Ch. 05 Singapore and International Law

SECTION 1 INTRODUCTION TO SINGAPORE’S ENGAGEMENT WITH INTERNATIONAL LAW-MAKING

5.1.1 Adherence to and observance of international law in Singapore foreign policy is well-known. Affirmation of the demands of international law has been a key feature of various foreign policy statements. This is unsurprising. Small states, in particular, benefit from a rule-based and rule of law-based international order. A trading nation like Singapore, in particular, thrives on a relatively predictable global environment. International legal rules help to foster such an environment.

5.1.2 What is less well-known is how the Singapore courts have actually addressed international law rules that have, on occasion, arisen for consideration before them. While the Constitution of the Republic of Singapore is silent in key respects on the interaction between international law and the Singapore domestic legal system, the executive, legislative and judicial branches in Singapore have all demonstrated a keen appreciation of what international law requires and allows.

5.1.3 This article is an introduction to Singapore’s engagement with international law-making and the rules of international law. It does not focus on any particular area of law or treaty regime. Instead, it seeks to provide a brief introduction to the international law work of the executive, legislative and judicial branches in Singapore, with an emphasis on the work of the Singapore courts.

5.1.4 Aside from the present introductory section, this article is divided into four further sections:-

Section 2: The Treaty Making Power and the Effect of Treaties in the Domestic Legal Order.

The Executive’s treaty-making power may be used to bind Singapore on the international plane, and that may in turn affect the governance by Singapore law of private law relations. Examples of the latter include the Convention on the Recognition or Enforcement of Foreign Arbitral Awards, or the United Nations Convention on Contracts for the International Sale of Goods. Treaties entered into by the executive branch have, however, only a limited legal effect under Singapore domestic law unless incorporated into Singapore law by way of Parliamentary legislation. Therefore, Section II also considers Parliament’s legislative role in this regard, and as a forum in which points of international law may, in any case, be raised for public debate.

Section 3: Treaties and the Singapore Courts addresses points of treaty law that have appeared before the domestic courts of Singapore.

Section 4: The Singapore Courts and International Law deals with how the courts in Singapore have handled other general points of international law arising before them.

Section 5: Conclusion. The article concludes with a few observations about the increasing relevance of international law developments to Singapore and its domestic legal order.

SECTION 2 THE TREATY-MAKING POWER

A. The executive branch possesses treaty-making power

5.2.1 The Constitution of the Republic of Singapore does not say that Parliament’s advice and consent are required in executive treaty-making with foreign nations. For that matter, it does not say that the executive branch possesses the treaty-making power of the State. The Constitution is, simply, silent on these matters.

5.2.2 However, Singapore has, effectively, adopted practice in this regard. Parliament’s consent is not sought or deemed to be required, and the executive branch has not been challenged in its exercise of the treaty-making power. It is therefore accepted as a matter of practice that whether there is a treaty in force between Singapore and a particular foreign state, is, or should be, settled by the Executive - Attorney-General v Elite Wood Products (Australia) Pty Ltd and another [1992] 1 SLR(R) 929 at 937. In that case, the Court of Appeal took the view that the question whether an extradition treaty is in force between Singapore and a particular foreign state for the purposes of the Extradition Act (Cap. 103), and therefore whether Part II of the Act applies, should be settled by the executive branch, and that the Court should not be concerned with the question whether a treaty subsists between Singapore and any state.

B. Parliament

(1) The separation of powers doctrine is closely adhered to in Singapore

5.2.3 A key feature in the evolution of Singapore practice in this regard is the close adherence shown to the separation of powers doctrine. Under English law, a constitutional objection can be raised against the Crown being able, through its treaty-making prerogative, to affect domestic law without Parliament’s authority - The Parlement Belge (1879) 4 PD129 at 154-155. While our constitutional arrangements are not identical to those of the United Kingdom, the principle underlying the English position is equally applicable here - The Sahand and other applications [2011] 2 SLR 1093 at 1107; Yong Vui Kong v Public Prosecutor [2015] 2 SLR 1129 at 1150. Article 38 of the Constitution says that Parliament possesses the law-making power in Singapore. As such, treaties which the executive branch conclude on behalf of Singapore can neither per se impose duties nor create rights that may be enforced in the Singapore courts. In other words, Singapore’s international law obligations do not give rise to individual rights and obligations in the domestic context unless and until transposed into domestic law by legislation - Public Prosecutor v Tan Cheng Yew and another appeal [2013] 1 SLR 1095 at 1116. In so far as a treaty is not implemented by primary or subsidiary legislation, it does not create independent rights, obligations, powers, or duties - Public Prosecutor v Tan Cheng Yew and another appeal [2013] 1 SLR 1095 at 1107; Yong Vui Kong v Public Prosecutor [2015] 2 SLR 1129 at 1150.

