Study and Commentary on SICC Case: BCBC Singapore Pte Ltd vs. PT Bayan Resources TBK  SGHC(I) 06.
Dee Dee Peter
Kho Feng Ming
The funding issues focused on three key issues, namely, whether BR was obliged to:
- provide funding for the commissioning, operations and maintenance of the Project in accordance with a funding MOU executed in March 2009 (Funding MOU);
- consent to KSC obtaining an advance from SCB to repay monies lent to it by BCBCS; and
- contribute 49% of KSC’s care and maintenance costs.
The SICC looked at the terms of the JV Deed and Funding MOU which were expressly governed by Singaporean law. Under Singaporean law a contextual approach is taken to contractual construction (i.e. ‘the Court ascertains the intention of the parties at the time they entered into a contract based on all “relevant” evidence’). Extrinsic evidence can be used to interpret a contract if it is ‘relevant, reasonably available to all the contracting parties and relates to a clear or obvious context.’ Subsequent conduct can also be considered as an aid to construing a contract.
In considering the JV Deed, the SICC looked at the natural and ordinary meaning of the funding obligations clauses and held that had the parties intended to give up their ‘significant right’ to withhold consent to calls for funding then they would have articulated this in the Funding MOU.
The SICC commented on what it considered, or more relevantly did not, to form relevant extrinsic evidence under Singaporean law, including evidence of subsequent conduct. For example, the Court looked at BR seeking clarification of the costs associated with its funding obligations, and did not consider this relevant contextual evidence of BR’s awareness of its legal obligation to contribute to such costs under the Funding MOU.
Ultimately on the question of funding, the SICC determined that BR was under no obligation to provide funding for commissioning costs or care and maintenance costs (even though it was subject to good faith obligations under the JV Deed), nor was it under any obligation to consent to KSC obtaining a further advance to repay debts owed to BCBCS.
The first coal supply issue was whether BR was under an obligation to supply and / or assist to procure coal to be supplied to KSC under the JV Deed or other agreements or side deeds. In relation to this issue, KSC had entered into coal supply agreements with entities related to BR.
On this issue, the SICC held that there was insufficient evidence to determine how much coal was required by KSC in the period in question, which was during the commissioning phase. To that end, it reserved its decision until later when the issue could be further explored.
The second coal supply issues was whether the coal supply agreements (and related side agreements) for the supply of coal between November 2011 and March 2012 were illegal or entered into for an illegal purpose under Indonesian law, and thus unenforceable in Singapore. This was namely because of the transfer pricing and tax implications of the economic model used for pricing the coal. In 2010 the Indonesian Government introduced new regulations for the mining industry impacting on permits, and more relevantly, on mandated minimum benchmark prices for various types of coal.
The SICC explored the two distinct strands that comprise illegality in Singapore. First, as a matter of public policy:
” … a Singapore court will not enforce a contract or award for damages for its breach, if its object or purpose would involve doing an act in a foreign and friendly state which would violate the law of that state.”
Second, on an independent conflict of laws basis, the SICC confirmed that a contract would be:
” … invalid in so far as the performance of it is unlawful by the law of the country where the contract is to be performed.”
BR’s argument that the coal supply agreement and associated side letter were illegal was dependent upon them being illegal under Indonesian law – that is, they conflicted with the regulations issued by the Indonesian government. Following the consideration of evidence from experts in Indonesian law put forward by both sides, the SICC found that there were common grounds on which an agreement would be held to be unenforceable under Indonesian law. In this case however, the SICC rejected the allegation that the agreements were tainted by illegality as they were consistent with the regulations introduced by the Indonesian government. Further, the judgment provides detailed consideration of the pricing mechanisms in the coal supply agreements and related side letter which may prove useful in similar commercial settings.
One of the contentious counterclaim issues was whether there was an implied term in the JV Deed:
… that in providing technical assistance to KSC in the development of the Patented Briquetting Process, BCBCS was under a contractual duty to use the reasonable skill and care to be expected of a competent designer, builder and operator of a coal preparation and briquetting plants.
