1995 7 (1) SAcLJ 103 Toh

7 S.Ac.L.J.
Obtaining Jurisdiction Over Foreign Companies
103
OBTAINING JURISDICTION OVER FOREIGN COMPANIES
A.
INTRODUCTION:
A recurrent problem in international commercial disputes is determining

when a foreign company1 is amenable to the jurisdiction of the local courts.
The somewhat instinctive response of chasing the foreign corporation to
its place of incorporation by effecting service out of jurisdiction under
Order 11 of the Rules of Supreme Court (hereinafter, the RSC), is often
not the most ideal solution, both in terms of convenience and tactics.2
Other jurisdictional heads which involve only service within jurisdiction3
should be considered first, whenever possible.
The purpose of this article is to explore these jurisdictional heads which
only require service within jurisdiction of the Singapore forum and consider
how they might be invoked, if at all, in the context of different physical
and economic manifestations of a foreign company within Singapore. An
early caveat is apposite, however. Scarcity of local cases, doubts as to
A foreign company is defined in the s.4 of the Companies Act (Cap. 50, 1994 Revised
Edition) as (a) a company, corporation, society, association or other body incorporated
outside Singapore; or (b) an unincorporated society, association or other body which
under the law of its place of origin may sue or be sued, or hold property in the name of
the secretary or other officer of the body or association duly appointed for that purpose
and which does not have its head office or principal place of business in Singapore. The
question of jurisdiction over foreign companies was the subject of an earlier article: see
Woon, Jurisdiction over Foreign Companies in Singapore Law [1987] 2 MLJ xxviii.
However, the whole basis of assuming civil jurisdiction was changed in 1993 owing to
amendments to s.16 of the Supreme Court Judicature Act. (Cap. 322, Singapore Statutes,
1993 Reprint of the 1985 Revised Edition.) On the effects of the amendments, see
YL Tan [1993] SJLS 557 at pp 563569. It is therefore timely to re-examine this area of
jurisdiction over foreign companies in view of these statutory changes, as well as the
caselaw which has emerged over the last few years.
For instance, service out of jurisdiction is not available as of right; a jurisdictional limb
under O.11 r.1(1), RSC must be shown and leave of court must be obtained. Burden of
proving the appropriateness of the forum according to the Spiliada [1986] 3 All ER 843
criteria rests with the plaintiff. Such service may be ignored and any resulting default
judgment may not be enforceable in another jurisdiction (at least in most Commonwealth
countries), depending on the conflict of laws rules of that jurisdiction. It is true that a
foreign company may not have assets in Singapore so that even if jurisdiction over it is
obtained by service within jurisdiction and judgment obtained, such a judgment may
have to be enforced elsewhere. However, if there have been submission or presence of
that company within jurisdiction, that may furnish a ground for enforcement before
another court in the Commonwealth, although ultimately, everything depends on the
enforcement rules of that jurisdiction. If the foreign company has a local debtor, then
garnishee proceedings might be commenced after obtaining the local judgment.
This expression, within jurisdiction will be used interchangeably with the expression, in
the forum. Needless to say, forum refers to the country before whose courts the action
is brought.
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applicability of cases from other jurisdictions, absence of judicial survey of

the entire field and recent statutory amendments in 1993 make the task of
constructing a conceptual framework in this area difficult and the analysis
to be put forward presently, tentative.
B.
THE STATUTORY REGIMES
The starting point is s.16(1) of the Supreme Court Judicature Act4 which
sets out the scheme of civil jurisdiction of the High Court of Singapore for
in personam actions. In fact, s.16(1) supplies two of the three statutory
regimes in relation to jurisdiction over foreign companies. Under s.16(1)(i),
the High Court has jurisdiction to hear an action in personam where the
defendant is served with a writ or other originating process in Singapore
in the manner prescribed by the Rules of Court. S.16(1)(b) confers the
High Court with jurisdiction if the defendant submits to the jurisdiction of
the High Court.
In addition, s.16(3) provides that without prejudice to the generality of
subsection 1 the High Court should have jurisdiction as is vested in it by
any other written law.5 S.16(3) thus captures any other jurisdiction conferring
statutory provisions, which in relation to foreign companies in Singapore,
would presently be argued to include Part XI, Division 2 of the Companies
Act.
C. DIVISION II, PART XI OF THE COMPANIES ACT
Whilsts.16(1) of the SCJA sets out the heads of civil jurisdiction in
Singapore, it may be more convenient to begin with this third statutory
regimeunder the Companies Act rather than the two contained in s.16(1).
If, as presently argued that it would, certain provisions of this Part of the
Act do indeed confer jurisdiction, then any foreign company that is
registered under s.368 of this Part could be served in accordance with the
procedure prescribed in s. 376 and be made amenable to jurisdiction of the
Singapore courts. There would be no further need to consider if the other
two jurisdictional limbs in s.16(1) could be invokedwhich,subject to one
exception,6 remain possible (though in many situations, less attractive)
alternatives.
4
5
Supra, note 1.
Written law according to s.2(1) of the Interpretation Act (Cap.1, Singapore Statutes,
1985 Rev. Ed.) includes, inter alia, all Acts, Ordinances and enactments by whatever
name called.
That of service under s.16(1)(a)(i) read with O.62 r.4. Infra, Part D of this article.
7 S.Ac.L.J.
105
(i) Relevant Provisions of Part XI, Division 2 of the Companies Act.7

Under Division 2, a foreign company which wishes to commence to carry
on business or establish a place of business8 in Singapore must be registered
under s.368. Registration of such a foreign company requires the lodgment
with the Registrar of Companies of, inter alia, the names and addresses of
two or more natural persons resident in Singapore who are authorised to
accept on its behalf service of process9 (such persons being referred to as
agents10 of the foreign company). In addition, such a foreign company
must have a registered office in Singapore11 and notice of the situation of
this office in Singapore must also be lodged.12 Failure to register before
carrying on business or establishing a place of business attracts an offence
(penalised by a fine) under s.386.
Any documents (including any originating processes) required to be served
on a foreign company may be left at or sent by post to
a. the registered office of the foreign company (if addressed to the
foreign company) or
b. the registered address of any of its agents (if addressed to its
agent) or
c. the registered office of the foreign companys place of incorporation if it has ceased to maintain a place of business in Singapore.13
In essence then, a foreign company which wishes to carry on business or

establish a place or business in Singapore must register itself, supplying the
names of its local agents as well as the address of its registered Singapore
office and once so registered, may be served with process in the manner
prescribed by s.376. It is significant to observe that if a foreign company
carries on business or establishes a place of business in Singapore but fails
to register itself, the service procedure set out in s.376 does not apply.
As a matter of historical interest, this problem was addressed by s.305 of
the Companies Ordinance of 1955 which allowed service on a place of
business established by the unregistered foreign company. But this provision
7 It appears that Part XI, Division 2, in its present form was introduced in 1967, via the
Singapore Companies Act of 1967 (Act 42 of 1967). The provisions relevant to the
present analysis, ss.329, 330, 332 and 339 of the 1967 Act are similar to ss.365, 366, 368
and 376 of the current Act. Prior to 1965, the provisions which dealt with registration and
service of foreign companies were in pari materia to those found in the various English
companies legislations. Infra, note 32. See for instance, ss.300, 301 and 305 of the
Companies Ordinance, 1955 and prior to that, s.290 of the Straits Settlements Companies
Ordinance of 1923 and s.287 of the Straits Settlements Companies Ordinance of 1915.
8 The meanings of these two phrases will be considered presently.
9 s. 368(1)(e), Companies Act.
10 s. 366(1), Companies Act.
11 s. 370(1), Companies Act.
12 s. 368(1)(f), Companies Act.
13 s. 376(a)(c), Companies Act.
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and others dealing with registration and service in the 1955 Ordinance
(which were probably borrowed from the English Companies Act of 1948)
were left out of Companies Act of 1967 which repealed the 1955 Ordinance
and also introduced the present Part XI, Division 2 provisions.
(ii) Legislations Comparable to Division 2 of Part XI, Companies Act.
The provisions in Part XI, Division 2 of the Companies Act which are
relevant to our discussion have close parallels in Australia, Malaysia and
England. For instance, s.343 of Part 4.1 Division 2 of the Australian
Corporations Law, 1989 forbids a foreign company to carry on business14
before it is registered under provisions in Part 4.1, Division 2. The ambit
of the expression, carrying on business, found in s.21(2),(3) of the same
Act is similar to that found in s.366 of our Companies Act. Similarly, a
local agent must be appointed by the foreign company and the company
must have a registered office.15 Service procedure under s.363 is broadly
similar to s.376.16
The Malaysian provisions are in pari materia similar to those in Singapore,
albeit numbered differently.17
The provisions18 in England contained in Part XXIII of the 1985 Companies
Act are different from Part XI, Division 219 in several pertinent aspects
although the basic schema remains the same. S. 691(1) of the English
Companies Act 1985 requires a foreign company to register within one
month after establishing a place of business20 and to lodge for registration,
inter alia, the names and addresses of one or more persons authorised to
14 But s.343 of the Corporation Laws leaves out the expression, place of business which
appears in Part XI, Division 2. This is perhaps because the two expressions, place of
business and carrying on business are synonymous: see s.21(1). The relevant provisions
of two earlier companies legislation in Australia, the 1981 Australian Companies Code
and the 1961 Companies Act are in pari materia with those in Part XI Division 2. See,
for instance, ss.510, 512, 518 and 530 of the 1981 Code.
15 See ss.344 and 345 of the Corporations Law, 1989. See also s.363 on the ways service can
be effected.
16 The main differences seem to be that there is no equivalent to s.376(c) in s.363 of the
1989 Corporations Law (the provision that deals with service on registered foreign
company) and s.363(3) permits service on locally resident directors. These two differences
are found in s.530 of the 1981 Code as well.
17 See the Part XI, Division 2 of the Companies Act of 1965, Malaysia; in particular ss.329,
330, 332, 333 and 339.
18 Not taking into account the provisions introduced by virtue of the Eleventh Company
Law Directive under European Community regime.
19 See the remarks of Chao Hick Tin J in the Court of Appeal decision of Bank of Central
Asia v Rosenberg [1995] 1 SLR 490. The first instance decision is reported in [1994] 1
SLR 798.
20 Unlike the Singapore provisions, there is no reference to carrying on business in the
English provisions.
7 S.Ac.L.J.
107
accept service. Service on the foreign company may be effected on such an

agent of the company by addressing the process to him and leaving the
process at or posting it to the agents registered address.21 It will be noticed
that no mention is made in the English provisions of a company carrying
on business and service on a registered company may only be effected on
the agent. Perhaps more significantly, there is a UK provision which, since
1967, has no local equivalent: if the foreign company fails to register, then
service may still be effected at a place of business established by the
company in the England.22 As will presently be discussed, this lacuna in the
local legislation presents problems on both jurisdiction and service.
(iii) Does Division 2 of Part XI confer jurisdiction?
This question does not admit of an easy reply. However, what appears to
be an affirmative answer may be obtained from a number of indirect sources.
The legislative purpose behind the registration and service provisions of
this Division, particularly ss. 365, 366, 368 and 376 seems predominantly to
be one of protection of local creditors of the foreign company by securing
for them a procedure for service which does not involve service out of
jurisdiction. This obviates the inconvenience of service out and puts the
potential plaintiff at no worse a position than he would be if he were to sue
a local company. This purpose was identified by Ackner LJ (as he then
was) in South India Shipping Corporation v Export-Import Bank of Korea23 ,
by Winslow J in Goh Siew Wah v Columbia Films of Malaysia24 and has
been echoed in two Australian decisions, Maronis Holdings Ltd v Nippon
Credit Australia Ltd25 as well as Gillett v The National Benefit Life and
Property Assurance Company Ltd.26 Another justification, somewhat less
sophisticated, stems from some notions of mutuality: a foreign company
can sue any local creditor as if it is a local plaintiff 27 and so should be
capable of being sued as if it were a local defendant.
Admittedly, these judicial pronouncements do not bear directly on the
jurisdiction question and that there is no express provision in any Part XI,
Division 2 or other comparative legislation which deals specifically with
21 S.695, English Companies Act 1985.

