The Doctrine of Comity in Singapore Law – A Trainee’s Perspective

Comity is a legal doctrine necessitated by international politics. Without it, private transnational disputes cannot be easily resolved and can even create tensions between countries. Not surprisingly, a number of common law jurisdictions including Singapore have applied comity in one form or another. However, if they exercise comity but are not reciprocated in kind, they could become disadvantaged. More comity given could mean a loss of sovereignty. It is a Prisoner’s Dilemma. While the development of the doctrine of comity must be constitutional and serve justice, the realities of international relations cannot be ignored.

As a retired diplomat embarking on a career in law, I naturally take an interest in how international relations concepts like comity are applied in judicial decision-making. It is clear that judges in many common law jurisdictions including Singapore¹https://www.singaporelawwatch.sg/About-Singapore-Law/Overview/ch-06-the-conflict-of-laws take comity into account where relevant in arriving at their decisions. Considerations of comity come into play when people with different nationalities and their properties interact across national boundaries. In the event of a dispute, the same set of multinational facts could be adjudicated in more than one country. It is not difficult to imagine that courts in different countries, if they do not exercise comity, could end up with opposed decisions, creating an awkward situation not just for the parties, but also between countries.

Comity appears to be a major factor in three main types of disputes. First, parties may fight over their preferred jurisdiction based on natural forum principles, anti-suit injunction, or using transnational issue estoppel. Second, it could be invoked to enforce foreign judgments including insolvency outcomes. Third, it could be called upon to reject the extension of jurisdiction overseas. That said, comity could be at issue in any type of situation with a foreign element, including criminal cases. As of 10 July 2024, there are 242 reported Singapore judgments on LawNet²LawNet is an online database on case law and other material on Singapore and other jurisdictions. It is maintained by the Singapore Law Academy and is available free to Singaporeans at the court libraries. that refer to “comity”. It is a small number relative to all reported cases, but not insignificant. In this era of globalisation, few cases end up in court without an international element. The law on comity is thus important to law practitioners and citizens alike.

What is comity in the first place? Comity according to the Oxford dictionary is simply courtesy and considerate behaviour towards others. There is comity amongst diplomats on the ground for sure. Comity between nations or international comity is a common practice, perhaps even a value consciously adopted, but there is no agreement that it has become customary international law. If comity has become a norm, it would merely reflect the mutual respect or behaviour consistent with deeper underlying values such as the sovereignty and equality of states. In this sense, comity is no more than an epiphenomenon. Comity cannot be used to predict or explain how nations behave, and not surprisingly has not become a focus of scholars of international relations. Interestingly, most of the literature on comity have been produced by lawyers rather than political scientists.

In the eyes of lawyers and diplomats alike, comity, elastic as the concept may be,³Dicey, Morris and Collins on the Conflict of Laws (Lord Collins of Mapesbury gen ed) (Sweet & Maxwell, 16th Ed, 2022) at para 1-008, cited in Gonzalo Gil White v Oro Negro Drilling Pte Ltd and others (2024) 1 SLR 307 at (70) is key to maintaining amicable and workable relationships amongst countries. International law scholars like to emphasise comity as deference to other countries not required by international law. They tend to speak with one view on comity. However, jurists at the national level have vastly different ideas. A survey of selected and limited commentaries and cases in several common law jurisdictions (England,⁴Airbus Industrie v Patel (1999) 1 AC 119), National Bank of Kazakhstan and others v. Bank of New York Mellon SA/NV, London Branch and others (2020) EWHC 916 (Comm), RiverRock Securities v. International Bank of St. Petersburg (2020) EWHC 2483 British Virgin Islands,⁵https://www.harneys.com/insights/the-thorny-issue-of-illegality-mistake-and-the-unruly-horse-of-public-policy/#:~:text=While%20the%20award%20of%20compound,friendly%20state%2C%20such%20as%20Thailand Cayman Islands,⁶https://www.ogier.com/news-and-insights/insights/careful-consideration-of-comity-when-winding-up-a-cayman-company/ US,⁷Laker Airways Ltd v Sabena, Belgian World Airlines (1984) 731 F 2d 909 Canada,⁸Kevin W. Gray, The Most Canadian of Virtues: Comity at the Supreme Court of Canada (https://ssrn.com/abstract=3333599) Australia,⁹Schultz, T., & Mitchenson, J. (2016). Navigating Sovereignty and Transnational Commercial Law: The Use of Comity by Australian Courts. Journal of Private International Law, 12(2), 344-378 (https://doi.org/10.1080/17441048.2016.1206704) India¹⁰International Insolvency Review (2023) 32:228–252 (wileyonlinelibrary.com/journal/iir), Alcon Electronics Private Limited v. Celem SA of FAO 34320 Roujan, France and Another (2017) 2 SCC 253 and Singapore¹¹The “Reecon Wolf” (2012) 2 SLR 289, Lakshmi Anil Salgaocar v Jhaveri Darsan Jitendra (2019) 2 SLR 372, Gonzalo Gil White v Oro Negro Drilling Pte Ltd and others (2024) 1 SLR 307, Esben Finance Ltd and others v Wong Hou-Lianq Neil (2022) 1 SLR 136, Beckkett Pte Ltd v Deutsche Bank AG (2011) 2 SLR 96, Merck Sharp & Dohme Corp (formerly known as Merck & Co, Inc) v Merck KGaA (formerly known as E Merck)
(2021) 1 SLR 1102) show that comity is used variously as: a consideration, concept, principle, judicial attitude, presumption in interpretation, evidential rule, legal tool, doctrine and public policy.

