued PT Airfast Services Indonesia, an Indonesian company that owned and chartered aircraft. PT Airfast had chartered the ill-fated aircraft to a production-sharing contractor of the Indonesian state-owned oil company, Pertamina, with which the employer had a drilling contract. Two principal issues confronted the Singapore Court of Appeal. First, the court had to decide whether the trial court had jurisdiction over the action. Second, the Court of Appeal had to decide whether the trial court should have stayed the action in favour of an Indonesian forum in case it had jurisdiction to try the case. With regard to the first issue, the court held that jurisdiction was properly founded under art 28(1) of the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air, opened for signature 12 October 1929, 137 LNTS 11 (entered into force 13 February 1933) (Warsaw Convention). Despite this finding, the court, relying on the Spiliada framework, stayed the action in favour of an unspecified Indonesian forum. The argument that a plea of forum non conveniens could not be sustained where jurisdiction was founded under art 28 of the Warsaw Convention was not made before the court and the court did not raise this as an issue with counsel.11 Leaving this oversight aside, the decision of the Singapore Court of Appeal in adopting Spiliada is open to criticism on the basis that there was no exploration of the doctrinal reasoning that supported the decision, much less an explicit evaluation of the features of the decision that commended its wholesale importation into Singapore. The flaws of Spiliada were also on display when the court applied the framework to the factual matrix disclosed by the record of the case.


The justification for the wholesale importation of decisions such as Spiliada is found in The Asian Plutus [1990] 2 SLR 543 at 546, where Yong Pung How J (as he then was) observed that s 5(1) of the Civil Law Act (Cap 43, 1999 Rev Ed). Section 5 was repealed by s 6 of the Appli-cation of English Law Act (Cap 7A, 1994 Rev Ed), which provided for the application of English law, required the adoption of English principles relating to the staying of actions. Principles of law relating to stays are quintessentially procedural matters and should therefore not have obtained entry into Singapore jurisprudence under s 5(1), the scope of which was confined to substantive law principles. Moreover, the sub-section required that English law imported pursuant to it must be ‘subject to such modifications and adaptations as the circumstances of Singapore may require’ (Civil Law Act (Cap 43, 1999 Rev Ed)). Accordingly, the Civil Law Act (Cap 43, 1999 Rev Ed) required courts to undertake an explicit evaluation of the suitability of the principles to be imported by proactively considering whether the circumstances prevailing in Singapore require any modifications and adaptations. Automatic importation was not per-mitted. If an explicit evaluation had been conducted, it is doubtful whether the Court of Appeal would have so enthusiastically adopted in toto the decision of the House in Spiliada.12 In Brinkerhoff [1992] 2 SLR 776 at 784, Chao Hick Rin J, who delivered the judgment of the court, was content to adopt Spiliada on the basis that it did not introduce ‘radical changes to the law’,13 not an atypical approach to the House of Lords’ decision by other common law courts in Asia. Because the law relating to stays on the ground of forum non conveniens had been in a continuous state of development since the time of The Atlantic Star [1974] AC 436, the relevant issue was not whether the decision represented an incremental or a radical change to the law or not but, rather, whether the decision was suitable for adoption in Singapore. In fact, as the flurry of academic commentary on Spiliada noted, the decision introduced a significant change by removing as a matter to be considered, and as a factor favouring the plaintiff, the loss of advantage that the plaintiff would suffer if referred to the foreign forum (see Kelly, 1990). The decision not only removed this advantage but put an additional burden on the plaintiff by tightly circumscribing the conditions that would allow a plaintiff in the Stage II phase of the framework to overcome the prima facie case made out for a stay. None of the theoretical or practical implications of these features was explored by Chao Hick Rin J, or for that matter by any judge of other common law courts in Asia, when adopting Spiliada. The Australian High Court, on the other hand, when invited to adopt Spiliada, carefully considered the implications of the decision for


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Australian courts and declined to adopt the decision, albeit by a bare three-to-two majority, holding that the Australian courts should stay actions only when it could be shown that the Australian court was a clearly inappropriate forum (Oceanic Sun Line Special Co Inc v Fay (1998) 165 CLR 197; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538). It is argued that just as a Singapore court would evaluate the persuasive-ness of foreign decisions on constitutional law (Nappali Peter Williams v Institute of Technical Education [1992] 2 SLR 569; see also B v Auckland District Society [2003] 2 AC 736 at 759), it should likewise conduct a suita-bility analysis when invited to adopt English precedents in commercial law matters taking into account the policies underlying the Application of English Law Act (Cap 7A, 1994 Rev Ed). While mirroring English deci-sions in order to create a common template on substantive commercial law topics may be a salutary objective, a more analytical and discerning approach is required in importing procedural rules such as a forum non conveniens framework. Forum shopping is a complex phenomenon that raises important policy issues for the chosen forum. The factors separating legitimate forum shopping from abusive forum shopping are matters that should be carefully evaluated by the courts of each country. In the case of Spiliada, the quality and experience of the judges of the English Commercial Court and the Admiralty Court influenced the construction of the analytical framework of that decision. The optimistic assessment of Lord Templeman of the time it would take for a trial judge engaging in quiet reflection to decide whether or not to grant a stay would have been risible if it were not for the fact that the Commercial and Admiralty Courts are staffed by judges who have had considerable specialist expe-rience at the Bar and on the bench in handling complex commercial disputes. It is open to question whether a framework designed to be operated by a set of specialist judges, many of whom were previously out-standing commercial barristers, would necessarily be appropriate in legal systems where judges handle a broad range of cases and often lack such a specialist commercial background. When the Singapore Court of Appeal heard Brinkerhoff, Indonesia was ruled by a ruthless dictator whose family and friends owned the major businesses in that country. During this period, most responsible lawyers would have advised their clients that suing a well-connected Indonesian businessperson in an Indonesian court would have been a disastrous undertaking. Indeed the phrase ‘Indonesian justice’ would have provoked derision, even among many Indonesians. However, the political culture of ASEAN required the avoidance of adverse comments on Indonesia and its governmental organs by fellow ASEAN governments and their agencies. It was thus not surprising that, however parlous the


state of the Indonesian judiciary, deference to ASEAN sensibilities and the application of Spiliada ‘natural forum’ analysis to the facts of the case would result in the Singapore court staying the action relating to the aircraft accident in favour of an unspecified forum in Indonesia on the ground that it was the ‘natural forum’ unlike a Singapore court. In Brinkerhoff, for example, the Court of Appeal began its analysis by noting that the accident took place in Pekanbaru in Sumatra, that the aircraft was registered in Indonesia and that it had been ‘subject to Indo-nesian law’ ([1992] 2 SLR 776 at 785). After enumerating a list of factors that involved Indonesia, the learned judge concluded that ‘it is clear that the whole transaction has more real and substantial connections with Indonesia than with Singapore’ ([1992] 2 SLR 776 at 785). Leaving aside the curious designation of an accident as a ‘transaction’, did it necessarily follow from all of this that an undesignated forum in Indonesia was clearly more appropriate than a Singapore trial court? If the focus of the court had been placed primarily on what the ends of justice required in the case, it would have been obvious to the court that the path mapped out by Spiliada was fraught with peril and instead it would have decided that the Singapore trial court should continue hearing the case. Apart from the fact, noted earlier, that as a matter of law the plea of forum non conveniens should never have been entertained in an action properly brought under the Warsaw Convention, the Singapore court should not have stayed the action if it considered case-specific issues that were more important than natural forum indices. The court should have analysed the more relevant features of the dispute, such as the nature of the claim and the type of evidence that would have to be evaluated, in order to identify the clearly more appropriate forum. Instead, it was content to look for, and settle on, a ‘natural forum’ which a fortiori became the ‘more appro-priate’ forum. A more effective framework for analysing forum non conveniens claims would have required the court to consider first the nature of the claim, which was for injuries arising from an aircraft accident. Aircraft disasters, unlike highway traffic accidents, usually bring in their wake investigating teams that are comprised of experts in aviation disaster investigations, manufacturer representatives and representatives of national safety boards. The reports of such investigative teams are useful, but only if the forum that hears the case can evaluate and comprehend such findings. It stands to reason that if an Australian court can hear a tort action relating to an automobile accident that took place in New Caledonia (Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; see also Smart, 2002 and Briggs, 2002), then the reams of evidentiary material available after an aircraft disaster would enable any techno-