(2) Only Parliament has the power to translate treaty law into Singapore law

5.2.4 While it is accepted that Parliament’s consent is not required before the Executive may bind Singapore by way of treaty, the Constitution does not say that Parliament cannot debate questions of international law, including such treaties which the executive branch wishes to negotiate and conclude. Since the grant of legal rights and imposition of legal duties in the Singapore context involves the exercise of legislative power, only Parliament possesses that power to translate treaty law into Singapore law - The Sahand and other applications [2011] 2 SLR 1093 at 1107; Yong Vui Kong v Public Prosecutor [2015] 2 SLR 1129 at 1150. In Public Prosecutor v Tan Cheng Yew and another appeal [2013] 1 SLR 1095, the High Court held (at 1116) that Art VII of the Singapore-Germany Extradition Treaty could not apply directly to circumscribe the prosecutor’s power to charge an extradited individual. Instead, it was the Extradition Act (Cap. 103) that gave domestic effect to the entirety of Singapore’s obligations to other states under the various extradition treaties Singapore had entered into. Likewise, in Lim Meng Suang and another v Attorney-General and another appeal and another matter [2015] 1 SLR 26, the Court of Appeal held (at 94) that “Singapore’s treaty obligations under international treaties such as the Convention on the Elimination of All Forms of Discrimination against Women would not automatically have the effect of amending the Singapore Constitution to include new prohibited grounds of discrimination under Art 12(2).”

5.2.5 Where the treaty expressly requires its implementation by way of domestic statute, such that failure to do so would amount to a treaty violation, Parliament could still refuse, at least in legal principle, to endorse the decision of the executive branch to enter into the treaty in question by refusing to pass such implementing legislation.

C. Judicial Review

5.2.6 In Lee Hsien Loong v Review Publishing [2007] 2 SLR(R) 453, the High Court had to construe the reach of a bilateral treaty between Singapore and the People’s Republic of China regarding civil procedure and mutual judicial assistance to determine whether that treaty extended to Hong Kong. Deciding that it did not extend to Hong Kong, Sundaresh Menon JC made clear (at 497) that it is not within the Singapore courts’ purview to question the executive branch’s treaty-making power. Singapore courts do not “assess the desirability of or the wisdom behind the treaties entered into” by the executive. The task for the courts “is simply to construe the effect of what has been entered into”. Where treaties have been incorporated into domestic law by the legislative branch, the Singapore courts have the power to review and declare a statutory provision null and void where it violates the Constitution. This would include the power to review a treaty rule which has been transformed into Singapore law by way of statute.

5.2.7 As such, the executive branch could enter into a treaty which requires the implementation of certain rights and duties under Singapore’s domestic law, and Parliament could consent to implement what the treaty requires by way of an Act of Parliament, but the courts can review whether provisions of the Act and subsidiary legislation passed pursuant to it are ultra vires the constitution.

SECTION 3 TREATY OBLIGATIONS BEFORE THE SINGAPORE COURTS

A. The Constitution limits the treaty laws that may be translated into Singapore law

5.3.1 As we have seen, Parliament’s power to translate treaty laws into Singapore law is limited by the Constitution as the Singapore courts will, ultimately, determine the scope and extent of any repugnancy with the Constitution.

B. Parliament may seek to implement any type of treaty in Singapore domestic law

5.3.2 There is no limitation as such in terms of the types of treaty which Parliament could seek to implement in Singapore domestic law.

(1) Parliament may incorporate provisions of treaties to which Singapore is not a party into Singapore law

5.3.3 Indeed, Parliament could even legislate to give effect to treaties to which Singapore is not a party. For example, consider the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled, which was concluded under the auspices of the World Intellectual Property Organization (‘WIPO’) in 2013. One of the stated objectives of the Copyright (Amendment) Act 2014 (Act 22 of 2014) is to afford persons with reading disabilities greater opportunities to access copyrighted works in line with the Marrakesh Treaty even though Singapore is, as yet, not a signatory to the treaty.

