Steven Chong（Singapore）

Justice of the Court of Appeal, the Supreme Court of Singapore

Introduction

The International Commercial Expert Committee (“ICEC”) was established to enhance international exchange and co-operation, particularly in relation to the resolution of international commercial disputes. In this regard, the ICEC serves a vital dimension in the provision of expertise and resources to facilitate the adjudication of commercial disputes before the China International Commercial Court (“CICC”). 

One of its key roles is to provide advisory opinions where specific legal issues before the CICC engage questions of foreign law. In playing this role, it supports the CICC in addressing one of the most recurrent and challenging features of cross-border commercial litigation – the determination of foreign law. 

International commerce increasingly transcends national borders. As commercial activity becomes more international, so too does commercial litigation. Questions of foreign law have therefore become an increasingly common feature of transnational dispute resolution. In many cases, the foreign law issue is not merely ancillary; it may be dispositive of the parties' rights and obligations. 

Yet, the determination of foreign law remains one of the most difficult issues confronting courts. Foreign law may be unfamiliar to the forum court. It may arise from a legal tradition with different concepts, methods and assumptions. It may even be expressed in a different language. 

The question, therefore, is not whether today’s courts will confront issues of foreign law. They will. The question is, rather, how today’s courts can determine such questions accurately, efficiently and authoritatively. 

The traditional approach

Traditionally, issues of foreign law have been addressed through expert evidence. In common law jurisdictions at least, it is conventional for foreign law experts to provide opinions on questions of foreign law. This model is familiar and well established but has its limitations. Foreign law experts retained by opposing parties, often with equally impeccable credentials, may present differing views. Resolving those differences can be costly, time-consuming and resource intensive. It is not uncommon for a court to find itself in the invidious position of having to consider competing accounts of a legal system with which it may have limited familiarity. 

These challenges are not unique to any single jurisdiction or legal tradition. They are common to courts across the world. Courts and legal systems are continuing to explore mechanisms that move beyond the traditional paradigm of purely adversarial expert evidence and towards more institutional solutions. In recent years, mechanisms have emerged to help determine such issues in a more authoritative and cost-efficient way. 

The MOU on cooperation on information on foreign law

Against the backdrop outlined above, the Supreme People’s Court of the People’s Republic of China and the Supreme Court of Singapore shared a collective quest of developing a more efficient manner to resolve disputes over questions of foreign law. This led to the conclusion of a landmark MOU between our two jurisdictions in April 2022 - the MOU on Cooperation on Information on Foreign Law. In short, the MOU established a procedure for the referral of questions of foreign law via a unique court-to-court protocol. 

At the core of the MOU lies a simple but powerful idea: that questions of foreign law may often be most authoritatively addressed by the courts of the jurisdiction whose law is in issue. 

The MOU serves two principal objectives:

To provide convenience to the courts and litigants of both countries to determine questions of law of the other country in international civil and commercial cases; and

To improve the accuracy of judicial decisions and the efficiency of proceedings involving the application of the law of the other country. 

The court-to-court protocol

When the Referral Procedure is invoked, the Requesting Court would transmit a request for an opinion on the question(s) of Chinese or Singapore law to the Advising Court (“Request”). The Request will state, amongst other things, the question of Chinese or Singapore law, and the facts, assumptions and other relevant information upon which the question is to be determined. The Request will be prepared with input from the parties, subject to the approval of the relevant court. 

The Opinion by the Advising Court on the question of Chinese or Singapore law referred to in the Request will then be received into evidence in the proceedings of the Requesting Court. Parties may refer to and make submissions on the Opinion in the court proceedings. 

The Opinion does not bind the Requesting Court. The Requesting Court may use the Opinion in such manner as it wishes in accordance with its domestic laws, practices and usages. The Opinion is intended to assist the Requesting Court in deciding the issue of the relevant foreign law. In that sense, the Opinion largely serves the same purpose as an opinion rendered by a legal expert – except that this is arguably the most authoritative “expert” that could possibly opine on that question of law. 

While the Opinion is not binding, it is still of significant value and utility. After all, such an Opinion emanates from the Advising Court opining on its own laws. It would avoid the usual dispute between opposing experts that I mentioned earlier. In this way, it promotes certainty, consistency and cost-efficiency. As no fee is charged for the Opinion, it is undoubtedly cost friendly to the parties, and helps promote meaningful access to justice in cross-border disputes. At the same time, the MOU importantly preserves the adjudicative autonomy of the Requesting Court. The entire process therefore achieves an optimal balance, enabling authoritative assistance while preserving the adjudicative autonomy of the Requesting Court and respecting the judicial sovereignty of both jurisdictions. 

Importantly, the MOU has moved beyond institutional aspiration and into practical operation. Indeed, since its implementation, the Supreme People’s Court has submitted two Requests to the Supreme Court of Singapore. 

The first request was issued on 30 October 2024. This concerned the finality and enforceability of default judgments where the judgments concern only a subset of the defendants in an action. 

The second request was issued on 13 December 2024. This concerned the powers of the Singapore court to accept a request for the recognition and enforcement of a judgment from a foreign court. 

The Opinions were each issued by a judge of the High Court of Singapore. I am given to understand that both were received into evidence in the Chinese proceedings and assisted in the determination of the relevant legal issue. 

While the Supreme Court of Singapore has not submitted a Request to-date, we have operationalized the Referral Procedure in two ways. 

First, we have amended our Rules of Court to give effect to the Referral Procedure. Under the Referral Procedure, questions of Chinese law arising in civil and commercial proceedings may be referred to the Supreme People’s Court for an Opinion. The Referral Procedure can only be invoked if all the parties consent to (i) the transmission of the Request and any subsequent request; (ii) the admission of the Opinion as evidence in the proceedings; and (iii) the dispensation with cross-examination of the maker of the Opinion. These requirements ensure that the Referral Procedure operates with the participation and consent of the litigants, thereby preserving procedural fairness while facilitating judicial cooperation and efficiency. 

Second, our court has issued an information note on the MOU to the Singapore Bar (through the Law Society’s Civil Practice Committee). The note explains the Referral Procedure to lawyers in a clear and direct way and apprises lawyers that if a question of Chinese law has arisen or is likely to arise in any claim or application filed in the Supreme Court, the lawyers should bring this to the attention of the court managing their cases so as to consider the suitability of invoking the Referral Procedure. 

Concluding observations

I believe all the courts represented in this Conference have witnessed an increase in cross-border disputes, often involving very substantial sums of money and complex questions of law. Many such disputes will engage issues of foreign law, which may be pivotal in the adjudication of the dispute. Hence, it is in the interest of every court hearing cross-border disputes to develop procedures to advance the determination of questions of foreign law in a consistent and cost-efficient way. In line with this understanding, the Supreme Court of Singapore has entered into similar MOUs on the Referral of Questions of Foreign Law with other jurisdictions including New South Wales, Bermuda, Dubai and New York.

The determination of foreign law presents a perennial challenge for courts around the world. The experience of the MOU between the Supreme People’s Court and the Supreme Court of Singapore demonstrates that judicial cooperation can provide part of the answer. As international commerce continues to expand, such mechanisms will become increasingly important. They help ensure that international commercial justice is not merely an aspiration, but a reality. 

Thank you very much for your kind attention.