If you have obtained a judgment or order from a foreign court, will you be able to register or enforce it in the Singapore courts? Does the judgment debtor have assets in Singapore which you want to execute against to satisfy your judgment debt? This article considers the different ways you may do so.
Generally, a foreign court judgment or order may be enforced in Singapore in three ways:
a. registration and/or enforcement of the foreign court judgment under the Reciprocal Enforcement of Commonwealth Judgments Act (“RECJA“) or Reciprocal Enforcement of Foreign Judgments Act (“REFJA“);
b. registration and enforcement of foreign judgment under the Choice of Court Agreements Act (“CCAA“);
c. enforcement by way of a common law debt action; or
d. by commencing a fresh action in Singapore and relying on the foreign judgment to raise issue or cause of action estoppel.
Registration under the RECJA or REFJA
Under the RECJA and the REFJA, a judgment against a judgment debtor personally for a sum of money obtained from the superior courts in certain gazetted countries may be registered in the General Division of the High Court of Singapore and, upon such registration, will have the same force and effect as a judgment given in the Court for enforcement purposes.
The RECJA presently applies to judgments obtained from the superior courts in the United Kingdom as well as the following Commonwealth countries:-
a. Hong Kong (for judgments obtained on or before 30th June 1997);
b. New Zealand;
c. Sri Lanka;
d. Malaysia;
e. Windward Islands;
f. Pakistan;
g. Brunei Darussalam;
h. Papua New Guinea; and
i. India (except the State of Jammu and Kashmir).
The RECJA also presently applies to judgments obtained from the following superior courts of the Commonwealth, States and Territories of Australia:-
a. High Court of Australia;
b. Federal Court of Australia;
c. Family Court of Australia;
d. Supreme Court of New South Wales;
e. Supreme Court of Queensland;
f. Supreme Court of South Australia;
g. Supreme Court of Tasmania;
h. Supreme Court of Victoria;
i. Family Court of Western Australia;
j. Supreme Court of Western Australia;
k. Supreme Court of the Australian Capital Territory;
l. Supreme Court of Norfolk Island; and
m. Supreme Court of Northern Territory.
The REFJA presently applies only to the superior courts of Hong Kong SAR (for judgments on or after 1 July 1997).
In 2019, the Singapore Parliament passed two bills to amend the REFJA and repeal the RECJA. The former has come into force on 3 October 2019 but not the latter.
The amendments effectively will consolidate the regime for registration of foreign judgments under REFJA and expressly require reciprocity between Singapore and the foreign state in respect of enforcement of judgments.
Under the amended REFJA, the scope of judgments which may be registered has been increased to include 4 further types of judgments:
- Non-money judgments, which would include freezing orders, injunctions and orders for specific performance;
- Lower court judgments;
- Interlocutory judgments;
- Judicial settlements, consent judgments and consent orders.
Further, the amended REFJA expressly provides that a foreign judgment will not be recognised where:
- A judgment is given by a recognized court on appeal from a court which is not recognized; or
- A judgment is enforced in a recognized court but originated from a court that Singapore has no reciprocal enforcement arrangements with.
The REFJA will not apply to foreign judgments covered under the CCAA.
Under section 5 of the REFJA and section 3(2) of the RECJA, there are express grounds on which the court must or may set aside the registration of the foreign judgment. These include cases where the original court acted without jurisdiction; the judgment was obtained by fraud; the enforcement of the judgment would be contrary to public policy in the country of the registering court.
Under RECJA, the foreign judgment must be registered in the Singapore court within 12 months from the date of the judgment. In Westacre Investments Inc v The State-Owned Co Yugoimport SDPR (also known as Jugoimport-SDPR) [2009] 2 SLR (R) 166 (CA), the Singapore Court of Appeal held that a court may allow registration under RECJA where an application was made after 12 months from the date of the judgment only where it was just and convenient to do so.
Choice of Court Agreements Act
The CCAA applies only to judgments obtained from courts of contracting states who are party to the Hague Convention on Choice of Court Agreements and where there is an “exclusive choice of court agreement” concluded in a civil or commercial matter in an “international case” (section 8).
Certain types of matters are expressly excluded from the CCCA (section 9), including family law, succession, bankruptcy, insolvency, personal injury, tort claims not arising from contracts, and antitrust matters. Section 10(1) of the CCAA excludes application of the Act to any interim measure of protection.
A judgment is defined in the CCAA as:
- a final court decision (by whatever name called) on the merits, a consent order, a consent judgment or a judgment given by default; or
- a determination by a court of any costs or expenses relating to any such court decision, consent order, consent judgment or judgment given by default.
The Choice of Court Agreement Act (CCAA) presently applies to judgments obtained in Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Mexico, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.
