Singapore permits the gathering of evidence in aid of foreign litigation.

As provided in the Evidence (Civil Proceedings in Other Jurisdictions) Act and Order 66 of the Rules of Court (which will be replaced by equivalent provisions in Order 55 of the Rules of Court 2021, set to take effect from April 1, 2022), a foreign court or tribunal may issue a letter of request to the Singapore court to seek the Singapore court’s assistance in obtaining evidence. While this provides a procedure for the obtaining of evidence through the Singapore court, it does not provide an avenue to obtain evidence directly from a witness within the jurisdiction in support of foreign legal proceedings without going through the relevant diplomatic channels.

However, there is no law prohibiting the taking of evidence in Singapore for use in aid of foreign litigation without going through the above procedure to obtain the intervention of the Singapore court. This includes situations where:

• The witness is prepared to give evidence voluntarily; or
• The assistance of the Singapore court is not needed.

Singapore is a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”).  The Evidence (Civil Proceedings in Other Jurisdictions) Act and Order 66 of the Rules of Court (which will be replaced by equivalent provisions in Order 55 of the Rules of Court 2021) were enacted to give effect to the Hague Evidence Convention.

However, the following declarations and reservations have been made in relation to the Hague Evidence Convention:

Interpretation – Singapore understands that the reference to civil or commercial matters in the Hague Evidence Convention does not include revenue or taxation matters.

• Article 4 – with regard to paragraph 2 of Article 4, Singapore will not accept a Letter of Request in any language other than the English language, as that is the language of the Judiciary in Singapore.
• Article 15 to 22 – the whole of Chapter II of the Convention (Taking of Evidence by Diplomatic Officers, Consular Agents and Commissioners) shall not apply to Singapore
• Article 23 – Singapore will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents. "Letters of Request issued for the purpose of obtaining pre-trial discovery of documents" include any Letter of Request which requires a person:

1. to state what documents relevant to the proceedings to which the Letter of Request relates are, or have been, in his possession, custody or power; or
2. to produce any documents other than particular documents specified in the Letter of Request as being documents appearing to the requested court to be, or to be likely to be, in his possession, custody or power.

The Evidence (Civil Proceedings in Other Jurisdictions) Act and Order 66 of the Rules of Court (which will be replaced by equivalent provisions in Order 55 of the Rules of Court 2021) also govern the taking of evidence for use in foreign legal proceedings. There are two statutory requirements under Section 3 of the Evidence (Civil Proceedings in Other Jurisdictions) Act for obtaining evidence in aid of foreign litigation:

1. The evidence must be sought by or on behalf of a court or tribunal exercising jurisdiction in a country or territory outside Singapore; and
2. The evidence being sought is to be obtained for the purposes of civil proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated.

A request for obtaining evidence must be made to the General Division of the Singapore High Court ("SGHC"). The power of the SGHC only arises where it is satisfied that the conditions in Section 3 of the Evidence (Civil Proceedings in Other Jurisdictions) Act (as set out above in Question 2) are fulfilled.

An application is to be made to the Registrar (Order 66 Rule 1 of the Rules of Court, which will be replaced by an equivalent provision in Order 55 Rule 1 of the Rules of Court 2021 from 1 April 2022).

The procedure for making an application is provided in Order 66 Rule 2 of the Rules of Court (which will be replaced by an equivalent provision in Order 55 Rule 2 of the Rules of Court 2021 from 1 April 2022):

1. The application must be made ex parte by a person duly authorized to make the application on behalf of the court or tribunal in question and must be supported by an affidavit.
2. A letter of request, certificate or other document evidencing the desire of the court or tribunal to obtain for the purpose of a matter pending before it the evidence of the witness to whom the application relates or the production of any document, must be exhibited to the affidavit. If that document is not in English, a translation must be provided.
3. After an application for an order has been made in relation to a matter pending before a court or tribunal, an application for a further order or directions in relation to the same matter must be made by summons.              

The Singapore court will ordinarily give effect to such a request so far as is proper and practicable, and to the extent permissible under Singapore law, unless doing so would be regarded as frivolous, vexatious, an abuse of the process of court or otherwise impermissible under Singapore law.

Section 4(2) of the Evidence (Civil Proceedings in Other Jurisdictions) Act provides a non-exhaustive list of the types of information that can be provided for in an order of the Singapore court to obtain evidence to be used abroad:

• the examination of witnesses, either orally or in writing;
• the production of documents;
• the inspection, photographing, preservation, custody or detention of any property;
• the taking of samples of any property and the carrying out of any experiments on or with any property;
• the medical examination of any person; and
• the taking and testing of samples of blood from any person.

