Commencing a lawsuit against a foreign person or company is less straightforward than initiating legal proceedings against a Singaporean or a Singaporean company. Cases involving foreigners and foreign companies frequently involve cross-border transactions, they often fall under a complex area of law known as ‘conflict of laws.’
It is important to note that when it comes to starting a lawsuit in Singapore against a foreign person or company, the main issue that must be considered is jurisdiction – in other words, which country’s legal system is most appropriate for the case? Should the case be tried in Singapore or the foreigner’s home country?
The answers to these questions depend on who is bringing the case to court (“the plaintiff”) and who is being sued (“the defendant”). Naturally, for a case to be heard in a Singapore court, the plaintiff must be located in Singapore. However, the issue of jurisdiction becomes more complicated when it comes to the defendant. Important considerations are whether he or she is located in Singapore or overseas, what is written in the contract between the defendant and plaintiff, and whether the defendant is a natural person or a company.
What about Foreigners?
If the foreigner is a located in Singapore or has agreed for Singapore to be the appropriate jurisdiction for legal proceedings to take place, then issues of jurisdiction are relatively straightforward. In these cases, the Court has full jurisdiction so the foreigner or foreign company can be served with process in the same way as a Singaporean or Singaporean company would be.
If the foreign defendant is a natural person, then it is not necessary for him or her to be a resident before he or she can be served with process in Singapore, as it is even possible to serve a Writ of Summons on a traveler passing through Singapore.
What about Foreign Companies?
The rules are slightly different for foreign companies located in Singapore. A foreign company may be served within process if it is “physically present” in Singapore, meaning that it has been carrying on business in a fixed place within Singapore for a particular period.
The benefit of suing a foreigner or foreign company situated in Singapore is that serving of documents or notices is available as a right. Without this right, you would have to apply to the Singapore Courts for permissions to commence the lawsuit.
Is there anything the foreign company can do to prevent a lawsuit?
Of course, this does not prevent the foreigner or foreign company in question from making an application to the Court to stay the proceedings by arguing that the Singapore courts are not the natural forum for the case to be tried.
It is important to note that your case is also not guaranteed to succeed. As with any other local lawsuit, the defendant can apply to have the case dismissed on the ground that the plaintiff’s case is without merit or is flawed.
Foreigners and foreign companies located overseas
Commencing a lawsuit against a foreigner or foreign company located overseas is more complex. Before such a lawsuit can be initiated, the plaintiff must obtain the permission of the Singapore courts by applying for leave to effect service of the relevant documents or notices on the foreign defendant.
To obtain the Court’s permission, you must satisfy all three of the following three legal requirements:
- The claim must fall within one or more of the appropriate situations under Order 11 Rule 1 of the Rules of Court;
- The legal claim must have sufficient merit.
- Singapore must be the ‘proper forum’ for the action to be tried.
It is important to note that applying the above-mentioned requirements to your matter may be complex and it is strongly recommended that you seek legal advice before commencing legal action. Legal advice from a lawyer could potentially save you time and cost and unnecessary legal fees in the long run.
Situations under Order 11 of the Rules of Court
To satisfy the requirements as mentioned earlier, the claim must be a “good arguable case”. What this means is that the claim must have a fair chance of success and is supported by sufficient evidence.
The claim must also fall within one or more of the eighteen categories specified under Order 11 Rule 1 of the Rules of Court.
What is Sufficient merit
The plaintiff must also prove that the claim contains an issue(s) that ought to be tried on the substance of the case. If the plaintiff can show that his claim has merit, it would convince the Court to exercise its discretion in allowing the lawsuit.
Whether Singapore is the proper forum for the case to be heard?
To determine whether the Singapore courts are the most appropriate forum for the case to be tried, the Court will consider the interests of both parties and the aim of justice.
Here, the Court will employ a legal test consisting of two stages. The plaintiff is responsible for proving that Singapore is the most suitable forum in both respects.
Firstly, the Court will examine whether the dispute has the closest connections with Singapore rather than pointing to another jurisdiction. Relevant factors considered at this first stage include the location of witnesses and evidence, the translation and transport costs, and the Court’s ability to apply the relevant law to the dispute.
Secondly, the Court will consider whether justice would be denied if the case was tried in another jurisdiction. This is not as simple as saying that the plaintiff might receive greater damages in one forum or that Courts in another forum move more slowly. Instead, the plaintiff must prove that the alternative forum would deprive him or her of advantages so seriously that he or she would be denied justice.
Other factors that the court will consider include whether the foreigner or foreign company has agreed (e.g. via an ‘exclusive jurisdiction clause’ in a contract) that the Singapore courts should have jurisdiction over any disputes that may arise or whether the defendant has taken any steps during legal proceedings to demonstrate clearly and unambiguously that he or she has accepted the jurisdiction of the Singapore courts.
As this article has shown, commencing legal action against an individual or company situated overseas is far from simple – even obtaining the Court’s permission to begin the proceedings may require complex legal arguments.
This means that any decision to sue a foreigner or foreign company in Singapore should be carefully considered. In particular, you should ask yourself whether it is worthwhile and practical to do so. Some relevant practical considerations are listed below.
Does the foreigner or foreign company have assets in Singapore?
A significant concern is whether the defendant has assets in Singapore against which the judgment could be enforced. If most of the defendant’s assets are in other countries, then it would be necessary before commencing proceedings in Singapore to find out whether that jurisdiction would enforce a judgement made by a Singapore court.
How we can help
At I.R.B Law LLP we have experienced lawyers who are passionate about justice and fairness. Our lawyers will be able to guide you through the process of commencing a legal action at every stage of the proceedings. We firmly believe that everyone should be entitled to a second chance and be allowed the opportunity to turn over a new leaf and live life anew. Should you be in a position where you may need our assistance, please do not hesitate and contact us at Hello@irblaw.com.sg or call us at +65 6298 2537 so that we can advise you on your matter.