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logically literate forum to hear the case, as was demonstrated by the evaluation by the Singapore courts of evidence relating to the SilkAir crash over Sumatra (Clarke v SilkAir (Singapore) Pte Ltd (No 2) [2002] 3 SLR 100). By the same token, the forum in the country where the accident took place does not necessarily make it the clearly more appropriate forum. There are several instances of courts hearing aircraft disaster litigation where the accident occurred in a foreign country and there was no com-plaint that such courts were not suited to hear the case (Goto v Malaysian Sdn Bhd (1983) 26 Jap Ann Int L 122; Sei Mukoda v Boeing Corporation (1988) 31 Jap Ann Int L 216; GokikoInoue v ABIACO Airlines SA (1988) 31 Jap Ann Int L 220). In Brinkerhoff, it could not have been plausibly argued that the capacity to evaluate expert and technical evidence and the capacity to apply the relevant liability principles under the Warsaw Convention available in a Singapore forum could have been matched in any meaning-ful way by an Indonesian forum. This, arguably, should have been the determining consideration. However, in the haste to designate a natural forum, the judge concluded that ‘Indonesia is undoubtedly the more appro-priate forum to hear the claim of the plaintiff’ (Brinkerhoff [1992] 2 SLR 776 at 785), without taking into account the fact that Indonesia is a sprawling archipelago of thousands of islands and that such a large country, by that fact alone, cannot qualify as a realistic forum per se. Possible forums might have been the District Court of Medan, because the accident took place in Sumatra, or in the District Court of Jakarta, because the domicile of the defendant was in Jakarta. The defendant was not, however, required even to specify a forum or demonstrate why it should be regarded as the forum that was clearly more appropriate than the trial court in Singapore. Once the Court of Appeal concluded that the trial court in Singapore was not the natural forum, it concluded that it must necessarily follow that the natural forum, an unspecified court in Indonesia, must therefore be clearly more appropriate as well. If the goal of forum non conveniens principles, as enunciated in the classic Scottish cases that were relied upon by Lord Goff in his speech in Spiliada, was, at the very least, to direct the litigation to the forum that could best hear the case, taking into account the ends of justice and the interests of the parties, the outcome in Brinkerhoff fell far short of this objective. After the decision in Brinkerhoff, the Court of Appeal rebuffed an invitation in 1995 to depart from the Spiliada test in favour of the Oceanic test in Eng Liat Kiang v Eng Bak Hern [1995] 3 SLR 97. In this case, after reaffirming Brinkerhoff, the court attempted to ‘compress’ the Spiliada framework (Eng Liat Kiang v Eng Bak Hern [1995] 3 SLR 97 at 103) but


no attempt was made to inquire whether the framework served any use in directing the litigants to the clearly more appropriate forum, so characte-rised because it could try the dispute fairly and competently in the interests of both parties and would thus further the ends of justice. That such an inquiry is long overdue is indicated by a consideration of the out-comes reached by applying the Spiliada framework in the cases discussed below.

The Application of Spiliada after Brinkerhoff in Singapore Singapore’s reputation as a centre for international commercial litigation excellence made it inevitable that plaintiffs would seek the advantages of litigating in the Singapore courts. This was especially so during and after the turmoil of the Asian financial crisis that saw many debtors in ASEAN and other Asian countries default on their obligations. As a review of some of the principal cases that were decided after Brinkerhoff shows, the unfortunate result of applying Spiliada was that abusive reverse forum-shopping techniques were rewarded. These results were inconsistent with the ends of justice, because plaintiffs were referred to forums that few reasonable persons would regard as worthwhile in which to commence and pursue litigation. In those infrequent instances where the plea failed, it was because the courts found that Singapore law was the governing law, or there was a straightforward loan default under an agreement governed by the law of another Commonwealth country. As was the case in Brinker-hoff, the courts in Singapore appear to have been particularly wary of trying a case where significant Indonesian linkages were present. During the Asian financial crisis, creditors of many Indonesian nationals alleged default and instituted actions in Singapore against them. In most of these cases, the defendants successfully tendered the plea of forum non conveniens and the actions were stayed in favour of the Indonesian forums. The impact of these decisions was to send a signal to foreign parties doing business in Indonesia that they could not expect to litigate in Singapore where the natural forum was deemed to be Indo-nesia, unless they had the benefit of a strong exclusive jurisdiction clause that designated the Singapore courts as the exclusive forum. Even then, there was no guarantee that a Singapore court would agree to hear the case. When business confidence in the entire ASEAN region would have been enhanced by access to the highly regarded commercial courts of Singapore, the deference to the natural forum that was the central plinth of the Spiliada framework meant that foreign parties, including inter-national investors and international lenders, were referred to less well regarded, if not even downright suspect, alternative forums.


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In Lehman Brothers Special Financing Inc v Hartadi Angkosubroto [1999] 2 SLR 427, the plaintiff, an American financial institution, had extended a swap facility to an Indonesian company. When the Indonesian rupiah plunged during the Asian financial crisis, the corporate borrower could not meet its margin calls. The lender demanded additional security in the form of a personal guarantee from the defendant, the President-Director of the borrower, an Indonesian national who was a permanent resident in Singapore and who owned real estate in Singapore. New York law governed the guarantee and the parties had agreed to submit to the non-exclusive jurisdiction of the New York courts. The lender instituted an action in the Singapore courts against the guarantor. In the Singapore action, the defendant alleged that his guarantee was procured by duress on the part of one of the plaintiff’s managers and was therefore invalid. His counsel told the court that, if the case were tried in Indonesia, Indonesian conflict of laws rules would require that the guarantee be also valid under Indonesian law and that under Indonesian law the guarantee would be invalid because spousal consent, allegedly required under Indonesian law, was lacking (Lehman Brothers Special Financing Inc v Hartadi Angkosubroto [1992] 2 SLR 427 at 435). Having submitted himself to the jurisdiction of the Singapore courts, the defendant sought a stay on the ground of forum non conveniens. The judge granted a stay on the basis that the natural forum was either a court in New York or Indonesia and that it was ‘certainly not Singapore’ ([1992] 2 SLR 427 at 440). The judge’s reasoning, based on Spiliada, demonstrates the flaws of the framework. First, the judge concluded that an Indonesian court was a natural forum, despite the defendant’s candid averment that an Indo-nesian court would disregard the explicit choice of New York law as the governing law in favour of Indonesian law. The fact that an Indonesian court would ignore the choice of law chosen by the parties should have disqualified it in limine from being considered an appropriate forum.14 Second, the judge determined that the tasks of determining the New York law on duress and its application to the facts of the case were tasks that should not be undertaken by his court. But would an Indonesian court have done a better job of ascertaining the content of the New York law of duress and then applying such law to the facts of the case than a Singapore court? Several offshore law firms are located in Singapore and it would have been easy to secure the services of an attorney admitted to the New York Bar to testify in Singapore on the New York law of duress. In view of these two factors alone, it is difficult to understand how a Singapore court could regard an Indonesian court as more suitable than itself. The only explanation appears to be that, once the court concluded that a Singapore forum was not the natural forum, any other forum that


