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Australian Journal of Asian Law

Abstract from Volume 8 No 3 (2006)

The Spiliada in Singapore - Time for the Scrap Yard?

Austin I Pullé LLB (Sri Lanka), LLM, SJD (Harvard) is an Attorney of the District of Columbia, and Practice Associate Professor in the School of Law, Singapore Management University.

In the nearly two decades since the House of Lords decision in Spiliada Maritime Corp v Cansulex Ltd, most Commonwealth courts adopted the Spiliada framework for deciding forum non conveniens claims. The core of this framework consists of a deference to the natural forum, a concept that privileges convenience over requirements promoting the ends of justice. This framework, designed for use by specialist and experienced commercial law judges in England, has outlived whatever use that it had elsewhere. It is premised on the preposterous assumption of the equivalence of local and foreign forums, a premise that is belied by the large amount of credible evidence that most developing country courts are incompetent and/or corrupt, the accuracy of which is even acknowledged by the governments of these very same countries. The decisions in Singapore that have relied on the Spiliada framework demonstrate the highly unsatisfactory outcomes when a stay is granted in favour of a developing country forum. This article proposes that the superficially attractive symmetry of Spiliada should be replaced by a more realistic model. The conceptual integrity of this proposed model rests on its emphasis on professional ethics, and its practical value lies in successfully navigating a terrain where judicial reluctance to disparage foreign courts, in order to avoid charges of ‘judicial chauvinism’, competes with the immediate needs of providing justice to the parties in the litigation.

(2006) 8(3) Asian Law 287-321

   
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