In Ermgassen & Co Ltd v Sixcap Financials Pte Ltd [2018] SGHCR 8, the (now) General Division of the High Court set out and applied the legal framework for recognition and enforcement of foreign judgments under the CCAA.
Section 13(2) of the CCAA stipulates conditions under which a foreign judgment is to be recognised or enforced and sections 13(3) and 13(4) set out the following rules:
- The Court must not review the merits of the foreign judgment, except the extent necessary to apply Part 3.
- The Court is bound by any findings of fact on which the court of origin assumed jurisdiction, unless the foreign judgment was given by default.
Where a foreign judgment satisfies the requirements under Part 3, the Court must recognise and/or enforce the foreign judgment, except in the circumstances provided under sections 14 and 15 for the refusal of such recognition or enforcement.
In Ermgassen, the Court considered whether the defendant was notified of the the document by which the proceedings were instituted (section 14(a)). The court noted that the judgment in question was a summary judgment and thus in the nature of a judgment on merits. It was thus assumed that the defendant had notice of the proceedings. The Court referred to paragraph 211 of the Hartley Dogauchi Report, which opined that Article 13(1)(c) of the Hague Convention required evidentiary proof that a defendant had been notified only in the case of a default judgment. In all other cases, it is assumed that a defendant has been notified, unless the defendant produces evidence to the contrary.
The Court also considered whether the requirement under Order 111, rule 2(3)(a) of the Rules of Court, viz., that the plaintiff must exhibit a “complete and certified copy of the foreign judgment (including the reasons, if any, for the decision of the court which gave the judgment)”, was satisfied.
Although the plaintiff had adduced in evidence a Certificate for Enforcement in a Foreign Country granted by the English High Court, which contained certified true copies of the documents in the court file of the English High Court, including the claim form, the pleadings, and the English Judgment, as well as certifying various other details, the Court opined that it was arguable that the plaintiff should have additionally provided a certified copy of the notes of argument in relation to the summary judgment application.
However, the Court held that the plaintiff could nonetheless be regarded as having discharged its burden by having adduced extrinsic documents which corroborated its claim on the existence of the judgment in the English High Court. The Court also noted that the Hartley Dogauchi Report cautioned against excessive formalism and accepted that if a judgment debtor was not prejudiced by any omissions of the judgment creditor, the judgment creditor should be allowed to rectify any such omissions.
The Court added that the application was granted without prejudice to the right of the defendant to pursue any actual grounds for determination on an inter partes basis in any setting aside application that it may subsequently bring under O 111 r 7 of the ROC.
Common Law Debt Action
A common law debt action is essentially a fresh action commenced in the Singapore courts against the judgment debtor on the basis of the foreign judgment debt. An enforcement of a foreign judgment under the common law for a sum of money creates a fresh obligation to pay the judgment debt, different from that sued upon in the underlying cause of action in the foreign court. The obligation to pay the judgment debt is an independent obligation, distinct from the original cause of action underlying the foreign judgment. In our view, there are several hurdles that S would need to surmount in seeking to enforce the Foreign Judgment in Singapore by way of a common law debt action.
Service of Originating Process out of Jurisdiction
First, the Singapore court must have in personam jurisdiction over the judgment debtor. Where the judgment debtor is not present within the jurisdiction and does not voluntarily submit to the jurisdiction of the Singapore court, the claimant would have to apply for leave of court to serve the originating process out of Singapore on the judgment debtor pursuant to Order 11 of the Rules of Court (Cap. 322, R 5) (“ROC”). Three jurisdictional conditions must be satisfied before a court will grant leave under Order 11 of the ROC:-
a. a claimant must satisfy the court that he has a ‘good arguable case’ that the action came within any of the heads of jurisdiction under Order 11, rule 1 of the ROC. Typically in the context of a common law debt action, a claimant would rely on Order 11, rule 1(m) (enforcement of judgment) and/or Order 11, rule 1(a) (defendant has property in Singapore);
b. the claimant must show that there is at least a serious issue to be tried on the merits of the case; and
c. once the court is satisfied that it has jurisdiction over the defendant, it would then proceed to determine whether it should exercise its discretion to grant leave to serve the originating process out of jurisdiction. In the process of such determination, the court has to consider, among other things, whether Singapore is the natural forum or forum non conveniens, i.e. there is a clearly or distinctly most appropriate forum elsewhere, to adjudicate the claim. The factors to be considered in the determination of the forum conveniens include, but are not limited to: (i) the nature of the dispute; (ii) the legal and practical issues involved; and (iii) availability of witnesses and their evidence and expense.
Substantive Legal Requirements
Second, there are several substantive legal requirements that need to be satisfied in order to succeed in a common law debt action. To begin with, the foreign judgment must be a judgment that is:-
a. pronounced by a court of competent jurisdiction;
b. final and conclusive as to a determination of rights, between the parties, notwithstanding that there may be an appeal;
c. made on the merits of the case (as opposed to procedure); and
d. for a fixed or ascertainable sum of money.