The SICC addressed the approach to implied terms in Singapore noting that a court must first ascertain how the gap in the contract arises as the implication will only be considered where parties did not contemplate the gap. Secondly, the court will consider whether it is necessary in business or commercial sense to imply the term to give the contract efficacy. Thirdly, the specific term to be implied will be considered and it must be one that the parties ‘would have responded “Oh, of course!” had the proposed term been put to them at the time of the contract.’
As to the implied term alleged in this instance, the SICC held that the obligation in the JV Deed for BCBCS to provide technical assistance did not go so far as to impose an obligation to provide this assistance as it related to design, building or operating of coal preparation and briquetting plants. As such, there was no implied contractual duty to use the reasonable care and skill expected of a competent designer, builder or operator of the same.
The case concerned a joint venture in Indonesia between publicly listed parties from Australia and Indonesia and their associated companies. The joint venture sought to exploit a patented technology, a binderless coal briquetting process (“the BCB Process”), developed in Australia, to produce and sell upgraded sub-bituminous coal from East Kalimantan. A claim was brought by BCBC Singapore Pte Ltd (“BCBCS”) and its affiliate company in Australia against PT Bayan Resources TBK (“BR”), an Indonesian company, and its affiliate company in Singapore. BR conversely commenced a counterclaim against BCBCS and its parent company in Australia, White Energy Company Limited.
The parties’ commercial relationship began in 2006 when they signed a joint venture deed. However, due to unexpected developments and increased expenses pertaining to the joint venture, including intervening legislation in Indonesia which regulated the sale of coal, numerous agreements, memoranda and a side letter were entered into between the parties during the period 2007 to 2011, resulting in a complex contractual matrix.
The parties agreed to have the dispute resolved in tranches; the first tranche was devoted to ascertaining the true meaning and exact nature and scope of a number of provisions in the various agreements and the parties’ obligations thereunder. The decision to divide the suit into tranches was reached after conferring with the parties who shared the view that, given the complexity of the case, the Court’s interpretation of the various agreements would assist in narrowing the areas of dispute between them moving forward. The parties agreed on certain specified issues to be determined by the Court in the first tranche; these issues could be broadly grouped as (a) funding issues, (b) coal supply issues and illegality; and (c) counterclaim issues on implied duties.
After a nine-day trial, closing submissions were delivered by the parties on 14 January 2016. In its judgment, the Court held that BR was not obliged to provide funding to the joint venture during the period of November 2011 to March 2012, which was the period in which the dispute between the joint venture parties came to a head. Although the parties had entered into various subsequent agreements during the course of the joint venture, on a true construction of those agreements, the parties never gave up certain core rights under the original joint venture deed which required the agreement of both parties on the funding to be contributed to the joint venture and the right to refuse to provide additional funding at their absolute discretion.
The Court declined to decide whether BR had an obligation to supply coal during this same time period due to the lack of evidence led on this issue, preferring to decide the issue at a subsequent tranche when the parties have the opportunity to lead relevant evidence to enable findings of fact on which the issue could be properly decided. The Court further held that the arrangement between the parties regarding the supply of coal was not void for illegality as it did not contravene Indonesian law. The coal would be sold at the regulated price and the Indonesian government would receive full royalties and taxes on the coal transactions.
As for the counterclaim brought by BR, the Court found that BCBCS was only obliged to assist in the development of the BCB Process and that its obligations did not extend to designing, building or operating the coal upgrading plant. Given the above findings, it was not strictly necessary for the Court to determine whether BCBCS had an obligation to ensure that a certain minimum amount of upgraded coal briquettes would be produced within a reasonable period of time. Nevertheless, the Court found that BCBCS did not have such an obligation. The parties were aware at all times of the risks involved in the project and that the BCB Process was an unproven technology. Accordingly, an obligation of guaranteed performance could not be justified.
The Court has accorded the parties 30 days to consider the judgment and to then decide on the future conduct of the case.
In the case of PT BAYAN RESOURCES TBK v BCBC SINGAPORE PTE LTD & ORS  HCA 36, the appellant, a company incorporated in Indonesia, owns shares in the second respondent, a company incorporated in Australia. The first respondent is a company incorporated in Singapore. The appellant and the first respondent are parties to a joint venture agreement which is governed by the law of Singapore. The first respondent commenced a proceeding against the appellant in the High Court of Singapore, claiming, amongst other things, damages for breach of that agreement.