(2) Parliament may expand the scope of the terms of the treaty while transforming treaty law into domestic law

5.3.4 Similarly, a Parliamentary enactment transforming treaty law into Singapore law may expand the scope of the terms of the treaty, so long as that does not conflict with the obligations imposed by the treaty itself. No issue arises so long as the treaty’s requirements are met, but even if the treaty’s requirements are not met, such that the enactment conflicts with the treaty, the domestic statute prevails so long as the domestic statute's words are clear. If there is a real conflict between international law and national law, national law must prevail – Tan Ah Yeo v Seow Teck Ming [1989] 1 SLR(R) 134 at 140. The responsibility on the international plane of a failure by a state to comply with international law is a distinct and separate matter from the operation of its domestic laws – Tan Ah Yeo v Seow Teck Ming [1989] 1 SLR(R) 134 at 140; Public Prosecutor v Tan Cheng Yew and another appeal [2013] 1 SLR 1095 at 1116.

(3) Presumption that Parliament intends to adhere to international law

5.3.5 In interpreting Parliament’s intent, the courts have similarly applied the presumption that Parliament intends to adhere to international law and international comity – Public Prosecutor v Taw Cheng Kong [1998] 2 SLR(R) 489 at 511-512 (“international comity and the sovereignty of other nations”, per Yong Pung How CJ); Tan Ah Yeo v Seow Teck Ming [1989] 1 SLR(R) 134 at 140 (per Chao Hick Tin JC, as he then was, accepting that “it is a principle of legal policy that an Act should be interpreted to conform with international law”); Yong Vui Kong v Public Prosecutor [2010] 3 SLR 489 at 519 (“Domestic law, including the Singapore Constitution, should, as far as possible, be interpreted consistently with Singapore’s international legal obligations”, per Chan Sek Keong CJ and cited with approval in Public Prosecutor v Tan Kok Ming Michael and other appeals [2019] 5 SLR 926 at 950). This includes adherence to Singapore’s international treaty obligations, and the Singapore courts will, as we have seen, usually seek to construe a statute in line with such treaty obligations that bind Singapore's conduct on the international plane, again subject only to conflict with the clear words of the Constitution or a domestic statute – The Sahand and other applications [2011] 2 SLR 1093 at 1107 (per Quentin Loh J stating “unequivocally that the courts will always strive to give effect to Singapore’s international obligations within the strictures of our Constitution and laws”).

5.3.6 Furthermore, section 9A(2) of the Interpretation Act (Cap. 1) permits recourse to “any material not forming part of the written law”. It states that "in the interpretation of a provision of a written law, if any material not forming part of the written law is capable in assisting the ascertainment of the meaning of the provision, consideration may be given to that material”. Article 9A(2) is the more general interpretative rule compared to section 9A(3)(e) which states, in turn, that: “Without limiting the generality of subsection (2), the material that may be considered in accordance with that subsection in the interpretation of a provision of a written law shall include...any treaty or other international agreement that is referred to in the written law...” Section 9A(3)(e) is narrowly worded in requiring the statute to refer expressly to the treaty. But this is cured by section 9A(2) which is broader and sits more comfortably with the established English doctrine that a statutory provision should be interpreted in light of Singapore’s treaty obligations unless the clear words of the statute demand otherwise. The High Court in The Sahand has considered section 9A(2) wide enough to encompass “international law in appropriate cases” (The Sahand and other applications [2011] 2 SLR 1093 at 1107, per Quentin Loh J). Previously, we had considered the possibility that the pronouncement in The Sahand could be read in the more specific context in which it appears, i.e. in relation to subsidiary legislation that was “expressly made to give effect to Singapore’s international obligations” (at 1107). The broad scope of section 9A(2) has now been confirmed by the Court of Appeal in AG v Ting Choon Meng [2017] 1 SLR 373 at 405 (“reading s 9A(2) in context with s 9A(1), [material that is not included as part of Section 9A(3)] may be resorted to where it is capable of helping to ascertain the meaning of the provision by shedding light on the objects and purposes of the statute as a whole, and where applicable, on the objects and purposes of the particular provision in question” (emphasis in original).