22 S.695(2), English Companies Act, 1985.
23 [1985] 2 All ER 219 at p.224. See also the judgment of Lord Sumner in Employers
Liability Assurance Corporation v Sedgwick, Collins and Company [1927] AC 95 at p.108
24 [1966] 1 MLJ 39 at pp.4041. His Honour said that the object of s.305 (a predecessor of
s.376) is to provide a method of service on a company incorporated abroad which carries
on business locally...its justification is convenience to the public. See also United Kingdom
Tobacco v Malayan Tobacco Distributors [1933] MLJ 1 where it was said that the provisions
have the salutary effect of controlling the activities of foreign companies within jurisdiction.
25 [1990] 2 ASCR 136 at p.140, a decision of the Supreme Court of New South Wales.
26 (1918) 24 CLR 374 at 378, a decision of the High Court of Australia.
27 As far as jurisdictional requirements are concerned. Needless to say, it may be asked to
put up security for cost.
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jurisdiction. However, it should be noted that as far as English and

Australian cases are concerned, they are to be read with the common law
conflict of laws principle in mind, that the foundation of jurisdiction in
personam is service of the writ on a defendant present within jurisdiction.28
It may therefore be argued that by providing for a statutory substitute for
the common law equivalent criterion of corporate presence in the form of
registration and a special facility for service on foreign companies registered
within jurisdiction, the legislatures of these countries have already created
an avenue by which jurisdiction over foreign companies may be exerted.
Any express enactment on denoting that service in the forum confers
jurisdiction would be superfluous.29
Indeed, such an argument, reading into statutory provisions dealing with
foreign companies a jurisdictional nexus is supported by writers and cases
on the area. Both Dicey and Morris and Cheshire and North regard service
under the relevant UK provisions on foreign companies as conferring
jurisdiction. The editors of Cheshire and North, citing as support the decision
of the Theodohos,30 make this point aptly:
... the basis for taking jurisdiction against foreign companies following
service of a writ within the jurisdiction is to be found in the provisions
of the Companies Act,...31
While, the English provisions on which the above observations are based
are somewhat different from those of Singapore in that they include service
provisions against errant, unregistered foreign companies, the principle
that service on registered companies confers jurisdiction has always been
maintained, even at a time when the English provisions contained the
same lacuna as the local provisions.32 In Employers Liability Assurance
28 See Dicey and Morris, Conflict of Laws, 12th edition, Volume 1 at p.298; Cheshire and
North, 12th edition, at p.182.
29 The argument can be taken one step further. A Singapore incorporated company may be
served in the way described in s.387. The lack of any express conferment of jurisdiction
in s.387 bothers no one. Such a company is assumed to be present by virtue of its local
incorporation. (See Dicey and Morris, supra note 28 at p.305; Dicey and Morris remark
seems to equate corporate domicil which is a function of incorporation with corporate
presence). As aforesaid in the text, the aim of requiring registration of a foreign company
is after all to put it in the same position as a local company, as regards convenience of
starting a suit against it.
30 [1977] 2 Lloyds Rep 428.
31 Cheshire and North, supra, note 28 at p.186.
32 It may be useful at this juncture to briefly state the legislative history of the English
provisions. Before the Companies Act 1907 was enacted, there was no statutory provision
dealing with service of foreign companies and so recourse was had to O.9 r.8 of the RSC
of 1883. S.35 of the Companies Act of 1907 changed this by introducing registration of
foreign companies and a service procedure on such registered foreign companies. This
provision was repealed and re-enacted in s.274 of the Companies (Consolidation) Act,
1908 which was in turn repealed by the Companies Act 1929 and replaced by ss.346(3)
and 349. Until the Companies Act of 1929, there was no provision dealing with service
of unregistered companies; therefore, England had the same statutory lacuna as that
presently prevailing in Singapore. However, s.349 closed up the lacuna by the introduction
7 S.Ac.L.J.
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Corporation Limited v Sedgwick, Collins and Company Limited33 , Lords

Sumner and Parmoor opined that the act of registration amounted to a
submission to the territorial jurisdiction of the English courts.34 Lord
Parmoor, additionally, appeared to accept that registration upon establishment of a place of business created some kind of territorial presence which
is the statutory equivalent of corporate presence under common law in
that it, too, renders the foreign company amenable to jurisdiction and
service.35 Submission to jurisdiction based on registration is admittedly
artificial36 , since registration on pain of a fine37 hardly connotes any
voluntariness which underlies any submission to jurisdiction and in any
event, any such submission is probably implied, a notion which has been
largely rejected in English and local cases.38 Registration as a statutory
parallel to common law corporate presence within jurisdiction is somewhat
more attractive and seems to have the support of Dicey and Morris39
although it would be inconsistent with cases which decided that cessation
of business at the time of service did not render the service bad.40
The Australian conflict of laws writers, Sykes and Pryles, also reject
submission.41 The learned writers adopt the position that the act of
33
34
35
36
37
38
39
40
41
of service on a place of business established by an unregistered foreign company. These

provisions in the 1929 Act were repealed by the Companies Act 1948 and re-enacted as
ss. 407, 409, and 412 (The Theodohos, supra, being decided on these provisions). The
1948 provisions became ss.691and 695 of the English Companies Act of 1985.
Supra, note 23.
This notion of submission to jurisdiction based on registration was subsequently followed
in Sabatier v The Trading Company [1927] 1 Ch 495 and The Madrid [1937] P 42. See
also Nygh, Conflict of Laws in Australia, 5th Edition (1991) at p. 501 which takes the
same view.
See Part D of this article.
See Dicey and Morris, supra, note 28 at p.313. See also, Sykes and Pryles, Australian
Private International Law, Conflict of Laws, 2nd Edition, (1987) at pp.2728. This view
is omitted in the 3rd Edition (1991) of the book although the position that the companies
legislations confer jurisdiction is still retained. See pp. 2526 of the 3rd Edition.
Failure to register a foreign company attracts a fine of maximum $1000 under s. 386 of
the Companies Act in addition to a default penalty under s.408.
See Vogel v Kohnstamm Ltd [1973] QB 133, Sunline v Cantopex, [1986] 2 MLJ 348; UOB
v Tjuk Tjio Nyuk [1987] 2 MLJ 295.
Supra, note 28, at p.313.
It is hardly surprising to note these cases, like Sedgwick & Collins, supra, note 23 and
Sabatier, supra, note 34 are those that espouse the submission by registration theory.
Supra, note 36. Cf Kelty v Athertons (SA) Pte Ltd, (1982) 6 ACLR 477, a decision of
Sangster J of the Supreme Court of South Australia. The Court in this case seemed to
rely on the common law requirement of corporate presence (or residence) as the source
of jurisdiction over foreign companies and did not see the need for reliance on the South
Australian Companies Act provisions which relate to registration and service. The court
went on to observe that these provisions do not bring a registered foreign company into
a different position in relation to jurisdiction of the South Australian courts than an
unregistered foreign company. This observation is, with respect, aberrant as it runs counter
to the view taken by cases and academic writers, including the Australian conflicts writers,
cited above. Further, the remarks are probably dicta since the judge considered the issue
on his own accord without either counsel challenging the courts jurisdiction and in any
event, jurisdiction was in fact obtained by submission through unconditional appearance.
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registration confers jurisdiction under the legislation and thus no recourse

need be had to jurisdiction derived from either submission or carrying on
business in the forum. The Australian perspective is particularly relevant
given the greater local resemblance between their provisions and ours, a
fact which is not altogether surprising, since a fair number of provisions in
our Part XI, Division 2 bear Australian roots.
In view of these judicial and academic authorities, it seems difficult to
argue that Part XI, Division 2 of the Companies Act is not jurisdiction
conferring. Whether the conceptual basis of jurisdiction conferment is
submission, corporate presence or registration per se, is perhaps not as
important as the fact that the provisions actually create a source of
jurisdiction.
In any event, whatever might have been the position before, the 1993
amendments to s.16 of the Supreme Court Judicature Act, for two reasons,
the new provisions of s.16(1) do compel the conclusion that Part XI, Division
2 is jurisdiction conferring. The first reason is this. S.16(1)(a)(i) provides
that jurisdiction is based on service according to the rules of court. If
service is effected under s.376 of the Companies Act, such service is not in
accordance with the RSC and so falls outside the purview of s.16(1)(a)(i).
One might then ask rhetorically what is the effect of service under s.376.
If it is solely to give notice of suit to the foreign corporate defendant, must
jurisdiction nevertheless be made available through compliance with
s.16(1)(a)(i)? This would necessitateduplication of service. Furthermore,
in the absence of submission to jurisdiction by the defendant, the avenue
for such service is very restricted. O.62 r.442 cannot be employed as it
applies only in the absence of provisions made in any other enactment, like
s.376. O.10 r.2, which is the other alternative, can only be invoked if its
special criteria are fulfilled.43 It should also be noted that the Legislature
does not intend s.16(1) to as operate to the exclusion of all other statutory
sources of jurisdiction, including that found in the Companies Act. S.16(3)
makes this quite apparent.
Secondly, with the amendment to s.16(1) making jurisdiction dependent
on service within or out of jurisdiction, the conceptual premise of in
personam jurisdiction in Singapore, even though cloaked in a statutory
outfit, now resembles that of common law.44 That being the case, the
arguments about the superfluity of a specific jurisdiction provision along
with a service provision in the company legislations of Australia and England
would apply with full effect in Singapore as well.
42 See Part E of this article.
43 Ibid.
44 See the remarks of the Minister of Law in parliamentary debates to the amendment of
s.16 reproduced on p. 20. Parliamentary debates are relevant to the construction of
statutes; see s.9A of the Interpretation Act (Cap 1, Singapore Statutes, 1985 Rev Edition)
as well as the decisions of Pepper v Hart [1992] 3 WLR 1032 and Raffles City v Attorney
General [1993] 2 SLR 580.
7 S.Ac.L.J.
111
(iv) Meaning of place of business and carrying on business

The analysis thus far is registration of a foreign company is necessary
before it establishes a place of business or commences to carry on business45
and when so registered, it becomes subject to the service and jurisdictional
regime of the Companies Act. Since either establishing a place of business
or carrying on business triggers off certain jurisdictional consequences, it
is essential to ascertain what kinds of corporate acts amount to either
activity.
(a) Place of Business
Beginning with place of business, this expression is not defined in Part
XI, Division 2. However, there are two sources of jurisprudence which
may be tapped in determining the parameters of this phrase. The first
would be common law cases on what is meant by a company carrying on
business ie corporate presence.46 The second would be cases from
jurisdictions which have considered this phrase in comparable legislations.47
The common law cases on carrying on business will be considered in detail
presently; suffice, however, that the main principles distilled from these
cases be stated for present purposes. A companys place of business refers
to a local habitation of its own;48 it is where the company carries out
business for a definite period of time. There must be a degree of fixity or
permanence about the place where business is conducted (although a booth
in an exhibition lasting 9 days has been held to be sufficient)49 ; tenure of
the place in the form of lease or title though not essential, is a strong
indicium.50 If business of the company is carried out by an agent, there
would be compelling evidence of corporate presence if the agent has the
authority to enter into transactions binding on the foreign company51
although other aspects of the relationship are also relevant.52
45 See ss.365 and 368 of Part XI, Division 2 of the Companies Act.
46 See Dicey and Morris, supra, note 28 at p.306 and Cheshire and North, supra, note 28,
11th Edition at pp.189191. See also, The Theodohos, supra, note 30, The Vrontados
[1982] 2 Lloyds Rep 428 and South India Shipping Corporation v Export-Import Bank
of Korea , supra, note 23.
47 It is true that the Singapore Court of Appeal in the Rosenberg decision cautioned against
indiscriminate adoption of English cases on place of business and pointed out the relevant
provisions of the Singapore and UK company legislation are materially different. See
page 15 of the judgment. However, this caution was made in the context of construction
of O.10 r.2 of the RSC, rather than Division 2 Part XI of the Companies Act. However,
it should be noted that in the UK provisions, the only jurisdictional trigger is establishing
a place of business; carrying on business is absent.
48 Lord Advocate v Huron & Erie Loan and Savings Co. [1911] SC, 615.
49 Dunlop Pneumatic Tyre v A G Cudell & Co [1902] 1 KB 342.
50 La Bourgogne [1899] P 1, affirmed on appeal to the House of Lords, [1999] AC 431.
51 Okura & Co v Forsbecka Jernverks Aktiebolag [1914] 1 KB 715.
52 Adams v Cape Industries [1990] Ch 433.
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These common law principles are not to be regarded as rigid requirements.