The claims were dismissed by firstly, the defendants were not obliged to provide funding to the joint venture company, PT Kalsim Supacoal (KSC) The court ascertains parties intention at the time they entered the contract that relates to the clear context of the agreement. The Singapore Law approaches implied terms via the gap in the contract and the implications that may occur. The eficacy of the contract is determined by the business or commercial sense in the implied terms. And lastly, the specific terms has to be intended by both parties. The court looked at Bayan Resources’ who seeks clarification on their funding obligations and hence ruled this cost funding is a contextual evidence of Bayan Resources intention of its’ legal obligation to contribute to the funding.
Secondly, the coal apply issue for the supply of coal between November 2011 and March 2012 is illegal. The court held that this agreement entered by the parties is not void by the Indonesian Law because the issue of supplying coal as it not contravening the Indonesian Law. The coals sold at a regulated price and the Indonesian government is receiving royalties and taxes from the sales. The Indonesian government had introduced regulations on mining industries that had mandated the benchmark for minimal pricing on coal supplies.
Thirdly, the court held that the plaintiffs were not under an implied contractual duty to use the reasonable duty of skill and care to be expected of a competent designer in providing technical assistance. The Court later found that BCBCS’ obligations did not extend to designing, building or operating the coal upgrading plant. The parties were aware at all times of the risks involved in the project and that the BCB Process was an unproven technology. Accordingly, an obligation of guaranteed performance could not be justified.
Application of Principles and Rules
The courts found that BR was not obliged to provide funding to KSC between November 2011 and 2 March 2012, contribute 49% of the expenses incurred for the care and maintenance of KSC and to consent to KSC obtaining a further advance of US$3.033m from SCB which would be used to repay BCBCS for its temporary loan to KSC.
BCBCS tried to claim that BR had promised to provide funding for the use of KSC at a fixed portion and therefore cannot revoke its promise. We found that BCBCS was actually claiming under the principle of “pacta sun servanda” which means that parties must honour their promise or “agreements must be kept” which is a basic principle of civil law, common law and international law.
One of the issues was whether BR was under any expressed or implied obligation to provide funding to KSC between November 2011 and 2 March 2012. The principle was that, on order for the courts to decide if there was indeed an implied term that BR was to provide such funding was to look at the conduct of the parties during the draft or before the performance of such obligations.
In this case, the courts found that BR only agreed that BR would fund the SCB Loan Facility to repay BCBCS for the monetary loan BCBCS had granted to KSC on 11 and 23 June 2010, but no further. The courts had also found and agreed to Mr. Xavier’s oral submission that:
- The email correspondence that took place in June 2010, fairly read, shows that BR only agreed to the SCB Loan Facility being used for immediate re-payments of BCBCS’ 11 and 23 June 2010 loans. …
- The immediate reimbursement of the 11 and 23 June 2010 BCBCS loans, are only two instances, and can only hardly constitute a fashion. In the absence of a clear representation to that effect, there cannot be an estoppel.
On coal supply and illegality
- i) On the first basis of illegality
The court held that, after considering the reports of the experts brought forward by the defendant and plaintiff, nothing in the terms set in the contract, whether express or implied, was found to have allowed any performance other than which is fully compliant with the Indonesian laws and HBA regulations by virtue of Regulation No. 17 of 2010 on Procedures to Determine the Benchmark Price for the Sale of Minerals and Coal.
The main principle that was applied when deciding on this issue was the principle of international mandatory rule. Cases like Foster v. Driscoll  1 KB 470 and Regazzoni v. K C Sethia (1994) Ltd  AC 301 highlights principles of domestic policy that “a Singapore court will not enforce a contract or award damages for its breach, if its object or purpose would involve doing an act in a foreign and friendly state which would violate the law of that state.” Another case that was referred to in the judgement of this case was Ralli Brothers v. Compania Naviera Sota y Aznar  2 KB 287 which, in relation to this case, applied the principle of independent conflict of laws whereby it is highlighted that “a contract is, in general, invalid in so far as the performance of it is unlawful by the law of the country where the contract is to be performed (lex loci solutionis)”.
