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    Table of Contents

    Introduction .................................................................................................... 1

    1. Understanding subject-matter jurisdiction .............................................. 1a. Professor Manns public international law model ...................................... 1b. Subject-matter jurisdiction in the United States courts ............................. 2c. The English borrowing a new spin on a foreign import? ........................ 3

    2. Power to grant injunctive relief under the Civil Law Act ........................ 5

    3. A survey of present approaches .............................................................. 8a. Mareva injunctions .......................................................................................... 8

    i. Substantive cause of action to be heard in enforcing court............................. 8b. Anti-suit Injunctions ...................................................................................... 10

    i. Juridical basis............................................................................................ 11ii. Amenability to jurisdiction.......................................................................... 12

    iii. Forum public policy.................................................................................. 13

    Conclusion ................................................................................................... 14

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    Introduction

    In Peoples Insurance Co Ltdv. Akai Pty Ltd1, Judicial Commissioner Choo Han Teckmemorably rejected Akais application for an anti-suit injunction on the basis thatthe Singapore courts shall not assume the role of an international busybody.

    The extent to which a court must exercise self-restraint in throwing far and wide thenets of its jurisdiction remains a key concern. This was traditionally evidenced byreliance on the notion of comity, described as respect for the unique interest offoreign courts and foreign legislatures to regulate conduct within their jurisdiction. 2In a recent line of English authorities, attempts have been made to introduce thedoctrine of subject-matter jurisdiction as a component of an overarching framework inestablishing jurisdiction to grant injunctive relief. 3

    This paper therefore seeks to analyse the utility of adopting the doctrine of subject-matter jurisdiction in lieu of traditional reliance on comity in light of the recentcontroversy in the Swift-Fortune line of authorities on the scope of the Singaporecourts jurisdiction to grant Mareva injunctions. 4

    It will first consider the meaning of subject-matter jurisdiction as understood in theUnited States and public international law, and its understanding by the courtsadopting it in the cases of Societe Eramand Masri. Secondly, the extent to which thepresent sources of statutory power to grant interim relief may accommodate thedoctrine of subject-matter jurisdiction will be considered.

    Finally, with reference to current approches in Mareva injunctions and anti-suitinjunctions, this paper will argue that the doctrine of subject-matter jurisdiction doesnot in practice differ from that of comity. The requirement of subject-matterjurisdiction at best requires judicial transparency insofar as some factor or sufficientconnection must be identified. In the final analysis, this does not produce a more

    principled approach.

    1. Understanding subject-matter jurisdiction

    a. Professor Manns public international law modelIn his seminal Hague Lecture in 1964, Professor F.A. Mann summarised theessential concept of jurisdiction as being concerned withthe function of regulatingand delimiting the respective competences of States. 5 As a precursor to his newmodel of jurisdiction, he proposed a new interpretation of the S.S. Lotus, where six ofthe twelve judges stated per obiterthat a wide measure of discretion which is limitedin certain cases by prohibitive rulesall that can be required of a State is that itshould not overstep the limits which international law places upon its jurisdiction;within these limits its title to exercise jurisdiction rests in its sovereignty. 6 He opinedthat the Courts true intent was to reject the test of the strict territoriality of criminal jurisdiction rather than to introduce the idea that each State had untrammelleddiscretion to prescribe laws regulating conduct beyond the limits of its territorial

    1[1997] 2 SLR(R) 291

    2Fentiman at 1.34

    3See below at notes ____.

    4Reference made is to Front Carriers, Swift-Fortuneand Multi-code.

    5

    As described by Professor Francis Mann in his seminal Hague Lectures, The Doctrine ofJurisdiction in International Law.6

    At 27

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    sovereignty.7 In his view, the jurisdiction exercised by a State consisted of legislativeand enforcement jurisdiction, the former being the right to prescribe legal rules, andthe latter being the power to give effect to such rules. 8

    Legislative jurisdiction would be established by an evaluation of the State or Stateswhose contact with the facts is such as to make the allocation of legislativecompetence just and reasonable. 9 Whether the contact was sufficiently closenecessitated considering whether there was a reasonable relation, namely, theabsence of abuse of rights or arbitrariness. 10The question was whether [a States]contact with a given set of facts is so close, so substantial, so direct, so weighty, thatlegislation in respect of them is in harmony with international law and its variousaspects (including the practice of States, the principles of non-interference andreciprocity and the demands of inter-dependence. A merely political, economic,commercial or social interest does not in itself constitute a sufficient connection.11

    The validity of enforcement jurisdiction would flow from the validity of legislativejurisdiction. The mere fact that a States judicial or administative agencies are

    internationally entitled to subject a person to their personal or curial jurisdiction,does not by any means permit them to regulate by their orders such personsconduct abroadfor the purpose of justifying, even in the territory of the forum, theinternational validity of an order, not only its making, but also its content must beauthorized by substantive rules of legislative jurisdiction. 12

    b. Subject-matter jurisdiction in the United States courtsThe jurisdiction of a United States court to adjudicate is defined in terms of personaland subject matter jurisdiction. The distinction stems from the hierarchy of powerscreated by the United States Constitution. As such, a court must possess bothpersonal and subject matter jurisdiction in order to hear a case. Subject matter

    jurisdiction relates to existence of a cause of action for a controversy under US law,orthe question of whether a statute applies to a particular conduct. 13It is thepower of a court to entertain specified classes of cases.14 An example is whetherthe Securities Exchange Act applies to fraudulent misrepresentation in England. 15

