BNP PARIBAS SA v JACOB AGAM & Anor

"I have come to the conclusion that the action is not an offshore case as it is not a case where there is no substantial connection with Singapore." — Per Vivian Ramsey IJ, Para 23

Case Information

• Citation: [2018] SGHC(I) 03 (also described in the extraction as [2018] SGHCI 3) (Para 0)
• Court: Singapore International Commercial Court (Para 0)
• Date of hearing: 5 March 2018 (Para 0)
• Date of judgment: 15 March 2018 (Para 0)
• Coram: Vivian Ramsey IJ / Vivian Ramsey International Judge (Para 0; Para 33)
• Counsel for the plaintiff: Pillai K Muralidharan, Luo Qinghui and Andrea Tan (Rajah & Tann Singapore LLP) (Para 33)
• Counsel for the defendants: The first and second defendants were absent (Para 33)
• Case number: Suit No 2 of 2016 (Summons No 5 of 2018) (Para 0)
• Area of law: Civil Procedure; Rules of Court; Singapore International Commercial Court; offshore case procedure (Para 0)
• Judgment length: Not stated in the extraction (not answerable from the provided material)

Summary

This was an application under O 110 r 37 of the Rules of Court seeking a declaration that the action was not, or was no longer, an offshore case. The court first addressed two preliminary matters: whether the defendants’ offshore case declaration had been validly filed under O 110 r 35, and whether the court had jurisdiction to make the declaration sought under O 110 r 37. It concluded that the declaration had been filed too late and was therefore not validly made, and that the proper forum for deciding the offshore-case question was the first-instance SICC court rather than the Court of Appeal. (Para 8; Para 10; Para 14)

"The Declaration was evidently filed long after it should have been filed under that provision" — Per Vivian Ramsey IJ, Para 10

On the merits, the court held that the action was not an offshore case because it was not a case with no substantial connection to Singapore. The decisive consideration was the place of performance of the relevant obligations under the facility agreements and the personal guarantees. The court reasoned that Singapore was clearly the place of performance of both sets of obligations, and that this factor was fundamental to the substantial-connection analysis. (Para 23; Para 28; Para 29)

"As such, Singapore is clearly the place of performance of both the Facility Agreements and the Personal Guarantees." — Per Vivian Ramsey IJ, Para 28

The application was therefore allowed, and the plaintiff was awarded fixed costs of $3,500 inclusive of disbursements. The judgment also recorded the underlying substantive history: the plaintiff had earlier obtained judgment in the SICC for the claimed euro amounts plus interest, and the first defendant’s counterclaim had been dismissed. The present decision did not revisit the merits of that substantive judgment; it dealt only with offshore-case status and the procedural consequences of the defendants’ declaration. (Para 3; Para 33)

"I therefore allowed the Application for the reasons which I now set out above and I awarded the Plaintiff costs fixed at $3,500, inclusive of disbursements." — Per Vivian Ramsey IJ, Para 33

Why Did the Court Say the Offshore Case Declaration Was Not Validly Filed?

The first issue was procedural. The plaintiff argued that the defendants’ offshore case declaration did not comply with the timing requirements in O 110 r 35. The court accepted that submission. It noted that O 110 r 35(3) requires an offshore case declaration to be filed by the plaintiff together with the originating process, or by any other party together with the first document filed by that party in the action. The court found that the defendants’ declaration was filed long after the time required by the rule, and there was no application for an extension of time. (Para 9; Para 10)

"O 110 r 35 provides that: (3) An offshore case declaration must be filed — (a) by the plaintiff, together with the originating process; or (b) by any other party, together with the first document filed by the party in the action." — Per Vivian Ramsey IJ, Para 9

The court’s reasoning was straightforward: the rule is framed in mandatory timing terms, and the defendants did not comply with it. The judgment does not suggest that the court treated the timing requirement as merely directory. Instead, it described the declaration as having been filed “long after” it should have been filed, and it noted the absence of any request for an extension. That combination led the court to conclude that the declaration was not validly made under O 110 r 35. (Para 10)