Indeed, as some decisions which construed comparable English legislations
show, the expression,place of business in Part XI seems to encompass but
is not confined to its common law meaning. In this connection, a trilogy of
English decisions are illuminating.
The first is South India Shipping Corporation v Export-Import Bank of
Korea,53 in which the defendant bank was held to have established a place
of business for the purpose of the proviso to s.412 of the English Companies
Act of 194854 even though its branch office in London did not conclude any
banking transactions but merely conducted activities incidental to its banking
business, such as the collection and dissemination of information,
maintenance of public relations with other banking and financial institutions
in the United Kingdom, as well as conduct of other liaison activities. The
Defendants took up a lease of the premises and employed staff to carry
out its activities. On these facts, Ackner LJ found that the defendant bank
had established a place of business in England. His Lordship saw no need
for the activities carried out within jurisdiction to be the substantial or
paramount part of the defendants business; such activities could be
incidental to the main objects of the company, as those in this case were.
As Parliament has not place any express qualifications or limitations on
the words a place of business, the court did not see fit to imply any.
The second case in the trilogy, Re Oriel Ltd, did not arise in a jurisdictional
context.55 It is nonetheless useful in that it reads into the same expression,
establish a place of business,56 a degree of permanence and corporate
identifiability in the premises taken up by the foreign company. To begin
with, Oliver LJ did not think that there is complete symmetry in the concepts
of carrying on business and establishing a place of business. A company
sending its agents over to meet clients in a hotel lounge may be carrying
on business there but does not establish the hotel lounge as a place of
business. His Lordship went on to expound on the meaning of the expression,
...when the word established is used adjectively, ..., it connotes not
only the setting up of a place of business at a specific location, but a
degree of permanence or recognisability as being a location of the
companys business. The concept, as it seems to me, is of some more
or less permanent location, not necessarily owned or even leased by
53 Supra, note 23.

54 The proviso to s.412 of the 1948 Companies Act dealt with service on unregistered
companies. As note 32 makes it clear, this was the predecessor to s.695(2) of the Companies
Act of 1985.
55 [1985] 3 All ER 216. The case actually involved registration of a charge created by a
foreign company over English property.
56 Which also appeared in s.106 of the English Companies Act of 1948.
7 S.Ac.L.J.
113
the company, but at least associated with the company and from
which habitually or with some degree of regularity business is
conducted.57
So, in this case, a foreign company which acquired and mortgaged several
petroleum garage sites as well as entered into petroleum supply agreements
with the mortgagee, was held not to have by these acts alone established
a place of business on any of the sites it acquired. The private residence
within jurisdiction of the directors per se did not amount to a place of
business either, although it might be if it is the seat of corporate direction
and control from which business correspondence emanates. Physical
indication of the company such as a signboard or brass plate is not necessary
though its absence is a factor to be taken into account.58
Cleveland Museum of Art v Capricorn Art International,59 the third English
decision on the issue, illustrates how far the courts have gone in stretching
the notion of place of business. A disused church converted into a storage
and viewing place of substantial pieces of artwork belonging to an artdealing foreign company was found by Hirst J to constitute the latters
place of business, storage and viewing being important activities of the artdealing business. There was no evidence that art pieces were sold and
purchased at this place, or of external signs of corporate identity (though
perhaps understandable on the facts); nor indeed did the foreign company
have exclusive use of the place. Perhaps influenced by the tenuous evidence
supporting jurisdiction (although this was not expressed, there being the
firmer ground of lis alibi pendens to stand on), the court was prepared to
stay the action on forum non conveniens.
Several trends emerge from this trilogy of cases. First, all the judges in
these three cases seemed to approach the matter as a question of fact and
did not adhere rigidly to the common law requirements outlined above, in
particular, the ability of the branch or agent to contract on the foreign
companys behalf. Instead, decisions are arrived at largely a matter of
scrutiny on the kind of corporate activities pursued in the forum. In other
words, establishment of a place of business is a question of fact which
depends on the circumstances of the individual case. Secondly, as South
India Shipping and Cleveland Museum demonstrate, incidental or facilitative
activities, which are not directly capital generating, may be sufficient to
constitute a place of business, depending on the nature of the business as
57 At p. 220 of the judgment. Cf Re Tovarishestvo Manufactur [1944] 1 Ch 404 in a company
whose directors conducted business from the same hotel each of a number of years was
held to have a place of business there for the purposes of winding up.
58 On this point, see also Deverall v Grant Advertising Inc. [1955] 1 Ch 111.
59 [1990] BCLC 546. See also the extreme decision of Sabatier v The Trading Company,
supra, note 34 in which a registered foreign company which had ceased to carry on
business within jurisdiction was held to continue maintaining its place of business even
though all that was done there were certain administrative activities like remittance of
dividends to shareholders. It is however not entirely clear from the judgment how the
conclusion was arrived at.
114
(1995)
well as the extent and continuity of such activities. Thirdly, neither the
physical premises on which the business is located, nor the tenure (if any)
which the company holds on it seems to matter very much. A commercial
setting, say an office, is not essential so long as the place (which could even
double as a residence) is and has for some time been identified with the
foreign company.
Finally, as the expression, place of business received a wide construction
in the cases, there is a corresponding expansion in the scope of jurisdiction
under the English Companies Act and thence, if we adopt the approach in
these cases, in our Companies Act as well. What this means in practical
terms is that even tangential economic activities in a fixed place may be no
safeguard for a foreign company against the necessity of registration and
being ensnared into the web of jurisdiction if such manifestations amount
to the establishment of a place of business. As it appears to be a question
of degree, depending on the kind, frequency and volume of corporate
activities conducted within jurisdiction, measures to forestall jurisdiction
might not have their expected effects, if indeed they are commercially
practicable. This may be a matter of some concern for a commercial (and
regional) hub like Singapore that foreign companies desiring to carry out
anything but the slightest activities may have to register and be exposed to
suits which may have nothing to do with the activities here, especially from
parties or their advisers attuned to the practice of forum-shopping. The
more extensive this jurisdictional web, the most pressing is the need to stay
actions for which Singapore is not appropriate forum,60 especially those
that smack of forum-shopping.
(b) Carrying on Business
This expression is partly defined in s. 366(1) as including establishing or
using a share transfer or share registration office or otherwise dealing with
property situated in Singapore as an agent, legal personal representative,
or trustee, whether by employees or agents or otherwise.... As this definition
is not exhaustive61 , s.366(1) does not set out all the parameters of the
expression although, s.366(2) does enumerate a number of activities which
do not amount to the company carrying on business in Singapore. These
exceptions consist of the company becoming a party to any action or
60 The Spiliada, supra, note 2 which has been locally accepted: see, for instance, Brinkerhoff
Maritime Drilling v PT Airfast Services [1992] 2 SLR 776; Eng Liat Kiang v Eng Bak
Hem [1995] 1 SLR 577.
61 Since it uses the word, includes. See also Luckin v Highway Motel (Carnarvon) Pty Ltd
(1975) 133 CLR 164 at p.178. For instance, as Gibbs J pointed out in Luckins case, if
a defendant company dealt with property for itself and not as an agent (and therefore
not coming within the partial definition of the equivalent of our s.366(1)), it would still
be carrying on business provided its dealings were not isolated transactions.
7 S.Ac.L.J.
115
arbitration proceedings, holding meeting for its directors or shareholders,

maintaining a bank account, effecting any sale through an independent
contractor, soliciting any order which has to be accepted outside Singapore,
creating a charge over property, securing or collecting a debt or enforcing
security relating to such debt,62 conducting an isolated transaction not
repeated from time to time and investing funds or holding property.
It is difficult to discern any unifying principle that threads through these
motley collections of exceptions. They can broadly be divided into two
kinds: those that reflect common law principles and others which appear
to be a collection of some common corporate acts. Coming within the
former category would be the exceptions relating to soliciting for orders
which are transmitted for acceptance outside Singapore63 and carrying out
isolated transactions.64 The effect of sale through an independent contractor
is, on plain reading, wide for an agent paid by commission may conceivably
be an independent contractor, yet such a factor per se does not preclude
the company from carrying on business at common law. A sensibly narrower
reading, by confining this exception to situations of resale through a third
party, would render it more resonant with common law principles.
Aside from the statutory parameters laid out in s.366(1) and s.366(2), it is
still necessary to ascertain what other activities might conceivably come
within the expression, carrying on business. There appear not to be any
direct local authorities on the point, but two lines of cases are worth
exploring. The first consists of cases borrowed from jurisdictions with
comparable legislations, particularly Australia. The clearest guidelines as
to what carrying on business entails come from the Australian High Court
decision of Luckin v Highway Motel (Carnarvon) Pty Ltd65 , in particular
the judgment of Gibbs J (as he then was).
Although this case, like Re Oriel, involves registration of charges created
by a foreign company, the provision construed is in fact the Australian
equivalent of our s.366(1) and so to that extent, relevant to the present
analysis. The foreign corporate defendant was a tour agency whose overland
tour buses over a period of a year travelled through Western Australia
(where it had neither an agent, a place of business or any property). The
62 On this exception, see also Koh Kim Chai v Asia Commercial Banking Corporation
[1981] 1 MLJ 196 which decided that for the purposes of the Banking Act of Malaysia,
taking steps to enforce a charge created over land within jurisdiction does not amount
to carrying on business there.
63 See, for instance, the common law cases of Okura v Forsbecka , supra, note 51 and Vogel
v Kohnstamm, supra, note 38.
64 At common law, business must be carried out within jurisdiction for a definite period of
time: SaccharinCorporation v Chemische Fabrik von Hedyon v Saccharin Corporation
[1911] 2 KB 516 though nine days of business at a particular place has been held to be
enough: Dunlop v Cudell, supra, note 49.
65 Supra, note 61.
116
(1995)
defendant agreed to provide its tourists with food and either accommodation
or camping sites while they were in Western Australia which arrangement
necessitating the buying of food and hiring of accommodation from various
parties in Western Australia.
Such commercial transactions entered into in Western Australia was held
to amount to carrying on business there. It should be noted that the
commercial transactions in nature were more of a facilitative or incidental
nature, but like cases construing the expression, place of business, that
fact did not seem to influence the decision. Gibbs J opined that the carrying
on business connotes ...at least, the doing of a succession of acts designed
to advance some enterprise of the company pursued with a view to pecuniary
gain.66 This emphasis on a succession of acts echoes the natural meaning
of carrying on. It is also consistent with the exception in s.366(2)(h) based
on isolated transactions as well as earlier Australian authorities.67
As is evident from Luckin itself, the carrying on business does not have to
be conducted through a place of business within jurisdiction,68 a point
borne out by the disjunctive language used in s.365 itself. Neither is there
need for corporate residence (in the sense of the place where central
management and control emanates)69 within jurisdiction. The way business
is conducted can even be rather transitory, like the transactions in Luckins
which were entered into as and when the tour buses travelled through
Australia, though of course, it can take the more usual form of a local
agent, as Re Norfolk Island Shipping Line Pty Ltd,70 another Australian
decision on the equivalent of s.365, illustrates.
In the final analysis, the task at hand is an application of these principles
to the facts of the case, but in some instances, this factual enquiry have
surprisingly liberal results. For instance, in Re Atlantic Isle Shipping Co
Inc,71 a decision of the Supreme Court of New South Wales, the only
evidence of any trading within jurisdiction was the foreign companys only
66 Supra, note 61 at p.178. This principle was applied in Re Norfolk Island Shipping Line
Pty Ltd (1988) 6 ACLC 990, a decision of the Supreme Court of New South Wales.
67 See Lamson Store Service v Weidenbach (1904) 7 WAR 166 (a single transaction within
jurisdiction is insufficient) and Colley v Mead (1917) 20 WAR 1.
68 To the extent that no place of business is needed, Oibbs Js construction of carrying on
business may even be somewhat broader than the common law understanding of the
phrase. See Part D of this article for discussion of common law cases on the area.
69 Which is the common law meaning of corporate residence: see de Beers Consolidated
Mines v Howe [1906] AC 455. See, however, Lorraine Osman v Elders Finance Asia Ltd
[1992] 1 SLR 369, cases on corporate residence which arose in a jurisdictional context
should not be used in the context of a moneylending statute. The court did not say that
cases on corporate residence which arose in other contexts should not be used in a case
which involves jurisdiction.
70 Supra, note 66. See also, Gillett v The National Benefit Life and Property Assurance
Company Ltd, supra, note 26.
71 (1988) 6 ACLC 992
7 S.Ac.L.J.
117
vessel performing some loading operations in New South Wales from time
to time coupled with a bank account there. This meagre evidence notwithstanding, the court found sufficient material to suggest that the company
was carrying on business there. But however varied the requirement as to
the requisite degree of trading may be, there must actually be some trading;
acts preparatory to that are not adequate.72
Apart from this line of cases which interpret comparable provisions, the
line of common law cases on corporate presence may also cast some light
on the ambit of the expression, carrying on business in s.366. These cases
will be dealt with in Part III of this article. Suffice that we now examine
what claims they have to relevancy. First, given the presence of an inclusive
definition of carrying on business in s.366, a restrictive construction which
excludes the common law principles would be odd. Secondly, the exceptions
in s.366(2) which reflect common law principles bear out the inference that
s.366 was drafted with the common law in mind, even though there might
have been an intention to extend beyond it. Thirdly, the cases that construed
provisions which are the equivalent of s.366 referred to common law cases
as well, suggesting again s.366 was not meant to stand on its own.
(v) Service on Registered Foreign Company and Various Problematic
Situations arising therefrom.
As aforesaid, under s.376, a registered foreign company may be served
with process sent by post to or left at (if addressed to him) the registered
address of one of its agents73 or (if addressed to the company) its registered
office or if the company has ceased to maintain a place of business in
Singapore, at the registered office in the companys place of incorporation.
A foreign company that fails to register although it is required to cannot
be served according to the procedure in s.376 since there would not be any
registered addresses either of its office in Singapore or of its agents. Other
provisions for service would have to be resorted to.74
Nothing in s.376 suggests that service under s.376 is confined to actions
based on causes of action which arose in Singapore or out of the foreign
companys operations in Singapore.75 There is also nothing in Part XI,
Division 2 or indeed, s.376 which confines service on a registered foreign
company to the above procedure. Thus, if service is effected under, say,
O.10 r.1(2) or O.10 r.1(3) of the RSC, the procedure in s.376 need not be
72 Colley v Mead, supra note 67.