    The language of connections to the forum is used not in the discussion of subjectmatter jurisdiction but in determining whether a state has personal jurisdiction overan individual. A United States court must have legislative authorisation to exercisesuch jurisdiction, and its exercise of such jurisdiction must be consistent with thedue process clause of the U.S. Constitution. This was interpreted in the seminal

    7

    at 278at 6

    9at 34

    10at 37

    11at 39. Oppenheims International Law, v. 1: Peace, Robert Jennings and Arthur Watts, eds.,

    Longman: London, 9th

    ed, 1992, at 457-458 notes the recent tendency to regard [variouscategories of justifications for assumption of jurisdiction] as parts of a single broad principleaccording to which the right to exercise jurisdiction depends on there being between thesubject matter and the state exercising jurisdiction a sufficiently close connection to justify thestate in regulating the matter and perhaps also to override any competing rights of otherstates.12

    at 128-12913

    Ryngaert at 13.14

    Gary B. Born, International Civil Litigation in United States Courts, 3ed, Kluwer LawInternational, Den Haag, The Netherlands, 1996, at 7.15

    Masriat 30 in an example given by Laurence Collins J.

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    case of International Shoe to mean that if the defendant was not present within theterritory of the forum, the court could exercise personal jurisdiction over him wherehis activities establish sufficient contacts or ties with the state of the forum to make itreasonable and just according to our traditional conception of fair play andsubstantial justice to permit the state to enforce the obligations which appellant hasincurred here. 16 The standard imposed was that of certain minimum contacts suchthat the maintenance of the suit does not offend traditional notions of fair play andsubstantial justice.17 The rationale was that a defendant with minimum contacts withthat state enjoys the benefits and protections of the laws of that state, to the extentthat they were potentially available to him.18

    Jurisdiction to adjudicate is further sub-divided into two categories, namely, generaland specific jurisdiction. General jurisdiction refers to the exercise of jurisdiction overa defendant in a suit not arising out of or related to the defendants contacts with theforum. Specific jurisdiction refers to a suit arising out of or lreated to the defendantscontacts with the forum.19

    In specific jurisdiction cases, a two-step test involving determination of purposefulestablishment of minimum contacts with the forum and five factors of reasonablenessis adopted.20 Juenger describes the former as the purposeful-availment formula,which rejects the substitution of transactional contacts and forum interests fordefendant contacts in lieu of a requirement of some act by which the defendantpurposefully avails itself of the privilege of conducting activities within the forumState, thus invoking the benefits and protection of its laws.21 In general jurisdictioncases, the exercise of jurisdiction is valid only if the defendant possesses systematicand continuous contacts with the state.22

    c. The English borrowing a new spin on a foreign import?The concept of subject-matter jurisdiction envisioned by Professor Mannpresupposes the creation of an overarching framework for all legislative andenforcement acts by a State which may have foreign elements beyond theterritoriality principle. It is pertinent therefore to turn to how subject-matterjurisdiction has been understood in English cases, before considering to what extentand how subject-matter jurisdiction may be adopted in determining whether a courthas jurisdiction to grant an anti-suit injunction or a Mareva injunction.

    The concept of subject-matter jurisdiction was first accepted in MacKinnon.MacKinnon involved an attempt by the claimant to procure documents from the NewYork branch of Citibank by bringing an action under the Banke rs Book Evidence Act

    16International Shoe Co. v. Washington326 U.S. 310 (1945) at 320.

    17Ibid. at 316.

    18Luther L. McDougal III, Robert L. Felix and Ralph V. Whitten, American Conflicts Law,

    Transnational Publishers Inc: New York, 2001, 5ed, at 50.19

    Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984) at 414 notes 8-9.The Supreme Court adopted the terminology proposed in Arthur T. von Mehren & Donald T.Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, (1966) 79 Harv. L. Rev. 1121 at1135, where the authors described general jurisdiction as power to adjudicate any kind ofcontroversy when jurisdiction is based on relationships, direct or indirect, between the forumand the person or persons whose legal rights are to be affected. 20

    ACL at 57.21

    Friedrich K. Juenger, Judicial Jurisdiction in the United States and in the European

    Communities: A Comparison, Selected Essays on the Conflict of Laws, TransnationalPublishers, Inc: New York, 2001, at 92, citing Hansonv. Denckla, 357 U.S. 235 (1958) at 253.22

    ACL at 58, citing Helicopteros.

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    1879 against the London branch of Citibank, as well as seeking subpoenas adtestificandumand duces tecum. Hoffmann J (as he then was) cited Professor Mann,and distilled the essential problem with the claimants approach as confusingpersonal jurisdiction, i.e., who can be brought before the court, with subject matterjurisdiction, i.e., to what extent the court can claim to regulate the conduct of thosepersons. It does not follow from the fact that a person is within the jurisdiction andliable to be served with process that there is no territorial limit to the matters uponwhich the court may properly apply its own rules or the things which it can order sucha person to do. 23The principle, in his view, was that a state should refrain fromdemanding obedience to its sovereign authority by foreigners in respect of theirconduct outside the jurisdiction.24

    The matter was given further consideration in Societe Eram. Societe Eram was a judgment creditor who applied for a third party debt order in England against itsjudgment debtors bank account with the Hong Kong branch of HSBC. Lord Binghamheld that the court had no jurisdiction to grant the third party debt order where itwould not discharge the debt. He preferred the analysis in terms of lack of jurisdiction

    but opined that objections to the exercise of a discretion in this manner would bevery strong on grounds of principle, comity and convenience, if the jurisdictionalanalysis was not accepted.