"The Declaration was evidently filed long after it should have been filed under that provision" — Per Vivian Ramsey IJ, Para 10

This procedural ruling mattered because the defendants had sought to rely on the declaration as part of the appellate process. The court’s conclusion meant that the declaration could not serve as a valid procedural foundation for the defendants’ position. The judgment therefore treated the declaration issue as a threshold matter, separate from the substantive question whether the action was in truth an offshore case. (Para 8; Para 10)

"The Plaintiff submits that the timing of the Defendants’ filing of the Declaration is not in accordance with the relevant provisions of the Rules." — Per Vivian Ramsey IJ, Para 9

Why Did the Court Hold That the First-Instance SICC Court, Not the Court of Appeal, Had to Decide the Offshore-Case Question?

The second preliminary issue concerned jurisdiction. The plaintiff submitted that the Court of Appeal did not have jurisdiction to determine the offshore-case question in the way the defendants sought. The court agreed. It considered the defendants’ reliance on the Court of Appeal’s jurisdiction under s 29A of the Supreme Court of Judicature Act and the statutory finality language in s 34(1)(e), but concluded that an application for a declaration that an action is not an offshore case is not a matter that must be decided “for the purposes of and incidental to” the appeal. Rather, it is a matter for the first-instance SICC court. (Para 13; Para 14; Para 15)

"I do not consider that an application for a decision that an action is not an offshore case is a matter which had to be decided “for the purposes of and incidental to” the appeal but is instead a matter on which the first-instance SICC court has to make a decision." — Per Vivian Ramsey IJ, Para 14

The court’s analysis was anchored in the structure of the Rules and the SICC procedure. O 110 r 37(1) expressly states that the court may at any time decide that an action is not or is no longer an offshore case, either on its own motion or on application of a person. The judgment treated that language as pointing to the first-instance court as the proper decision-maker. The court therefore rejected the idea that the offshore-case question could be determined as an incident of the appeal itself. (Para 13; Para 14)

"O 110 r 37(1) of the Rules provides that, “the Court may at any time decide that an action is not or is no longer an offshore case, either on its own motion or on application of a person.”" — Per Vivian Ramsey IJ, Para 13

That conclusion also fit the court’s broader procedural approach. The judgment did not treat the offshore-case declaration as a collateral issue to be resolved by the appellate court in the abstract. Instead, it treated the issue as one that belongs to the court seized of the action at first instance, which is best placed to determine whether the action has the requisite connection with Singapore. The result was that the defendants’ attempt to use the declaration in the appellate context failed at the jurisdictional level as well. (Para 13; Para 14)

"the jurisdiction of the Court of Appeal under s 29A of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”)" — Per Vivian Ramsey IJ, Para 13

What Were the Underlying Facts and Procedural History That Led to This Application?

The plaintiff was a private bank incorporated in France that conducted business in Singapore through its Singapore-registered branch. The defendants were brother and sister, both Israeli nationals. The judgment identifies them as former customers of BNPWM, and the dispute arose out of facility agreements and personal guarantees connected to those facilities. These background facts framed the later offshore-case analysis because they showed that the parties were international, but not necessarily that the dispute lacked a Singapore connection. (Para 1; Para 2)

"The Plaintiff is a private bank incorporated in France and conducts business in Singapore through its Singapore-registered branch. The Defendants are brother and sister and are Israeli nationals." — Per Vivian Ramsey IJ, Para 1

On 27 November 2015, BNPWM commenced an action in the Singapore High Court against the defendants for recovery of €17,113,889.93 and €12,988,922.66. The proceedings were later transferred to the SICC on 5 April 2016. The judgment also records that the SICC issued its substantive judgment on 17 November 2017, finding for the plaintiff, awarding the claimed amounts plus interest, and dismissing a counterclaim by the first defendant. That earlier judgment is important because the present application arose after the merits had already been decided. (Para 2; Para 3)

"On 27 November 2015, BNPWM commenced an action in the Singapore High Court against the Defendants for recovery of €17,113,889.93 and €12,988,922.66" — Per Vivian Ramsey IJ, Para 2