73 See Goh Slew Wah v Columbia Films of Malaysia Ltd, supra, note 24, a decision of the
High Court of Singapore in which a challenge was unsuccessfully mounted on the form
of address on the writ.
74 See Part D of this Article.
75 See South India Shippings case, supra note 23, for instance. See also Dicey and Morris,
supra, note 28 at p.308. Cf Service under O.10 r.2, RSC.
118
(1995)
followed.76 Similar reasoning applies to service under O.10 r.2.77 However,

O.62 r.4 of the RSC which permits service on various officers of the
registered company cannot be used in lieu of s.376 since the former provision
only applies in cases for which provision is not otherwise made by any
written law, and written law would of course include a statutory provision
like s.376 of the Companies Act.78
S.376, by itself, seems clear enough but there can still be situations in
which service under s.376 might be problematic. What follows is a discussion
of some such situations.
(i)
Irregularity of Service
In at least one local decision, P T Pelajaran Nasional Indonesia v Joo

Seang & Co Ltd,79 a strict view was taken on the need for strict compliance
in service of process on companies. The case actually involved irregularity
of service on a local company80 (the writ being wrongly addressed though
the defendants director appeared to have notice of it) for which the plaintiff
was entirely blameless. It is conceivable that this emphasis on strict
compliance with a prescribed procedure for service might extend to s.376,
although in this regard, clear authorities are absent.
However, contrary to what Joo Seangs case decided, what scant authority
there is does suggest a certain degree of tolerance. In Goh Siew Wah v
Columbia Film of Malaysia,81 the writ was sent to the address of a registered
foreign companys agent (being then the only method of service) but
inadvertently addressed to the company instead of the agent which was
what the legislation required. Service, as may be recalled, was eventually
effected in another manner, according to O.10 r.1(2) but Winslow J seemed
prepared to hold, obiter, that the writ itself was correctly addressed for
the purpose of the Companies Act provisions notwithstanding the slight
violation of the service provision. Contrariwise, if the irregularity is use of
an entirely erroneous service provision, there is some authority for saying
that service should be set aside.82
76 See Goh Siew Wahs case, supra note 24 in which the act of the solicitor for the foreign
company in accepting service under O.10 r.1(2) on behalf of his clients was held to be
effective service. Winslow J said that the service under the equivalent of s.376 is a
method which is alternative to any other method of service provided by the rules. at p.41
of the judgment.
77 See Part D of this article. In William Heinemann & Donald Moore v Christie (1960) 26
MLJ 99, a Federation of Malaya case, the defendant appeared to be registered as foreign
company but service was sought under the equivalent of O.10 r.2 instead.
78 See The Theodohos, supra note 30.
79 (1958) 24 MLJ 113, a decision of the High Court in Penang.
80 See s.387 of the Companies Act.
81 Supra, note 24. See also Chng Kim Huat v Hamburg Amerika-Nische [1936] MLJ Rep
216 where the court gave leave to amend a small irregularity in service.
82 See Nord Deutscher Lloyd v Ockerby and Co (1917) 14 WAR 104 where use of service
provision for locally incorporated company on a registered foreign company was not
permitted. The provisions discussed in this case are somewhat different from those found
in our Companies Act.
7 S.Ac.L.J.
119
Whilst the effect of irregularity of service under s.376 remains unclear, it

may be apposite to bear in mind that the objective of service, apart from
completing the process of obtaining jurisdiction, is to give the defendant
notice of proceedings. One wonders if slight transgressions which do not
affect the adequacy of notice might not be rectified without rendering the
proceedings a nullity.83
(ii) Cessation of Business in Singapore
If a registered foreign company ceases to carry on business, service may
still be effected through s.376. The English decisions on this point have
consistently decided that service is not affected by cessation of business. In
Employers Liability Assurance Corporation v Sedgwich and Collins, a
registered Russian company which was being liquidated but not yet dissolved
had ceased carrying on business within jurisdiction but did not remove the
name of the agent from the register. The majority of the House of Lords
held that the submission to jurisdiction continued notwithstanding the
cessation and as the agents name continued to remain in the register, the
company could be served through him. This decision was followed in
Sabatier where it was held in dictum that even if there was cessation of
business and abandonment of place of business which the Registrar was
informed, the retention of the agents name on the register was all that
mattered. Perhaps the most extreme case is Rome v Punjab National Bank
(No.2)84 where the same result was repeated despite cessation of business,
closure of the place of business, closure of the registers file on the company
on request for cancellation of registration and the withdrawal from
jurisdiction of its agents whose names, unfortunately for the company,
remained on the register. Punjab National Banks result is somewhat less
drastic when one considers that the court may exercise its discretion to
stay the action on forum non conveniens.
The policy rationale behind these cases is to prevent a foreign company
from uprooting itself with jurisdictional impunity (apart from being pursued
in its place of incorporation or through service out) leaving behind a trail
of local creditors.85 However, hardship may descend on a registered foreign
company which has long ceased to trade in the forum if it is sued on a
cause of action which has nothing to do with its local commercial
operations.86 Perhaps it was this concern which persuaded the High Court
of Australia in Gillett v National Benefit Life and Property Assurance Co
83 By analogy with some O.2 r.1 cases, such as The Goldean Mariner [1990] 2 Lloyds Rep
215. More serious irregularities or that which prejudice the defendant, of course, may
deserve less sympathy.
84 [1990] BCLC 20.
85 Rome v Punjab National Bank (No.2) [1989] 1 WLR 1211.
86 Punjab National Banks case, ibid, see the judgment of Parker LJ at p,1221.
120
(1995)
Ltd87 to arrive at the opposite conclusion on facts roughly similar to Sabatier

and Punjab National Bank by reasoning that a company that ceases to
trade ceases to be present or resident within jurisdiction at the time of
service.
Given this dichotomy of decisions and policies, it is unclear which way
local courts88 might incline though the preponderance of authorities would
suggest that cessation of business is no immunity to jurisdiction. S.376(c)
is some indirect support for this position as well, as it allows service on a
foreign company at its place of incorporation when it has ceased to maintain
its place of business in Singapore.
Assuming no jurisdictional immunity, a registered foreign company that
ceases to maintain a place of business can still be served at its registered
office or at its agents registered address. If it has ceased to maintain the
place of business which it set up, then it can be served at its place of
incorporation in accordance with s.376(c). Since this involves service out,
it is unclear if leave of court is necessary.89 In addition, the agent of the
registered company which has quitted its place of business may also be
served under s.376(b).
In the light of the above decisions, a foreign company that wishes to cease
business or have a place of business would be well advised to give notice
to the Registrar of such cessation under s.377(1). The same provision states
that upon the expiration of 12 months after such notice, the companys
name would be removed from the register. Until then, service under s.376
seems still a looming possibility. Ex abundantia cautela, to avoid a situation
like Punjab National Bank where the companys file was closed but its
agents names remained, it should consider, for good measure, terminating
the authority of its agent as well and giving notice of such termination
under s.370(3).90 Again, if the company wishes to terminate an agents
authority to accept service without cessation of business, it has to give
notice under s.370(3) although s.370(5) obliges it to appoint another to
maintain the minimum requirement of at least two local agents.
87 Supra, note 26.

88 Certainly local authors take this position. See Woon and Hicks, The Companies Act of
Singapore: An Annotation in their annotation of s.376 at p. XI 121.
89 Woon and Hicks, ibid, think leave is unnecessary.
90 See also s.370(2) which states that an agent shall continue to be one until he ceases to
be such in accordance with subsection (4). It is unclear if this provision still continues to
apply if (i) the company has given notice under s.377 or (ii) upon removal of its name
from the register. There is an argument for saying that if the company has been removed
from the register, its agents, even if not having their authority terminated, should not be
left vulnerable to service when the very effect of registration has been reversed. Having
said there, Punjab National Bank, supra, note 85, is a disturbing reminder. Thus, removal
of agent under s.370(4) is a prudent move.
7 S.Ac.L.J.
121
(c) A Registered Company that subsequently neither carries on business

or establishes a place of business.
It can conceivably arise because the combined effect of ss.365 and 368 is
to require registration before either carrying on of business or establishment of place of business. Subsequently, such a company changes its mind
about commencing operations in Singapore. There is no direct authority
on whether such a company is amenable to jurisdiction and service under
s.376.
However, by analogy from the English cases on cessation of business
discussed above, it can be argued that as long as there is registration, s.376
service is possible. After all, there is little difference between not having
started business at all or have stopped business by the time service is
effected. However, if the justification for assuming jurisdiction over a
registered foreign company is that the latter has a corporate presence or
place of business in the forum, then it seems inconsistent that mere
registration alone, without any subsequent trading, should attract
jurisidiction.
(d) A company that ought to have registered but fails to do so.
This is the lacuna in s.376. S.376(a) and (b) are obviously inapplicable as
there would not be an address either of its registered office or its registered
agent since, to begin with, there is no registration. S.376(c) on its literal
wording may cover a narrow situation even for unregistered company but
when read with s.365, it is evident that it, as is the case with ss.376(a) and
376(b), only applies if the company is registered. This lacuna has recently
been implicitly been recognised by the Court of Appeal in Bank of Central
Asia v Rosenberg, in which Chao J compared s.376 with its English
counterpart, s.695(2)(a). The latter provision allows for service on any
place of business established by a company which defaults on registration.
Given the unavailability of s.376, service on, indeed the whole jurisdiction
basis applicable to such an unregistered company, falls outside the realm
of Part XI, Division 2 of the Companies Act. Other sources of jurisdiction
and other service provisions must be used for such a company. And it is
to this that attention is now turned.
D.
SERVICE IN SINGAPORE UNDER S.16(1)(a)(i) OF THE