    Lord Hoffmann identified a general principle of international law that one sovereignstate should not trespass upon the authority of another, by attempting to seize assetssituated within the jurisdiction of the foreign state or compelling its citizens to do actswithin its boundaries. He was careful to agree with Lord Millett that this was not theexercise of a discretion, but premised on principle.

    Lord Hobhouse referred directly to the court lacking subject-matter to make anexorbitant order which would enforce a supposed right which did not exist. Lord

    Millett took a more expansive view of the meaning of jurisdiction in terms of theterritorial reach of the legislative powers of Parliament and the adjudicative powers ofthe court, in which case jurisdictional limits are self-imposed as a matter of principleand in order to conform to the norms of international law.

    In Masri, Laurence Collins J identified the issue as whether the receivership ordersought by the claimants had exceed[ed] the permissible limits of internationaljurisdiction. In determining this it was important to consider (a) the connection of theperson who is the subject of the order with the English jurisdiction; (b) whether whatthey are ordered to do is exorbitant in terms of jurisdiction; and (c) whether the orderhas impermissible effects on foreign parties.

    He concluded that the appointment of the receiver would not by itself be a breach ofinternational comity. It was not proprietary in nature and would not cause the thirdparty debtor to pay twice, as the provisos in the order required the receiver to firstobtain an order from the foreign court where the assets were situated. The third partywould similarly not be subject to choosing between being in contempt of the Englishcourt and dishonouring their obligations under the applicable law. In particular, theonly person directly subject to the order was the defendant which is subject to the jurisdiction of the court, and is being ordered to perform certain acts which have agenuine connection with England, namely compliance with an English judgmentagainst it. Other parameters for a sufficient connection with England were notidentified.

    23MacKinnonat

    24Ibid.

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    Neither of the three cases dealt with the same type of order, but commonality wasfound in the citation of the same overarching principle that subject-matter jurisdictionwas necessary in addition to personal jurisdiction. The implication is that subject-matter jurisdiction must necessarily be established in order to found internationaljurisdiction to grant injunctive relief in respect of a defendant or dispute with foreignelements. The approach in Masrifurther indicates that subject-matter jurisdiction isformulated as a positive rather than negative concept, ie. that the defendant musthave certain connections to the forum rather than the granting of relief notcontravening certain principles.

    The concept of subject-matter jurisdiction appears to entail both the idea that thecourts compulsive powers are limited by principles of international law, and thenecessity of finding some sufficient connection to the forum such as to bring therelevant measure contemplated within the courts jurisdiction. It is unclear howeverwhich formulation of subject-matter jurisdiction has been adopted, whether it beProfessor Manns concept of subject-matter jurisdiction depending on factual

    connecting factors, or the American concept of subject-matter jurisdiction asdetermined by the sources of judicial power, particularly since Laurence Collins Jrefers to the adoption of American authority in MacKinnon when in fact onlyProfessor Manns article was cited.

    There may be a need to establish a distinction between a connection to thedefendant and a connection to the dispute, as will be seen in the discussion of thecase-law in the following sections. For now it is pertinent to note that no apparent justification was given for the two connections relied on in Masri, namely, thedefendants submission to the jurisdiction of the English courts and the outstandingjudgment against it. The unspoken assumption seems to be that a receivership ordergranted to facilitate the enforcement of an English judgment against the defendant,

    who had submitted to that English jurisdiction, was legitimate insofar as the measuresought was for the purpose of enforcing a judgment which the court had jurisdictionto render due to the defendants voluntary establishment of connections to the forum.

    At the same time, the acceptance of submission as a sufficient connection seems toacknowledge that a factor going towards personal jurisdiction may also establishsubject-matter jurisdiction, although the conditions for this conclusion to be made areunclear. A pertinent question would be whether the court would have made areceivership order against the defendant had he ignored proceedings altogether afterbeing served out of the jurisdiction. The courts jurisdiction as established by serviceof process would rest in admittedly exorbitant jurisdiction founded by service (asovereign act) outside its territorial sovereignty. It would further not have the

    paradigm justification of consent to be bound by its jurisdiction.

    If the conclusion is the same, then the view that personal connecting factors arerequired would be discredited in favour of plaintiff-oriented or dispute-orientedconnections. A dispute connection in this context means the forums interest orcontrol over the dispute. Indeed, it seems inexplicable that to take measures basedin personal jurisdiction against a defendant, the deciding factor is actually dispute-oriented. This may indeed explain the focus on concepts such as pre-existingsubstantive cause of action, forum interest or the status of natural forum in the case-law.

    2. Power to grant injunctive relief under the Civil Law Act

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    The thin understanding of subject-matter jurisdiction would require a study to bemade of the sources of judicial power. In Singapore, it has been held that the powerto grant injunctive relief is derived from section 4(10) of the Civil Law Act.

    In Swift-Fortune, much emphasis was placed by the Court of Appeal on section 4(10)of the Civil Law Act in coming to the eventual conclusion that there was no powerunder section 12(7) of the International Arbitration Act to grant interim relief insupport of a foreign arbitration. The Siskinawas held to be good law as the power togrant injunctive relief was ancillary to and followed from the court eventually grantingsubstantive relief in the matter. The appellate history of Swift-Fortunemay be subjectto some doubt. In arriving at its decision the Court of Appeal tentatively disapprovedof the High Court decision in Front Carriers, under appeal at the time butsubsequently settled. The crucial point in that case, however, was that section 4(10)of the Civil Law Act differed in scope from section 37(1) of the Supreme Court Act1981 and the Channel Tunnel decision of the House of Lords interpreting section37(1) was therefore not persuasive.

