Service Out of Jurisdiction in Singapore: How a Company Sues a Foreign Defendant

What the Application Is

When a Singapore company wants to sue an overseas counterparty, be it a defaulting supplier in China, a departed director now living in Australia, or a joint venture partner incorporated in the British Virgin Islands, it cannot simply post the writ to a foreign address and expect the Singapore courts to take jurisdiction. Court process is territorial by nature. Before a Singapore court document can validly be served on a person or company outside Singapore, the claimant company generally needs the court’s approval to serve it out of the jurisdiction.

This application, commonly called an application for leave (or the court’s approval) to serve out of jurisdiction, is a gatekeeping step. It forces the claimant to satisfy the court, before the foreign defendant is even notified, that Singapore has a genuine connection to the dispute and is the right forum to hear it. Get it wrong, and a foreign defendant can later apply to set aside both the order and the service itself, unwinding months of work and expense.

This is squarely a company law and commercial litigation issue. Singapore companies increasingly deal with counterparties, suppliers, investors and even fellow group companies located overseas, and cross-border disputes involving cryptoassets, trust claims, unpaid invoices and breached contracts are now routine. Directors who assume that “we can just sue them in Singapore” without addressing service out of jurisdiction often find their claim stalled at the first procedural hurdle.

Legal Basis (Statute and Rule, Verified)

The governing rule is Order 8, Rule 1 of the Rules of Court 2021 (ROC 2021), which took effect on 1 April 2022 and replaced the old Order 11 regime under the previous Rules of Court. Order 8, Rule 1(1) provides that an originating process or other court document may be served out of Singapore with the court’s approval if it can be shown that the court has the jurisdiction, or is the appropriate court, to hear the action. Order 8, Rule 1(3) carves out an exception: the court’s approval is not required if service out of Singapore is allowed under a contract between the parties, for example a jurisdiction clause that also provides for service abroad.

The procedural detail sits in paragraph 63 of the Supreme Court Practice Directions 2021, issued by the Registrar of the Supreme Court. Paragraph 63(1) requires the claimant applying for the court’s approval to file a supporting affidavit stating why the court has jurisdiction, or is the appropriate court, to hear the action. Paragraph 63(2) sets out the three things that affidavit must address: first, that there is a good arguable case that there is sufficient nexus to Singapore, second, that Singapore is the forum conveniens, and third, that there is a serious question to be tried on the merits of the claim.

Paragraph 63(3) then lists a non-exhaustive set of connecting factors a claimant can point to in order to show sufficient nexus. These replaced the old rigid Order 11 “gateways” but continue to play broadly the same role. They include, among others, that the defendant is domiciled, ordinarily resident or carrying on business in Singapore or has property here, that the claim concerns a contract made in Singapore or governed by Singapore law, that the claim is founded on a tort committed in or causing damage in Singapore, that the claim concerns property situated in Singapore, and that the claim is founded on a cause of action arising in Singapore. These factors are illustrative rather than an exhaustive checklist, though most applications still anchor themselves to one or more of the listed grounds.

The Singapore High Court has already had occasion to apply this framework. In Cheong Jun Yoong v Three Arrows Capital Ltd and others [2024] SGHC 21, the claimant obtained leave to serve out of jurisdiction against a British Virgin Islands incorporated cryptocurrency fund in liquidation, relying on gateways covering a defendant carrying on business in Singapore, proprietary claims over movable property in Singapore, and a cause of action arising in Singapore. The court had to grapple with where a cryptoasset is “situated” for jurisdictional purposes, and preferred the residence of the person controlling the private key as the relevant connecting factor. The defendants’ attempt to set aside the order granting leave failed, and the Appellate Division later refused permission to appeal in Three Arrows Capital Ltd v Cheong Jun Yoong [2024] SGHC(A) 10.

A second decision, NW Corp Pte Ltd v HK Petroleum Enterprises Cooperation Ltd [2023] SGHCR 22, dealt with the Order 8, Rule 1(3) contractual exception. The Assistant Registrar held that a jurisdiction clause naming the Singapore courts and a method of service did not need to also specify a foreign location for service to fall within the exception, so long as it showed the foreign defendant had consented to being served by that method. Both decisions show that even rules that look procedural on their face can be genuinely contested.