On the grounds of this principle, the court opined in the issues of the basis of illegality:
- an agreement which is entered into for a purpose that is prohibited by law or violates public order is not a valid agreement and is unenforceable;
- any agreement which is entered into for the purpose of contravening, circumventing, avoiding or getting around an Indonesian Regulation will be regarded as an agreement with a “prohibited cause” under the Indonesian Civil Code, and will be invalid and unenforceable;
- compliance with the HBA Regulation is mandatory, … ;
- …. Bara’s sale of feedstock coal to KSC and KSC’s sale of upgraded coal briquettes must be transacted at the HBA prices, and failure to conform to this price would render the contract illegal.
Applying the said principle and analyzing the evidence the brought forth to the court, the judges found that the 2011 April Side Letter and the 2010 CSAs are not illegal or tainted to be.
(ii) On the second basis of illegality
It was decided that the “ambiguity” and “gaps” which were present in the April 2011 Side Letter did not render the contract invalid as it was not of such nature that reaches the extend of the need to terminate or strike the contract down.
It was in this case that the courts considered the principle of freedom of contract by reaffirming the views of Lloyd LJ in Pagnan SpA v. Feed Products Ltd  2:
- Parties may intend to be bound forthwith by an agreement even though there were further terms to be agreed or some further formality to be fulfilled;
- There is no legal obstacle which stands in the way of parties agreeing to be bound now while deferring important matters to be agreed later. It is for the parties to decide whether they wish to be bound, and if so, by what terms, whether important or important.
However, the courts did apply the principle of freedom of contract subject to a certain limitation or restriction that a contract cannot be simply made or pronounced invalid for ambiguity or “gaps” or certain terms present in it unless such ambiguity or “gaps” would make the contract not performable. In this case, the court reaffirmed Lloyd LJ’s view in Pagnam SpA:
- If the parties fail to reach agreement on such further terms, the existing contract would not be invalidated unless the failure to reach agreement on such further terms renders the contract unworkable or void for uncertainty.
This would mean that whether or not the contract can be struck down or vice versa, would depend on the facts of the case, whether the term in question was a warranty or a condition.
On counterclaim issues
BR claimed that BCBCS was under an implied contractual duty to use the reasonable skill and care to be expected of a competent designer, builder and operator of coal preparation and briquetting plants in providing technical assistance to KSC. They claimed so referring to Clause 3.8(a)(iii) of the JV Deed, which states that:
(iii) provide technical assistance to [KSC] in the development of the [BCB] Process;”
The courts applied the rule of three steps to determine the presence of an implied term, namely;
- ascertain how the gap in the contract arises; [how did this gap arise?]
- whether it is necessary in the business or commercial sense to imply a term to give the contract efficacy; [would the contract be unworkable if such terms were not implied?]
- consider the specific term to be implied. [What term should be implied?]
Applying these rules in considering an issue with implied terms, the courts decided in the negative. Due to the “unproven technology” and the fact that the parties “knew the risks”, in such circumstances, the court was in the view that it is difficult to impose such implied terms which results to a guarantee of a particular performance by KSC, by a particular date or a during particular period of time.
The commentary on this case begins with the brief introduction on the establishment of Singapore International Commercial Court (hereinafter “SICC”), and subsequently followed by the observation with clarification on the case of BCBC Singapore Pte Ltd v PT Bayan Resources TBK (hereinafter “BCBC v PT Bayan Resources”). The observation touches on the issues such as the brief facts of the case, the counsel, the coram, the transfer of proceedings, questions pertaining to the determination of foreign law, and the discovery model in SICC. This commentary tied up with a concluding remarks.
(i) Establishment of SICC
5th January 2015 saw the birth of the Singapore International Commercial Court (“SICC”), a new institution that was brought from vision to reality within a short span of two years. Just slightly more than a year after its launch, the SICC rendered its first judgment in BCBC Singapore Pte Ltd v PT Bayan Resources TBK (“BCBC v PT Bayan Resources”).