    As noted by the Court of Appeal in Swift-Fortune, the present section 4(10) was a re-enactment of section 25(8) of the Judicature Act of 1873 (later section 45(1) of theSupreme Court of Judicature (Consolidation) Act 1925, which was relied on by LordDenning as the basis of Mareva jurisdiction), subsequently received into theSingapore Act as section 2(8) of the Straits Settlements Ordinance No. IV of 1878.Doubts expressed regarding the power of the English courts to grant Marevainjunctions against non-residents led to the enactment of section 37(3) of theSupreme Court of Judicature (Consolidation) Act 1981.

    Having considered the legislative genesis of section 4(10), the Court of Appeal thennoted that it is therefore open to argument in a future case whether in the context ofthe political and commercial conditions existing in Singapore in 1878, the

    legislaturehad intended s 4(10) to give power to the court to grant interlocutoryinjunctions in aid of foreign court proceedings, or even less likely in aid of foreignarbitral proceedings. It further noted that had section 4(10) been of such wideapplication, it was pertinent to consider why Parliament had thought it necessary toenact section 12(7) of the International Arbitration Act to deal with the issue directly.It referred also to a Bahamian decision, Meespierson (Bahamas) Limited v GrupoTorras SA, which held that English legislative developments made significant inroadsin the application of The Siskina. The decision in Meespiersonwas directed towardsrejecting a common law version of section 25 of the Civil Jurisdiction and JudgmentsAct, which only applies to Contracting States of the Lugano and BrusselsConventions.

    Chan J considered it open to him to adopt the reasoning of Ang J in Front Carriersbecause the Court of Appeal had not explicitly overruled Front Carrierson this point.He opined that while the present case did not involve foreign defendants, section4(10) conferred a general power on the court to grant Mareva relief, even though theSingapore action was stayed, provided the jurisdictional pre-requisites of 1) clear inpersonam jurisdiction and 2) that the action had not been struck out because therewas a reasonable accrued cause of action under Singapore law, were met. Section4(10) was very widely drafted and in much the same terms as section 37(1) of theUK SCA, and its scope should also not be unduly fettered in my view. While Chan Jdeclined to follow Petroval v Stainbyon the ground that a cause of action that waspotentially justiciable in Singapore, never mind if the adjudication was to take placeelsewhere was sufficient to establish jurisdiction, this was in the context of stayedactions and should not be read as an endorsement of free-standing Mareva relief inall cases.

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    Chan Js approach is understandable in light of the tentative nature of the dicta inSwift-Fortune, where the Court of Appeal was cautious not to make any directpronouncements on Front Carriers which was also under appeal at the time. Thepersuasiveness of Swift-Fortuneis indeed doubtful for this reason.25 However, ChanJ did not engage directly with the Court of Appeals reasoning in holding that section4(10) was restricted to non-residents and limited by The Siskina. He preferred FrontCarriers, which held that the wording of section 4(10) was substantially similar tosection 37(1) without considering if there was indeed impetus on the Englishlegislatures part to amend the scope of application of section 37(1)s predecessor.

    Similarly, Front Carriersmay be interpreted to stand for a broader proposition thanwhat Chan J was willing to recognise in Multi-code, namely, that territorial jurisdictionalone was sufficient to establish the courts jurisdiction to grant an injunction againstthe defendant in the same manner as it would against someone within thejurisdiction. On the issue of locus standi, Ang J found that the court had the power togrant an interim injunction since there was a recognisable justiciable right between

    the parties, even though that right is to be determined not by the court but by theforeign arbitral tribunal. The principle distilled from Lord Mustills judgment inChannel Tunnelwas that the claimant must establish is that the factual situation onwhich he relies on to support his claim must be capable of sustaining his proceedingsagainst the defendant, and in this respect, there is a close connection with thesubstantive law relating to what is recognised as a legally valid cause of action.

    The defendant was required to be amenable to the territorial jurisdiction of the court,but Channel Tunnel established that residual jurisdiction may exist where theclaimant has a cause of action entitling him to bring himself under a sub-rule of Order11 rule 1. The interim order was a free standing item of ancillary relief. Ang Japproved of the Lady Muriel, which illustrated the principle that once personal

    jurisdiction is established, the court has jurisdiction to grant interim relief based on itsdomestic law. The just and convenient proviso in section 4(10) was a matter for thecourts discretion after territorial jurisdiction had been established.

    Criticism of Front Carrierson factual distinctions is beside the point, even though anargument may be made that because the defendant in that case, as in Masri, hadaccepted service and merely sought to set aside the Mareva injunction on the basisthat the court had no jurisdiction to grant interim relief, rather than dispute jurisdictionaltogether. Rather more perplexing is the fact that the interpretation of section 4(10)was made in the context of a parallel statutory regime where its application to foreignarbitrations in particular would be subject to limits based on the possible concurrentapplication of the International Arbitration Act. The scope for argument on this point

    was correspondingly limited as much of the argument focused on section 12(7)instead. Swift-Fortunedealt with the position prior to the enactment of section 37(1)briefly but insufficient significance was given to analysing the true effect of section25, particularly since the passage from Meespiersoncited in Swift-Fortunewas acategorical rejection of a common law version of section 25, not section 37(1).

    Legislative amendment has targeted the reform of the International Arbitration Actrather than the Civil Law Act. To read into Parliaments omission to reform section4(10) an intention to retain the interpretation made by the Court of Appeal may beoverreaching the limits of determining Parliamentary intention. The amendment ofthe International Arbitration Act may have been motivated by the need to perform

    25As recorded by Tay Yong Kwang J in Petroval SA v Stainby, and also noted in Swift-

    Fortuneitself.