had even a superficial nexus with the dispute, however unsuitable other-wise, was regarded as more appropriate than a Singapore court. The judge also referred to several mundane factors (such as the convenience of travel), which in the larger context of the dispute between an officer and shareholder of an Indonesian conglomerate and a reputable American financial institution, were utterly trivial considerations. For instance, the judge observed that witnesses would have to travel whether the forum were New York, Singapore or in Indonesia. Viewed in its proper context, this factor should have been of little significance. The comparison is also misleading because businesspersons travel frequently between Singapore and Jakarta, and such trips are not comparable to travelling to New York. The dispute in this case involved straightforward issues that could have been easily and efficiently tried in Singapore, but the court stayed the action, simply because it concluded that it was not the natural forum. The decision in Bambang Sutrisno v Bali International Finance Ltd [1999] 3 SLR 140 (Bambang Sutrisno) displays a similar preoccupation with the natural forum to the exclusion of factors more relevant to deter-mining which forum was more appropriate. The plaintiff finance company had obtained from the defendant a personal guarantee governed by Indonesian law in respect of a loan to a company owned by the defendant-guarantor. The defendant had submitted to the non-exclusive jurisdiction of the District Court of Jakarta. Both the governing law clause and the non-exclusive jurisdiction clause contained emphatic language whereby the defendant acknowledged that the plaintiff could sue in any jurisdiction that it deemed fit. Furthermore, the defendant agreed to waive any objections on the ground of venue or forum non conveniens. When sued in Singapore under this guarantee, the defendant, an Indonesian citizen but a permanent resident of Singapore, moved for a stay on the basis on forum non conveniens. The trial judge rejected this plea but the Court of Appeal, applying Spiliada, reversed. Confronted with the fact that the defendant sought a stay on the basis of forum non conveniens in violation of his explicit contractual under-taking not to tender the plea, the Court of Appeal invoked analogies from cases that allowed parties to institute actions in breach of an exclusive jurisdiction clause. The cases relied on by the court established the propo-sition that a court, while not bound by an exclusive choice of jurisdiction clause, would nevertheless stay an action brought in violation of the clause unless there were strong reasons to disregard the clause and hear the case. Relying on these precedents, the Court of Appeal decided that it would evaluate all the circumstances of the case when considering whether to hold the defendant to his undertaking. A proper evaluation would have required not only the listing of relevant facts but also a


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consideration of the weight to be attached to these facts. For example, Singapore is often considered as a safe haven by successful Asian businessmen who conduct business in their own countries in the region but who are also nervous about the political stability of their countries. Such persons often secure permanent residence in Singapore and pur-chase property there. The fact that a prospective borrower is a permanent resident of Singapore and has property there would undoubtedly provide comfort to a potential lender who would rightly conclude that such a borrower could be pursued in the Singapore courts and be vulnerable to the execution of an adverse judgment in Singapore. This is a reality that is obvious to most persons doing business in the region and should have been taken into account in a comprehensive and judicious evaluation of the relevant circumstances. Second, the court emphasised material that merely showed that Singapore was not the natural forum. It certainly did not show that the District Court of Jakarta was the clearly more appropriate forum. The judge observed that the plaintiffs were foreign companies that did not conduct business in Singapore; the transaction had no connection with Singapore; and that ‘the only connection it has is the fact that the appellant is a permanent resident in Singapore and has assets here’ (Bambang Sutrisno [1999] 3 SLR 140 at 144). With respect, this is an extraordinarily diffident approach for a highly respected commercial court situated in a prominent centre of Asian commerce to adopt. The foreign nationality of the plaintiff and a lack of a nexus with the forum would be considerations that an American court would be required to take into account as the conservation of judicial resources is a factor that must be considered in the United States. However, as Lord Hope emphasised ‘the principles on which the doctrine of forum non conveniens rest leave no room for considerations of public interest or public policy which cannot be related to the private interests of any of the parties or the ends of justice in the case which is before the Court’ (Lubbe v Cape plc [2000] 1 WLR 1545 at 1566). Accordingly, in a forum non conveniens inquiry where the test is whether the foreign forum proposed by the defendant is shown to be clearly more appropriate, having regard to the interests of both parties as well as the interests of justice, the fact that the plaintiff is foreign and does not conduct business in Singapore should not be highly material factors. It can hardly serve the interests of justice to send the plaintiff, who had priced the transaction on the basis that it could select the forum and that the forum non conveniens plea would not be deployed against it, to a forum proposed by the defendant. Moreover, most commercial lawyers would advise their clients to consider not only the solvency of the guaran-tor, but also the vulnerability of the guarantor to speedy enforcement. It is


safe to assume that the defendant’s status as a Singapore resident and his ownership of assets in Singapore induced the plaintiff to accept his guarantee. Instead of giving due weight to these facts in order to reject the plea for a stay, however, the court merely mentioned them in passing, as if they were legally insignificant. Finally, the court misread English authority in its analysis of the non-exclusive jurisdiction clause (S&W Berrisford plc v New Hampshire Insurance Co [1990] 2 QB 631). Noting that the guarantee allowed the plaintiff to submit the case to a court in Jakarta, the court observed that ‘some weight should be accorded to the selection’ of the court (Bambang Sutrisno [1999] 3 SLR 140 at 144). In fact, it accorded more than ‘some weight’, because it approved an observation in another case relating to the choice of an Indonesian forum that declared that the ‘plaintiff should not be heard to argue that Indonesia would not be an appropriate forum for the trial’ (Bambang Sutrisno [1999] 3 SLR 140 at 144). There are several errors in this analysis. The court misunderstood the thrust of an English decision where the action in question had been brought in England, the designated forum. Hobhouse J (as he then was) correctly observed that, in such a case, one party could not assert that the designated forum was not an appropriate forum (S&W Berrisford plc v New Hampshire Insurance Co [1990] 2 QB 631 at 638). Hobhouse J was not dealing with a case where one party was trying to convert a non-exclu-sive jurisdiction clause into an exclusive jurisdiction clause. Moreover, in view of the undertaking of the defendant not to tender a plea of forum non conveniens, the proper interpretation of the clause should have been that the lender is free to decide that what was once an appropriate forum is, due to changed circumstances, no longer appropriate. The defendant had to show the court that the Jakarta court was the clearly more appropriate forum. However, since Spiliada permitted the court to conflate the more appropriate forum with the natural forum, the defendant obtained the stay that he sought. The Singapore courts have exhibited a distinct aversion to conducting trials that involve questions on Indonesian law. Such an aversion goes beyond the boundaries of the general principle that it is clearly advan-tageous for questions of foreign law to be decided by the courts of that country (The ‘Eastern Trust’ [1994] 2 SLR 526; The ‘Hyundai Fortune’ [2004] 2 SLR 213). Such an aversion is counterproductive, because Indo-nesian courts themselves would find the task of enunciating and applying rules of Indonesian law based on 18th century Dutch codes and Dutch colo-nial regulations challenging.15 Moreover, it is an unconvincing argument to state that the Indonesian courts must be given the first opportunity of clarifying the law because the Indonesian legal system, being a civil law


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system, does not recognise the concept of a binding judicial precedent. In Bambang Sutrisno [1999] 3 SLR 140, the two Indonesian law issues that the Singapore court was reluctant to address could have been resolved through the use of experts in Indonesian law. Arbitral tribunals composed of non-Indonesian lawyers have chosen between vigorously contested interpretations of Indonesian law that applied to complex independent power production contracts and have awarded damages amounting to hundreds of millions of dollars.16 It is surely beyond question that judges of the premier commercial forum in Asia can ascertain and apply the relevant Indonesian law to a relatively simple guarantee agreement. However, in Bambang Sutrisno the quest for a natural forum proved diversionary and subverted the more fundamental values of forum non conveniens law. The decisions involving an Indonesian party should not be regarded as sui generis and attributable to an all too understandable reluctance on the part of the Singapore judges, accustomed to the clarity of modern legislation and judicial precedent, to enter the bleak and murky territory that is Indonesian law. The main thrust of these decisions and other deci-sions where a stay has been granted is the principle that, where Singapore is not the natural forum and absent special circumstances (such as an exclusive jurisdiction clause choosing Singapore courts), a stay should be granted in favour of a foreign forum. For instance, the Court of Appeal in Oriental Insurance Co v Bhavani Stores Pte Ltd [1998] 1 SLR 253 stayed an action in favour of an undesignated court in India. Here, the insured sued an insurance company over the loss caused by the shortfall in the weight of a cargo of cashew nuts that had been insured by the defendant. The defendant argued that the weight loss was caused by moisture evaporation, which was not an insurable loss, while the plaintiff argued that the loss was caused by spillage caused by negligent unloading. When the plaintiff sued the insurance company, the latter sought and obtained a stay of action on the basis of a forum non conveniens plea. Here again it appears that the Spiliada framework encouraged the court to engage in a mechanical balancing exercise that resulted in a stay, when a more intense engagement with the real issues would have led to the denial of a stay. For instance, the court noted that English law was the governing law of the insurance contract and concluded that English law would be applied fairly in both Singapore and India, thereby conflating the issue of the integrity of the Indian courts with the issue of resources on English law available in India. It is no secret that the Indian courts, like most other courts in South Asia, are chronically under-funded and lack access to the high-priced United Kingdom legal publications. Singa-pore, on the other hand, has arguably the best law libraries in Asia; the legal community can afford access to expensive subscription-based online


