Singapore, Malaysia Announce Court-to-Court Cooperation Protocols in Cross-Border Insolvency and Shipping

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Business transactions and litigation are increasingly likely to contain a cross-border element. Thus, the ability of courts to cooperate in the management of proceedings that span their respective jurisdictions will facilitate the effective resolution of cross-border issues. In this regard, the courts of Singapore and Malaysia have demonstrated a commitment to judicial cooperation between the two countries.

On October 5, 2021, the Supreme Court of Singapore and the Federal Court of Malaysia announced the implementation of Protocols on Inter-Court Communication and Cooperation in Admiralty, Navigation and Cross-Border Insolvency (“ProtocolsThe Protocols establish a framework for cooperation and communication between the two Courts to facilitate the efficient and timely coordination and administration of prescribed types of cases.

In line with inter-court cooperation, the effective management of cross-border disputes involving Singapore and Malaysia would also be greatly facilitated by collaboration between the counsel of the two jurisdictions. In this regard, Rajah & Tann Singapore LLP and Christopher & Lee Ong, as members of the Rajah & Tann Asia Network operating in Singapore and Malaysia respectively, are well placed to jointly help navigate the waters of the dispute settlement process. transnational.

In this update, we highlight the main features of the protocols and their impact on cross-border commercial disputes.

Scope of protocols

The Protocols provide a framework for all Malaysian superior courts and the Singapore Supreme Court to communicate and cooperate on specific types of matters.

The Cross-Border Corporate Insolvency Protocol applies to the following types of proceedings in Malaysia and Singapore (or other similar processes available in Malaysia and Singapore):

  1. Liquidation;
  2. Judicial management;
  3. Schemes of arrangement for debt restructuring; Where
  4. Receivership in the context of corporate insolvency.

The Protocol on Related Admiralty and Navigation Matters applies to the following types of proceedings in Malaysia and Singapore:

  1. Proceedings involving claims falling within the jurisdiction of the admiralty of either court;
  2. In rem proceedings involving the seizure of the same vessel, including release or judicial sale in Malaysia or Singapore; Where
  3. Proceedings arising from the same incident and involving parties to an existing limitation action in Malaysia or Singapore.

Court-to-court communication and cooperation

The Protocols set out the procedures for how courts in Malaysia and Singapore can establish communication in relevant areas. The main features are highlighted below.

Initiation to communication – Under the Protocols, each jurisdiction may initiate a jurisdiction-to-jurisdiction communication request with the foreign jurisdiction regarding the matters listed above. The foreign jurisdiction can respond directly to the request and initiate a communication from jurisdiction to jurisdiction, the mode of which will depend on the agreement of the two jurisdictions.

Participation in litigation – The parties before each jurisdiction will be informed of each request for communication from jurisdiction to jurisdiction. However, the parties will not be permitted to participate in such communication unless they obtain the consent of the Courts.

Confidentiality – The confidentiality of all documents, information and other data exchanged in court-to-court communication will be maintained, unless already in the public domain. The documents, information and other data exchanged will only be used for the purposes and objectives of the Protocol concerned.

Concluding words

Protocols are a welcome development. We see in the Protocols some key elements and characteristics of the Judicial Insolvency Network (JIN) (more information on which can be found here), a network of insolvency judges around the world, which focuses on cross-border insolvency matters.

The protocols target issues in the relevant areas of cross-border insolvency, as well as admiralty and shipping. Disputes in these areas are likely to involve separate jurisdictions and are potentially complex. Different parties and stakeholders may be involved in different jurisdictions and each jurisdiction may have its own unique considerations and circumstances. Court-to-court communication protocols provide a platform for each party to better understand and consider another party’s position and, hopefully, facilitate comprehensive problem resolution.

Parties with questions in the prescribed areas involving Singapore and Malaysia may feel free to contact our respective teams at Rajah & Tann Singapore LLP and Christopher & Lee Ong.


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