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    Singapores obligations as a signatory to the New York Convention, which promotesrecognition and enforcement of international arbitral awards.

    At present, without further word from the Court of Appeal, the only conclusion thatmay be drawn from the Swift-Fortune line of authorities is that a requirement forinjunctive relief to be granted is that the Singapore courts must be seised of and bethe eventual source of substantive relief. This again demonstrates a focus on disputeconnections insofar as the substantive issues must be determined in the Singaporecourt, and the personal connections of the defendant are irrelevant as a conditionprecedent to subject-matterjurisdiction.

    3. A survey of present approaches

    a. Mareva injunctions

    i. Substantive cause of action to be heard in enforcing court

    The main controversy remains the dispute over interpretation of The Siskina, inwhich the House of Lords set out three requirements before a Mareva injunctioncould be granted. Lord Diplock held that an interlocutory injunction was ancillary toand dependent upon there being a pre-existing cause of action against thedefendant arising out of an invasion, actual or threatened by him, of a legal orequitable right of the plaintiff for the enforcement of which the defendant is amenableto the jurisdiction of the court. The interlocutory injunction was meant to preservethe status quo pending the ascertainment by the court of the rights of the parties andthe grant to the plaintiff of the relief to which his cause of action entitles him. Thisapproach requires therefore that the dispute not only be connected to the foruminsofar as it was sufficient to found discretionary jurisdiction, if applicable, but that the

    substantive determination on the merits be made in the forum.

    The validity of this interpretation ofThe Siskinahas been challenged in Fouriev. LeRoux, where the House of Lords was content to treat The Siskinaas an case wherepersonal jurisdiction under Order 11 was not even established. The plaintiff in thatcase had attempted to rely on the application for a Mareva injunction to justify serviceout of the jurisdiction. While Fouriewas referred to in Multicode, Chan Seng Onn Jtook a moderate position by holding that residual jurisdiction in respect of a stayedaction was sufficient to found jurisdiction to maintain the Mareva injunction. Hestopped short of affirming the more expansive views in Fourie that jurisdiction togrant a Mareva injunction could exist even before a substantive dispute was broughtbefore the courts.

    The position in Fourie recognises the commercial realities affecting judgmentenforcement, but it is arguable that the House of Lords was empowered in theirconclusion by the extremely wide powers under section 25 of the Civil Jurisdictionand Judgments Act, which was later extended by subsidiary legislation to apply to allnon-Convention countries. Section 25(1) allows the court to grant interim reliefwhere proceedings have been or are to be commenced in a Brussels or LuganoContracting State or a Regulation State. It is further provided in sub-section(2) thatthe court may refuse to grant that relief if, in the opinion of the court, the fact that thecourt has no jurisdiction apart from this section in relation to the subject-matter of theproceedings in question makes it inexpedient for the court to grant it. This is thesignificant departure which was referred to in Swift-Fortune to justify continuing to

    prefer the approach in The Siskina, and it would be difficult to argue otherwise. Theissue from a legal reform perspective is whether the current English approach is

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    preferable to The Siskina, which confines jurisdiction to grant interim relief to caseswhere the enforcing court is seised of proceedings, even to the limited extent inMulticode.

    At present the limited extent to which the court can allow substantive determinationof the merits to be allocated to another forum before jurisdiction to maintain interimrelief is weakened irreversibly is also in doubt. In Petroval, Tay Yong Kwang Jrefused to grant a Mareva injunction although the claims made were justiciable in thesense that they were recognised under Singapore law. This was because theclaimant had expressed its intention to have the dispute adjudicated in the BritishVirgin Islands. It was patently clear that the merits thereof [would] not bedetermined in Singapore, which was neither the forum of choice nor the forum mostappropriate to adjudicate on the dispute. Any interlocutory relief granted here takesits life from the same or similar relief granted by the BVI court. Chan J in Multicodewas similarly at pains to emphasise the possibility of the stay being lifted.

    This places great emphasis on the plaintiffs selection of a forum rather than the

    defendants connection to it. It seems that the plaintiffs choice to litigate exclusivelyin one forum, regardless of the defendants connections, will be able to ground jurisdiction to grant interim relief. There is an assumption that the court seisedproperly of proceedings must necessarily possess the power to make interim orders.

    As noted in Derby & Weldon (No. 3), the function of a Mareva injunction is to securethe ultimate judgment to be given. Seen in this light the requirement that the courtmust be seised of the substantive dispute seems merely to be an attempt to protectthe efficacy of the judicial process, which is not particularly internationalist or differentfrom the rationale underlying a domestic Mareva injunction. This is reinforced byWSG Nimbus, where an interim prohibitive injunction was granted to restrain thedefendants from dealing with media rights, despite the existence of an arbitration

    agreement. It appeared irrelevant that the contention was between litigation in SriLanka and arbitration in Singapore, and that the Singapore court was not required todetermine any substantive issue.

    The possible conclusion that subject-matter jurisdiction in the context of jurisdictionto grant Mareva injunctions does not relate to any particular connection to thedefendant beyond what is sufficient to establish personal jurisdiction appearsuntenable in light of Petroval and Multicode. The existence of a claim against thedefendant is not merely another way of restating that personal jurisdiction must beestablished. Viewed this way, the connection required is the probable determinationof the action on the merits, justified by the forums need to protect the efficacy of itsjudicial process.