5.3.7 In all such cases, the Singapore courts will therefore determine the proper meaning, scope and application of such statutory rights and duties, and the courts are likely to take into account the bilateral and multilateral treaties to which Singapore is a party. In Public Prosecutor v Tan Cheng Yew and another appeal [2013] 1 SLR 1095, the High Court accepted that the courts should endeavor to interpret a domestic statute in accordance with the state’s treaty obligations under international law while noting that this canon of interpretation has defined limits (per Lee Seiu Kin J, at 1117).

SECTION 4 THE SINGAPORE COURTS AND INTERNATIONAL LAW

A. Customary international law before the Singapore courts

(1) Local courts generally adhere to the doctrine that customary international law is part of the common law

5.4.1 The Singapore courts have generally adhered to common law orthodoxy in approaching customary rules of international law; namely, that customary international law may be invoked in the Singapore courts as part of the common law – Yong Vui Kong v Public Prosecutor [2015] 2 SLR 1129 at 1144 (“A rule of [customary international law] therefore would not require an act of legislation in order that it be transposed into domestic law but can be recognised and declared to be part of the domestic law by the courts”).

(2) An international law rule remains subject to the hierarchy of domestic legal sources

5.4.2 Nonetheless, such reception of international law would remain subject to the hierarchy of domestic legal sources. In other words, an international law rule received into Singapore law by way of the common law remains subject to the contrary demands of statute and the Constitution in Singapore. This accounts for the majority of cases in which it has been said that domestic law would prevail in the case of conflict with an incompatible rule of international law.

5.4.3 However, the basic proposition that Singapore law prevails in a conflict between international law and domestic law is said to apply more broadly to conflicts between an international treaty and any Singapore law. But this seemingly broad doctrine must have its limits – an international law rule contained in a statute which conflicts with a common law rule would prevail over the common law rule, for example.

5.4.4 Fidelity to the hierarchy of domestic sources requires the view that only where the international law rule is received by way of the Constitution itself can it be said that the international law rule would trump a rule found in a Singapore statute. This argument was first raised before the Singapore Court of Appeal in Nguyen Tuong Van v Public Prosecutor [2005] 1 SLR(R) 103, and subsequently in Yong Vui Kong v Public Prosecutor [2010] 3 SLR 489. In Yong Vui Kong, the Court of Appeal held that customary international law “is not self-executing” (per Chan Sek Keong CJ at 531). Put differently, a rule of customary international law does not become part of domestic law until and unless it has been applied as or definitively declared to be part of domestic law by a domestic court or is incorporated into domestic law by the Legislature (at 531). This issue was revisited by the Court of Appeal in Yong Vui Kong v Public Prosecutor [2015] 2 SLR 1129. While the Court did not foreclose the possibility that international law could take precedence over statute if it were shown to have been given constitutional force, the Court held (at 1148) that even an international law rule’s status as a peremptory norm would not suffice, as it would mean that “the content of [the] Constitution could be dictated by the views of other states, regardless of what the people of Singapore, expressing their will through their elected representatives, think…”. It should also be noted that even if a litigant could establish the constitutional force of an international law rule, “it is well established that [Singapore] courts have always accorded a presumption in favour of the constitutionality of a statute because the courts generally presume that Parliament, when enacting legislation, would comply with constitutional requirements… this presumption, while rebuttable in principle, has empirically been shown to be a difficult one to rebut in practice” – Nagaenthran a/l K Dharmalingam v Attorney-General [2018] SGHC 112.

5.4.5 Even in cases where statute grants the Minister the right to make subsidiary legislation on the basis of Singapore’s international law obligations that would (according to the parent statute, in this example) prevail over any inconsistent statutory provision, it is because the international law obligation in question derives its force ultimately from the parent statute – see (e.g.) sections 2(1) and 2(3) of the United Nations Act (Cap. 339).