SUPREME COURT JUDICATURE ACT
This provision, it will be recalled, confers jurisdiction upon the High Court
in action in personam where the defendant is served in Singapore in the
manner prescribed by the Rules of Court. It is submitted that for a
corporate defendant to be served in Singapore, there is a presupposition
that it is present in Singapore at the time of service in the sense of carrying
on business here for a definite period at a fairly permanent place of business.
122
(1995)
In other words, the common law principle that a company must be present
before it can be served (which will be discussed shortly) is an implied
requirement of s.16(1)(a)(i).
This conclusion is best supported by reference to the Parliamentary debates
which ensued at the time the amendments to s.16 were mooted.91 The
Honourable Minister for Law in explaining the effects of the amendments
stated that:
Prior to 1964, the general civil jurisdiction of the High Court in
actions in personam was unlimited and founded on service of a writ
on a defendant either in Singapore or abroad...The amendment of
section 16 will place the High Court in exactly the position as it was
before 1964 and in the position of the High Court of Judicature in
England today in relation to countries outside the European Economic
Community.92
It is evident from the Ministers speech that the legislative intent behind
the 1993 amendments to s.16 is to re-introduce a jurisdictional framework
similar to that which exists at common law and based, in part, on service
on a defendant within jurisdiction. It follows that when it is invoked against
foreign corporate defendants, s.16(1)(a)(i) must therefore be interpreted
in the light of English common law principles which govern service on a
foreign company within jurisdiction. To put it in another way, the concept
of corporate presence must be read into expression in s.16(1)(a)(i),
... served... in Singapore...
A clarification is apposite at this juncture. Firstly, strictly speaking, insofar
as foreign corporate defendants are concerned, the current position in
England is not based on the common law, but rather on provisions of the
Companies Act 1985, as discussed above.93 But that, it is submitted, should
not affect the position of unregistered foreign companies, the service on
which is not covered by s.376 of our Companies Act. This local lacuna was
also prevalent in England prior to the introduction of s.349 of the English
Companies Act 1929 (the equivalent of s.695(2) of the present Act) to deal
with service on unregistered foreign companies. English courts responded
to this lacuna, and indeed, prior to the introduction of legislation on this
area in 1907,94 to the whole problem of jurisdiction over foreign companies,
by the enunciation of common law principles on corporate presence. There
is no reason why such common law principles cannot be garnered to fill up,
91 Reference to Parliamentary debates is permissible in the interpretation of statutes. Supra,

note 44.
92 Parliamentary Debates Singapore, Official Report, Volume 61, No 1 at col 95.
93 See The Theodohos, supra, note 30, as well as the Dicey and Morris, Conflict of Laws
and Cheshire and North, Private International Law at p. 185186.
94 Supra, note 32 for an account of the English legislative history on the area.
7 S.Ac.L.J.
123
through another statutory channel,95 the lacuna in our s.376 just because
the problem has been eradicated in England since 1929.
(a) Presence of a Foreign Company at Common Law
Although it has been decided as far back as 1872,96 that a foreign company
can be sued in England, the use of terminology in the caselaw has not been
uniform. Presence of a foreign company within jurisdiction of the forum
has variously been described as having a residence within jurisdiction,97 a
place of business within jurisdiction,98 a domicile within jurisdiction99 or
carrying on business within jurisdiction100 or simply being here within
jurisdiction.101 For ease of exposition, the term, corporate presence which
is favoured by some writers,102 is used throughout this article.
The concept of corporate presence is analogous to presence of the individual
within the territory of the Sovereign which subjects him to the jurisdiction
of the courts in that country. As a company cannot be physically present
like an individual, it can only be present through the business it carries on
within the territory of the country in which the action is brought. Thus, as
is the case with individuals, it is the companys territorial connection with
the forum that matters. The relevant time for assessing corporate presence
is the time of service of process, so that if at that time, a company has
ceased trading, it cannot be served within jurisdiction.103
There are two requirements for corporate presence.104 First, the company
that conducts business within jurisdiction by means of an agent who has
authority to enter transactions on its behalf would be considered to be
present for jurisdictional purposes. A company may instead of being
represented by an independent agent have a branch office staffed by its
95 Viz s.16(1)(a)(i), SCJA.
96 Newby v Van Oppen (1872) LR 7 QB 293. For a detailed account of cases on this area
at the turn of the century, see Farnsworth, The Residence and Domicil of Corporations
(1939).
97 See for instance, La Bourgogne, supra, note 50 (CA decision); Newby v Van Oppen, ibid,
Haggin v Comptoir DEscompte de Paris (1889) 23 QBD 519.
98 Huron & Eries case, supra, note 48.
99 See for instance, the decision of Canon Iron v Mclaren 5 HLC 416
100 See for instance, the decision of Lhoneux Limon and Co v Hong Kong and Shanghai
Bank (1886) 33 Ch D 446.
101 Newbys case, supra, note 96.
102 See for instance, Cheshire and North, supra, note 28, at p. 185.
103 Adam v Cape Industries, supra, note 52. Also the Singapore decision of Korea Metals
Export Corporation v Sakota Ltd SA [1973] 1 MLJ 228 where service was invalidly
effected on the defendants former agent which had ceased to carry on business. See also
Bethlehem Steel Corporation v Universal Gas and Oil Co Inc (a House of Lords decision,
The Times, 3rd August 1978) where a mysterious company which neither carried on
business or had a place of business in England successfully avoided service. This case is
an example of a foreign company operating in a phantasmic manner and managing to
evade a fairly extensive jurisdictional net.
104 These requirements were most clearly laid down in Okura & Cos supra, note 51 though
they have been alluded to in the earlier cases as well.
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own employees in the forum which carries on its business.105 The same
requirements apply to both forms of representation but in the case of
independent agent, the question of authority to contract on the companys
behalf must be more closely examined. Being represented by an agent per
se is not sufficient. It must be shown that the business the agent conducts
must be the companys and not his own.106 So long as it is the companys
business that is carried on within jurisdiction, it does not matter if such
business is the paramount object of the company or merely incidental to
that. Thus, in Actiesselskabet Dampskib Hercules v Grand Trunk Pacific
Railway,107 the defendants business in England was solely the raising of
finances to run a railway in Canada; it was still held to be present in
England. The carrying of the foreign principals business is effected by the
making of contracts on the latters behalf, though such an agent may also
act for other parties.108 If a company is represented by an agent who only
receives orders and transmits them abroad to his foreign principal for
acceptance, then the company is not carrying on business within
jurisdiction109 , for it is then regarded as doing business through the agent,
not by him.110 Equally, an agent which carries out its own business by
selling contracts with the foreign company would not render the latter
present within jurisdiction.111
Authority to contract on the foreign companys behalf, although a principal
aspect in the relationship between the agent and its foreign principal to
consider, is not the only one. Slade LJ in Adams v Cape Industries listed
105 Adams v Cape Industries, supra, note 52 recognises that a foreign company can be present
through an independent agent or a branch office. The requirements in Okuras case
apply to both forms of representation, albeit that in that case of an independent agent,
the question of authority to contract for the company has to be more closely examined.
Adams v Cape Industries, supra, note 52, is actually a decision on enforcement of foreign
judgment but the court there assumed that cases on jurisdiction and foreign judgments
can be used interchangably. For an Australian perspective, see National Commercial
Bank v Wimborne, (1979) 11 NSWLR 156, a decision of the Supreme Court of New
South Wales which essentially adopts the English principles.
106 See Thames & Mersey Marine Insurance v Societa Lloyd Austriaco (1914) 111 LT 97.
107 [1912] 1 KB 222. Cf. Some Canadian cases take a different stance: the business done by
the agent must be an integral part of the business of the foreign company and not merely
incidental to it. See, for instance, Canada Life Assurance v Canadian Imperial Bank
[1974] 3 OR (2d) 70 and Central Trust of China v Dolphin SS Co Ltd [1950] 2 WWR 516.
108 Saccharin Corporation Limiteds case, supra, note 64.
109 See, for instance, Okuras case, supra, note 51; Vogel v Kohnstamm, supra, note 38 (a
decision on enforcement of foreign enforcement); Grant v Anderson [1892] 1 QB 108.
110 Buckley LJ in Okuras case, supra, note 51. This point is similar to the agent having
authority to contract on his principals behalf: see the Court of Appeal decision in Bank
of Central Asia v Rosenberg, supra, note 19.
111 See The Lalandia [1933] P 56; Thames and Mersey Marine Insurance, supra, note 106.
These cases involve shipping agents which sold passenger tickets or shipping space to
third parties. See also The Holstein [1936] 2 All ER 1660.
7 S.Ac.L.J.
125
some other relevant factors, such as the method of remuneration of the

agent,112 the degree of control the foreign company has over the running
of the agents business, whether the foreign company defrays for the cost
of running the agents business, in the form of payment of salary and
rental, the degree of publicity the agency relationship is given by and how
much of the agents premises and manpower are allocated to carrying on
the principal business. While it is wrong to say that there can never be
corporate presence if authority to contract on the principals behalf is
wanting, the circumstances pointing towards corporate presence in such a
situation would have to be very compelling.
The second requirement is that the foreign company must have operated
its business (whether through an independent agent or a branch office) for
more than a minimal period of time at a fixed place of business. A foreign
company need not be the owner or lessee of the premises where it has its
place of business, though either form of tenure would be a cogent piece of
evidence against them. Thus, corporate presence is not defeated by the
foreign company being a mere licensee, or that the premises house other
parties business. So in Saccharin Corporation Limited v Chemische Fabrik
vonHeyden, 11 3 a company was held to have a place of business in premises
the rental for which was paid by its agent who also conducted other parties
business in the same place. As Fletcher Moulton LJ observed in the case,
it is the fixity of the place of the business that matters, not the tenure by
which such fixity is arrived. However, as Dunlop Pneumatic v AG Cudell11 4
illustrates, even an exhibition booth which the defendant occupied for nine
days has been held to satisfy this requirement. However, where a company
only employs commercial travellers who come within jurisdiction to place
orders or solicit business without being at any definite or permanent place,
as was what happened in Littauer Glove Corporation v Millington Limited,115
it cannot be said to have established a place of business. As for the length
of time business must be carried out at the time of business, the courts
have not been very exacting and on one occasion, as mentioned above,
held that nine days were sufficient though one isolated transaction in a
long while may be insufficient to constitute corporate presence.116 That the
place of business is seen to be associated with the company is another
important indicium. Thus, there has been judicial scrutiny of the ways of
publicising the companys presence at a particular location, such as display
112 On this point, see cases such as Saccharin Corporation, supra, note 64; The Lalandia,
supra, Grant v Anderson supra and Thames & Mersey, supra, note 111. This factor was
something the courts in these cases considered but did not seem have a decisive influence
on the outcome.
113 Supra, note 64.
114 Dunlop Pneumatic Cos case, supra, note 49.
115 (1928) 44 TLR 746, a decision of enforcement of foreign judgment.
116 Colley v Mead, supra note 67; Lamson v Weidenbach, supra, note 67.
126
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of the foreign companys name in the agent or branch offices premise or