    However, this at best answers the question of when the forum may take jurisdiction,but not the outer parameters of when it may not. If the connection to the defendant islinked to the dispute connecting factor, namely, the courts control of proceedingshere, then there is no other connection required of the defendant other than what isnecessary to establish personal jurisdiction. In Masri, the connecting factors relied onwere the defendants submission to jurisdiction and the existence of an unexecuted judgment against them. This recycled but did not coincide completely with factorsestablishing personal jurisdiction. It could be argued that submission, whichdemonstrates consent to be bound by the jurisdiction, renders the courts assumptionof compulsive jurisdiction internationally valid.

    The true reason for the High Courts refusal to maintain the Mareva injunction inPetroval seems to be its distaste for being asked to duplicate an injunction in

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    litigation which it was not directly interested in by having to determine the merits andrender a judgment which it would then extend protection to. It is arguable that thefocus should be on the defendants personal connections, such as presence ofassets. To do otherwise creates a lacuna where a defendant may safely shift hisassets and evade any criminal sanctions due to refusal to obey Mareva injunctionselsewhere. The current assumption is that Mareva jurisdiction is inextricably tied tothe substantive merits of any litigation the defendant is embroiled in, in the sense thatit cannot be independently exercised without concurrent control over the substantivedispute.

    However, if the measure is purely protective in nature and no conflict with thesubstantive merits being determined elsewhere, it is curious why the courts refusenonetheless to order Mareva injunctions, keeping in mind that what is required of therestraining court is merely to determine procedural matters such as the release ofassets for the payment of living expenses, or whether full, frank and disclosure hasbeen made. To the extent there may be conflict with a foreign courts decision, thiscan perhaps be more adequately dealt with by a principle of vexatious or oppressive

    conduct, as has been suggested by one commentator contemplating the possibility ofthis principle becoming a general one applicable to all injunctions. The approach inpost-section 25 cases such as Haiti v. Duvalier, where a Mareva injunction wasgranted despite the only connection with England being the presence of thedefendants solicitors with the knowledge to furnish affidavits with disclosure ofassets, may seem jarring to a court that sails with The Siskina. It is suggested,however, that a conservative approach based on precedent is inappropriate where aprincipled approach can be crafted anew.

    b. Anti-suit Injunctions

    The analysis of jurisdiction to restrain foreign proceedings is dualistic in nature,

    insofar as both broader considerations such as the need to minimise interferencewith the foreign judicial process and narrower requirements such as injustice to theclaimant in the foreign proceedings and the in personamnature of the injunction areseen as relevant. It is submitted that both perspectives in fact reveal an approachsimilar to Professor Manns model than would appear on initial scrutiny.

    An often quoted principle of the courts in such cases is that of Lord Goff in Patel, thatcomity requires that the English forum should have a sufficient interest in, orconnection with, the matter in question to justify the indirect interference with theforeign court which an anti-suit injunction entails. 26 There has however been acontinuous and perhaps relentless focus on comity27, which would seem antitheticalto the criticism that comity is a matter for sovereigns, not for judges, and the

    utilisation of a concept which implies the normal meaning of courtesy merelydemonstrates that it has been employed in a meaningless or misleading way. 28

    While Collins points out that comity has been used, at least in the area of criminal jurisdiction, to refer to binding rules of public international law29, the case-law in

    26Patelat ___

    27References are made in ________

    28Dicey & Morris, Private International Law, 13

    thed. 1999

    29Lawrence Collins, 4. Comity in Modern Private International Law, in James Fawcett ed.,

    Reform and Development of Private International Law: Essays in Honour of Sir Peter North,(Oxford University Press: United Kingdom, 2002) at 95-98. In relation to anti-suit injunctions,he does note that the courts exhibit an attitude much more akin to courtesy to the extent that

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    relation to anti-suit injunctions do not lend themselves to any clear eludication of aconcern with international validity. Instead, there is a focus on bilateral and domesticinterests which seem particularly inappropriate being that anti-suit injunctions aredirectly concerned with the resolution of concurrent jurisdictional conflicts. It isargued however that the approaches of courts do in fact demonstrate focus on validassumption of jurisdiction over an errant litigant in terms of sufficient connections tothe enforcing forum, even if it may unavoidably be phrased in terms of comity andconsideration.

    i. Juridical basisThe general principles governing the grant of anti-suit injunctions have beenauthoritatively set out in Lee Kui Jak. These are, firstly, that the jurisdiction is to beexercised when the ends of justice require it; secondly, that the order is directedagainst the parties in personam; thirdly, an injunction will only be issued against aparty who is amenable to the jurisdiction of the court, against whom an injunction willbe an effective remedy, and finally, that the jurisdiction must be exercised withcaution since such orders indirectly [affect] the foreign court. These principlesintended to guide the court in determining whether foreign proceedings should berestrained by injunction, but they do not convey, directly, at least, when thejurisdiction to do so arises.

    Lord Goffs judgment in Air Industrie v Patelcontemplates common law systems asbeing a jungle of separate, broadly based, jurisdictions all over the world, withpotential excesses of common law jurisdictionsgenerally curtailed by the adoptionof the principle of forum non conveniens. There was no embargo on concurrentproceedings in the same matter in more than one jurisdiction. Comity is referred toas being crucial in such cases.

    To conclude that anti-suit injunctions are awarded on a basis completely antithetical

    to adopting a framework based on subject-matter jurisdiction and internationalvalidity of judicial measures would be premature, since as noted earlier, comity maynot necessarily be used in terms of courtesy. In fact, the treatment of defendantswho have instituted proceedings abroad in breach of exclusive jurisdiction clauseswould appear to demonstrate an attitude less than absolute courtesy, since toarrogate to itself the power to determine the scope of the exclusive jurisdiction clauseeven prior to the opinion of the foreign court, and to impose a restraint on that basis,the enforcing court is actually asserting its own right to take jurisdiction in the presentcase in preference to any possible declining of jurisdiction by the foreign court.

