We value our dialogue with the Indian judiciary: SICC President Justice Philip Jeyaretnam

The recently launched Bahrain International Commercial Court (BICC) is modelled on the Singapore International Commercial Court (SICC).

Interestingly, appeals from the BICC will go to the SICC. We spoke with Justice Philip Jeyaretnam, Judge of the High Court and President of the Singapore International Commercial Court, to explain this unique mechanism.

In this interview with Bar & Bench's Pallavi Saluja, Justice Jeyaretnam also talks about the workings of the SICC, how international commercial courts provide an alternative over arbitration, dialogue with the Indian judiciary and more.

Edited excerpts follow.

Pallavi Saluja (PS): There is a unique mechanism where appeals from the BICC will go to the SICC. What are your thoughts on this and why was Singapore chosen for this Court of Appeal?

Justice Philip Jeyaretnam: In order to answer that question, I think we should just go back to the genesis of the BICC, which stems from a collaboration between Bahrain and Singapore.

It first began with a conversation between the Chief Justice of Bahrain and our own Chief Justice Sundaresh Menon, as well as Professor Jan Paulsson, who is the President of the BICC. In that conversation, the question that was posed by Paulsson and by Chief Justice Menon was: how can Bahrain replicate or achieve some of the success that Singapore has had as a dispute resolution hub?

Naturally enough, the answer that Chief Justice Menon gave was that one has to look at the overall ecosystem. You can't create a successful dispute resolution hub with just an arbitration centre or with some very nice hearing rooms. You need to put in place several key elements, starting with a robust framework of laws that support commercial dispute resolution.

Secondly, you need to have a judiciary which is able to handle cases, including handling them in the English language, because that is the language of international business. It also has to be supportive, modern, forward-looking.

Then you start talking about the arbitration centre and you start talking about hearing rooms and facilities. You also need to continuously upgrade the skills of legal professionals who support dispute resolution.

The critical one is the judiciary - having a court which can play the role of a supervisory court under the UNCITRAL model law for commercial arbitration seated in that jurisdiction.

So how does the appeal mechanism come into it? First of all, what better way to achieve quick, instant credibility among your potential users, that is, international businesses? What better way than to have an avenue of appeal to an international commercial court with an established track record?

Beyond that, there are other important reasons for the appellate mechanism. I think the biggest of those reasons is about how linking international courts in a network helps to support the flow of commercial trade investment around the world. And to do so in a way that supports convergence - sometimes of the substance but also of procedures - and builds a systemic way of providing commercial transnational justice to transnational commercial businesses and entities. That's really what's behind the appellate mechanism.

PS: Some commentators have likened the SICC to a modern-day Privy Council, especially since the BICC allows appeals to the SICC. Do you find this comparison appropriate?

Justice Jeyaretnam: Not at all, because the institutions are at completely different periods of time in completely different contexts.

Of course, the Privy Council played an important post-colonial function in relation to a number of countries that were freed from the British Empire. That is perhaps important at that time for those countries, but it is a kind of hierarchical, post-colonial approach to the world, which has got nothing to do with the SICC and the BICC.

The SICC is in a very particular space - It's not domestic commercial cases, it is this cross-border category. In this category of cases, the modern world has evolved an approach of placing emphasis on parties' consent and autonomy. We know that is often a choice of arbitration, but international commercial courts provide an alternative that has certain advantages over arbitration.

It's this party autonomy which distinguishes it completely from any comparison with the Privy Council. It has nothing to do with general legal questions within a jurisdiction. It deals with questions that arise between parties disputing in relation to a transaction that is cross-border. That's why it's a completely different animal.

PS: The SICC has often been described as a ‘hybrid’ court since it blends features such as confidentiality, streamlined rules on discovery and evidence with civil and common law procedures. How do you see this model evolving? Do you think it can serve as a blueprint for other jurisdictions, perhaps even in countries like India?

Justice Jeyaretnam: I think the first question is really, what's the best way of characterising what the SICC is doing? I certainly understand your use of the label 'hybrid', in the sense that hybrid means you draw on different traditions, but hybrid is a somewhat limiting word, because hybrid suggests simply that you blend a couple of things. Also, often, hybrids don't have a future, because hybrids cannot then reproduce.

I think a much better word that describes what the SICC does is "pioneer", because what we are doing in the SICC is in part to draw on different traditions - such as the civil law tradition, as well as the common law tradition - and we do so by bringing together onto the bench and onto the advisory committees of the court, members of both common law and civil law traditions.

But we also do draw on best practices from wherever they may be. We are also evolving ourselves and looking at ways in which we think are the best ways of approaching things. That's probably a better way of characterising it. We're a pioneer rather than a hybrid, or rather than just a hybrid.

