Legislative Update: Choice of Court Agreements Bill
The Choice of Court Agreements Bill (Bill No. 14/2016) was introduced in the Singapore Parliament on 4 April 2016. This Bill enables Singapore to give effect to the Convention on Choice of Court Agreements done at The Hague on 30 June 2005 (the Convention). The Convention establishes an international legal regime for enforcing an exclusive choice of court agreement concluded in a civil or commercial matter in an international case, and provides for the recognition and enforcement of any foreign judgment given by, and the enforcement of any judicial settlement approved by or concluded before, a court of a Contracting State designated in an exclusive choice of court agreement.
This will bolster the Singapore International Commercial Court by enabling judgments made in the SICC (and indeed the Singapore courts generally) to be easily enforced in other contracting states. This Act applies where the legal proceeding arises in the Singapore court by virtue of an exclusive choice of court clause or agreement which:-
(a) is concluded or documented in writing, or by any other means of communication which renders the information communicated accessible so as to be usable for subsequent reference; and
(b) designates, for the purpose of deciding any dispute, the courts or one or more specific courts of one Contracting State to the exclusion of the jurisdiction of any other courts.
However certain matters are excluded from the Act (section 9): consumer contracts, employment contracts, family law, succession, bankruptcy or insolvency, competition law, personal injury claim, tort for damage to property that doesn’t arise from a contractual relationship, immovable property rights, arbitration.
Section 10 of the Act provides that it does not apply to any interim measure of protection. However, the Act does not prevent a party from applying to a court for an interim measure of protection in any case or proceeding involving an ECC agreement; nor does the Act prevent a court from granting, in any such case or proceeding, any interim measure of protection under the law of Singapore.
Section 11 confers on a Singapore court jurisdiction to decide a dispute if an exclusive choice of court agreement designates the Singapore court for the purposes of deciding the dispute, unless the agreement is null and void under the law of Singapore. A Singapore court which is conferred such jurisdiction cannot decline to exercise jurisdiction on the basis that the dispute should be decided in a court of another State, for instance on the ground of forum non conveniens.
Section 12 provides that if an exclusive choice of court agreement does not designate any Singapore court as a chosen court, a Singapore court must stay or dismiss any case or proceeding to which the agreement applies, unless the Singapore court determines that certain circumstances specified in section 12 apply.
Section 13 provides that a foreign judgment must be recognised, or recognised and enforced, in the same manner and to the same extent as a judgment issued by the High Court, if the foreign judgment satisfies the requirements for such recognition, or recognition and enforcement, in Part 3. The recognition or enforcement of a foreign judgment may only be refused in the circumstances provided in Part 3. The application for recognition, or recognition and enforcement, of a foreign judgment is to be made to the High Court.
Section 14 then provides the grounds on which the High Court must (not may) refuse to recognise or enforce a foreign judgment. Generally these are:- (1) defendant was not given sufficient notice of the foreign court proceedings; (2) the foreign judgment was obtained by fraud; (3) recognition or enforcement of foreign judgment would be contrary to Singapore’s public policy.
Section 15 provides the grounds on which the High Court may refuse to recognise or enforce and may set aside a foreign judgment. Generally these are:- (1) the exclusive choice of court agreement is null and void under the law of the chosen court; (2) a party to the exclusive choice of court agreement lacked capacity to enter into it; (3) notice of proceedings in the foreign jurisdiction is incompatible with the fundamental principles of service in Singapore; (4) the foreign judgment is inconsistent with a Singapore court judgment given in a dispute between the same parties; (5) the foreign judgmet is inconsistent with another foreign court judgment given in a dispute between same parties and the latter judgment is also enforceable in Singapore. Additionally, the Singapore court may postpone enforcement or registration where: (A) the foreign judgment is being reviewed or appealed against in the State of origin; or (B) the time for applying for a review of or for appealing against the foreign judgment in the State of origin has not expired.
Section 16 provides that the High Court may refuse to recognise or enforce a foreign judgment, or may set aside an order that recognises or enforces a foreign judgment, if, and to the extent that, the foreign judgment awards damages (including exemplary or punitive damages) in excess of compensation for the actual loss or harm suffered by the party awarded the damages.
Section 17 provides for when the High Court must or may refuse to recognise or enforce a ruling on a preliminary question in any proceedings resulting in a foreign judgment, or a foreign judgment based on such a ruling.
Section 18 deals with the recognition or enforcement of a foreign judgment based on a contract of insurance or reinsurance.
Section 19 requires the High Court to recognise, or recognise and enforce, a severable part of a foreign judgment if an application is made for the recognition, or recognition and enforcement, of that part, or if only that part is capable of being recognised, or recognised and enforced, under the Act.
Section 20 provides for the circumstances in which a judicial settlement must be enforced in the same manner and to the same extent as a judgment issued by the High Court. A judicial settlement is defined as a contract approved by a court of a Contracting State (other than Singapore), or concluded before a court of a Contracting State (other than Singapore), in the course of proceedings, being a contract between the parties to proceedings before that court, by which those parties end those proceedings, and which is recorded by that court in an official document. However, a judicial settlement does not include a consent order or consent judgment.