    There is still conceptual uncertainty as to the basis of jurisdiction to grant anti-suitinjunctions. The categories of cases in which anti-suit injunctions have been granted

    may be summarised as firstly, where the partys conduct in commencing proceedingsin another jurisdiction was vexatious or oppressive; secondly, where there was abreach of a legal or equitable right, and finally where the party commencingproceedings overseas had acted unconscionably. Judicial opinion on the basis of theanti-suit injunction has been confused. In South Carolinait was said that vexatious oroppressive conduct was an example of unconscionable conduct, which was itself oneof two categories accepted by Lord Brandon but rejected by Lord Goff, who preferreda general jurisdiction based on injustice. On the other hand, it is doubtful whether thebreach of a legal or equitable right is itself a discrete category or one example ofvexatious or oppressive conduct.

    there is a recognition that an anti-suit injunction might be an interference with the sovereigntyand jurisdiction of a foreign country.

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    Fentiman argues that the basis for granting relief [should be] the prevention ofinjustice to the applicant. However, adopting either the traditional categorisations orFentimans suggestion throws up jurisdictional difficulties. If the basis of restrainingforeign proceedings is to prevent injustice to the defendant, then absent anyextenuating factors which may influence the determination of a natural forum, thecourt should be empowered to order an anti-suit injunction on that basis alone whereit is necessary to avoid injustice to the applicant who has sued properly in the correctforum. This is the position taken in Castanho where Lord Scarman held that theprinciple is the same whether the remedy sought is a stay of English proceedings ora restraint upon foreign proceedings. Castanhowas however categorically rejectedin Lee Kui Jak as being inconsistent with comity, since the court could not simplyarrogate to itselfthe power to resolve that dispute where there is simply adifference of view between the English court and the foreign court.

    On the other hand, if the more specific grounds of vexatious or oppressivebehaviour or unconscionable conduct are adopted, questions may arise as towhether focus should be on connections to the plaintiff (if it is the effects on him that

    are relevant) or on connections to the defendant (if it is the courts power to assume jurisdiction over actions he takes overseas that is relevant). The true basis of the jurisdiction to restrain foreign proceedings seems to be the courts power to protectits own judicial process from being interfered with.

    In cases where an alternative forum is concerned the courts have generally requiredthat the enforcing forum be the natural forum, whereas in single forum cases theemphasis is on unconscionable conduct of the claimant in the foreign proceedings orarguably the connection to the forum. The single forum decisions are particularlydifficult to justify in relation to Patelwhich disavows any intervention by a court notdirectly interested in the dispute. Indeed, this seems to suggest that the single forumdecisions are motivated by the courts desire to protect its own forum public policy

    which to some extent is demonstrated in Singapore decisions such as BeckkettandEvergreen. The foreign court is regarded as having acted exorbitantly, such that itcannot expect its decision to be respected on the basis of comity . This notion ofjurisdiction seems less rooted in party justice than the retaliatory protection of forumpolicy.

    ii. Amenability to jurisdictionThe third principle identified in Lee Kui Jakby Lord Goff was that an injunction willonly be issued restraining a party who is amenable to the jurisdiction of the court,against whom an injunction will be an effective remedy. This presumably followsfrom the equitable maxim that equity does not act in vain, as well as the identification

    of an anti-suit injunction as being in personamand acting against the party sought tobe restrained only. This seems correct since amenability to the jurisdiction has beeninterpreted rather expansively in Singapore cases to refer simply to in personam jurisdiction. This divergence from the original reference to efficacy or futility of theorder means that the requirement of amenability appears more akin to a jurisdictionalfactor rather than going towards efficacy.

    In Djoni, the Court of Appeal agreed with Kan Ting Chiu JCs opinion that theplaintiffs submission to the jurisdiction of the court by seeking relief made himamenable to the courtsjurisdiction. This was in spite of the fact that the plaintiff wasnot physically within the jurisdiction the presence of his bank account with thedefendants within the jurisdiction was sufficient. In Kishinchand the second

    defendant was also held to be amenable to the jurisdiction of the Singapore courteven though she was not resident in Singapore or the plaintiff in the proceedings. It

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    was held that the steps she had taken in the action demonstrated that she wasactively seeking relief from the Singapore courts, and not merely defending a claim.

    This was taken further in Koh Kay Yew, where the court interpreted amenability asbeing liable or accountable to this jurisdiction and equivalent to in personam jurisdiction over a party however founded. In VV, despite the respondent havingalready breached an interim anti-suit injunction, no consideration was made ofefficacy of a further anti-suit injunction, possibly because the injunction would havebeen refused on other grounds (as it was) anyway. The court equating amenabilitywith in personam jurisdiction may still be justified on the basis that factorsestablishing personal jurisdiction often mean that the defendant is more susceptibleto compulsive orders made by the court, particularly if the factor relied on issubmission. To the extent that amenability is identified as equivalent to in personam jurisdiction, the approach seems closer to establishing subject-matter jurisdictionrather than relying on any concept of courtesy to the foreign court. This is becausethe court issuing an anti-suit injunction finds its subject-matter jurisdiction to do so inthe amenability of the defendant, in the sense that the courts regulation of his

    behaviour outside the jurisdiction is directly connected to its power over him basedon the individual suit controlled by the forum.