(ii) BCBC Singapore Pte Ltd v PT Bayan Resources TBK
BCBC v PT Bayan Resources, on 4 March 2015 by way of a transfer to the SICC for adjudication from the High Court pursuant to O 110 r 12 of the Rules of Court.
By way of brief background, the case concerned a joint venture in Indonesia between publicly listed parties from Australia and Indonesia (including their associated companies) to exploit a patented technology developed in Australia to produce and sell upgraded sub-bituminous coal from East Kalimantan, and involved a complex contractual matrix. The parties involved were variously incorporated in Singapore, Australia and Indonesia. The hearing of the first tranche of the trial in BCBC v PT Bayan Resources commenced about eight months after the case was transferred. The first tranche related to the issues of contractual construction and some issues of Indonesian law, while issues relating to the alleged breach of contract were reserved to be determined in later tranches. The first tranche was initially fixed for a period of 15 days, from 16 November 2015 to 4 December 2015, but the evidence-taking process was completed six days ahead of schedule on 26 November 2015, with a full day of hearing for closing submissions conducted thereafter on 14 January 2016. The SICC rendered its first written judgment on 12 May 2016.
The judgment has attracted much interest and, amongst other things, has been hailed as a “masterclass” in how to deal with rules of interpretation, public policy and the implication of terms.
The counsel involved were from two of the largest law firms in Singapore. The plaintiffs and the second defendant by counterclaim were represented by a team from Rajah & Tann LLP led by Francis Xavier SC, while the defendants were represented by a team from Drew & Napier LLC led by Davinder Singh SC.
(iv) The coram
The judges assigned to the coram were High Court Judge Quentin Loh and International Judges Vivian Ramsey and Anselmo Reyes. The members of the coram, who have been described as “international legal heavyweights”, have a wealth of commercial law practice knowledge and expertise.
|Quentin Loh J
||Was appointed as a Judicial Commissioner in 2009 and, later, a Judge of the Supreme Court in 2010. Prior to joining the Bench, he was the head of the Building and Engineering Construction and Insurance and Reinsurance practice groups, and a key member of the international arbitration group in one of Singapore’s largest law firms. As a High Court Judge, he continues to specialise in the hearing of complex commercial cases in the Supreme Court.
|Vivian Ramsey IJ
||Was a Judge of the High Court (Queen’s Bench Division) of England and Wales for nine years, during which he also served as the Judge in charge of the Technology and Construction Court. He has an active arbitration practice and is a visiting professor at the Dickson Poon School of Law at King’s College, London.
|Anselmo Reyes IJ
||A Judge in the Hong Kong Court of First Instance from 2003 to 2012, where he specialised in arbitration, commercial and admiralty matters. He is a professor of legal practice in the Faculty of Law at the University of Hong Kong and also has an active arbitration practice in commercial matters.
Diagram 1.1: The judges and their respective professional biographies
(v) The Transfer of case
BCBC v PT Bayan Resources was the first case transferred to the SICC from the High Court. The factors that were taken into account were recorded in the brief grounds for the order of transfer dated 4 March 2015, and were as follows:
(a) First, in relation to the nature of the dispute, it was observed that the case concerned a transnational business dispute involving parties, business interests and commercial dealings in different jurisdictions.
(b) Second, with respect to the reliefs sought, the claim and counterclaim of the parties arose mainly from alleged breaches of agreements relating to a joint venture for the application of a patented technology to produce upgraded coal from East Kalimantan for sale and the business and operations of the joint venture company that was incorporated in Indonesia. In addition, damages were sought for alleged breaches of guarantee, misrepresentation and negligence, and inducement to enter into the joint venture. The parties did not seek any relief in the form of, or connected with, a prerogative order.
It was further observed that the dispute was at its root concerned with the commercial expectations of the parties in respect of a large-scale industrial project that bore significant and substantial international elements, and therefore would, subject to necessary consequential orders, be more appropriately dealt with by the SICC as the SICC is a division of the High Court specifically established to hear and resolve international commercial disputes. Having heard the parties on the issue of the transfer of the proceedings to the SICC, and in view of the foregoing factors, the High Court made an order for transfer together with various consequential orders.