B. Reception of customary international law in Singapore law

(1) Custom and the Constitution

5.4.6 In Yong Vui Kong v Public Prosecutor [2010] 3 SLR 489, the Court of Appeal made clear that custom is not automatically to be considered to have been adopted in the Constitution. There, the reception of customary international law into Singapore law became a focal issue and had the benefit of extended judicial analysis. In that case, the defendant cited Article 9(1) of the Constitution which guarantees that “no person shall be deprived of his life or personal liberty, save in accordance with law”. The defendant challenged the constitutionality of the mandatory death penalty under the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) on the basis that such punishment is prohibited under customary international law, and that customary international law norms constitute “law” for the purpose of Article 9(1) of the Constitution. The Court of Appeal rejected the defendant’s submission that customary international law rules are automatically received into Singapore law by way of the Constitution on two grounds.

a. Custom requires proof

5.4.8 First, a question was raised about whether the punishment of death by hanging falls under the customary international law prohibition of torture and cruel, inhuman or degrading treatment or punishment. In Yong Vui Kong, Singapore’s Court of Appeal stressed that a customary international law prohibition of the death penalty under the Misuse of Drugs Act (Cap. 185) must, first, be proven. The Court of Appeal found that although a majority of states did not impose the mandatory death penalty, it was insufficient to meet the standard of “extensive and virtually uniform” state practice required for a customary international law rule to be established.

5.4.9 The consular rights of the accused under customary international law also arose for consideration in the earlier-mentioned case of Nguyen Tuong Van. These rights are contained in the Vienna Convention on Consular Relations, 24 April 1963. Singapore was not a party to the Convention at the time, and was not bound by the treaty rule, but the Court of Appeal accepted that an identical rule applies nonetheless to Singapore under customary international law. According to Kan J in the High Court, the Government did not deny the application of the rule to Singapore as a rule of customary international law and this view appears also to have been accepted on appeal where the Court of Appeal went on to cite a recent decision of the International Court of Justice (ICJ) in determining the true meaning of the rule contained in the Vienna Convention.

b. Interplay between customary international law and the Constitution

5.4.10 Second, the Court of Appeal emphasised, as noted above, that although domestic law should, as far as possible, be interpreted consistently with Singapore’s international obligations, there are “inherent limits” on the extent to which Singapore courts may refer to international law norms, such as where the express wording of the Singapore Constitution is not amenable to the incorporation of these norms.

5.4.11 To seek to automatically adopt custom via the Constitution “would mean that any rule of customary international law would be cloaked with constitutional status and would override any existing legislation” providing for the death penalty (per Chan Sek Keong CJ at 529). Giving effect to the doctrine of separation of powers, the Court of Appeal cautioned that, it would first be necessary for Parliament to enact new laws or amend the Constitution in order to do so. It would not be appropriate for courts “to legislate new rights into the Singapore Constitution under the guise of interpreting existing constitutional provisions” (at 519). This reasoning in Yong Vui Kong has more recently been quoted with approval and followed in a separate but related decision of the Court of Appeal in Yong Vui Kong v Public Prosecutor [2015] 2 SLR 1129.

C. International law writings and international decisions may be persuasive before the Singapore courts

5.4.12 On occasion, the Singapore courts have also considered and applied the writings of publicists. In any event, the views of such publicists are carefully scrutinised even if, ultimately, they are to be distinguished from the facts of the case. Such writings, particularly of the most qualified publicists, should therefore be considered to be of some persuasive authority before the Singapore courts, as are foreign (especially English) decisions involving questions of international law and the decisions of international courts or tribunals.

5.4.13 Resort to the writings of publicists in the field may be justified to the extent that they provide cogent evidence of the established international legal rule.

D. Judicial approach towards conflicts between international law and Singapore law

5.4.14 Mention has already been made of the fact that the Singapore courts have had occasion to refer to situations of conflict between international law and Singapore law; see Section 5.4.2 above.

5.4.15 In such cases, much could still turn on the precise basis for invoking the international legal rule. If that basis should lie at common law, a Singapore statute would prevail in the hierarchy of domestic legal sources. Likewise, an international law rule embodied in statute must yield to the Constitution in case of conflict. An interesting question which has been mentioned is whether the domestic force of an international law rule may have its basis in the Constitution itself; see Section 5.4.4 above.

E. Proof of international law distinguished from proof of foreign law

(1) Proof of international law is not usually considered to involve proof of fact, unlike proof of foreign law

5.4.16 It may be appropriate to mention also that proof of international law is not usually considered to involve proof of fact, unlike proof of foreign law. In Government of the Lao People’s Democratic Republic v Sanum Investments Ltd [2015] 2 SLR 322, the High Court opined (at 331) that “[p]ublic international law is not technically foreign law which needs to be proved by expert evidence” and stated that the affidavits filed by the parties’ respective experts were therefore unnecessary; nevertheless, the affidavits were helpful in “crystallising the issues and the parties’ positions on those issues”.