To elaborate further, comity could just be one of many factors to consider when deciding a case. At the lower end of the scale, as it were, it may not even be relevant. In the Singapore case of Gonzalo Gile White v Oro Negro Drilling [2024] 1 SLR 307, the appellant argues that the doctrine of comity requires Singapore courts to give effect to a Mexican judgment. However, the Court of Appeal took the view that comity is not a factor in this case where the foreign judgment was obtained contrary and after a local interim injunction against any foreign proceeding. At the other extreme, comity can be the decisive factor. In the English case of Airbus Industrie GIE v Patel and Others [1999] 1 A.C. 119, the House of Lords held that comity is the reason why it would not stay the proceeding in Texas, even though Texas is not the natural forum and proceeding there could be oppressive. In most other cases, such as The “Reecon Wolf” [2012] 1 SLR 289 in Singapore, courts have applied comity along with other factors to stay an action in favour of foreign proceedings. In construing a statute, the Australian Federal Court in Trade Practices Commission v Australian Iron and Steel Pty Ltd (1989) 22 FCR 305 at [41] recalled an old prima facie rule: “It is always to be understood and implied that the legislature of a country is not intending to deal with persons or matters over which, according to the comity of nations, the jurisdiction properly belongs to some other Sovereign or State.” Comity thus features as an important rule in interpretation.

The many faces of comity however do not make the concept slippery and aimless. On the contrary, each jurisdiction appears to be explicating and evolving its understanding and application of comity in certain direction, some more systematically than others. While this is not the place to attempt to identify where each jurisdiction currently stands in their journey, it is perhaps the occasion to propose a high-level strategic framework for locating all the possible compass points of their destination. As a starting point, more comity means less extra-territoriality, and to some, that could mean less sovereignty. Jurisdictions necessarily differ in the way they weigh comity against sovereignty. While sovereignty takes priority in every jurisdiction, it is also a matter of degree as to how much sovereignty could be traded for comity, in practice if not in principle.¹²For a closer analysis, including the view that comity is an extension of sovereignty, see (74)-(79) of Gonzalo Gil White v Oro Negro Drilling Pte Ltd and others (2024) 1 SLR 307 At the end of the day, there are just two polar opposite positions that a jurisdiction can move towards. On one end is the expansive and liberal approach where a country rarely defers to foreign decisions or proceedings but aggressively asserts its own jurisdiction overseas. At the other end of the spectrum is a conservative and restrained position where a country often yields to foreign decisions. I refer to them as minimum comity and maximum comity respectively below.

Let us pause for a little thought experiment. If all countries (and their judiciary) practise maximum comity, which is to defer to other countries, there could be a positive-sum outcome, and every country benefits. On the other hand, if all countries practise minimum comity, there will be a negative-sum outcome, and every country loses. If some countries go maximum while other do minimum, there will be sub-optimal outcomes. This is the classic Prisoner’s Dilemma.

In a multilateral world, where every country is part of the same community, comity is a public good in many senses. Country A, say Singapore, will then be located in the box with outcome of (3,3). However, in a fragmenting world, Country A could easily end up in (0,4) or (4,0). While one country defers or exercises maximum restraint to stay all proceedings, the other country could chose to minimise comity and take every opportunity to exercise jurisdiction; the outcome is a zero-sum game: there would be a winner and a loser. To avoid becoming the loser, every country may end up beggaring its neighbour with minimum comity. As a result, both Country A and B will end up in (-1,-1), where neither wants to be in the first place. As is well known in strategic studies and game theories, a Prisoner’s Dilemma is not easily overcome. Being transparent is not enough. Being principled also does not solve the problem. There is no sweet spot between maximum and minimum comity that can serve a country well in all geopolitical situations, especially in a world with increasing tensions, not to mention a VUCA¹³volatile, uncertain, complex, ambiguous world driven by AI.

Conclusion

In concluding, I hope that this little inter-disciplinary exercise between law and diplomacy has generated some interest in the legal application of the doctrine of comity. From here, there are several possible lines of enquiries or follow-ups. One is to analyse and write up the case law on comity in Singapore. Arguably, comity is more important to small countries than superpowers. Another is to compare how selected common law jurisdictions are similar or different in their use of comity. A third is to understand how civil law jurisdictions view and apply comity if at all. Fourth is to develop indices to gauge where jurisdictions stand on comity and how they are trending between maximum and minimum comity. It is natural for lawyers to focus on what they know best which is the law. But the law, in my view, is not an end in itself, but a means to some larger goals. Let’s call it sustainable justice for now. With my old lenses as diplomat, I can’t see the law as something insulated from global politics. The idea of comity exists to facilitate interactions amongst nations and their people. The availability of comity, whether fat (in the sense of taking an expansive position) or thin (a restrictive position), should depend not just on judicial reasoning around justice and the law, but also on the dynamics of diplomacy including the Prisoner’s Dilemma.

The author wishes to thank K&L Gates Straits Law LLC and its then Managing Director/Partner Sreenivasan Narayan S.C. and Prof. Tommy Koh, Ambassador-at-Large, the Ministry of Foreign Affairs for their feedback. The views and errors are his.

The post The Doctrine of Comity in Singapore Law – A Trainee’s Perspective appeared first on The Singapore Law Gazette.