(vi) Determination of Foreign Law
In BCBC v PT Bayan Resources, the parties successfully sought and obtained an order pursuant to O 110 r 25 for certain questions of applicable Indonesian law to be determined on the basis of submissions instead of proof. This is an option not traditionally available under the common law for determining questions of foreign law. The SICC offers parties the flexibility of adopting the traditional “adversarial” approach, an approach of determining foreign law by way of submissions, or indeed, even a combination of both approaches in the same case. This last-mentioned scenario materialised in BCBC v PT Bayan Resources, where the SICC received both evidence and submissions on Indonesian law from various experts of Indonesian law. In particular, evidence on Indonesian law in BCBC v PT Bayan Resources was taken from an Indonesian law academic and an Indonesian legal consultant, and submissions on Indonesian law were received from two members of the Indonesian Bar. Under the traditional approach, the SICC may determine a question of foreign law by way of proof, which is usually carried out by way of the parties tendering sworn statements on the foreign law in question. It bears mention that in a unique modification of the traditional approach, the SICC in BCBC v PT Bayan Resources, with the parties’ concurrence, proceeded on the basis that the oral testimony of one of the plaintiffs’ expert witnesses “would not be subject to cross- examination but with the reservation that not everything he submitted was necessarily accepted by the Defendants”. The alternative approach available in the SICC (that is, determining questions of foreign law on the basis of submissions) is similar to the model commonly adopted in international arbitration. Under this approach, the SICC may determine such questions on the basis of submissions, whether oral or written or both.
The determination of foreign law by submissions at first instance is an option that is available to the parties in the SICC. It is neither a mandatory nor a default position. Upon the application of a party, the court will consider whether to proceed on the basis of submissions. So long as a party makes such an application and the court is of the view that proceeding on the basis of submissions would be appropriate, there is no requirement for all parties to consent to such an arrangement. If the court is minded to grant the application to permit the determination of foreign law by way of submissions, the court is required to specify in its order one or more persons who may make submissions on the relevant questions of foreign law on behalf of each party. In addition to considering the parties’ submissions on foreign law, the court may also have regard to the legislation of the relevant foreign country, decisions of the courts of the foreign country, judgments of the Singapore courts on similar questions of foreign law and any other material that in the view of the court is authoritative or persuasive in determining or interpreting the foreign law in question. In an appeal from any decision of the SICC to the Court of Appeal, the Court of Appeal may determine any question of foreign law on a basis similar to that adopted at first instance. However, whereas at first instance a party’s application is required, the Court of Appeal may determine questions of foreign law on the basis of submissions on its own motion, regardless of whether a party takes out an application for the same, or whether the first instance court had done so.
The option of allowing foreign law to be determined on the basis of submissions can in practice translate into savings in time and costs since evidence of foreign law is received directly without cross- examination and re-examination. It is perhaps for these reasons that the parties in BCBC v PT Bayan Resources applied for questions of foreign law to be determined by submissions and applied to register one foreign lawyer each to make such submissions. The fact that there was no need for lengthy cross-examination of experts further helped to expedite the process of the trial and was likely a factor that contributed to the early completion of the first tranche of the trial. There is also an interesting question on whether the parties may agree in advance that a determination of foreign law by the court be treated as a finding of fact or a finding of law, but this point did not arise in BCBC v PT Bayan Resources.
(vii) Discovery Model in SICC
In keeping with its character as an international court, the procedure for disclosure of documents in the SICC is simplified from the traditional discovery model in common law jurisdictions. The objective is to make the process manageable and acceptable to the parties and lawyers from different legal traditions, and also to facilitate a quicker and more cost- efficient resolution of disputes. In BCBC v PT Bayan Resources, the High Court, when ordering the transfer, made various consequential orders pursuant to O 110 r 12(5) (d) for general discovery that had already commenced based on O 24 to continue and to be completed on the same legal basis. This addressed the concern raised by counsel for the defendants that general discovery would be necessary in view of the allegations involving, inter alia, fraud. The provisions for specific and further discovery under O 24 r 5 and other relevant parts of O 24 were consequently ordered to continue to apply to give proper effect to the existing orders and directions for discovery. This was considered to be necessary since applications for specific and further discovery would invariably be tied to discovery that had been given or that was to be completed in accordance with the O 24 principles – for example, if general discovery was found to be inadequate for any reason and specific and further discovery becomes necessary.