(2) Reasons why local courts do not usually require expert evidence for proof of international law

5.4.17 The view has been taken in Malaysia that proof of international law is a matter that requires expert evidence. Subject to the deference with which we are required to treat that Malaysian position as our own, it may be suggested that this cannot be the correct view in Singapore. Several reasons may be given for this.

5.4.18 First, common law judges do not usually treat issues of international law arising before them as those which always require recourse to expert witnesses, even if that may be desirable. We may take the argument further and say that insofar as international law is taken by the common law to be a part of it, common law judges are presumed to know international law (see also Sections 5.4.1 and 5.4.8 above).

5.4.19 Second, an appellate court may sometimes consider the view of international law taken in the courts below it to be incorrect. It does so more freely than if what is involved is a question of fact.

5.4.20 Third, in private international law, at least in the absence of proof to the contrary, the rule under the foreign law is to be presumed to be the same as that under domestic law, but this has never been recognised to be so where a rule of public international law is involved instead.

(3) Some special judicial and constitutional issues involving international law and foreign affairs cases

5.4.21 Having said that, there are special considerations which may apply, and which may make the case involving a point of international law in ways more complex than that which only involves a point of domestic law.

a. Difficulties in obtaining reliable evidence of international law

5.4.22 First, international lawyers have long acknowledged that domestic judges face a serious difficulty in finding reliable evidence on what international law is on a particular point absent formal proof and expert witnesses. This is usually caused by the variety and unwieldiness of evidence of state practice, and even the confidential nature of much evidence that may be considered relevant. Nonetheless, Singapore courts have, on occasion, permitted parties to submit expert opinions on public international law. In Lee Hsien Loong v Review Publishing Co Ltd [2007] 2 SLR(R) 453, three sets of expert reports, all of which relied on principles of public international law, were submitted to address the question of whether a bilateral treaty between Singapore and China extended to Hong Kong and, consequently, whether the manner of service of writs employed on the respondents’ behalf was in accordance with Hong Kong law. In examining these reports, the High Court held (at 492) that it is “trite law that where there is conflicting expert testimony, it is well within the court’s powers to choose which position, if any, to adopt by having regard to what best accords with logic and common sense.” Likewise, in Sanum Investments Ltd v Government of the Lao People’s Democratic Republic [2016] 5 SLR 536, the Court of Appeal concluded  (at 557) that the “moving treaty frontier” rule formed a part of customary international law and noted that there was consensus among all the experts on this point.

b. Issues of public policy

5.4.23 Second, there are often issues of public policy involved in conjunction with the first problem mentioned above. One example is the need for the judicial and executive branches to “speak with one voice”, on which see, for example, the discussion by the Court of Appeal of the problems attendant to departures from this doctrine where issues of state immunity are involved (Civil Aeronautics Administration v Singapore Airlines Ltd [2004] 1 SLR(R) 570, per Chao Hick Tin JA at 576-580). As Chao JA noted (at 578-579), the question of whether an entity is a state so as to enjoy immunity in Singapore is “special and should be treated differently from the general question of whether a state has come into being”. It concerns “not only matters of fact but also matters of policy”.

c. The act of state doctrine

5.4.24 Third, specific areas involving foreign affairs, such as the act of state doctrine, pose unique challenges in terms of proof. The act of state doctrine only applies if the act in question can be characterised as an act of the state done in the exercise of the state’s sovereign power. In WestLB AG v Philippine National Bank and others [2012] 4 SLR 894, the plaintiff bank sought inter-pleader relief in relation to large sums of money held in an escrow account with the bank. These funds were part of a pool of assets held in various Swiss bank accounts. The defendants claiming entitlement to the funds were the Philippine National Bank, foundations established by human rights victims, and the Republic of The Philippines. In 2003, the Philippines Supreme Court ordered the Swiss Deposits to be forfeited in favour of the Republic. The High Court held that the act of state doctrine would limit the forum court from inquiring into the validity and propriety of the sovereign acts of a foreign state only where the “act” in question was a public governmental act and the subject-matter of the act was located within the foreign sovereign’s territory.