legal reporting services; and Singapore has lawyers trained in English law both in the local Bar as well as in offshore law firms. While there was no explicit choice of jurisdiction clause in the insurance policy in Oriental Insurance Co v Bhavani Stores Pte Ltd [1998] 1 SLR 253, the policy pro-vided that claims would be payable in Singapore or in India and that the currency of payment would be US dollars. If the contra proferentem maxim was used, an interpretation beneficial to the plaintiff would have been reached. If the claim was payable in India or in Singapore, the plaintiff could surely have the right to choose where it would be paid. If, on making the claim, the insurer resisted payment, as was here the case, the claim would then become payable only pursuant to an enforceable judgment. To obtain the enforceable judgment, the plaintiff could elect to litigate in Singapore, especially since the expedited appeals process in Singapore would be preferable to the delays in India. Besides, the currency of payment of the claim, US dollars, was material, because a US dollar payment would have been easy to obtain in Singapore, unlike in India where rigorous foreign exchange controls prevailed. The court concluded, however, that a stay would not cause substantial injustice to the plaintiffs and that the ‘overall effect would be to cause inconvenience’ ([1998] 1 SLR 253 at 265). This understates the injustice caused to the plaintiff. The parties to an international sale of goods trans-actions, including the insurers, know that loss could occur at any time and place. Insurers, by the very nature of their business, must be presumed to have the resources to defend an action in any credible commercial forum, whether it be London, Hong Kong or Singapore. Commodity sales con-tracts typically involve string sales where the original buyer sells the goods to other buyers. A major reason for a buyer to purchase insurance is to offset a potential claim for damages for non-delivery by a sub-pur-chaser. Accordingly, compelling reasons must exist to deny the buyer the right to choose that forum from which timely satisfaction would be obtained. In such a context, post-trial remedies are surely part of the relevant factual matrix. The only reasons that supported a stay were, again, those that showed that a Singapore court was not the natural forum. While it is arguable that an experienced judge in the Commercial Court in England would have denied a stay on the same facts, the Spiliada framework as utilised abroad lends itself to superficial appli-cations that hardly promote the basic values articulated in the classic Scottish cases. In the majority of cases where the Singapore courts have denied a stay, it was because the transaction had originated in Singapore or because the governing law was that of Singapore. Thus, in Asia Pacific Ventures II Ltd v PT Intimutiara Gasindo [2002] 3 SLR 326, which


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involved the enforcement of a bond issued by the defendant in favour of the plaintiff, the governing law was Singapore law and the non-exclusive jurisdiction clause specified Singapore with a provision for the plaintiff to elect for arbitration to be conducted under the auspices of the Singapore International Arbitration Centre. The defendant’s plea for a stay in favour of an Indonesian forum was denied by the High Court on the basis that since the parties had chosen to structure a multimillion dollar transaction under Singapore law and ‘evinced an intention to utilize the legal infra-structure of Singapore’ ([2002] 3 SLR 326 at 336), a stay would be inappropriate. The Singapore courts have also denied a stay when the con-tract in question envisaged performance in Singapore; or the contract was made in Singapore and one of the parties wanted the case to be tried in Singapore; or where the dispute concerned an allegation of shareholder oppression under s 216 of the Singapore Companies Act (Transtech Electronics Pte Ltd v Choe Jerry [1998] 3 SLR 272). The Singapore courts, like the Hong Kong courts, have had more than their fair share of cases where a stay has been sought and granted on the ground of forum non conveniens. The locations of many of these alternative forums were in poor Asian developing countries. These courts were unsuitable for various reasons. Such reasons included the outright judicial corruption or incompetence of the judges in these forums; the poor quality of the lawyers and the lack of any credible professional ethics oversight; or chronic under-funding of courts, leading to massive backlogs of cases. The constrictions of the Spiliada framework have prevented the retention of commercial disputes in the most capable and reputable forums. As a result, actions have been stayed in favour of a natural forum that is otherwise wholly unsuitable to try the case. The effect has been unfairly to penalise plaintiffs and permit reverse forum-shopping by unscrupulous defendants. This, it can hardly be argued, is a result consistent with the basic premise of the classic cases that stays cannot be granted when to do so would jeopardise the interests of justice.

A New Framework for the 21st Century The phrase ‘the ends of justice’ is a concept that has been the central plinth of forum non conveniens analysis for more than a century (Sim v Robinow (1892) 19 R 665). In the many cases (whether in Singapore or in the other common law jurisdictions) which have used the Spiliada frame-work, this standard, however, although invariably invoked, appears to invite specific reflection of its meaning only in the context of Stage II, where the plaintiff attempts to rebut the defendant’s prima facie case. In Stage I, it appears to be no more than a routine incantation devoid of practical significance. The standard that appears to have displaced the


‘ends of justice’ in Stage I is the notion of ‘judicial comity’ and the judicial agnosticism that it mandates. This approach is illustrated in Q&M Enter-prises Sdn Bhd v Poh Kiat [2005] 4 SLR 494, where Andrew Phang JC (as he then was) revisited the doctrinal underpinnings of the forum non conveniens doctrine and emphasised the need for judicial comity, an approach that would eschew ‘parochialism which is now wholly anomalous in a thoroughly interconnected world’ ([2005] 4 SLR 494 at 505).17 He quoted with approval an observation from the Singapore Court of Appeal that it was not the business of any court in Singapore ‘to pass judgment on the competence or independence of the judiciary of another country, all the more so of a friendly country’ (The Hung Vuoung-2 [2001] 3 SLR 147). This approach is consistent with the approach of American courts in forum non conveniens cases where the plaintiff makes allegations of foreign judicial corruption or incompetence that are supported by credible independent reports such as those from the US Department of State (Bauman v Daimlerchrysler [2005] US Dist LEXIS 31929 (ND Cal); Gon-zales v PT Pelangi Niagra Mitra International 196 F Supp 2d 482 (SD, Texas 2002)). This approach, while finding some support in the aversion to ‘judicial chauvinism’ in the Spiliada jurisprudence, invites several rejoinders. First, considerations of comity should not be used to sanitise a foreign forum but should only operate to restrain the forum from succumbing to irrational prejudices against foreign courts and consequently erecting an insuperable barrier to a meritorious application for a stay in Stage I. Indeed the court is required – even under Spiliada in the Stage II phase – to appraise the suitability of the foreign forum if this has been raised by the plaintiff (Datuk Hamzah bin Mohd Noor v Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj [2001] 4 SLR 396). If a high degree of deference to considerations of comity is required, then it is logical to expect that the level of such deference should not vary during the various stages of a forum non conveniens hearing. However, in the Spiliada framework, presumptions flowing from the concept of comity operate to help artificially consolidate the prima facie case that the defendant seeking a stay is required to establish. But if the plaintiff then successfully proceeds to challenge the integrity of the foreign forum proposed by the defendant, considerations of comity that should otherwise have precluded such an attack would have been set aside in favour of adopting a highly disparaging assessment of the foreign forum. The short point is that comity considerations should be relegated to their proper place, which is to guard against an irresponsible and capricious attack on the integrity of a foreign forum and not be invoked to shield a judge from the distasteful task of confronting the manifest defects of the foreign