In addition, the foreign court of law must be internally competent and have had international jurisdiction over the party sought to be bound. Whether the foreign court had international jurisdiction over the party is to be determined in the private international law sense according to the law of the forum. In other words, the Singapore court will apply Singapore conflict of laws principles to determine whether the foreign court had international jurisdiction. In general, such jurisdiction would typically be established over a party if the party was resident or present in the jurisdiction of the foreign court or had voluntarily submitted to the said jurisdiction.
In general, international jurisdiction would be established over a party if the party was resident or present in the jurisdiction of the foreign court or had voluntarily submitted to the said jurisdiction. If a party was not resident or present in, and did not submit to, the foreign court’s jurisdiction, he is under no obligation to obey the judgment entered in his absence and the order is in effect a nullity. It follows that a foreign judgment made by a foreign court of law which did not have international jurisdiction over the party would not be enforceable or registrable [Sara Collins, et. al., International Trust Disputes (Oxford University Press: 2012) at para. 1.72; Sirdar Gurdyal Singh v Rajah of Faridkote [1894] AC 670 (PC)].
The Singapore courts have in past cases refused to register or enforce foreign judgments on the basis that the foreign court had no international jurisdiction over the judgment debtor [Malaysia Marine ABD Heavy Engineering Sdn Bhd v VLK Traders Singapore Pte Ltd [2014] 1 SLR 998 (HC) at [23]-[27]; United Malayan Banking Corp Bhd v Khoo Boo Hor [1995] 3 SLR(R) 839 (HC); Sun-Line (Management) Ltd v Canpotex Shipping Services Ltd [1985-1986] SLR(R) 695 (HC); Murugappa Chettiar V. Krishnappa Chettiar And Others [1940] SSLR 30].
In Giant Light Metal Technology (Kunshan) Co Ltd v Aksa Far East Pte Ltd [2014] 2 SLR 545 (HC), the Singapore High Court set out the following general principles regarding the issue of whether a foreign court had international jurisdiction over a party:
a. in deciding the issue of international jurisdiction, the common law is generally not concerned with how the foreign court had assumed jurisdiction over the party under its own laws: at [20];
b. the High Court cited with approval four situations where a foreign court can be said to have international jurisdiction over a party such that a judgment in personam issued by that court may be recognised and enforced in the Singapore courts a foreign court (at [13], [21]):-
i. first, if the person against whom the judgment was given was, at the time the proceedings were instituted, present in the foreign country;
ii. second, if the person against whom the judgment was given was claimant, or counterclaimed, in the proceedings in the foreign court;
iii. third, if the person against whom the judgment was given, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings;
iv. fourth, if the person against whom the judgment was given, had before the commencement of the proceedings agreed, in respect of the subject matter of the proceedings, to submit to the jurisdiction of that court or of the courts of that country;
c. a party would be regarded as having submitted to the jurisdiction of the foreign court if he voluntarily appears in the foreign proceedings to defend the claim on the merits (at [24]);
d. whether a party has voluntarily submitted to the foreign court is a question for Singapore private international law rules (at [25]);
e. a party’s consent to the jurisdiction of a foreign court in relation to certain claims may be imputed to further claims in some circumstances. Such “inchoate submission” may occur in relation to claims which are brought pursuant to subsequent and separate proceedings in respect of the same parties, rather than just to claims which are part of the same proceedings. The scenarios in which such imputed consent or “inchoate submission” may arise includes: where the subsequent claim concerns the same subject matter; and where the subsequent claim is related to the original claim (at [48]-[49]).
Available Defences
Third, the foreign judgment will also not be enforced by way of common law debt action if it is shown as a defence that:-
a. the judgment was for a sum payable in respect of (or was a direct or indirect enforcement of) foreign penal, revenue or other public laws;
b. the judgment was procured by fraud;
c. enforcement of the judgment would be contrary to Singapore’s public policy; or
d. the proceedings in which the judgment was obtained were not in accordance with the rules of natural justice (e.g. there was no reasonable opportunity given to the judgment debtor to be heard).
In the Singapore High Court decision of Alberto Justo Rodriguez Licea v Curacao Drydock Inc [2015] SGHC 136, it was held that the burden is on the party challenging a common law action to enforce a foreign judgment to prove either that the foreign judgment did not satisfy one or more of the necessary legal requirements of the forum or that one of the defences applies.
Issue or Cause of Action Estoppel in Fresh Singapore Action
A foreign judgment may be relied on for the purpose of raising an issue or cause of action estoppel in a fresh legal action commenced in the Singapore courts. This means that the other party is estopped or prohibited from denying a question of fact or law already decided by the foreign court.