stationery117 or even an entry in the telephone directory.118
Somewhat surprisingly, these requirements for corporate presence were
ignored in the troublesome local case of Atmaran v Essa Industries Ltd119
in which service on the chairman of a Pakistanis company who was
temporarily in Singapore was held to be good even though, as the headnotes
allege, the company had neither an office or an agent in Singapore. Parties
affidavit evidence was contradictory (and hence inconclusive) as to the
authority of this chairman to carry on business on the companys behalf.
At first blush, this case seems to go further in allowing service on foreign
companies than permitted by common law principles. But it is submitted
that little weight should be placed on it. The case was only briefly reported
as a decision of Chua J in chambers with no finding of facts or grounds of
decision given and the vast majority of common law cases, including one
on largely similar facts,120 were apparently not cited to the judge. Further,
the decision made no mention of the grounds of obtaining jurisdiction
previously enumerated in the earlier (pre-1993 amendment) version of s.16
(which included place of business but not corporate presence). The best
that can be said for the decision is that it is a very generous application of
common law rules on corporate presence.
The principles discussed thus far arose out of cases concerning trading
companies, leaving unexplored how, if at all, they can be modified to sue
non-trading, non-profit making corporations. Slade LJ in Adams v Cape
Industries alluded briefly to this and thought that the same principles can
be applied by drawing a parallel between carrying on of such non-trading
activities with the carrying on of business. A roughly similar test has been
used in Australia as well.121
So far, the discussion has been confined to independent agents and branch
offices. If the foreign company chooses to incorporate a subsidiary in
Singapore instead as its corporate vehicle, then except in the rare situation
where the court treats the parent and subsidiary as one economic entity,
the doctrine of separateness of corporate entity dictates that business carried
out in the subsidiarys own name even if at the instigation of its parent is
117 See for instance, La Bourgogne, supra, note 50; Grant v Anderson, supra, note 109;
Haggins case, supra, note 97 and Lhoneux Limons case, supra, note 100; Logan v Bank
of Scotland [1904] 2 KB 495.
118 The Handgate [1987] 1 Lloyds Rep 142.
119 [1969] 1 MU 44.
120 Thames & Merseys case, supra, note 111.
121 See p.524 of Adams v Cape Industries, supra, note 52. See also BHP Petroleum Ltd v Oil
Basins Ltd [1985] VR 723 where the foreign company was a trustee company whose
principal business was simply to hold certain petroleum royalty. The test used seems to
be whether the company carried out activities within the forum in its capacity as a
trustee. The court also found that such corporate activities could be carried out at the
offices of its solicitors and accountants who performed them on its behalf.
7 S.Ac.L.J.
127
its own and not its parents.122 Thus, for foreign companies, some measure
of immunity to jurisdiction is attainable through use of local subsidiaries
which in ordinary circumstances in perfectly legitimate.
As the problem of subsidiaries illustrates, the concept of corporate presence,
based as it is on territorial connection of the company with the forum by
analogy with presence of the individual, does not cater to newer vehicles
of doing business which might not have been foreseen in the cases discussed
earlier, many of which were decided at the turn of the century. Choosing
a method of doing business in the forum which does not establish the
necessary territorial connection enables the company to avoid the potential
jurisdictional of the forum, regardless of the economic benefits which the
company may derive from such business. Thus, it has been suggested that
the economic rather than territorial presence of a foreign company should
be the new criterion,123 but the powerful reaffirmation of existing principles
and approval of the use of subsidiaries for jurisdictional immunity in Adams
v Cape Industries seemed to have forestalled any such trend.
(b) Service on An Unregistered Company.
It is submitted an unregistered company which is present in the way
discussed above can be served within jurisdiction in one of two ways, either
through O.62 r.4 (service of corporate officials) or O.10 r.2 (service on its
local agents) of the RSC.
(i) Service Pursuant to O.62 r.4, RSC.
A couple of preliminary issues must first be resolved. The first relates to
the suitability for use of O.62 r.4 against an unregistered foreign company.
O.62 r.4 makes no express reference to foreign companies but there are
ample authorities to say that it can in fact be applied to such companies.
O.62 r.4 was adapted, with some variation of language, from O.65 r.3 of
the English RSC 1965 which was a simpler version of O.9 r.8 of the English
RSC 1883 and which in turn traced its genesis to s.16, Common Law
Procedure Act, 1852.124 In many of the corporate presence cases discussed
above,125 service was effected under O.9 r.8 of the English RSC 1883. True,
O.9 r.8 has since 1929 been obsolete in England in its application to
unregistered foreign companies.126 However as the lacuna on service of
122 See Fawcett, A New Approach to Jurisdiction Over Companies in Private International
Law (1988) 37 ICLQ 645., at p.663.
123 Ibid.
124 Newbys case, supra, note 96 was an example of the use of s.16 of CLPA, 1852.
125 See, for instance, Haggins case, supra, note 97; La Bourgogne; supra, note 50;
Actlesselskabet Dampskib Hercules v Grand Trunk Pacific Railway of Canada [1912] 1
KB 222; Thames & Merseys case, Saccharin Corporations case, supra note 64 and Okuras
case, supra, note 51.
126 See The Theodohos, supra, note 30.
128
(1995)
unregistered companies still exists locally in s.376 of our Companies Act,

O.62 r.4, which traces its origins to the English O.9 r.8, can be invoked to
fill the same void which until 1929 was filled by O.9 r.8 in England. The
same approach has been taken in Australia127 (whose companies legislation
contains the same lacuna) and in at least one local decision.128 Local writers
take the same view as well.129
The other preliminary issue is how the abovementioned concept of corporate
presence is related to O.62 r.4. O.62 r.4 like S16(1)(a)(i) is also silent on
any requirement of corporate presence. However, there is little doubt that
the latter has to be satisfied as a precondition to use of the former since
it is a common law aphorism that a defendant (where individual or company)
has to be present and served with process within the forum before he is
amenable to jurisdiction there.130 In any event, the same requirement is
implicit in s.16(1)(a)(i) itself.
O. 62 r.4 provides that personal service of a document on a body corporate
may be effected by serving it on the chairman or president of the body, or
the secretary, treasurer or other similar officer. Substituted service under
O.62 r.4 may be ordered.131 If the foreign company is represented locally
by an agent, it is arguable that such a person may not be within the
description of persons that can be served upon under O.62 r.4, unless he
could come within the expression, other similar officer which is not
probable if that expression is given a ejusden generis construction. The
point arose in Korea Metal Export Corporation but was left undiscussed.
In the older English cases on corporate presence, service on local agents
or managers was justified on the basis that these persons might, depending
on their functions and extent of authority, be considered as head officers132
an expression which has been left out of both the English O.65 r.3 and our
O.62 r.4.
127 See, for instance, BHP Petroleum v Oil Basins Ltd, supra, note 121; State of Queensland
v Property Nominees Pty Ltd (1982) 6 ACLR 739, a decision of the Supreme Court of
Queensland.
128 Korea Metal Export Corporation, supra note 103.
129 See Woon and Hicks, supra, note 88, at p. XI 121; Pinsler, Civil Procedure, p.98.
130 See Cheshire and North, supra, note 28 at p.1823. This explains why most of the cases
on corporate presence discussed the concept in conjunction with service under O.9 r.8.
131 The Vrontados, supra, note 46.
132 Persons who have some familiarity with the business of the company (see Saccharin
Corporations case, supra, note 64) and whose knowledge would be deemed that of the
company (see Newbys case, supra, note 96.) See also The Princess Clementine [1897]
P 18 where service on the agents managing clerk was judged to be bad.
7 S.Ac.L.J.
129
(ii) Service Pursuant to O.10 r.2, RSC

O.10 r.2 permits service of writ on a manager or agent of a person (which
could be a foreign company) who is not resident in or absent from Singapore
provided that the agent has control or management over the foreign
principals business to which the claim relates and the court grants leave
for such service.133 As it permits service on the agent, O.10 r.2 can be
invoked when O.62 r.4 is inapplicable.
O.10 r.2 arrives in its present form after a fairly chequered history. It was
introduced in 1901 via Ordinance 21 and was inserted into the Straits
Settlements Civil Procedure Code of 1878 as S.60A, later renumbered as
s.115 of the Civil Procedure Code of 1907. In its pristine form, it was
probably taken from s.76 of the Indian Procedure Code of 1877. For this
reason, Indian authorities on this provision are pertinent to its construction.
In 1934, this provision became relegated without material change in substance to subsidiary legislation to become O.9 r.8 of the RSC of 1934, a
state of affairs which lasted until 1970 when Singapore decided to adopt
the English RSC of 1965. O.9 r.8 was thereupon repealed. Its place was
taken by O.10 r.2 which was borrowed from O.10 r.2 of the English RSC.
However, O.10 r.2 of the 1970 RSC was shortlived as it gave way in 1973
to a differently worded O.10 r.2. This 1973 version of O.10 r.2 which has
survived, almost unscathed,13 4 till the present day, re-introduced in O.10
r.2(1)(a)(c)requirementswhich were first set out in the 1934 O.9 r.8 (the
latter provision being, as aforesaid, taken from the Indian Civil Procedure
Code 1877), while retaining some of the features of the English O.10 r.2.
The retained English features include the requirements of leave of court
and the transmission of a copy of the court order granting such leave
together with a copy of the writ to the foreign defendant. Thus, O.10 r.2
in its present form has both Indian and English parentage. This historical
background to O.10 r.2 is important in assessing the correctness of cases
which interpreted the provision.
133 The requirement of leave is not expressly spelt out in O.10 r.2 but the language of O.10
r.2(1) itself bears it out: Where the Court is satisfied, ..., the Court may....(Emphasis
added). So does the local decision of Maritime (Pte) Ltd v ETPM SA [1988] 2 MLJ 289.
The English Practice Direction on O.10 r.2, infra, note 146 is also unequivocal about the
need for leave before service.
134 It did undergo further changes in 1991 vide the Government Gazette Subsidiary Legislation
Supplement no.532 of 1991. The significant change brought about by the 1991 amendments
is that the affidavit which accompanies an application for leave to serve on an agent need
not state the reasons why service out of jurisdiction under O.11 cannot conveniently be
effected.
130
(1995)
The requirements for service under O.10 r.2 are spelt out in
subrule 1(a)(c) which, with paraphrasing, consist of
(a) the action pursuant to which service under O.10 r.2 is desired
must relate to any work or business against a person not resident
in or absent from Singapore
(b) but who has an agent or manager with control or management of
such business or work for the defendant within Singapore and
(c) the latters authority has not been terminated.
An ex parte application must be made to Court, accompanied with affidavit

stating the nature of the claim, and the Court has a discretion as to whether
to grant leave to serve on such manager or agent. If leave is granted, a
copy of the court order granting leave and of the writ must be delivered
to the foreign defendant (O.10 r.2(6)) and he is given 21 days to enter
appearance (O.10 r.2(5)).
The main difficulties which have confronted the courts are the requirements
of control or management and such business or work in O.10 r.2(1)(b).
The first, authoritative local interpretation of the expression, control or
management is supplied by Thomson CJ in William Heinemann Ltd &
Donald Moore Ltd v Christie.135 His Lordship considered the common law
test of corporate presence enunciated in cases such Okura v Forsbacka
Jernverks Aktienbolag, Saccharin Corporation v Chemische Fabrik and
Dunlop Pneumatic Tyre v Actien-Gesellschaft, and concluded that it can be
applied in the context of O.10 r.2. Thus, it has to be shown that the local
manager or agent carries on at a fixed place of business, the business of the
foreign defendant and not his own, and in so doing, is vested with authority
to contract on behalf of the latter. The dictum in Okuras case that business
must be conducted by and not through an agent was also cited and approved.
So, in William Heinemann itself, the local representative who purchased
books from the foreign defendant for reselling was held not to have any
control or management over the defendants business in the forum.
Additionally, it was decided that to ensure that the foreign defendant has
notice of the action, the relationship between him and the local manager
or agent should be such that the latter is obliged to bring notice of the
service to the notice of his employer or principal.
These two requirements which underlie the expression, control or
management was reaffirmed by the Federal Court of Malaysia in Getz
Brothers v Pan Malaysian Wood Products 13 6 although in that case,
135 Supra, note 77.

136 [1980] 2 MLJ 79.
7 S.Ac.L.J.
131
Chang FJ seemed to consider agents authority to contract on the principals

behalf and a company doing business within jurisdiction by and not through
an agent as separate tests.
Until recently, it was not entirely clear if these principles applied in
Singapore. In Reading & Bates Exploration v Dione,137 a decision of the
Singapore Court of Appeal, these Malaysia authorities were not cited.
There, service was allowed on the local agent based on the rather slender
facts that the defendants local office varied the terms of the plaintiffs
employment and corresponded with the plaintiff. Such a factual matrix is,
with respect, hardly enough to constitute corporate presence. Neither was
there much of a discussion in Maritime Ltd v ETPM SA, although in that
case, the agent did enter into a charterparty for his principal.
However, one might argue that in not bringing the corporate presence
requirement under the umbrella of control or management, these two
cases are not necessarily wrong. After all, O.10 r.2(1)(a) makes it clear that
O.10 r.2 only applies to a defendant who is absent from or not resident in
Singapore; taking this to mean the negation of presence, how is this
requirement to square with that of corporate presence which according to
William Heinemann is to be read into control or management ? Perhaps,
one might reconcile the inconsistency by suggesting that O.10 r.2(1)(a)
applied in the context of a foreign company only requires a foreign company
be incorporated outside though admittedly, it would be stretching linguistics
to draw such an equation.
The final word on this point may have recently been spoken by the
Singapore Court of Appeal in Bank of Central Asia v Rosenberg.138 As this
is the latest Singapore decision involving service within jurisdiction on a
foreign company, it repays careful study. The defendant, an Indonesian
bank, was sued by the plaintiff endorsee of certain dishonoured cheques
which the bank drew. Service was sought to be effected on the manager of
its Singapore representative office who, it was alleged, had no control or
management of defendants business. Neither did the representative office,139
137 [1978] 1 MLJ 234, a decision of the Singapore Court of Appeal.