It should be noted that an order under this section cannot require any particular steps to be taken unless they are steps that can be required to be taken by way of obtaining evidence for the purposes of civil proceedings in the SGHC. 

Under Section 5(1) of the Evidence (Civil Proceedings in Other Jurisdictions) Act, a witness is entitled to claim privilege from giving any evidence that he could not be compelled to give in civil proceedings:

• on any ground recognized under the law of Singapore; or
• under the law of the foreign requesting court.

A witness may also claim privilege if the giving of such evidence would be prejudicial to the security of Singapore (Section 5(3) of the Evidence (Civil Proceedings in Other Jurisdictions) Act).

The burden of showing whether any privileges apply lies on the party claiming privilege (Staravia Ltd v Consolidated Aeronautics Corp and others [1989] 2 SLR(R) 292).

Under Section 5(2) of the Evidence (Civil Proceedings in Other Jurisdictions) Act, where privilege is being sought on a ground recognized under foreign law, the claim to privilege must either be:

• supported by a statement contained in the request; or
• conceded by the applicant for the order.

Otherwise, the witness may be required to give the evidence to which the claim relates, but that evidence is not to be transmitted to the requesting court if that court, on the matter being referred to it, upholds the claim.

There does not need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending, as it is essentially a matter for the requesting court whether the evidence requested will be relevant and admissible. In the face of a statement in the letter of request as to the relevance and admissibility of the requested evidence, the Singapore court is unlikely to examine the issues in the action and the circumstance of the case with excessive particularity for the purpose of determining the question of relevance and admissibility in advance.

Singapore allows for remotely conducted depositions (See Para 59A of the Supreme Court Practice Directions and Order 41 Rule 13 of the Rules of Court for the conditions under which an affidavit may be sworn and signed before a commissioner for oaths through live video or television link). In particular, the deponent and commissioner for oaths should follow a security procedure that results in a secure electronic signature under Section 18 of the Electronic Transactions Act. Further, the commissioner for oaths must be able to:

• maintain visual contact and communicate with the deponent and an interpreter present throughout the process;
• confirm the identity of the deponent and an interpreter present;
• verify by visual inspection, read, interpret and explain the document to be sworn and signed by the deponent; and
• confirm that the document which the commissioner for oaths later signs is the same document sworn and signed by the deponent.

Where a request is made by the foreign court as to the particular manner for taking depositions, that manner should be employed unless the manner proposed is so contrary to Singapore's established procedures that it should not be permitted (J. Barber & Sons (a firm) v Lloyd’s Underwriters [1987] Q.B. 103).

The Evidence (Civil Proceedings in Other Jurisdictions) Act provides for requests for obtaining evidence for civil proceedings. Under Section 1(2), “civil proceedings” is defined as proceedings in any civil or commercial matter but does not include proceedings arising out of any fiscal, monetary or revenue law or measure.

Under Section 5(3) of the Evidence (Civil Proceedings in Other Jurisdictions) Act, a witness will not be compelled to give evidence if his doing so would be prejudicial to the security of Singapore, and a certificate signed by or on behalf of the minister to this effect will serve as conclusive evidence of that fact.

Citizens residing in Singapore may voluntarily give evidence in a foreign proceeding. The Evidence (Civil Proceedings in Other Jurisdictions) Act does not affect the taking of evidence given voluntarily to foreign diplomatic or consular officers or other persons appointed by foreign courts to take evidence or to legal representatives taking evidence in Singapore for the purpose of proceedings abroad. So long as the witness is willing to attend to give evidence, the examination may be completed and the depositions returned to the foreign court without the intervention of the Singapore courts.

Private arbitral tribunals appear to be excluded from the application of the Evidence (Civil Proceedings in Other Jurisdictions) Act. While the act provides for requests from a foreign "court or tribunal", a “tribunal” in the context of the Act does not appear to include private arbitral tribunals. However, under Section 13(2) of the International Arbitration Act, the General Division of the High Court may order a subpoena to testify or a subpoena to produce documents to be issued to compel the attendance before an arbitral tribunal of a witness wherever the witness may be within Singapore.

However, as the Evidence (Civil Proceedings in Other Jurisdictions) Act does not affect the taking of evidence given voluntarily to foreign diplomatic or consular officers or other persons appointed by foreign courts to take evidence or to legal representatives taking evidence in Singapore for the purpose of proceedings abroad, evidence may still be obtained for a foreign arbitration where there is a willing witness, or where the assistance of the Singapore court is not necessary.