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forum and concluding that such a forum is not clearly more appropriate than the court in which the action has been instituted. As noted earlier, a similar genuflexion at the altar of comity is found in the American cases, but American decisions, at the same time, allow federal courts to disregard an annulment of a foreign arbitral award by a competent foreign court and confirm enforcement of an award that would be properly regarded as annulled under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature 10 June 1958, 330 UNTS 38 (entered into force 7 June 1959) (Chromalloy Aeroservices v Arab Republic of Egypt 939 F Supp 907 (DDC, 1996); see Giambastiani, 2004-05). Moreover, some US statutes such as the Torture Victim Protection Act (28 USC § 1350) require a US court to consider the integrity of the judiciary of a foreign country and the ade-quacy of foreign legal remedies. Thus in Abiola v Abubakar (435 F Supp 2d 830 (2006)), the District Court relied on a US State Department Report issued in 2006 which stated that the Nigerian ‘judicial system does not function adequately because of corruption and under funding’ (435 F Supp 830 at 837). How these decisions are consistent with comity is not imme-diately obvious. What they instead show is that comity is an elastic concept that is most useful when it prevents the judiciary from hindering the executive branch in the conduct of foreign policy or when it facilitates judicial co-operation across borders in order to achieve just results. The ill-defined concept is improperly used when comity is used to construct an impregnable fortress that keeps out higher considerations such as access to justice. Second, it is improper to use the notion of comity as a veil that con-ceals the parlous state of the judiciary in many developing countries, even though these are well-documented in independent reports and by World Bank studies and are sometimes publicly asserted by senior officials in these very same countries.18 When this fact is routinely glossed over by the fiction that all foreign courts are as good as the Singapore courts, what results is an unbearable tension between, on the one hand, sustaining the interest of justice and the legitimate interests of the parties by the court insisting that the foreign forum not only be convenient but also appro-priate and, on the other hand, the notion of judicial comity. In a contest between the two, the victor usually is the latter. In only a handful of cases has a plea relating to the competence of the foreign forum succeeded, and some American decisions have wryly noted the futility of resisting a stay by asserting the serious defects of the foreign forum.19 A Stage II plea usually succeeds when the concern articulated relates to formal features of the foreign forum, such as the absence of legal aid, as happened in Lubbe v Cape plc [2001] 1 WLR 1545.


Third, it is surely itself a form of judicial parochialism to somewhat self-righteously abjure parochialism in the face of a compelling body of evidence that points to a precipitous decline in judicial standards in many countries, for reasons that can range from outright corruption and politically dependent judges to incompetent judges and chronically malfunctioning court systems. The ‘see no evil’ injunction flowing from the Spiliada framework hinders the pragmatic acknowledgement of reality which is the hallmark of the common law. Fourth, considerations of comity should prevent a court from declining a stay when the foreign court is, indeed, more suitable than the court where the action is brought. It should not be the basis for fashioning a presumption of law in the Stage I phase, because it undermines the force of the plain language of Lord Goff, who insisted that the foreign forum must be ‘clearly more appropriate’ ([1987] AC 460 at 477). Such strong language suggests that in order to show that the alternate forum is ‘clearly more appropriate’ positive proof is required and that substituting for such proof a comity-based presumption is in reality a boot-strapping exercise. Finally, it is arguable that the concept of ‘comity’ itself has been substantially diluted by cross-border litigation involving human rights violations, where national courts have been willing to cast off restraints involving the review of acts of a foreign sovereign. Such proceedings neces-sarily imply that justice cannot be secured in the local courts.20 Comity arguably is destined to be a fig-leaf legal concept that can be invoked to cloak judicial abstinence in an increasingly limited number of cases. Its use by the abstaining forum to direct a plaintiff, who is able to sue in that abstaining forum, to a suspect forum where the interests of justice are not guaranteed is untenable in a globalised commercial environment where some courts are plainly unsuitable to handle cross-border commercial cases, while others have developed expertise in that area. Given a realistic, if dispiriting, assessment of the state of the judiciary in many countries, what are the alternatives to the Spiliada framework that effectively forbid a realistic assessment of the other forum? It is argued that just as a judge is allowed to determine the ‘modern inter-national view of justice’ by examining an international convention that represents ‘an internationally sanctioned and objective view of where sub-stantial justice’ is situated on the particular issue (The ‘Herceg Novi’ and ‘Ming Galaxy’ [1998] 2 Lloyd’s Rep 454 at 459), so it should be possible to invoke relevant norms of public international law to ascertain the content of the concept of the ‘ends of justice’ (Kirby, 1998). In Lubbe v Cape plc [2001] 1 WLR 1545, Lord Bingham held, in the context of access to legal representation, that the enforcement of protections contained in art 6 of


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the European Convention on Human Rights and Fundamental Freedoms would not lead to outcomes different from those resulting from applying Spiliada principles. Article 14(1) of the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171, 6 ILM 368 (entered into force 23 March 1976) (ICCPR) is similar to art 6 of the European Convention on Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, CETS no 005 (entered into force 3 September 1953). Article 14(1) of the ICCPR reflects contem-porary standards of justice in the context of litigation when it declares that a litigant ‘shall be entitled to a fair and public hearing by a com-petent, independent and impartial tribunal established by law’ (emphasis added). That many courts in developing countries are not competent, inde-pendent or impartial are incontrovertible facts, documented in reputable studies. The low standards in judicial integrity and competence are not found only in countries that were kleptocratic dictatorships like Indonesia. Studies have confirmed an alarming decline in judicial standards in Com-monwealth countries, such as India and Sri Lanka, that once had well-deserved reputations for judicial integrity and competence (Transparency International, 2002; Asian Human Rights Commission, 2006; Ivan, 2003). The World Competitiveness Report awards a score of 8.54 and 7.71 out of a possible ranking of 10 to Singapore in its rankings on Bribery and Corruption and Justice respectively, while awarding 0.73 and 2.32 respectively with regard to the same categories to Indonesia (International Institute for Management Development, 2005: 512, 623). Even courts in Russia and China get higher scores than their Indonesian counterparts. The crisis of low standards and judicial corruption in much of the developing world has prompted many donor-funded initiatives to reverse this trend (World Bank, 2004). Few would seriously argue that citizens of countries in developing countries afflicted by corruption in fact enjoy the rights of art 14(1) of the ICCPR. A survey of 160 countries commissioned by the World Bank found that, where judicial predictability was weak, corruption levels were high and that there is a link between corruption and the absence of civil liberties (World Bank Institute, 2006: 17). It is thus not unreasonable to require a defendant, who seeks a stay in favour of a forum located in one of these countries, to address and resolve grave concerns about access to justice issues (such as the impar-tiality and competence of the courts) that would be held by reasonable persons who do business in such countries. Given the immense disparity that exists between the courts of Singapore and Hong Kong, on the one hand, and the courts of many Asian developing countries on the other, in terms of judicial integrity and compe-tence, how viable is a framework that commands a court in Singapore or


Hong Kong to treat the alternative forum in a developing country with a well-known reputation for rampant corruption as roughly equivalent to it? Arguably, judicial agnosticism that is so divorced from reality comes close to a boundary that separates circumspect judicial comity from abetting unscrupulous defendants who exploit corrupt and backward judicial sys-tems to force unfair compromises and thereby thwart the ends of justice. In theory, the Stage II phase of the Spiliada framework allows the plaintiff to raise the deformities of the alternative forum to rebut the prima facie case for a stay that a defendant has made merely by showing that the alternative forum is the natural forum. In practice, however, the plaintiff is required to take a hazardous course that could backfire if the forum court does not sustain his attack on the alternative forum. Moreover, the chance of the plaintiff failing is increased because of the reluctance of the forum court to engage in ‘judicial chauvinism’ (The Hooghly Mills Co Ltd v Seltron Pte Ltd [1995] 1 SLR 782). The end result is that the plaintiff who has properly invoked the jurisdiction of the forum is required to undertake high risk litigation strategies in order to rebut a prima facie case that can be easily made out by the defendant. As a policy matter, permitting the court to investigate the infirmities of an alter-native forum in Stage II is both impractical and unwise. It is impractical because this avenue would probably open the floodgates for attacks on foreign courts, given the parlous state of alternative forums in many developing countries. More importantly, the judiciary should not be required to engage in the sensitive task of directly criticising foreign courts if more indirect avenues are available. In the context of ASEAN, where even governments are averse to commenting adversely on the affairs of fellow ASEAN governments, such a role for the courts is not viable, even during the Stage II phase under Spiliada. In the Asia-Pacific region, the ‘not clearly inappropriate’ model used in Australia has provided a rival framework to Spiliada (Oceanic Sun Line Special Co Inc v Fay (1998) 165 CLR 197; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538). The Australian High Court, probably not unmindful of the poor quality of neighbouring forums, shielded Aust-ralian judges from the unpleasant task of evaluating foreign courts. Accordingly, it required Australian courts to retain jurisdiction in cases except in situations where it would be ‘clearly inappropriate’ to do so. The practical result of this holding is to reduce the number of cases that would be referred by Australian courts to forums of suspect integrity. Neverthe-less, there may be other circumstances where this holding would deprive a clearly more appropriate forum from hearing the case simply because the Australian court is not a clearly inappropriate forum. This model is too rigid to be of much use in a legal system that assiduously seeks to promote