What can other jurisdictions learn from the SICC? I just have to come back again to this core point, which is that the SICC is a court designed for cross-border commercial disputes and particularly cross-border commercial disputes which may have no connection with the court itself, other than that they choose to have their disputes resolved at the SICC. That's a very particular space and when a country is looking at what it wants to do with its own court processes and its own court institutions, it has to consider what is the type of case that it wants to be catering to, or that it wants to cater to more efficiently and more effectively.

For many countries, and actually particularly large countries like India, the big area to address is actually disputes that arise out of transactions that have an in-country element. It could be investment into India. It could be trade between an Indian party and another party. It could be commerce between Indian parties. So that's really different from the other space that we've been talking about, which is cross-border disputes between two businesses from different countries who have no connection with the place where the court is.

What India has been doing is really important and really good, which is to work on the establishment of commercial courts and also to consider whether there is a need to have specialist tribunals, as has been done in the company law space. These are responses to how to make the system of justice more efficient and effective for users within the country or coming into the country or trading with the country. For those kinds of disputes, one may not necessarily want to look at a model like the SICC, because the SICC, as I mentioned, is really focused on providing and addressing that space of cross-border commercial disputes.

PS: Given Singapore’s status as a global arbitration hub, how does the SICC differentiate itself from arbitral institutions like SIAC? Do you foresee greater convergence between these two worlds?

Justice Jeyaretnam: Recently, I delivered the keynote at the 16th Annual International Conference of the Nani Palkhivala Arbitration Center in Delhi. I spoke about two roles that a court like the SICC has.

The SICC plays a direct role in supporting and supervising international arbitration, which can't happen without a framework of courts, because at the end of the day, an arbitration award has to be enforced. Under the UNCITAL Model Law, there also has to be an opportunity for the loser in the arbitration award to bring a challenge in accordance with the model law. So, the court plays a direct role in supporting and supervising international arbitration.

Indeed, we don't see the SIAC as a competitor. We are institutions that both serve this broader purpose of transnational commercial justice. The SICC, on its website, actually includes a model law clause where the SICC is chosen as the supervisory court for international arbitration administered under SIAC rules and that has become actually quite a popular choice for parties. So that's the direct role.

There is also an indirect role, which is providing an attractive alternative or an option to international businesses, and then through that, have the salutary effect on arbitral institutions

The other thing, which I think is quite important for some businesses, is the availability of an appeal mechanism. So in the SICC itself, there can be appeals from SICC decisions to the Court of Appeal in Singapore. The Court of Appeal in Singapore, when it hears SICC appeals, includes international judges in its quorum. So you might have two Singapore judges and one international judge, which is actually kind of the reverse of what you have at the first instance, where you would have typically one Singapore judge and two international judges.

Particularly for complex cases, it is possible for even an experienced tribunal or decision maker to make a mistake, so there has to be an availability of an appeal, and in arbitration, it's quite hard to have that. Typically, most institutional rules exclude this option of appeal, even if it appears in the national legal framework. The effect of that is that a party which loses an arbitration is very upset with the result, thinks that the tribunal got it wrong on the law or in its weighing up of the facts, but it can't appeal. So it tries to shoehorn its grievance about how the case was decided into a challenge under the model law on the narrow grounds of the model law. Then it becomes either a public policy attack or a natural justice challenge to say that the reasoning that the tribunal adopted fell outside the scope of parties' expectations, took us all by surprise.

Actually, it would be a lot easier for there to be a possibility of just reviewing the correctness of the decision, but you can't get that in arbitration, typically. So in court, you can get that. You don't have to complain about whether the judge listened to you properly. You just complain about the decision saying the judge got it wrong and then you go on appeal.

PS: The SICC’s panel of judges includes jurists from several common law and civil law systems. How does this diversity influence the quality and style of judicial reasoning at the SICC?

PJ: The SICC, and now the BICC, combine three pillars of expertise.

One is the experienced commercial judges of the jurisdiction of which the court is a part. In Singapore's case, Singapore commercial judges, and in Bahrain's case, Bahrain commercial judges. The other two would be international common law judges and international civil law judges. It's by bringing these three sources of judicial expertise together that you have the very unique institution that is the SICC and now the BICC.

How does this help? First of all, we can see that there is a point of convergence between common law procedures and civil law procedures. You see that common law systems are increasingly applying strong case management by the judges who are going to hear the case. That's a bit similar to what happens in a civil law system. Then the approach to effective case management - if you have both civil lawyers and common lawyers working together - gets you to a more effective result. People will share what they think is the right way forward for the case management of that particular case.