Cause of action estoppel is “that which prevents a party from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties”: per Diplock LJ (as he then was) in Thoday v Thoday [1964] P 181 at 197: The Royal Bank of Scotland NV (formerly known as ABN Amro Bank NV) and others v TT International Ltd (nTan Corporate Advisory Pte Ltd and others, other parties) and another appeal [2015] SGCA 50 (“RBS v TT International Ltd [2015] SGCA 50”) at [99].
Issue estoppel is that which arises “when a court of competent jurisdiction has determined some question of fact or law, either in the course of the same litigation (for example, as a preliminary point) or in other litigation which raises the same point between the same parties”: per Lord Hoffmann in Watt (formerly Carter) and others v Ahsan [2008] 1 AC 696 (“Ahsan”) at [31]. It is thus of wider application than cause of action estoppel, which might perhaps be thought of as a specific instance of issue estoppel in cases where the claim in the later proceedings is identical to that which was determined in earlier proceedings between the same parties: RBS v TT International Ltd [2015] SGCA 50 at [100].
The substantive legal requirements for recognition of a foreign judgment for this purpose are:
a. the foreign judgment was granted by a court of competent jurisdiction;
b. final and conclusive as to a determination of rights, between the parties, notwithstanding that there may be an appeal;
c. the foreign court was internally competent and have had international jurisdiction over the party sought to be bound;
d. the parties in the local proceedings must be the same parties (or be privy to the parties) to the foreign proceedings;
e. the issue or cause of action decided in the foreign court must be identical to the issue before the court of the forum; and
f. the decision on the issue or cause of action must have been necessary for the decision of the foreign court and not collateral or incidental.
The jurisdictional requirements outlined above also apply in an action for recognition of a foreign judgment for the purposes of pleading issue estoppel or cause of action estoppel.
On (d) above, the requirement for identical parties may be satisfied if there is privity between a party to the foreign litigation and the party sought to be bound in the local proceedings. There must be a sufficient degree of identification between the party to the foreign litigation and the party privy to the former to make it just to hold that the decision in which one was a party should be binding in the proceedings in which the other is a party [Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510 (Ch) at 515].
On (e) above, issue or cause of action estoppel can arise in the local proceedings only if the issue or cause of action is concluded by the foreign judgment under the law of the originating jurisdiction and not some other law [Halsbury’s Laws of Singapore, Conflict of Laws, vol. 6(2) (LexisNexis: 2013 Reissue) at paras. 75.201]. If the plaintiff claims for a different relief in the local proceedings from that in the foreign proceedings, or argues on different grounds for the same relief, there is no cause of action estoppel.
Issue or cause of action estoppel may not operate if new matters or facts have arisen, or if subsequent changes in the interpretation of the law demonstrate the earlier foreign decision to be wrong, or if there are differences in the standard of proof even where the issues are identical. The Singapore Court of Appeal has held in RBS v TT International Ltd [2015] SGCA 50 at [190] that the following cumulative requirements must be met before the exception in Arnold and others v National Westminster Bank plc [1991] 2 AC 93 can apply to enable a litigant to avoid being estopped from reopening an issue that was previously the subject of a decision:
a. the decision said to give rise to issue estoppel must directly affect the future determination of the rights of the litigants;
b. the decision must be shown to be clearly wrong;
c. the error in the decision must be shown to have stemmed from the fact that some point of fact or law relevant to the decision was not taken or argued before the court which made that decision and could not reasonably have been taken or argued on that occasion;
d. there can be no attempt to claw back rights that have accrued pursuant to the erroneous decision or to otherwise undo the effects of that decision; and
e. it must be shown that great injustice would result if the litigant in question were estopped from putting forward the particular point which is said to be the subject of issue estoppel – in this regard, if the litigant failed to take advantage of an avenue of appeal that was available to him, it will usually not be possible for him to show that the requisite injustice nevertheless exists.
Singapore International Commercial Court
Further, the Singapore International Commercial Court (“SICC”) was established as a division of the Singapore High Court to hear matters which are “international” and “commercial” in nature. It is plausible for actions for recognition or enforcement of foreign judgments to be heard in the SICC. The substantive legal requirements for recognition or enforcement remain the same as discussed above. With regard to the jurisdictional requirements which apply to matters before the Singapore High Court, they also apply because the SICC’s jurisdiction over the matter would be pursuant to a transfer of the matter from the General Division of the High Court (Order 110, rule 7(2)(a) and rule 12 of the ROC), unless parties had submitted to the SICC’s jurisdiction under a written jurisdiction agreement (Order 110, rule 7(1)(b) of the ROC).
Conclusion
The enforcement of foreign judgments in the Singapore courts can be a complex affair, depending on the approach taken and the possible challenges mounted by the judgment debtor. It is therefore important for a judgment creditor to consider the various plausible implications to adopt the optimal strategy.