From 23 July 2021, two sets of Protocols to facilitate communication and cooperation between the Supreme Court of Singapore and the Federal Court of Malaysia in proceedings concerning admiralty and shipping law matters as well as cross-border corporate insolvency matters have come into effect. The Protocols were brought into effect following an exchange of letters between Chief Justice Sundaresh Menon of the Supreme Court of Singapore and Chief Justice Tun Tengku Maimun binti Tuan Mat of the Federal Court of Malaysia.
2 The Protocols put in place a framework for cooperation and communication between the two Courts to facilitate the efficient and timely coordination and administration of shipping and admiralty cases as well as cross-border corporate insolvency cases. Please see ANNEX for more details.
3 In his letter to Chief Justice Tun Tengku Maimun on the two Protocols, Chief Justice Menon said, “2020 has been a challenging year for all of us. Few could have anticipated the profound impact of the COVID-19 pandemic on judicial operations. In the context of these challenges, we are especially appreciative of the joint commitment of both our Courts to advance bilateral judicial cooperation. The establishment of a suitable framework based on these protocols will go a long way towards facilitating the efficient and timely coordination and administration of cross-border cases, enhancing judicial efficacy, and reducing costs for businesses that are already facing challenging conditions.”
4 In response, Chief Justice Tun Tengku Maimun reiterated the Malaysian Judiciary's commitment to support and confirm the judicial cooperation between the two Courts to promote comity, good faith and uniformity and looks forward to the positive outcome of the implementation of the Protocols.
Jointly issued by:
Federal Court of Malaysia and Supreme Court of Singapore
5 October 2021
Scope of the Protocols
1. The Protocols provide a framework for any of the Superior Courts of Malaysia (comprising the High Courts, Court of Appeal and Federal Court of Malaysia) and the Supreme Court of Singapore to communicate and cooperate in related admiralty and shipping matters, as well as cross-border corporate insolvency matters.
2. The Protocol on related admiralty and shipping matters applies to the following types of related proceedings concerning admiralty and shipping law matters that are commenced in Malaysia and Singapore:
a) Proceedings involving claim(s) coming within the admiralty jurisdiction of either Court (be it of Malaysia or Singapore);
b) In rem proceedings that involve the arrest of the same vessel, including the release or judicial sale in Malaysia or Singapore; or
c) Proceedings that arise out of the same casualty and which involve parties to an existing limitation action in Malaysia or Singapore.
3. The Protocol on cross-border corporate insolvency matters applies to the following types of cross-border proceedings commenced in Malaysia and Singapore relating to the insolvency, or the adjustment of debt, of corporations:
a) Winding up or other similar processes as are available in Malaysia and Singapore;
b) Judicial management or other similar processes as are available in Malaysia and Singapore;
c) Schemes of arrangement for debt restructuring or other similar processes as are available in Malaysia and Singapore; or
d) Receivership in the context of corporate insolvency, regardless of whether a receiver and/or manager is appointed over the property of a corporation pursuant to an order of court or under the powers contained in any instrument such as a debenture.
4. The Protocols are not intended to create any legally enforceable rights or binding obligations on either Court under international or national law. Where they are applied, due regard will be given to the need to promote comity as well as good faith and uniformity in their application.
How it works
5. Each Court may initiate a request for court-to-court communication with the foreign Court concerning the cases described in paragraphs 2 and 3 above. The foreign Court may respond directly to the request and engage in court-to-court communication. The method(s) of court-to-court communication in each case will depend on the agreement by the two Courts.
6. Parties before each Court will be notified of each request for court-to-court communication pursuant to either Protocol. However, parties will not be permitted to participate in the said communication unless the Courts agree in writing to allow such participation (subject to any requirements, where applicable).
7. The confidentiality of any documents, information and other data exchanged in court-to-court communication under either Protocol will be maintained, unless any such documents, information and other data are already in the public domain. The documents, information and other data exchanged in court-to-court communication under either Protocol will only be used for the purposes and objectives of the Protocol concerned.
8. Either Protocol may be terminated by notice from either Court, in accordance with the terms of the Protocol concerned. Any termination will not affect the validity, implementation, and completion of any court-to-court exchange(s) already initiated under the relevant Protocol prior to termination, unless decided otherwise in accordance with the relevant Protocol.