138 Supra, note 19.
139 For another instance of service on representative office of a foreign company, see Anglo
Australian Foods v Credit Suisse (1989) 1 ACSR 69 whose facts are broadly similar to
South India Shipping Corporation, supra note 23 and Rosenberg, supra note 19. Very
surprisingly, service was allowed on an unregistered foreign company (a bank) in that
case; however, it was not followed recently in Bank of America v Bank of New York,
unreported judgment of the Supreme Court of New South Wales delivered on 27th
October 1994. Anglo Australian Food was, with respect, wrongly decided as it misapplied
the principles of corporate presence. See also National Commercial Bank v Wimborne,
supra, note 105 where a foreign bank was not held to carry on business within jurisdiction
just because it had a local bank acting as its collecting and correspondent bank.
132
(1995)
which in fact did no banking business and merely conducted liaison work
for the defendants and their clients. The Court of Appeal, through Chao
J, overturned the first instance decision and held service could not be
effected under O.10 r.2.
On the meaning of control or management, Chao J adopted the two
requirements enunciated in William Heinemann, ie obligation to inform
the foreign principal and that the latter must be conducting business at
some fixed place in the forum through its local manager or agent.140
As regards the first requirement of notice, it may be wondered if this is
superfluous since O.10 r.2(6) already removes the possibility that the foreign
defendant may be kept in the dark by mandating that notice of a copy of
the court order granting leave as well as of the writ be sent to the defendant
outside jurisdiction. It should be appreciated that when William Heinemann
was decided in 1960, there was nothing in O.9 r.8A (the Malayan Federation
equivalent of O.10 r.2) which resembled O.10 r.2(6), which was in fact
introduced in Singapore in 1970. Thus, while in 1960, the potential problem
of an uninformed plaintiff had to be addressed by this requirement in
William Heinemann,141 there may be no further need to read this obligation
into O.10 r.2(1)(b), given the introduction of O.10 r.2(6) in 1970.
In respect of the element of corporate presence, his Honour did not draw
any distinction, which Chang FJ in Getz Bros seemed to suggest, between
the tests of the company carrying on business by (and not through) an
agent and the agent having the principals authority to contract on its
behalf. They are merely different formulations of the same test. This, it is
respectfully submitted, is right since an agent can only carry on his principals
business if he has the authority to enter into contracts on the principals
behalf.
Somewhat surprisingly, the Court did not rule on whether this requirement
was satisfied on the facts. One would have thought not since the
representative office did not appear to have any authority to conduct any
banking business in Singapore. Perhaps the court was concerned about
possible incidental contracts which the defendants representative office
might have entered into on its behalf, such as lease of its premises or
employment contracts. One of the advantages of setting up a non-trading
representative office rather than a full-scale branch office is jurisdictional
140 This requirement of carrying on business through an agent is accepted in Indian cases on
s.76 of the Indian Civil Procedure Code 1877. See Goculdas v Ganeshlal ILR 4 Bom 416.
141 In fact, this concern was raised as far back as 1926 by Van Someren in his book on Civil
Procedure in the Straits Settlements, p.271, 2nd Ed; a similar concern was voiced in the
first edition of Mallals Straits Settlements Practice at p.33 published in 1935.
7 S.Ac.L.J.
133
immunity. It may be hoped that nothing in Rosenberg is seen to disturb

that advantage.
In adopting the common law principles of corporate presence, the court
rejected the more liberal concept of place of business enunciated by Ackner
LJ in South India Shipping, which gained acceptance in the court below.
The rejection of South India Shipping in the context of O.10 r.2 is, it is
respectfully submitted, right since it dealt with a differently worded provision
in a different statute (the forerunner to s.695(2), which, in any event, has
no local equivalent) that has been recognised to extend beyond the common
law principles, which principles, as is noted have been transplanted into
O.10 r.2. While both O.10 r.2 and s.695(2) grasp the same nettle of service
on unregistered foreign companies, their respective jurisdictional basis is
quite different. But this rejection uncovers yet another inadequacy in this
area. A company that comes within the broader criterion of s.365 and
which therefore has to be registered but fails to do so will enjoy jurisdictional impunity from both Part XI, Division 2 as well as O.10 r.2 (or for
that matter, O.62 r.4) so long as it does not have a corporate presence in
the narrower common law sense. In other words, the s.376 lacuna is not
fully covered when a company falls outside the umbra of common law
presence but within the penumbra of the s.365 criterion of either carrying
on business or place of business.
This incorporation of corporate presence in O.10 r.2(1)(b) attracts several
comments. First, the same requirement is already embodied in s.16(1)(a)(i),
as discussed above. However, rather disappointing, the court did not take
the opportunity to link s.16(1)(a)(i) with a service provision like O.10 r.2
so as to give judicial recognition to the new jurisdictional framework
introduced through the amendments to s.16. Secondly, the possible
inconsistency in O.10 r.2(1)(a) and O.10 r.2(1)(b) which William Heinemann
perhaps unwittingly created is left unresolved. Thirdly, by maintaining
silence over whether the representative office had control or management
over the defendants business, the court might have let slip an opportunity
to expressly correct a misconception which was present in the lower courts
decision. The learned judge at first instance seemed to reason that just
because the defendant had a manager heading its representative office,
ipso facto, that manager had the necessary control or management. This
is close to saying that just because an agent has been appointed, he is
conducting business on the defendants behalf, which would be inconsistent
with principles on corporate presence. Besides, as Thomson CJ remarked,
there is nothing inconsistent with having a local agent and not vesting him
with the necessary control or management. Having an agent and giving
him control or management are two separate things, the language of
O.10 r.2 itself bears this out. Arguably, by highlighting the requirement of
the agents authority to contract, the Court of Appeal has impliedly rebutted
the lower courts unwarranted assumption. A further, related issue is the
incidence of the burden of proof as to control or management. Despite
134
(1995)
the precedent of Willliam Heinemann which placed the onus of proving the
agent has the necessary control or management on the plaintiff, the judge
at first instance felt that such a rule would be too onerous on the plaintiff
to show that manager was the officer actually in control of the representative office. That onus was relieved through use of the same kind of ipso
facto reasoning. It was not demonstrated why the burden of proving control
or management is onerous just because a manager as opposed to an agent
was appointed as the local representative, a difference which was used to
distinguish William Heinemann. However, this non-allocation (or is it
reversal?) of the burden of proof was only mentioned but not commented
on by the Court of Appeal.
The second interpretional difficulty in O.10 r.2 is the expression, such
business or work.142 When O.10 r.2(1)(a) and (b) are read together, it will
be noticed that the action must relate to work or business which the local
agent or manager has control or management of. The phrase, business or
work appears first in O.10 r.2(1)(a) which also makes it plain that the
action must relate to this. Business or work reappears in O.10 r.2(1)(b)
but prefixed by the word, such. The choice of the word, such, before the
phrase, business or work must be intended to bring the reader back to the
same phrase where it appears earlier, ie in O.10 r.2(1)(a). It may therefore
be concluded that the claim must relate to business or work which falls
under the control or management of the local agent. This train of reasoning
is supported by an early Indian decision, Goculdas v Ganeshlal in which
the court stated that to invoke this provision,
...there must be a person residing without the local jurisdiction, but
carrying on business within those limits by a manager or agent, and
sued on account of such business that is...business or work actually
itself carried on by the agent or manager,... (emphasis added).
On the facts of Goculdas, service was held to be ineffective because the
action did not relate to any business or work done under the control or
management of the defendants agent, but rather to a debt arising out of
direct business transactions between the plaintiff and defendant which did
not involve the agent. This construction was accepted and applied in
Rosenberg itself. The claim, it will be recalled, related to cheques drawn by
the defendants headquarters in Jakarta; it had nothing to do with the
work of the Singapore representative office, let alone be within the latters
control or management. Thus, this requirement in O.10 r.2 (1)(b) was not
satisfied. The Court of Appeal disallowed service on account of this
requirement alone. In so doing, it rejected an argument which found favour
below, which is that the defendants business which was carried out by the
agent need not be the main business of the defendant so long as it had
some relation to the type of business from which the action arose.
142 Emphasis added.
7 S.Ac.L.J.
135
The question of leave of court under O.10 r.2 was not dealt in Rosenberg,
either at first instance or on appeal.143 But there is little doubt that a
discretion not to permit service exists,144 though if leave is not obtained
before service, such a irregularity may, depending on circumstances of the
case, be curable under O.2 r.l145 It is not clear given this silence on the
issue of leave what the attitude of the local courts is towards the issue. In
England, the attitude towards leave to serve under O.10 r.2 has since its
inception in 1920 been conservative. A Practice Direction issued in 1920
cautions against allowing leave for service under O.10 r.2 in circumstances
when there are no difficulties in obtaining service out of jurisdiction.146 The
White Book does not carry a single English case which deals with O.10 r.2.
This absence is itself a telling indication of the stringency of the practice
there towards this mode of service.
In comparison, in Maritime Ltd v EPTM SA,147 the court opined that had
leave been sought before service was effected (which it was not), it would
have been granted. No investigation was made as to whether there were
any difficulties with service out of jurisdiction. Similarly, at first instance in
Rosenberg, the court seemed quite content to allow service once the prerequisites were found to be satisfied. It should also be noted that the same
English Practice Direction requires that an elaboration in the affidavit
accompanying the application for service under O.10 r.2 of the difficulties
attending service out of jurisdiction. This used to be a requirement in the
1973 version of O.10 r.2 but was removed when this version was amended
in 1991. Quaere if the removal was intended to mark a departure from the
conservative English attitude.
However, the English approach is not unattractive. Giving leave to serve
under O.10 r.2 readily puts a foreign defendant to the considerable burden
and annoyance of having to defend his case in Singapore without the plaintiff
having met the more exacting requirements in Order 11, in particular
showing the satisfaction of one of the jurisdictionalheads in O.11r.1(1)
and that Singapore is forum conveniens for the action. Rosenberg itself is
an illustration. Were leave to serve out under O.11 been sought, in all
likelihood, it would have been refused because, inter alia, Singapore was
a forum non conveniens. O.10 r.2 was invoked to facilitate what seemed
143 Its not being discussed on appeal is perhaps understandable since one of the pre-requisites
of O.10 r.2 was not satisfied.
144 Supra, note 133.
145 Maritime Ltd v ETPM SA, supra note 133.
146 Practice Direction 65 SJ 131, December 4,1920. The 1995 Edition of the Supreme Court
Practice (The White Book) at p.78 still cites this Practice Direction and states that it
applies today. Mallals Supreme Court Practice (2nd Edition (1980), at p.50) also cites
this Practice Direction with apparent approval.
136
(1995)
like an attempt at forum shopping, and on reflection, it is somewhat sad

that the defendant had to go up to the Court of Appeal to extricate himself
from the jurisdictional web.
(c) Other Service Provisions which may confer Jurisdiction.
There are a number of other modes of service in O.10 including O.10
r.1(2),148 and r.3 which can be used on a foreign company. However, service
pursuant to these modes should more properly be regarded as giving rise
to submission to jurisdiction and will therefore be discussed in the next
Part of this article.
E.
SUBMISSION TO JURISDICTION
It will be recalled thatunder s.16(1)(b) of the SCJA, submission by the

defendant to the jurisdiction of the High Court is a method of founding
jurisdiction. There are no special rules on submission which pertain to
foreign companies except for some judicial observations, discussed above,
which suggest that registration of a foreign company under the English
companies legislation amounts to submission to the jurisdiction of the
English courts. Thus, what follows is a discussion of the general principles
on submission which applies both to companies and individuals.
Submission can assume a number of forms: it can be taking a step in the
proceedings or agreeing to the jurisdiction of the courts. The general notion
behind it is the voluntary recognition by the defendant that the Court has
jurisdiction to hear and determine the claim which is the subject matter of
the proceedings.149 Thus, if a defendant appoints solicitor to accept service
on his behalf, the writ would be deemed to be duly served on him150 but
if his solicitors, in accepting service, reserve the right to protest against
jurisdiction, there may yet be no waiver of any jurisdictional objections.151
Similarly, a plaintiff who commences an action would be subject to the
courts jurisdiction for any counterclaim.152 A voluntary appearance by a
148
149
150
151
PT Pelajarans case, supra, note 79.