After the substantive judgment, the defendants appealed to the Court of Appeal on 13 December 2017. In doing so, they also filed an offshore case declaration dated 5 December 2017. That sequence triggered the present application by the plaintiff under O 110 r 37. The court’s task was therefore not to retry the merits of the debt claim, but to determine whether the action should be treated as an offshore case and whether the defendants’ declaration had any procedural validity. (Para 4; Para 5; Para 8)

"On 13 December 2017, the Defendants appealed against the Judgment to the Court of Appeal. In doing so, they also filed an offshore case declaration dated 5 December 2017" — Per Vivian Ramsey IJ, Para 4

What Did Each Side Argue About Whether the Action Had a Substantial Connection With Singapore?

The plaintiff’s position was that the action could not be said to have no substantial connection with Singapore. It argued that the agreements were governed by Singapore law and that the relevant obligations were performed in Singapore. The plaintiff also relied on the place of performance of the facility agreements and the personal guarantees as the central connecting factor. The court accepted that the plaintiff’s case was not merely formalistic; it was grounded in the contractual structure and the performance obligations arising from the transactions. (Para 21; Para 24; Para 25)

"The Plaintiff submits that the action cannot be said to have no substantial connection with Singapore but, on the contrary, has a substantial connection with Singapore." — Per Vivian Ramsey IJ, Para 21

The defendants, by contrast, relied on matters set out in their declaration and affidavit to contend that there was no substantial connection with Singapore. The extraction records that they pointed to the fact that they were foreign nationals, that the documents were not signed in Singapore, and that they had denied liability on the basis of French-law-related arguments, including an assertion that SCI Ruth Agam was only permitted to enter into agreements relating to real estate transactions. The court noted these submissions, but they did not ultimately persuade it. (Para 22; Para 30)

"The Defendants rely on the following matters in the Declaration and the Affidavit and submit that there is no substantial connection with Singapore:" — Per Vivian Ramsey IJ, Para 22

The court’s treatment of the parties’ arguments is significant because it shows that the offshore-case inquiry is not resolved by nationality alone, nor by the mere fact that some acts occurred outside Singapore. Instead, the court focused on the contractual obligations and where they were to be performed. That approach is consistent with the court’s later reliance on authority concerning the place of performance of payment obligations. (Para 18; Para 26; Para 27)

"the Defendants had denied liability in the Suit on the basis that: (i) SCI Ruth Agam is only permitted to enter into agreements relating to real estate transactions…" — Per Vivian Ramsey IJ, Para 22

How Did the Court Apply the Offshore-Case Test to the Facility Agreements and Personal Guarantees?

The court began from the proposition that whether an action is an offshore case depends on whether it can properly be said that the action has no substantial connection with Singapore. It cited Teras Offshore Pte Ltd v Teras Cargo Transport (America) LLC for that proposition. The court also noted that the factors listed in the SICC Practice Directions do not, by themselves, constitute a substantial connection. This meant the analysis had to be contextual and transaction-specific. (Para 18; Para 19)

"the question of whether or not an action is an “offshore case” must be determined by reference to the particular action and whether it can properly be said that the action has no substantial connection with Singapore" — Per Vivian Ramsey IJ, Para 18

Applying that test, the court focused on the obligations under the facility agreements and the personal guarantees. It reasoned that the performance of those obligations was of fundamental importance in determining whether the action had no substantial connection with Singapore. The court then examined where those obligations were to be performed. On the facts before it, Singapore was the place of performance of both the facility agreements and the personal guarantees. (Para 28; Para 29)

"the performance of the obligations under the relevant transactions is of fundamental importance in determining whether the action has no substantial connection with Singapore." — Per Vivian Ramsey IJ, Para 29

The court’s conclusion on place of performance was decisive. It stated that Singapore was clearly the place of performance of both the facility agreements and the personal guarantees. That finding supplied the substantial connection that defeated the defendants’ offshore-case argument. The court therefore held that the action was not an offshore case. (Para 28; Para 23)

"As such, Singapore is clearly the place of performance of both the Facility Agreements and the Personal Guarantees." — Per Vivian Ramsey IJ, Para 28

Why Was the Place of Performance So Important in the Court’s Reasoning?