The other point of convergence is that in civil law systems, they are increasingly permitting counsel-led cross-examination, which is really a feature of the common law and not usually found in the past in civil law systems.

The second is actually judicial reasoning. Again, I think we are beginning to see more convergence between civil lawyers and common lawyers in terms of judicial reasoning for a couple of reasons. I think one is that in civil law systems generally, there is increasing reference to past cases. Previously, one would just look at the code, but nowadays, I suppose because past decisions are more commonly available nowadays with technology so they tend to refer to them a bit more than they used to. Adopting a bit of case-by-case reasoning is more similar to the common law.

On the common law side, the rise of the regulatory economy has meant that in large areas of economic activity, there are regulations. So rather than judge-led, judge-generated case law, you have detailed regulation. When you start interpreting regulations, you're probably going to be looking at them in a more civil law-minded way because you're really looking to identify the rule and see whether this case comes within that rule.

So having both civil lawyers and common lawyers working together on a case - both on the counsel side and as well as on the side of the judges - helps you to make a higher quality, better-informed, more nuanced decision.

PS: There's one Indian judge at the SICC. Do you expect more Indian judges to join the international panel at the SICC?

Justice Jeyaretnam: I have no doubt that we will always want to have an Indian judge and possibly more than one Indian judge. Of course, the numbers are necessarily limited and we want to have a good spread of judges. The Indian judiciary is so highly regarded and there are so many eminent Indian jurists that there's absolutely no doubt that the SICC will be honoured always to have Indian judges on the panel.

PS: Have you seen an increase in number of Indian parties coming to SICC and Indian counsel appearing in SICC?

Justice Jeyaretnam: Yes, undoubtedly so. I'm told that we have had many cases. I myself have heard cases involving issues of Indian foreign law, cases with Indian parties and cases. Therefore, where we have had Indian counsel address us. So, that's one of the features of the SICC - the greater ability as compared to domestic courts for parties to choose their own counsel.

In terms of Indian parties, I'm told we've had 81 Indian parties appearing before the SICC. So, that's quite a substantial number. I'm sure it will continue at the same rate in the future.

PS: SICC had recently set aside a “copy-paste” arbitral award passed by tribunal headed by a retired Indian judge. What are your thoughts on that and whether the names should have been made public?

Justice Jeyaretnam: I can't comment on the specifics of any individual case before the court. The decision of the court is always what appears in the judgment of the court and it doesn't need to be further explained. There is a point that I should say, which is that the SICC has had a policy in place for quite some time that we do name arbitral tribunals. The reason for that policy is that the SICC plays the role that I've mentioned about supervising international arbitration. We've considered that we play a systemic role in terms of upholding standards in international arbitration. It's important to keep that in mind at all times.

We've been described sometimes as pro-arbitration or arbitration friendly. I think that's not necessarily the right description. We understand arbitration, we support arbitration, we support the choice of parties. It also means that we take our role very seriously in terms of actually applying the UNCITAL model law as enshrined in our legislation to make sure that international arbitration thrives. So, we need to make sure that the process of arbitration and its integrity are protected. We do that by applying the law. When there is an award to be set aside, it needs to be set aside.

PS: As legal systems across Asia become more interconnected, do you see the SICC playing a role in fostering judicial dialogue or harmonising commercial laws, perhaps through collaborations with the Indian judiciary or other regional courts?

Justice Jeyaretnam: I could not overstate the importance of dialogue and collaboration between the judiciaries. It's tremendously enriching. To some extent, yes, it is about perhaps leading towards some degree of convergence, but that's not necessarily what it's about. It's about enriching the work of the judges so that they see issues more clearly. Of course, every country has to decide these issues that emerge according to their own laws, their own practices and what suits their own jurisdiction. That's why I put that kind of question mark around the word "convergence". We're not really necessarily talking about convergence. We may come up with different answers, but it really helps to have a dialogue about what the issues are and what the questions are.

We really do value our dialogue with the Indian judiciary. We have many contacts with the Indian judiciary, both at a formal and at a less formal level. We have regular roundtables with the Supreme Court of India and those have been tremendously useful to us. We really find a great deal of value in those. We have addressed such things as the digital economy and digital assets. We have addressed ESG issues and discussed those. We have discussed the attribution.

In fact, in a roundtable in Delhi in August 2024, I spoke on the attribution of legal liability for harms caused by the use of AI. We had a really interesting discussion with the Indian judiciary. If I'm not wrong, Justice Prathiba Singh of the Delhi High Court was involved in that particular roundtable, and it was terrific.