5.4.25 In reaching his decision, Andrew Ang J held that the act of state doctrine was inapplicable because the foundations’ challenge against the Republic’s case related to the legal effect of the Forfeiture Judgment, rendered by the Philippines Supreme Court, which was neither a legislative nor an executive act. On appeal, in The Republic of the Philippines v Maler Foundation and others [2014] 1 SLR 1389, the Court of Appeal upheld Ang J’s decision. Among other things, the Court held that the act of state doctrine applied only to acts of foreign legislatures or governments and could not be extended to judicial acts, which were separate and distinct and covered by the common law conflict of laws rules on the recognition of foreign judgments.

5.4.26 Whether an act amounts to an act of state therefore depends on the nature of the act. The doctrine was also considered by the Court of Appeal in Maldives Airports Co Ltd v GMR Malé International Airport Pte Ltd [2013] 2 SLR 449. There, the Court of Appeal was asked to consider whether, as the supervisory court of the seat of arbitration, it could and should grant an interim injunction restraining a Maldivian government-related entity from taking actions to regain control of Malé International Airport. The Court held (at 458-460) that the act of state doctrine did not apply as the acts sought to be restrained were part of a broader dispute which was of an entirely private nature. Further, the appellants were seeking private law remedies and had accepted that the subject matter of the dispute might be resolved by a private law arbitral tribunal. Importantly, the Court added that even though it did not have to consider in that instance whether acts of state might be the subject of an injunction, or if the wider principle of judicial abstention or restraint should apply to prompt the court to refrain from adjudicating on the matter as a matter of public policy and international comity, “this would inevitably be a factor that the court will take into consideration when assessing whether an injunction should be granted in such circumstances” (per Sundaresh Menon CJ at 460).

SECTION 5 CONCLUSION

5.5.1 Singapore has turned, increasingly, to the application of international law in international judicial and arbitral proceedings in order to address specific foreign policy issues. This has included a dispute brought under the World Trade Organisation’s dispute settlement system, although the dispute was subsequently withdrawn. Other examples include disputes with Malaysia such as the Land Reclamation dispute before the International Tribunal for the Law of the Sea, the dispute concerning sovereign title over Pedra Branca (or “Pulau Batu Puteh”) before the International Court of Justice and the dispute relating to the payment of development charges arising from the interpretation of the Points of Agreement on Malayan Railway land in Singapore under the auspices of the Permanent Court of Arbitration. Singapore has also turned to the good offices of neutral institutions for the amicable resolution of disputes, such as the good offices of the Secretariat of the Basel Convention regarding a dispute with Indonesia.

5.5.2 Taken together with Singapore’s regular invocation of international law in its official statements, a perceptible growth of treaty-implementing legislation, and Singapore’s active participation in the international law-making process, the interpretation and application of international law by the Singapore courts demonstrate the significant extent to which international legal regulation has been received.

Updated as at 13 July 2020

By Lim Chin Leng*, Mahdev Mohan** and Jennifer Z.J. Lim***

* C.L. Lim, Advocate & Solicitor of the Supreme Court of Singapore, was sometime Lionel A. Sheridan Visiting Professor at NUS and Executive Director of the Society of International Law of Singapore. He is, presently, the Choh-Ming Li Professor of Law at the Chinese University of Hong Kong, Visiting Professor at King’s College London, Honorary Senior Fellow at BIICL, and a barrister and independent arbitrator at Keating Chambers, London. 

** Mahdev Mohan heads Global Policy & Standards for Google LLC in APAC, and was formerly an academic with SMU. An Advocate & Solicitor of the Supreme Court of Singapore with experience in international dispute resolution, he is the current Executive Director of the Society of International Law of Singapore, and a  founding member of the International Law Association’s Singapore branch. He is an Associate Tenant of Temple Garden Chambers in London.

*** Z.J. Jennifer Lim is a Senior Associate at Sidley Austin LLP in Singapore. She focuses her practice on international dispute resolution and arbitration. She represents clients in investor-state and commercial arbitrations, including proceedings conducted under the ICSID, ICSID (Additional Facility), UNCITRAL, ICC, HKIAC, SIAC and LCIA Rules. She also has broad experience advising on general transnational litigation matters, including arbitration-related court proceedings and complex cross-border disputes.