The court treated place of performance as the central connecting factor because the dispute concerned payment obligations under financing documents and guarantees. It referred to EFG Bank AG, Singapore Branch v Teng Wen-Chung for the proposition that the key obligation in a loan contract is generally the obligation to make payments, and the place where those payments must be made is accordingly the place of performance. That authority supported the court’s focus on where the debt obligations were to be discharged. (Para 26)

"the key obligation in a loan contract is generally the obligation to make payments, and the place where those payments must be made is accordingly the place of performance" — Per Vivian Ramsey IJ, Para 26

The court also referred to the debtor-seeks-creditor principle from Dicey, Morris & Collins on the Conflict of Laws. Where no place of payment is specified, the debtor must seek out the creditor. The judgment used that principle to reinforce the conclusion that the place of performance was Singapore, particularly given that the indemnity was executed in favour of the plaintiff’s Singapore branch. This was not treated as an abstract conflicts point; it was used as part of the concrete analysis of the contractual payment structure. (Para 27)

"the general rule … that where no place of payment is specified … the debtor must seek out his creditor" — Per Vivian Ramsey IJ, Para 27

By tying the offshore-case inquiry to the place of performance, the court made clear that the substantial-connection analysis is not satisfied by pointing to foreign parties or foreign negotiations alone. The relevant question is where the obligations are to be performed and whether that performance anchors the dispute in Singapore. On the facts here, the answer was yes. That is why the court concluded that the action had a substantial connection with Singapore and therefore could not be treated as an offshore case. (Para 23; Para 28; Para 29)

"I have come to the conclusion that the action is not an offshore case as it is not a case where there is no substantial connection with Singapore." — Per Vivian Ramsey IJ, Para 23

How Did the Court Deal With the Defendants’ French-Law Arguments and Their Evidential Position?

The judgment records that the defendants relied on matters in their declaration and affidavit to argue that there was no substantial connection with Singapore. One of those matters was a French-law-based defence, including the assertion that SCI Ruth Agam was only permitted to enter into agreements relating to real estate transactions. However, the court noted that, during a case management conference on 17 July 2017, counsel then acting for the defendants informed the court that the defendants did not wish to adduce any evidence of French law. That procedural choice limited the role French law could play in the application. (Para 22; Para 30)

"As stated in [48] of the Judgment, during a case management conference on 17 July 2017, counsel then acting for the Defendants informed the court that the Defendants did not wish to adduce any evidence of French law" — Per Vivian Ramsey IJ, Para 30

The court also stated that it had taken into account all matters relied upon by the defendants and relevant to the application. That statement shows that the court did not ignore the defendants’ position; rather, it considered the materials before it and still concluded that the substantial-connection threshold was met. The absence of French-law evidence meant that the defendants’ foreign-law contentions did not displace the contractual and performance-based analysis that the court found decisive. (Para 6; Para 30)

"I have therefore taken into account all the matters which are relied upon by the Defendants and are relevant to the Application." — Per Vivian Ramsey IJ, Para 6

In practical terms, the defendants’ evidential stance weakened their attempt to show that the action lacked a Singapore connection. The court’s reasoning suggests that offshore-case status cannot be established by broad assertions of foreignness or by unsubstantiated foreign-law points where the contractual performance obligations point to Singapore. The judgment therefore gives substantial weight to the objective structure of the transaction over the defendants’ attempted characterisation of the dispute. (Para 22; Para 28; Para 29; Para 30)

"the existence of each of the following factors will not, by itself, constitute a substantial connection between the dispute and Singapore" — Per Vivian Ramsey IJ, Para 19

What Orders Did the Court Make, and What Was the Practical Outcome?