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the beneficial aspects of forum non conveniens policy. Another possible model is the US model, which requires the court to consider how public interest factors are affected (Gulf Oil Corp v Gilbert 330 US 501 (1947)). The unique features of the American federal system and the complexities of diversity jurisdiction law in the United States make this an unfamiliar model for most common law courts in Asia. The most rigid model is that established by the Brussels Regulation (Council Regulation 44/2001, 2001 OJ (L 12) giving effect to the European Communities Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, 1972 OJ (L 299) reprinted as amended in (1990) 29 International Legal Materials 1413. Under this model, the default rule, subject to limi-ted exceptions, is that in the European Union the defendant must be sued in the Contracting State in which the defendant is domiciled and this model does not permit the use of forum non conveniens mechanism. This article proposes a model that acknowledges the constructive role of the forum non conveniens doctrine in international litigation. It incor-porates values based on the following uncontroversial propositions: first, the entire purpose of the forum non conveniens inquiry is to ascertain the forum where the litigation would be best conducted. If the routine appli-cation of forum non conveniens rules directs the litigation to a so-called natural forum that fails this criterion, abusive reverse forum-shopping will probably be rewarded. Considerations of comity are relevant but must be evaluated together with other considerations in order to avoid a ‘tail wagging the dog’ outcome. Second, the successful and just adjudication of a dispute does not depend exclusively on factors associated with the concept of a natural forum, such as the presence of witnesses and the governing law. Given the complexity of many transnational commercial disputes, the capacity of the forum to evaluate complex legal and technical issues, the capacity of the Bar to handle such cases and the integrity of the judges are equal, if not more important, factors than consideration of natural forum attributes in assessing a forum’s suitability.21 Third, it is an unjust burden to place on a plaintiff who has properly instituted an action in a particular forum the responsibility to denigrate the alternative forum proposed by the defendant, except in situations where the relevant factors are particularly within the knowledge of the plaintiff. The burden is unjust because it requires – for no good reason – that the plaintiff assume the risk that his attack on the alternative forum would fail, with the possible consequence that the alternative forum will be hostile to him. The predictable outcome of an unsuccessful challenge to the integrity of the foreign court will be that the plaintiff would probably choose to settle and lose her day in court. If this happens with a great


degree of regularity, then the whole exercise of staying an action in favour of a more appropriate forum becomes pointless and the process of deciding the question becomes a charade. Fourth, in a dispute relating to the proper forum, the forum must not lose sight of its obligation to protect the integrity of its own jurisdiction. In Turner v Grovit [2002] 1 WLR 107, reversed by the European Court of Justice [2005] 1 AC 101 (ECJ), Lord Hobhouse observed that the pro-tection of English proceedings is ‘regarded as a legitimate subject matter for an English court. It is not the concern of any other court’ ([2002] 1 WLR 107 at 122). In forum non conveniens cases, the interest of the forum in protecting the integrity of its proceedings is also at issue because, if the forum does abstain from exercising its jurisdiction on a premise that is ultimately misleading or false, the forum has not protected its legitimate interests and has not discharged its duty to the public. Finally, the proposed model rests on the hoary professional rule that lawyers, while owing duties to their clients, are foremost officers of the court and owe a fundamental duty to the court to promote the administration of justice. In view of the above, this article proposes a basic alternative model to assess forum non conveniens pleas that would require an advocate arguing for a stay on the ground of forum non conveniens to make a full and complete disclosure of all available credible material about the capacity of the alternative forum. Under this proposed model, the defendant’s advocate will be under an explicit duty to assist the court to determine which forum is the more appropriate. Such a duty will not be discharged merely by showing that the alternative forum is the natural forum. In addition to showing that the alternative forum is the natural forum, the defendant’s lawyer should also submit a complete record that would be relevant in assessing the appropriateness of the alternative forum. Indeed, a panel established by a body of Commonwealth judges could devise a form using standard indicators such as the complexity of the dis-pute, the qualifications of the local Bar to handle complex commercial matters, and the ranking of the judges in terms of integrity and com-petence using established international indicators. Under the current Spiliada framework, most of these issues can only be argued at Stage II and, even then, the courts have demonstrated an unwillingness to make adverse findings against foreign courts. The model proposed in this article requires that the defendant address these issues right at the outset by disclosing all relevant and credible material that raises questions about the suitability of the alternative forum and then provides reasons why the forum should disregard that material. Such credible and relevant material would include information on the ratings that the alternative forum has obtained on reputable indices. These


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indices could be those compiled by respected non-governmental agencies such as Transparency International; reports on court systems contained in diplomatic compilations such as the US State Department country reports; and judicial reform project reports commissioned by international organisations such as the World Bank and the Asian Development Bank. There is a wealth of credible and relevant material readily available and the defendant should be obliged to submit it to the court. This does not prevent the defendant’s advocate from attacking the quality of the reports, but he or she must disclose such material as a condition of taking up the plea of forum non conveniens. Thus, under this model, a defendant who seeks a stay in favour of an alternative forum would have to disclose material relating to that forum that is freely available and is a matter of public record.22 If this is done, the forum where the plaintiff has instituted the action would have to decide what weight it should attach to material on the integrity of foreign courts that is routinely found in US State Department country reports and other credible reports. After disclosing such material to the forum, counsel for the defendant seeking a stay in favour of the alternative forum would have the opportunity to challenge the probity of the material and the inferences to be drawn from this material, if the counsel believes that such a challenge is warranted and is consistent with the duty not to mislead the court. Another issue relating to the alternative forum that must be confronted is the low standard of the legal profession in many developing countries. Studies by policy institutes have revealed widespread instances of lawyers suborning perjury; procuring the disappearance of court files and evidence; bribing judges; and other instances of unethical conduct. Requiring the forum to investigate the capacity of the Bar of the alternative forum in each and every case where the plea of forum non con-veniens is taken may be impracticable and cumbersome. The net result would be to put an almost intolerable strain on the forum. It could be argued that a less than competent Bar is no less an impediment to securing the ends of justice as an incompetent or corrupt judiciary. If the forum concludes that the alternative forum is corrupt or lacks inde-pendence that should be the end of the matter. If, however, the problem is one of an incompetent Bar, it is arguable that the forum court should not deny a stay purely on these grounds because parties could assist local counsel by bringing in their in-house lawyers, as well as lawyers from the law firm that normally handles their cases, to brief the lawyers of the alternative forum, assuming that such involvement is permitted. The proposed model would also have a place for a Stage II that is analogous to the present Stage II of the Spiliada framework, where the


burden of proof is on the plaintiff. If the defendant can, after disclosing all reputable material on the alternative forum, persuade the trial judge that the stay would be appropriate because the alternative forum is, indeed, clearly more appropriate, then a stay should ordinarily be granted unless the plaintiff can prove matters, peculiarly within his or her knowledge, that would disqualify the alternative forum. Such matters would include a well-founded fear of religious, political or other type of persecution; and even transaction-specific factors that operate to prevent the plaintiff from presenting his or her case fairly. At this stage, the plaintiff takes a risk that, if the plea fails, the strategy could backfire and the alternative forum could penalise him or her. However, placing such a risk on plaintiffs is not inequitable because if they assert special circumstances, they should be able to prove them. This model represents an improvement on the current Spiliada framework for several reasons. First, there is more substance given to the term ‘clearly more appropriate forum’, so that a natural forum will not ipso facto qualify as such a forum. Instead, it situates the natural forum criterion in the context of a more realistic larger picture. Second, it takes into account the realities of the poor quality of many developing country courts and allows the forum court to weigh this without requiring the forum court to make an affirmative finding that is critical or disparaging of these courts. As a consequence, a responsibility is put on a reverse forum-shopping attorney to present fairly all the salient considerations to the court. At present, such responsibility can be bypassed by merely showing that the alternative forum is the natural forum and silencing criticism of that forum by invoking considerations of comity. Finally, the model achieves the fundamental goal of forum non conveniens law, which is, of course, to assure that the more appropriate forum hears the case. One final advantage of the model proposed here is that it is consistent with the overall duty of the advocate to the court. Lord Reid in Rondel v Worsley [1969] 1 AC 19123 stated the current law of most Commonwealth jurisdictions when he affirmed that an advocate is:

An officer of the Court concerned in the administration of justice (and that) he has an overriding duty to the Court, to the standards of his profession and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests. ([1969] 1 AC 191 at 231)

In Myers v Elman [1940] AC 282 at 319, Lord Wright said that the court has a duty to penalise conduct of a lawyer that is of such a nature as to defeat justice in the very cause in which he or she is professionally engaged. It is trite law that an advocate has a duty to bring to the atten-tion of the court pertinent authorities, even if they are unfavourable.


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Likewise, the defendant’s counsel who seeks to persuade the forum to stay the action in favour of an alternative forum must surely be required to submit all the relevant material, including that which is unfavourable. If the forum proposed by the defendant’s lawyer seeking a stay manifestly lacks integrity, or is otherwise incapable of trying the case in a manner that is acceptable under widely recognised principles, surely that lawyer is misleading the court into not exercising its proper jurisdiction by not bringing to the court’s attention material that undercuts the claim that the alternative forum is ‘clearly more appropriate’. Defenders of the status quo may object to the proposed model on the basis that the forum court is still required to consider sensitive issues such as foreign judicial corruption and judicial independence. As such, they may argue that the model plunges the court into the undesirable territory of investigating the integrity of official organs of a friendly foreign country. There are two answers to this objection: first, this model forces the defendant’s counsel, seeking a stay, to balance the interests of the client with that of counsel’s duties to the court. This would deter responsible advocates from trying to convince the trial court that the alternative court is more appropriate, when the material that counsel is required to submit indicates a court system that does not meet basic levels of integrity and competence. Second, because the defendant will shoulder the burden of proving not only that the alternative forum is the natural forum but also that it is fully capable of dealing with the complexities of the case and that it is not tainted by credible allegations of judicial corruption, a court can deny a stay in favour of a suspect alternative forum with a short explanatory paragraph that states that the defendant has not discharged the required burden of proof. This dispenses with the requirement of making a detailed finding of unsuitability that is required under the present Stage II part of the Spiliada framework in order to deny a stay in favour of the natural forum. Such a bland judicial determination will be far less offensive to the country of the alternative forum than that theoretically available in the present Stage II process of the Spiliada framework, where an affirmative finding of unsuitability complete with a detailed description of the egre-gious flaws in the proposed forum could be made. It is precisely because the listing of all the faults of the alternative forum is potentially so offen-sive that the present Stage II is, in effect, a dead letter.

Conclusion Common law courts in the Asia-Pacific region (with the exception of Aust-ralia), having succumbed to the allure of the Spiliada framework with its emphasis of the primacy of the natural forum and its accompanying


laundry list of factors, have done a grave disservice to the interests of justice by staying actions in favour of some developing country courts that are well-known to be widely corrupt and incompetent. The complexities of cross-border litigation render difficult the successful application of the ‘reflective’ approach recommended by Lord Templeman in Spiliada, but an unflinchingly realistic approach, divorced from a sterile formalism that concentrates on the essentials such as the ends of justice and the capacity of the alternative forum to secure these ends has much to recommend it. Staughton J, the trial judge in Spiliada, cautioned against accepting a proposal that ‘tends to take one’s eye off the ball’ (Spiliada [1987] AC 460 at 470). The Spiliada framework does precisely that, directing the forum court to focus on the natural forum and shun judicial chauvinism, when it should instead be concentrating on the legitimate interests of both parties and the interests of justice. The unfortunate result of such distraction, to develop Staughton J’s metaphor, is that the ends of justice are frequently given out leg-before in respect of balls that were pitched outside leg stump. One of the abiding strengths of the common law is so often that its content is closely aligned with, and supported by, the dictates of common sense. However, there are few areas in the law where the gap between content and common sense is wider than in the current retention of the Spiliada framework to decide forum non conveniens issues. In Sumitomo Bank Ltd v Karthika Ratna Thahir [1993] 1 SRL 735, the High Court of Singapore rejected the hoary English precedent of Lister & Co v Stubbs (1890) 45 Ch D 1 and adopted a principle more in accord with contem-porary realities that was endorsed and adopted by the Privy Council in Attorney General for Hong Kong v Reid [1994] AC 324. It would be an unfortunate irony if the decrepit framework of Spiliada that is being relegated to the margins in England because of decisions such as Owusu v Jackson [2005] 2 WLR 942 should continue to be the operative model in Singapore, when the time is ripe for Singapore to consign this model to the scrap heap and construct in its place a crea-tive and dynamic model that is relevant and responsive to the realities of international litigation in the Asia-Pacific region. The model proposed, firmly grounded in reality, will eliminate the mechanical pre-occupation with the natural forum, exorcise the demon of judicial chauvinism and provide a flexible and workable model to a real problem. This would be in keeping with the tradition of the creative genius and adaptability of the common law as demonstrated in Sumitomo Bank Ltd v Karthika Ratna Thahir [1993] 1 SRL 735.


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Notes * LLB (Sri Lanka), LLM, SJD (Harvard), Attorney, District of Columbia; Practice

Associate Professor, School of Law, Singapore Management University. The anonymous reviewer of the draft paper, and my colleagues, Low Kee Yang and George Shenoy, provided useful comments. However, all errors and mistakes are mine.

1 The immediate question before the House of Lords was whether service outside jurisdiction should be allowed. See North and Fawcett, 1999: 321.

2 See, for example, Q&M Enterprises Sdn Bhd v Poh Kiat [2005] 4 SLR 494 at 501 per Andrew Phang JC: ‘It is clear beyond peradventure that the principles in the Spiliada case are now firmly part of the Singapore legal landscape’.

3 See, for example, Société du Gaz de Paris v La Société Anonyme de Navigation ‘Les Armateurs Français’ [1926] SC (HL) 13 at 22 per Lord Sumner: ‘The real proposition is, I think, that the court has to consider how best the ends of justice in the case in ques-tion and on the facts before it, so far as they can be measured in advance, can be respectively ascertained and served. … The object, under the words ‘forum non con-veniens’ is to find that forum which is the more suitable for the ends of justice, and is preferable because pursuit of the litigation in that forum is more likely to secure those ends’.

4 For an exhaustive discussion of the pre-Spiliada decisions, see Barma and Elvin, 1985. 5 ‘The emphasis in the House of Lords is now very much on chauvinism being replaced by

judicial comity. However, the extent to which this new spirit has filtered down to lower courts is questionable’: North and Fawcett, 1999: 347.

6 However, in Bayer Polymers Co Ltd v Industrial and Commercial Bank of China [2000] 1 HKC 805, Stone J relied on an official Chinese Working Report on the Chinese judiciary that noted the tendency of Chinese courts to favour the local party in order to hold that the plaintiff would not obtain justice in the foreign jurisdiction and therefore had successfully discharged the Stage II burden set forth in the Spiliada.

7 Treaty of Amity and Cooperation in Southeast Asia, Bali, Indonesia (adopted 24 February 1976) and Declaration of ASEAN Concord II (Bali Concord II), Bali, Indonesia (adopted 7 October 2003).