(viii) Concluding remark
BCBC v PT Bayan Resources is significant in many ways. The complexity of the matter provided an excellent stress test for the rules and procedures of a new institution. With the flexibility exercised by the court as well as counsel, a massively complex commercial dispute was heard about eight months after its transfer to the SICC, with a thorough judgment issued about four months after the conclusion of the first tranche of trial. The first case is therefore a good illustration of the strengths of the SICC as well as the quality and flexibility of its procedures.
Footnotes and References
  SGHC(I) 1. For a copy of the full judgment, see SICC website, “Recent Judgments” <http://www.sicc.gov.sg/HearingsJudgments.aspx?id=72> (accessed 17 November 2016).
 The establishment of the SICC was primarily motivated by two key ideas: first, the recognition that the exponential and unprecedented growth of commercial activity in Asia would be accompanied by a need for institutions to resolve transnational commercial disputes swiftly, efficiently and predictably, while providing a basis for developing a freestanding body of commercial law; and second, Singapore’s drive to provide an entire suite of dispute resolution services so as to bolster her status as a hub for resolving commercial disputes.
See Chief Justice Sundaresh Menon, “Response by Chief Justice Sundaresh Menon: Opening of the Legal Year 2015” (5 January 2015) at para 20, available at <http://www.supremecourt.gov.sg/docs/default-source/default-document-library/ media-room/response-by-cj—opening-of-the-legal-year-2015-on-5-january-2015- (final).pdf> (accessed 17 November 2016); Chief Justice Sundaresh Menon, “Response by Chief Justice Sundaresh Menon: Opening of the Legal Year 2015” (5 January 2015) at para 20(a), available at <http://www.supremecourt.gov.sg/docs/default-source/default-document-library/ media-room/response-by-cj—opening-of-the-legal-year-2015-on-5-january-2015- (final).pdf> (accessed 17 November 2016) and Sundaresh Menon, “Origins and Aspirations: Developing an International Construction Court”  ICLR 341 at 344 and Chief Justice Sundaresh Menon, “Response by Chief Justice Sundaresh Menon: Opening of the Legal Year 2015” (5 January 2015) at para 20(b), available at <http://www.supremecourt.gov.sg/docs/default-source/default-document-library/ media-room/response-by-cj—opening-of-the-legal-year-2015-on-5-january-2015- (final).pdf> (accessed 17 November 2016). The complete suite of international dispute resolution services would include litigation at the SICC, arbitration at the Singapore International Arbitration Centre and mediation at the Singapore International Mediation Centre.
 Chief Justice Sundaresh Menon, “Response by Chief Justice Sundaresh Menon: Opening of the Legal Year 2015” (5 January 2015) at para 24, available at <http://www.supremecourt.gov.sg/docs/default-source/default-document-library/ media-room/response-by-cj—opening-of-the-legal-year-2015-on-5-january-2015- (final).pdf> (accessed 17 November 2016).
  SGHC(I) 1. For a copy of the full judgment, see SICC website, “Recent Judgments” <http://www.sicc.gov.sg/HearingsJudgments.aspx?id=72> (accessed 17 November 2016).
 See BCBC Singapore Pte Ltd v PT Bayan Resources TBK  SGHC(I) 1 at –.
 BCBC Singapore Pte Ltd v PT Bayan Resources TBK  SGHC(I) 1 at .
 See Supreme Court of Singapore website, “Media Summaries” (12 May 2016) <http://www.supremecourt.gov.sg/news/media-summaries/bcbc-singapore-pte-ltd- and-anor-v-pt-bayan-resources-tbk-and-anor> (17 November 2016).