    As Harris argues, the distinction between an in personammeasure and an injunctionpurportedly acting directly on the foreign court is not merely one of semantics, sincethe litigant remains free to proceed depending on the consequences that may follow,such as the forum refusing to recognise the effect of a foreign judgment obtained incontravention of the order, and any possible charges of contempt of court. Theadverse view of the Dusseldorf Oberlandesgericht that instructions from foreigncourts purporting to interfere with proceedings before German courts constituted aninterference with the autonomy and sovereignty of the German court failed toappreciate the import of an order in personam. The restraint demonstrated by the

    courts in emphasising the in personam nature of the measure in fact shows anappreciation of the limits of international jurisdiction rather than a parochial attitudecoupled with the exercise of discretion.

    iii. Forum public policyAnother category of exceptional cases are where anti-suit injunctions were granted toprotect some vital forum interest or to carry out some public policy concern. The mostobvious example would be Evergreen, where Belinda Ang J granted an anti-suitinjunction restraining cargo-owners from continuing Belgian proceedings where thiswas in conflict with the limitation action instituted under a different maritimeconvention in Singapore. While the decision was based on traditional principles of

    vexation and oppression, she noted that there is justification for the court togiveeffect to the policies of its own legislature and its orders.

    A more recent example is Beckkett Pte Ltdv. Deutsche Bank AG, where the Court ofAppeal granted an anti-suit injunction restraining Beckkett from continuingproceedings in Indonesia when they had already pursued the same cause of actionon the same arguments in Singapore to appellate level. Significantly, the court heldthat even assuming that [Deutsche Bank] had wholeheartedly embraced theIndonesian action, we could not possibly permit the parties, even by consent, toabuse the process of this court and undermine its authority by stealthily engaging inthe Indonesian action. The court was loath to permit what it saw as a blatant,opportunistic and egregious abuse of the [judicial process].

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    The reactionary exercise of jurisdiction in these cases seems unobjectionable insofaras the courts jurisdiction to protect vital forum interests, including the legitimacy andintegrity of its own process, from infringement by foreign courts does not seeminternationally exorbitant, as the Dusseldorf Oberlandgericht did (in an admittedlypassive manner) by refusing to recognise the English anti-suit injunction. Thedifficulty whether pro-active encroachment on a foreign jurisdiction, even indirectly, isinternationally justified where there is at best a difference in views and theexorbitant jurisdiction exercised by the foreign court is only regarded as such by therestraining forum. Briggs has criticised the insular attitudes of courts in defining thelegal or equitable right to be protected by an anti-suit injunction using only the lexfori, where such rights should arguably be determined by foreign law. To classify theprotection of forum interests as a separate ground for anti-suit relief may be a morehonest method which recognises the basis of the subject-matter jurisdiction therestraining forum claims in such cases.

    Conclusion

    It is not obvious how adopting an approach based on subject-matter jurisdictiondiffers from comity as it is treated in practice today. In declining to grant orders wherethere is no substantive cause of action, or where the court is not the natural forum,the comity approach reveals concern and adherence to certain limits ofinternational jurisdiction. It is arguable that the courts have implicitly adopted subject-matter jurisdiction, in spirit at least, insofar as it undertakes an assessment of thelegitimate scope of jurisdiction to grant such orders. Though admittedly circular, if theessential connection required in subject-matter jurisdiction is the courts control orinterest in the substantive dispute, then it is not clear to what extent the comity

    approach has failed to achieve the same result, except that adopting the subject-matter jurisdictional approach may contribute to clarity by compelling courts toidentify sufficient connections rationalised by consideration of the subject-matterjurisdiction required rather than give reasons only when declining relief. In its currentform, the subject-matter jurisdiction approach has failed to achieve practicalcertainty. This is because it has been applied in an unprincipled manner because theconnections that must be established to found subject-matter jurisdiction are notclearly and reasonably correlative with the type of measure sought.

    Similarly, the state of the law in Singapore relating to jurisdiction to grant pre-emptiverelief remains highly unsatisfactory. Reliance on an 1878 provision prior to politicalself-determination, or even the existence of the Singapore constitution aside, thecase-law appears to treat the jurisdiction to grant interim orders highly invasive ofboth party rights and the autonomy of foreign courts lightly, yet adopt an overlyconservative view of jurisdiction to grant such orders on appeal, as is evident inSwift-Fortune. There may be some prospect of reform for Mareva injunctions, asheralded by Multicodewhich is currently on appeal. It is clear however that reform isdesperately needed. Such reform must necessarily take into consideration theimportance of such measures to Singapores status as a financial and legal hub andthe ripple effects of any changes to the law in this respect.

    To adopt a thin version of international jurisdiction to grant such orders would beover-inclusive in the sense that an interpretation of section 4(10) as having unlimited

    extraterritorial effect would result in many orders being made without considerationas to either personal or dispute connections to Singapore. Likewise, the presentinterpretation of jurisdiction to grant pre-emptive relief is under-inclusive. It cannot,

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    and does not, in reliance on The Siskina, take into consideration any connections tothe Singapore jurisdiction. It ignores difficulties faced by litigants in a globalised worldwith near-unlimited mobility of assets, when asset-freezing orders such as theMareva injunction, if granted pre-dispute, may indeed aid in securing judgmentproceeds and protecting the integrity of the judicial process. The importance ofmutual judicial assistance is underlined by the entering into conventions and treatiesto assist in promoting sharing of information and the taking of evidence.

    The English approach in the Civil Jurisdiction and Judgments Act may not beinternationally appropriate. The court has jurisdiction to grant interim relief and anyrestraint is discretionary, depending on whether it would be inexpedient in thecourts view. This goes much farther than an approach based on establishingsubject-matter jurisdiction, however uncertain, or the current comity approach,which at least identifies the interest of the foreign court in the matter.