8 Although critics have alleged that Singapore courts apply common law defamation principles in a manner that punishes opponents of the government, it has generally been accepted even by these critics that, in purely commercial matters, the courts render judgments that both litigants and the broader business community regard as comparable to the decisions of highly regarded commercial courts. However, in a recent case in Canada, Oakwell Engineering Ltd v Enernorth Industries (2005) 76 OR (3d) 528 (SCJ), the fairness of the Singapore courts in commercial matters was attacked without success: Greenlees, 2006. Documents relating to the Canadian case can be accessed at EnerNorth Industries, 2006. In State Bank of India v Navaratna (2006 ACWSJ 122; 146 ACWS (3d) 968), the Ontario Superior Court of Justice dismissed a motion for summary judgment on behalf of the plaintiff where the defendant attacked the integrity of the Singapore courts and held that such issues should not be decided on a motion for summary judgment.

9 Phang, 1994 argues that the uncritical acceptance in Singapore of the fact that the foundation of the Singapore legal system was premised on English law hindered the development of a distinctly Singaporean legal system.

10 This was the first case decided by the Singapore Court of Appeal after Spiliada where the defendant sought a stay on the ground of forum non conveniens.

11 See Milor Srl v British Airways plc [1996] 3 All ER 537; Hosaka v United Airlines 305 F3d 989 (9th Cir, 2002).

12 The confusion generated by s 5 of the Civil Law Act and the scope of the Application of the English Law Act are discussed in Phang, 1994.

13 Indeed, Lord Goff incorrectly characterised the Spiliada framework as a summary of the existing law (Spiliada [1987] AC 460 at 476).


14 Where the proper law of the contract is English law, an English court would regard

litigation in a foreign forum (which would ignore English law as the proper law) as a highly unacceptable form of forum-shopping: see HIB v Guardian Insurance [1997] 1 Lloyd’s Rep 414 at 417; Meridien BIAO v Bank of New York [1997] 1 Lloyd’s Rep 437 at 442 and 446.

15 As a civil law jurisdiction, Indonesia does not adhere to a system of stare decisis and decisions involving the interpretation of Dutch codes and regulations translated into Indonesian may be better left to the experts rather than civil service judges, some of whom have a very gingerly grasp of legal concepts found in the Dutch-promulgated civil and commercial codes. The unsatisfactory and opaque state of much of the com-mercial law is dramatically illustrated in Karaha Bodas Company LLC v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara 264 F Supp 2d 490, 494 (SD Texas, 2003) where the US District Judge rejected the opinion of a well-known Indonesian law professor on the basis that it is ‘unsupported by authority …’, is not ‘reliable or relevant’ and ‘provides not legal or other basis for’ the expert’s ‘bold assertion’. The Chairman of the National Law Commission of Indonesia has described judicial recruits as what is left over in the ‘garbage bin’. Among all the professionals in the Indonesian legal system, including the police, judges score the lowest as a group on standard exami-nations: Chodosh, 2003.

16 For example, in Karaha Bodas Company LLC v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara 190 F Supp 2d 936 (SD Texas, 2001), a US District Court confirmed a $261 million final arbitral award rendered in respect of a contract governed by Indonesian law and set aside by an Indonesian court on the ground that the award was inconsistent with Indonesian law.

17 Such an approach is more than a decade old. The need to avoid parochialism and promote international comity were also emphasised by LP Thean JA in Eng Liat Kiang v Eng Bak Hern [1995] 3 SLR 97 at 105.

18 See Eastman Kodak Company v Kavlin 978 F Supp 1078 at 1085 (SD Florida, 1997), where the court refers to the Bolivian Minister of Justice’s assertion that the Bolivian judicial system is a ‘collection agency’.

19 See Eastman Kodak Company v Kavlin 978 F Supp 1078, 1084 (SD Florida, 1997): ‘The “alternative forum is too corrupt to be adequate” argument does not enjoy a particularly impressive track record’.

20 Recently, a US federal court refused to be bound by a foreign government’s represen-tations regarding the validity of the laws of that government: United States v McNab 331 F3d 1228 (11th Cir, 2003).

21 The Bangalore Principles of Judicial Conduct 2002 enumerate a series of criteria that have been accepted by the Round Table Meeting of Chief Justices and provide useful principles that combine integrity and competence. The principles are reprinted in an annex in Kirby, 2000-01.

22 See, for example, Wright and Zulfikar, 2003 where the authors assert that corruption within the Indonesian courts is reinforced by lawyers, judges, prosecutors and the police and where the authors deplore the ‘sorry state’ of the Indonesian courts due to corruption.

23 In Arthur JS Hall & Co (a firm) v Simons [2002] 1 AC 615, the House of Lords poin-tedly refused to overrule Rondel v Worsley [1969] AC 191. In Public Trustee v By Products Traders Pte Ltd [2005] 3 SLR 449 at 461, VK Rajah J quoted with emphatic approval an extrajudicial address by Lord Tomlin who emphasised that advocacy on behalf of a client must be balanced by obligations of frankness and candour to the court. Several judges in Giannarelli v Wraith (1988) 165 CLR 543 emphasised that the duty of the advocate to the court takes precedence over the duty of the advocate to the client.

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4 SLR 396 ‘Eastern Trust’, The [1994] 2 SLR 526 Eastman Kodak Company v Kavlin 978 F Supp 1078 (SD Florida, 1997) Eng Liat Kiang v Eng Bak Hern [1995] 3 SLR 97 Giannarelli v Wraith (1988) 165 CLR 543 GokikoInoue v ABIACO Airlines SA (1988) 31 Jap Ann Int L 220 Gonzales v PT Pelangi Niagra Mitra International 196 F Supp 2d 482 (SD, Texas 2002) Goto v Malaysian Sdn Bhd (1983) 26 Jap Ann Int L 122 Gulf Oil Corp v Gilbert 330 US 501 (1947) Harley v McDonald [2001] 2 AC 678 ‘Herceg Novi’ and ‘Ming Galaxy’, The [1998] 2 Lloyd’s Rep 454 HIB v Guardian Insurance [1997] 1 Lloyd’s Rep 414 Hooghly Mills Co Ltd v Seltron Pte Ltd (The) [1995] 1 SLR 782 Hosaka v United Airlines 305 F3d 989 (9th Cir, 2002) Hung Vuoung-2, The [2001] 3 SLR 147 ‘Hyundai Fortune’, The [2004] 2 SLR 213 Karaha Bodas Company LLC v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara

190 F Supp 2d 936 (SD Texas, 2001) Karaha Bodas Company LLC v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara

264 F Supp 2d 490 (SD Texas, 2001) Lehman Brothers Special Financing Inc v Hartadi Angkosubroto [1999] 2 SLR 427 Lister & Co v Stubbs (1890) 45 Ch D 1 Lubbe v Cape plc [2001] 1 WLR 1545 MacShannon v Rockware Glass Ltd [1978] AC 795


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McConnell Dowell Constructors v Lloyd’s Syndicate [1988] 2 NZLR 257 Meridien BIAO v Bank of New York [1997] 1 Lloyd’s Rep 437 Milor Srl v British Airways plc [1996] 3 All ER 537 Myers v Elman [1940] AC 282 Nappali Peter Williams v Institute of Technical Education [1992] 2 SLR 569 Oakwell Engineering Ltd v Enernorth Industries Inc (2005) 76 OR (3d) 528 Oceanic Sun Line Special Co Inc v Fay (1998) 165 CLR 197 Oriental Insurance Co v Bhavani Stores Pte Ltd [1998] 1 SLR 253 Owusu v Jackson [2005] 2 WLR 942 PT Jaya Putra Kundur Indah v Guthrie Overseas Investments Pte Ltd [1996] SGHC 285 Public Trustee v By Products Traders Pte Ltd [2005] 3 SLR 449 Q&M Enterprises Sdn Bhd v Poh Kiat [2005] 4 SLR 494 Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10 Rondel v Worsley [1969] AC 191 S&W Berrisford plc v New Hampshire Insurance Co [1990] 2 QB 631 Sei Mukoda v Boeing Corporation (1988) 31 Jap Ann Int L 216 Sim v Robinow (1892) 19 R 665 Société du Gaz de Paris v La Société Anonyme de Navigation ‘Les Armateurs Français’ [1926]

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