Companies should also be aware of related mechanics under the same Part 8 of the Practice Directions, including the court’s power under Order 2, Rule 6(3)(a) and Order 9, Rule 5(1)(a) of the ROC 2021 to dismiss an action if the claimant has not taken reasonable steps to serve the originating process expeditiously, and the option to apply concurrently for an extension of the validity of the originating process where service abroad is expected to take time.

Who Can Apply

Any claimant in Singapore court proceedings, individual or company, can apply for the court’s approval to serve out of jurisdiction. In practice this article focuses on the common scenario facing Singapore business owners: a Singapore-incorporated company that is the claimant (or intended claimant) in a dispute against a defendant who is not present in Singapore. Typical defendants include a foreign supplier or customer that has breached a contract, a former director, employee or shareholder who has since relocated overseas, a foreign parent, subsidiary or joint venture partner in an intra-group dispute, and a foreign holder of assets, including cryptoassets, that the Singapore company is trying to trace or recover.

The application itself is usually made without notice to the defendant, since the whole point is to obtain the court’s permission before the foreign party is drawn into the proceedings. It is almost always brought by the claimant’s Singapore solicitors, given the affidavit must engage with the technical gateway analysis and case law described above. This is not a do-it-yourself filing, and directors should engage a Singapore Advocate and Solicitor experienced in cross-border litigation before attempting it. Companies that have just been served with a claim themselves, rather than being the ones serving one, should instead read our guide on what to do when your Singapore company has been sued.

Step-by-Step Process

The process typically runs as follows.

Step one: confirm whether approval is even needed. If the contract between the parties already contains a valid clause providing for service out of Singapore, or a Singapore jurisdiction and service clause of the kind considered in NW Corp, the company may be able to rely on Order 8, Rule 1(3) and skip the leave application altogether, serving the foreign defendant directly. If the dispute instead falls within an arbitration clause, the company should first consider whether court proceedings are even the right route, and review our guide on the stay of court proceedings in favour of arbitration.

Step two: identify the relevant connecting factors. Working with counsel, the company maps the facts of its dispute against the non-exhaustive list in paragraph 63(3) of the Practice Directions, for example the place the contract was signed, the governing law clause, the place damage was suffered, or the location of assets in dispute.

Step three: prepare the supporting affidavit. This affidavit must show a good arguable case of sufficient nexus to Singapore, that Singapore is the forum conveniens (weighing up connecting factors against any competing foreign forum, including parallel foreign proceedings), and that there is a serious question to be tried on the merits.

Step four: file the originating process together with the application for the court’s approval to serve out of Singapore, generally using Form 16 (Originating Application Without Notice) under the Supreme Court Practice Directions 2021, supported by the affidavit and a draft order.

Step five: consider whether to apply, in the same summons, for an extension of the validity of the originating process, particularly if service in the foreign jurisdiction is expected to take longer than the standard validity period.

Step six: once approval is granted, arrange service abroad through a lawful method in that jurisdiction. This may involve the Hague Service Convention, which entered into force for Singapore on 1 December 2023 with the Ministry of Law acting as Singapore’s central authority, engagement of local process agents, or other methods permitted by the foreign jurisdiction’s law and by the Singapore court’s order.

Step seven: file an affidavit of service confirming how and when service was effected.

Step eight: be prepared for the foreign defendant, once served, to apply to set aside the order granting approval and to set aside service itself, as happened (unsuccessfully) in the Three Arrows litigation. The company’s solicitors should be ready to defend the original gateway and forum conveniens arguments, and, if the company is also concerned the foreign defendant will move or dissipate assets in the meantime, to consider a parallel application for a Mareva injunction freezing those assets pending trial.