 Tom Jones, “SICC Hands Down First Judgment” Global Arbitration Review (accessed 17 November 2016) <http://globalarbitrationreview.com/news/article/35351/sicc- hands-down-first-judgment/> (accessed 17 November 2016), citing Rashda Rana SC, a dual qualified English-Australian barrister and arbitrator from Essex Chambers in London. See also St James Hall website, “Dominique Hogan-Doran SC reports on the Singapore International Commercial Court’s First Case” <http://www.sixstjameshall.com.au/news/2016/5/15/singapores-new-international- commercial-court-issues-first-written-judgment> (accessed 17 November 2016).
 Tom Jones, “SICC Hands Down First Judgment” Global Arbitration Review (24 May 2016) <http://globalarbitrationreview.com/news/article/35351/sicc-hands- down-first-judgment/> (accessed 17 November 2016).
 See BCBC Singapore Pte Ltd v PT Bayan Resources TBK  SGHC(I) 1 at  and .
 See Report of the Singapore International Commercial Court Committee (November 2013) at para 34. See also Denise Wong, “The Rise of the International Commercial Court: What Is It and Will It Work?” (2014) 33(2) CJQ 207 at 216.
 See s 18L of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) and O 110 r 25(1) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed).
 Rules of Court (Cap 322, R 5, 2014 Rev Ed) O 110 r 25(1).
It should be noted that the SICC provides several unique safeguards to provide a measure of quality control in respect of arrangements that could be made for foreign counsel to appear and make submissions on foreign law before the SICC:
(a) For instance, before allowing such an arrangement, the court must be satisfied that all parties are or will be represented by counsel who are competent to submit on that foreign law. This envisages that the court has to have some way of ascertaining the quality of the proposed foreign counsel before the court will even make an order to allow foreign law to be determined on the basis of submissions. In this regard, it should be noted that the curriculum vitae of proposed Indonesian law experts were tendered by the parties to the court for its consideration in BCBC v PT Bayan Resources before an order pursuant to O 110 r 25 was made.
(b) It is also a prerequisite that the relevant foreign law expert must successfully obtain either full or restricted registration with the SICC. It suffices to mention here that the requirements prescribed for registration ensure that registrants are, among other things, sufficiently proficient in the English language, have read and understood and agree to abide by the Code of Ethics, are of good standing in the jurisdiction the law of which they most frequently practise, and have not been disbarred, struck off, suspended, ordered to pay a penalty, censured or reprimanded in their capacities as a legal practitioner in any jurisdiction.
 Rules of Court (Cap 322, R 5, 2014 Rev Ed) O 110 r 25(3).
 Rules of Court (Cap 322, R 5, 2014 Rev Ed) O 110 r 26(4). On a related note, the SICC in principle also has the option of relying on any applicable memorandum of understanding entered into with the courts of New South Wales, the Dubai International Financial Centre and the State of New York to refer questions of law involving the laws of those jurisdictions to the respective courts for determination.
 The traditional discovery model in common law jurisdictions requires the parties to a civil suit to disclose all documents which are relevant to the issues in the suit, including those which are or have at any time been in their possession, custody or power. At the initial stage of discovery (usually referred to as general discovery), each party is expected to disclose documents on which the party relies or will rely, as well as documents which could support or adversely affect the party’s case or another party’s case. Apart from general discovery, a party may also make an application for the specific discovery of a particular document or class of documents if the party believes that the party from whom discovery is sought has, or at some time had, these in his possession. This discovery process may be foreign to some civil law jurisdictions and to those practising international arbitration. In keeping with its character as an international court, the procedure for disclosure of documents in the SICC is simplified from the traditional discovery model in common law jurisdictions. The objective is to make the process manageable and acceptable to the parties and lawyers from different legal traditions, and also to facilitate a quicker and more cost- efficient resolution of disputes.
 See Nicholas Lingard et al, “The Singapore International Commercial Court Gets off to a Flying Start: First Judgment Released Only Four months after Closing Submissions” Freshfields Bruckhaus Deringer website (30 May 2016) <https://communications.freshfields.com/SnapshotFiles/540819bc-1f4c-4904-a948- 10c04e293f90/Subscriber.snapshot> (accessed 17 November 2016).