The Messiniaki Tolmi [1984] 1 Lloyds Rep 266.
O.10 r.1(2), RSC. Cheshire and North, p.188
Sphere Drake Insurance v Gunes Sigorta Anonim Sirketi [1988] 1 Lloyds Rep 139. This
is at least so in the context of service out of jurisdiction. In this case, defendants solicitors
accepted service on them under an agreement that such service was tantamount to service
out of jurisdiction under O.11 (a measure motivated by cost and convenience) but
maintained throughout the right to challenge the jurisdiction of the English courts which
the defendants would have had if the usual O.ll procedure were used. It was held that
there was no waiver of the right to contest jurisdiction. See also, Manta Line Inc v
Sofianites and Midland Bank Plc [1984] 1 Lloyds Rep 14.
152 Metal Scrap Trade Corporation v Kate Shipping Co Ltd [1990] 1 WLR 115 at p.130.
7 S.Ac.L.J.
137
defendant who does not dispute jurisdiction will be treated as submission,153

as would also be the case if he contests the action on its merits,154 such as
where he applies to strike out part of a claim.155
Thus, a defendant who wishes to contest any irregularities giving rise to
jurisdictional deficiencies should enter an appearance (which per se does
not amount any waiver of irregularity)156 and within the time limited for
serving a defence, apply to court for one of the orders enumerated in
O.12 r.7(1)(a)(d). By so applying to court to contest jurisdiction, he cannot
be regarded to have submitted to it.157 But there would be submission if the
application fails.158 If a defendant takes any steps which are useful or
necessary only if he has waived his jurisdictional objections,159 that too may
amount to submission.
An application to contest jurisdiction coupled with an alternative application to stay proceedings would not amount to submission, especially if the
protest of jurisdiction has all along been maintained.160 It is not however
clear if a stay application alone would amount to submission. An argument
can be made that requesting the court not to exercise jurisdiction (which
essentially is what is asked for in a stay application) is tacit recognition that
the court has jurisdiction in the first place. This kind of reasoning worked
in a case on foreign judgment,161 where a defendant tried to persuade a
foreign court not to exercise jurisdiction to serve out of jurisdiction on the
ground of forum non conveniens. Dicey and Morris too think that it
produces submission (though citing no authority), unless it is accompanied
by a protest of jurisdiction. But there are remarks in Williams & Glyns
Bank v Astro Dinamino162 which suggest any contest of jurisdiction, whether
it be in relation to exercise or existence of jurisdiction, is not submission.
The issue was expressly left open in The Messiniaki Tolmi.163 A related
153 O.12 r.7(6). See also The Avro International [1988] 1 MLJ 147, which deals with the
effects of an unconditional appearance, namely submission to jurisdiction and waiver of
any service irregularity. While the distinction between conditional and unconditional
appearance has since been abolished, it is likely that if an appearance is made without
any protest of jurisdiction (whether or not arising out service irregularities), the same
consequences would still follow.
154 Boyle v Sucker (1888) 39 ChD 249.
155 Messiniaki Tolmi, supra note 149.
156 O.12 r.6.
157 0.12 r.7(5). See also Re Dulles Settlement (No. 2) [1951] Ch 842.
158 0.12 r.7(5) read with r.7(6).
159 Rein v Stein (1892) 66 LT 469.
160 Williams & Glyns Bank v Astro Dinamico Cia Naviera SA [1984] 1 All ER 760.
161 Henry v Gepresco International Ltd [1976] QB 726. The decision has been severely
criticised: Collins (1976) 92 LQR 268. In England, this decision has been reversed by
statute: see s.33(1) of the Civil Jurisdiction and Judgment Act, 1982.
163 Supra, note 155 at p. 271. See also recent Malaysian authorities like Seloga Jaya v
Pembenaan Keng Ting [1994] 2 MLJ 97 and Inter Maritime Management v Kai Tai Timber
[1995] 1 MLJ 322 which suggest that a failure to challenge renewal of a Mareva injunc
tion before seeking for a stay of action does not amount to submission: Cf. Esal v Pujara
[1989] 2 Lloyds Rep 479.
138
(1995)
issue which yields a slighter more definite answer is whether a failed

application to set aside service out of jurisdiction amounts to submission.
It seems so, since such an application comes within O.12 r.7(1)(c) and O.12
rr.7(5) and 7(6), read together, would treat such a failed application as
submission.164
Another common way of founding jurisdiction by submission is through
the use of a jurisdiction agreement165 conferring jurisdiction on the courts
of a particular country. This is a standard device of modern commercial
contracts which selects a particular forum before dispute arises. A jurisdiction clause should ideally be accompanied by an agreed machinery for
service, such as nomination of a local service agent,166 for that gives rise to
submission as well as the convenience of service within jurisdiction. On the
other hand, if there is merely the jurisdiction agreement without a local
service agent, leave for service out of jurisdiction on a foreign corporate
defendant is necessary, although a Singapore jurisdiction clause is a head
of jurisdiction under O.11 rr.1(1)(d)(iv) and 1(1)(r).
F.
A SUMMARY OF THE METHODS OF OBTAINING

JURISDICTION OVER FOREIGN COMPANIES
The analytical framework put forward above, which considers how a foreign
company can be served in Singapore rather than out of jurisdiction under
O.11 of the RSC can be briefly recapitulated as follows:
(i) A foreign company which establishes a place of business or
carries on business in Singapore has to register and lodge with
the Registrar the address of its local office and the names as
well as addresses of its local agents. Such a company can be
served under any of the three methods set out in s.376 of the
Companies Act (service on agent, on its registered office and,
if it no longer maintains a place of business locally, on its office
164 See also, Henry v Geopresco International Ltd, supra, note 161 (a foreign judgment case)
165 Such an agreement can confer exclusive or non-exclusive jurisdiction: on exclusivity of
jurisdiction clauses, see British Aerospace v Dee Howard [1993] 1 Lloyds Rep 368
Quaere if it can be implied. Cases on enforcement of foreign judgments are mostly
agreed that there cannot be implied submission to jurisdiction for the purposes of international jurisdiction: see Vogel v Kohnstamm, supra, note 38; Sfeir v National Insurance
of New Zealand [1964] 1 Lloyde Rep 330; locally, UOB v Tjong Tjui Nyuk, supra, note
38; Sunline v Cantopex, supra, note 38 which held that an English arbitration agreement
cannot be implied submission to English courts. Cf Blohn v Desser[1961] 3 All ER 1
Adams v Cape Industries, supra note 52, decision of Scott J at first instance.
166 See O.10 r.3(1) which provides that if the contract confers jurisdiction on Singapore
courts and also provides for a service machinery, service in accordance with the latter is
deemed effective service. This reaffirms the common law principle that parties can, in
addition to choosing their preferred jurisdiction, also choose their own mode of service
so long as it is not contrary to the rules of court: Tharsis Sulphur and Copper Company
v La Societe des Metaux (1889) 58 LJQB (NS) 435; also Montgomery, Jones & Co v
Liebenthal & Co [1898] 1 QB 486. Cf. The British Wagon Company v Gray [1896]
1 QB 35.
7 S.Ac.L.J.
139
in the place of incorporation) and if so served, the Singapore

courts have jurisdiction over it.
(ii) Jurisdiction over such a foreign company may also be derived

from corporate presence under s.16(1)(a)(i) or submission under
s.16(1)(b). However, service under s.376 would in most instances
be more convenient. If jurisdiction is grounded on corporate
presence, service must be effected through O.10 r.2 (ie service
on local agent or manager with control or management over
the foreign companys business to which the action relates). If
jurisdiction is based on submission, O.10 r.1(2) and r.3 can be
used although submission can also take other forms.
(iii) However, a registered foreign company cannot be served
according to O.62 r.4 which only applies in the absence of
provisions in other written law, and which, in this context, would
include s.376 of the Companies Act.
(iv) An unregistered company cannot be served under s.376 of the
Companies Act. Thus the jurisdictional regime created under
the Companies Act does not apply to such a company.
(v) Jurisdiction over such a company would have to be obtained
through use of s.16(1)(a)(i) or (b).
(vi) Where jurisdiction is sought under s.16(1)(a)(i), corporate
presence must be demonstrated. If the company is so present,
service can be effected under O.62 r.4. However that provision
probably does not cover service on independent agents of the
company.
(vii) Service on an unregistered foreign company may also be

effected under O.10 r.2. Where such a company appoints a
local agent, O.10 r.2 would have to be used since O.62 r.4 may
not extend to agents.
(viii) Such an unregistered foreign company may also be amenable
to jurisdiction by way of submission in its various forms.
(ix) If the above means of obtaining jurisdiction fail, then service
out of jurisdiction is the remaining recourse.
(x) If the jurisdictional web cast in the various ways discussed above
is, in the circumstances of a case, too wide, the compensation
may well lie in greater readiness to stay the action on the ground
of forum non conveniens.
TOH KIAN SING*
*
LLB (Hons)(NUS); BCL(Oxon); Lecturer, Faculty of Law, National University of

Singapore; Advocate and Solicitor.
I thank my colleague, Mr Tan Yock Lin, who kindly read a draft of this article and
offered many helpful comments. The usual caveat applies. This article is based primarily
on a paper delivered on 31st Marcy 1995 at a Workshop on Conflict of Laws in Commercial
Practice organised by the Faculty of Law, National University of Singapore.

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7 S.Ac.L.J.

Obtaining Jurisdiction Over Foreign Companies

OBTAINING JURISDICTION OVER FOREIGN COMPANIES

A recurrent problem in international commercial disputes is determining

Singapore Academy of Law Journal

applicability of cases from other jurisdictions, absence of judicial survey of

THE STATUTORY REGIMES

Obtaining Jurisdiction Over Foreign Companies

(i) Relevant Provisions of Part XI, Division 2 of the Companies Act.7

In essence then, a foreign company which wishes to carry on business or

Singapore Academy of Law Journal

Obtaining Jurisdiction Over Foreign Companies

accept service. Service on the foreign company may be effected on such an

21 S.695, English Companies Act 1985.

Singapore Academy of Law Journal

jurisdiction. However, it should be noted that as far as English and

Obtaining Jurisdiction Over Foreign Companies

Corporation Limited v Sedgwick, Collins and Company Limited33 , Lords

of service on a place of business established by an unregistered foreign company. These

Singapore Academy of Law Journal

registration confers jurisdiction under the legislation and thus no recourse

Obtaining Jurisdiction Over Foreign Companies

(iv) Meaning of place of business and carrying on business

Singapore Academy of Law Journal

These common law principles are not to be regarded as rigid requirements.

53 Supra, note 23.

Obtaining Jurisdiction Over Foreign Companies

Singapore Academy of Law Journal

Obtaining Jurisdiction Over Foreign Companies

arbitration proceedings, holding meeting for its directors or shareholders,

Singapore Academy of Law Journal

Obtaining Jurisdiction Over Foreign Companies

72 Colley v Mead, supra note 67.

Singapore Academy of Law Journal

followed.76 Similar reasoning applies to service under O.10 r.2.77 However,

In at least one local decision, P T Pelajaran Nasional Indonesia v Joo

Obtaining Jurisdiction Over Foreign Companies

Whilst the effect of irregularity of service under s.376 remains unclear, it

Singapore Academy of Law Journal

Ltd87 to arrive at the opposite conclusion on facts roughly similar to Sabatier

87 Supra, note 26.

Obtaining Jurisdiction Over Foreign Companies

(c) A Registered Company that subsequently neither carries on business

SERVICE IN SINGAPORE UNDER S.16(1)(a)(i) OF THE

Singapore Academy of Law Journal

91 Reference to Parliamentary debates is permissible in the interpretation of statutes. Supra,

Obtaining Jurisdiction Over Foreign Companies

Singapore Academy of Law Journal

Obtaining Jurisdiction Over Foreign Companies

some other relevant factors, such as the method of remuneration of the

Singapore Academy of Law Journal

of the foreign companys name in the agent or branch offices premise or

Obtaining Jurisdiction Over Foreign Companies

Singapore Academy of Law Journal

unregistered companies still exists locally in s.376 of our Companies Act,

Obtaining Jurisdiction Over Foreign Companies

(ii) Service Pursuant to O.10 r.2, RSC

Singapore Academy of Law Journal

An ex parte application must be made to Court, accompanied with affidavit

135 Supra, note 77.

Obtaining Jurisdiction Over Foreign Companies

Chang FJ seemed to consider agents authority to contract on the principals