The court allowed the plaintiff’s application. It declared that the action was not an offshore case and awarded the plaintiff fixed costs of $3,500 inclusive of disbursements. The judgment is explicit that this was the final procedural outcome of the summons. The court did not make any fresh order on the substantive debt claim because that had already been determined in the earlier judgment. (Para 33)

"I therefore allowed the Application for the reasons which I now set out above and I awarded the Plaintiff costs fixed at $3,500, inclusive of disbursements." — Per Vivian Ramsey IJ, Para 33

The practical effect of the decision was to confirm that the action remained within the ordinary Singapore/SICC procedural framework rather than being treated as an offshore case. That mattered because offshore-case status affects the procedural regime applicable to the dispute. The court’s ruling therefore preserved the Singapore connection of the litigation and rejected the defendants’ attempt to recharacterise the matter after judgment. (Para 23; Para 33)

"the action is not an offshore case as it is not a case where there is no substantial connection with Singapore." — Per Vivian Ramsey IJ, Para 23

The costs order was modest and fixed. The judgment does not provide a detailed costs analysis, but it clearly records the amount and that disbursements were included. For practitioners, that is a reminder that even where the substantive dispute is large, the costs of a procedural summons may be tightly controlled and fixed by the court. (Para 33)

"I awarded the Plaintiff costs fixed at $3,500, inclusive of disbursements." — Per Vivian Ramsey IJ, Para 33

Why Does This Case Matter?

This case matters because it clarifies the offshore-case inquiry under the SICC framework. The court reaffirmed that the decisive question is whether the action has no substantial connection with Singapore, and it treated the place of performance of the relevant obligations as fundamental to that analysis. For lawyers drafting, litigating, or challenging offshore-case declarations, the decision underscores that the contractual performance matrix may outweigh the foreign nationality of the parties or the foreign elements of the transaction. (Para 18; Para 23; Para 29)

"the performance of the obligations under the relevant transactions is of fundamental importance in determining whether the action has no substantial connection with Singapore." — Per Vivian Ramsey IJ, Para 29

The case also matters procedurally because it shows that an offshore case declaration must be filed within the time required by O 110 r 35. A late declaration, absent an extension, is vulnerable to being treated as invalid. That is an important point for litigants who may seek to invoke offshore-case status after the litigation has progressed. The judgment signals that timing compliance is not optional. (Para 9; Para 10)

"An offshore case declaration must be filed — (a) by the plaintiff, together with the originating process; or (b) by any other party, together with the first document filed by the party in the action." — Per Vivian Ramsey IJ, Para 9

Finally, the decision is important because it clarifies institutional competence within the SICC framework. The court held that the offshore-case question under O 110 r 37 is for the first-instance SICC court, not the Court of Appeal acting incidentally to an appeal. That distinction matters for appellate strategy and for the sequencing of procedural applications. In short, the case is a useful guide to both the substance and the procedure of offshore-case litigation in Singapore. (Para 13; Para 14; Para 15)

"I do not consider that an application for a decision that an action is not an offshore case is a matter which had to be decided “for the purposes of and incidental to” the appeal but is instead a matter on which the first-instance SICC court has to make a decision." — Per Vivian Ramsey IJ, Para 14

Cases Referred To

Legislation Referenced

• Rules of Court, Order 110 rule 35, including rule 35(3) on the timing of offshore case declarations (Para 9) [CDN] [SSO]
• Rules of Court, Order 110 rule 36 (mentioned in the extraction as part of the procedural framework) (Para 8) [CDN] [SSO]
• Rules of Court, Order 110 rule 37, especially rule 37(1) on the court’s power to decide that an action is not or is no longer an offshore case (Para 13) [CDN] [SSO]
• Rules of Court, Order 32 rule 5 (mentioned in the extraction as part of the legal provisions relied on) (Para 6) [CDN] [SSO]
• Supreme Court of Judicature Act, section 29A (jurisdiction of the Court of Appeal) (Para 13) [CDN] [SSO]
• Supreme Court of Judicature Act, section 34(1)(e) (finality of judgments or orders declared final by written law) (Para 15) [CDN] [SSO]
• Supreme Court of Judicature Act, section 18A (mentioned in the extraction as part of the legal provisions referenced) (Para 6) [CDN] [SSO]

Source Documents

• Original Judgment — Singapore Courts
• Archived Copy (PDF) — Litt Law CDN

This article analyses [2018] SGHCI 3 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.