Documents Required

Timeline and Costs

What Happens After the Order

Once the court grants approval and service is validly effected, the Singapore proceedings continue in the ordinary way against the foreign defendant, who must respond within the timeframe set for a defendant served out of jurisdiction. If the foreign defendant does nothing, the Singapore company may in due course apply for default judgment, subject to the usual rules on setting aside default judgments if the defendant later surfaces and shows a genuine defence. Where the claim is for an undisputed debt, the company may also wish to consider a faster route such as summary judgment once the foreign defendant has been validly served and has filed a hopeless or no defence.

If the foreign defendant instead challenges the Singapore proceedings, it typically does so by applying to set aside the order granting approval to serve out and to set aside service itself, arguing that there is no sufficient nexus to Singapore, that Singapore is not the forum conveniens, or that there is no serious question to be tried. As the Three Arrows litigation shows, the Singapore courts will engage substantively with these arguments rather than treating the earlier without-notice grant as a rubber stamp, but a properly prepared application that survives an initial challenge puts the claimant company in a strong position to proceed to trial (or negotiate a settlement) without further jurisdictional distraction.

Where the foreign defendant is itself insolvent or in liquidation overseas, as in the Three Arrows case, the Singapore proceedings may also intersect with cross-border insolvency recognition under the Insolvency, Restructuring and Dissolution Act 2018, and the company should take specific advice on how a stay of the Singapore action or cooperation between the two courts might affect its claim. Companies should also bear in mind that once a Singapore judgment is eventually obtained against the foreign defendant, a separate exercise is usually needed to enforce it in the country where the defendant’s assets are actually located; conversely, our guide on enforcing a foreign judgment in Singapore covers the reverse scenario.

FAQ

Do I always need the court’s approval to serve a foreign company or individual?

Not always. If the contract between the parties already provides for service out of Singapore, for example through a jurisdiction and service clause, the company may be able to rely on the Order 8, Rule 1(3) exception and serve directly without the court’s approval. Otherwise, approval under Order 8, Rule 1(1) is required.

What if my contract only says the Singapore courts have jurisdiction, without mentioning service abroad?

The Singapore courts have taken a relatively liberal view of this. In the NW Corp decision, a clause providing for Singapore court jurisdiction together with a specified method of service was treated as sufficient to fall within the contractual exception, even without an express reference to service outside Singapore. Even so, well-drafted contracts should address service expressly to avoid this kind of dispute.

Can the foreign defendant fight back after being served?

Yes. A foreign defendant who has been served pursuant to the court’s approval can apply to set aside both the approval and the service, arguing there is insufficient nexus to Singapore, that Singapore is not the appropriate forum, or that there is no serious question to be tried. This is exactly what happened, unsuccessfully, in the Three Arrows litigation.

How long does service abroad actually take in practice?

It depends heavily on the receiving country. Service through the Hague Service Convention can take anywhere from a few months to close to a year in some jurisdictions, while service through local process agents in non-Hague countries can sometimes be quicker. Companies should budget generously and consider applying for an extension of the validity of the originating process at the same time as the leave application.

Does getting the court’s approval mean Singapore will definitely hear the whole case?

No. Approval to serve out of jurisdiction is a procedural gateway, not a final ruling on jurisdiction. The defendant can still contest jurisdiction, and questions of forum conveniens can resurface if there are competing foreign proceedings, particularly insolvency proceedings, over the same subject matter.

Is this something my company can handle without a lawyer?

No. The affidavit evidence must engage precisely with the paragraph 63 gateways and the developing Singapore case law on their scope, and mistakes can be fatal to the whole action if the defendant later succeeds in setting aside service. Directors should engage a Singapore Advocate and Solicitor to prepare and argue this application.

Need Help With This Matter?

If your company is facing this situation, Raffles Corporate Services can assist with the groundwork, ACRA filings, compliance documentation, and coordinating with experienced Singapore law firms. For matters requiring court proceedings, we work with a panel of experienced Singapore law firms who offer cost-effective and efficient legal service and advice.

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This article is for general information only and does not constitute legal advice. For advice specific to your situation, please consult a qualified Singapore Advocate and Solicitor.

The Editorial Team, Raffles Corporate Services