Asia IP

The government of Singapore is a step closer to settling international commercial disputes – including intellectual property disputes – through the proposed Singapore International Commercial Court (SICC).

“The SICC would be similar to the international commercial court in London, with a focus on commercial litigation with and beyond Asia,” says Andy Leck, the managing principal of Baker & McKenzie.Wong & Leow in Singapore. “The SICC offers IP rights holders with the advantages of a uniquely Asian venue for the adjudication of international IP disputes which may cross borders and span over multiple jurisdictions. IP rights holders are able to tap into the SICC’s expedited dispute resolution capabilities, which allows for greater ease in adjudicating their rights.”

Recommendations from a committee of judges, in-house counsel and practitioners from Singapore and other common law jurisdictions were submitted to the government on November 29, 2013. The committee suggested that the SICC be a division of Singapore’s High Court and offer a panel of specialist commercial judges, including eminent international jurists. The SICC would hear cases governed by both Singapore law and by foreign law, with the court taking judicial notice of the foreign law.

The mandate for the SICC extends beyond the mere establishment of Singapore as an IP hub, Leck says. “It is aimed at providing a premium forum for the resolution of all international commercial disputes, which would include IP disputes. However, I do not doubt that the SICC constitutes an important step towards enabling Singapore achieve its goal of becoming a global IP hub in Asia.”

In March 2013, the IP Steering Committee submitted its IP Hub Master Plan. One of the goals of the Master Plan is to grow Singapore as a hub for IP dispute resolution. To achieve this goal, the IP Steering Committee recognized the importance of the SICC in fortifying Singapore’s position as a choice venue for litigating global IP disputes, says Leck.

“Some of the benefits which I would expect the SICC to offer IP cases include providing a neutral, local avenue for the expeditious litigation of IP disputes concerning IP rights registered in Singapore and the region; providing expedited, streamlined procedures which make case resolution faster; assigning judges who possess the expertise and know-how to deal with highly complex and technical IP cases; and enhancing the cross-border enforceability of IP-related judgments due to Singapore’s highly regarded judiciary and its international reputation for quality judgments.

Cases would come to the SICC either by consent of the parties or through contractual agreement to use the court in disputes, says Leck. Cases could also be transferred from the Singapore High Court by the Chief Justice under the committee’s proposal.

“Strong economic advancement and growth in China, India and the ASEAN region has led to more commercial IP engagements and collaborative efforts,” Leck says. “These developments may lead to more IP disputes from parties across these jurisdictions.”

Leck notes that there is likely to be an increasing number of IP disputes between parties from the East and parties from the West as technology powerhouses from Asia start to establish themselves globally. “Recent examples of such disputes include Samsung (Korea) and Apple (US), and Huawei (China) and Cisco (US). As noted in the IP Hub Master Plan, this is likely to create opportunities for Singapore to play a role in these interactions, and I think that the SICC will offer a competent, neutral venue for the resolution of such differences,” says Leck. “I anticipate that the types of cases reaching the SICC would encompass a wide-range of disputes including patent, trademark and copyright infringement, contract disputes and unfair business practices.”

IP disputes that are primarily of a domestic nature – rights-holders are both Singaporeans and the underlying IP rights are created in Singapore – are unlikely to be heard by the SICC, Leck says, noting that these disputes may be more appropriately dealt with by the domestic IP court.

“However, even in the case of such domestic IP disputes, the parties have the option of litigating the matter in the SICC. They may do so by either contractually agreeing to provide the SICC with jurisdiction over such disputes, or subsequently consenting to commence the suit in the SICC after a dispute has arisen,” he says. “The SICC has the jurisdiction to hear and determine any question over whether a dispute can be appropriately adjudicated by it.”

The proposal also suggests that foreign counsel be allowed to appear in proceedings which have no substantial connection to Singapore, as long as the foreign counsel is registered with the SICC. “Such a recommendation proposes a significant liberalization of the current rules as it would allow foreign law firms in Singapore to provide litigation services to international clients when traditionally this sector of the industry had been strictly reserved for lawyers admitted to the Singapore Bar,” Leck says.

Leck says the SICC might be especially welcome by parties who wish to avoid arbitration. “There are sceptics who frown on the feasibility of arbitration, whether because of the uncertainty of arbitral awards, the lack of availability of appeals or the lack of contractual relationship between the parties,” he said.

The Singapore government has stated that it welcomes the Committee’s recommendations, and has announced a consultation period for the committee’s report, which closed on January 31, 2014.