THE HAGUE JUDGMENTS CONVENTION

• Author: Terence YEO1 LLB (summa cum laude) (Singapore Management University).
• Citation: (2020) 32 SAcLJ 1153
• Published date: 01 December 2020
• Date: 01 December 2020

A View from Singapore

The recognition and enforcement of foreign judgments is one of the most important areas of private international law. Its significance is underscored by the efforts of the Hague Conference on Private International Law to conclude the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (“the Convention”), and Singapore's significant reform of its statutory regimes. Through identifying the differences between the Convention and the prevailing Singapore regime, this article evaluates the likely effects of the adoption of the Convention under Singapore law. It seeks to contribute to the burgeoning discourse on foreign judgments rules by examining the options available to Singapore.

I. Introduction

1 There are two recent developments that are eminently relevant to the Singapore regime on the recognition and enforcement of foreign judgments. On 2 July 2019, the Hague Conference on Private International Law and its delegates concluded the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters2 (“the Convention”).3 The Convention was billed as a “gamechanger for cross-border dispute settlement and an apex stone for global efforts to improve real and effective access to justice”.4 Meanwhile, amendments

were made to streamline the statutory framework governing the registration of foreign judgments in Singapore.5

2 This article examines the implications of these developments on Singapore private international law.6 Part II7 reviews the current regime for the recognition and enforcement of foreign judgments in Singapore. Only by understanding the prevailing foreign judgments rules, can we adequately appreciate the likely effects of new developments. Part III8 is where the Convention and its features are considered. Part IV9 then assesses the issues likely to arise from the scope of the Convention. It will be shown that the Convention addresses areas that would appeal to the Singapore legislator, but at the same time, presents certain novel challenges. Part V10 will conclude the substantive discussion by analysing the way forward for Singapore. The feasibility of an expansion of the common law rules would be explored here.

II. Current regime

3 Under Singapore law, the recognition and enforcement of foreign judgments in civil and commercial matters is presently governed by four overlapping regimes: (a) the common law rules; (b) the Reciprocal Enforcement of Commonwealth Judgments Act11 (“RECJA”); (c) the Reciprocal Enforcement of Foreign Judgments Act12 (“REFJA”); and (d) Pt 3 of the Choice of Court Agreements Act13 (“CCAA”). However, the law in this regard is in a state of transition. Amendments were

made to repeal the RECJA,14 and expand the scope of the REFJA.15 It is nevertheless important to appreciate the relevance of the RECJA and the unamended REFJA. The repeal of the RECJA will only take effect on a date stipulated by the Minister for Law, and during this transitional period, the RECJA remains in force.16 The amendments to the REFJA, on the other hand, came into operation on 3 October 2019.17 But judgments made before this date, within the respective limitation periods (including extensions), continue to be governed by the unamended REFJA.

4 With this context in mind, this section first canvasses the rules under which foreign judgments are recognised and enforced at common law, and under the RECJA and the unamended REFJA.18 It then examines the REFJA as amended, and the practical significance of the amendments. The CCAA, being a distinct legal regime, would be considered last.

A. Common law rules, Reciprocal Enforcement of Commonwealth Judgments, and unamended Reciprocal Enforcement of Foreign Judgments Act

5 Generally, an in personam judgment is prima facie recognised if:19 (a) it is decided by a court of competent jurisdiction; (b) it is final and conclusive under the law of the originating jurisdiction; (c) it is given on the merits of the case; and (d) the foreign court had international jurisdiction over the party sought to be bound. The foreign judgment may prima facie be enforced if these requirements are satisfied and the judgment is for a fixed and ascertainable sum of money. Relevant defences may, however, be raised to refuse the recognition and enforcement of a foreign judgment.

6 The RECJA and the unamended REFJA applies only to foreign judgments from superior courts20 gazetted under the respective statutes.21 Whether the courts of a country are gazetted depends on whether the Minister for Law is satisfied with the reciprocity of treatment given to Singapore judgments.22 A judgment from a gazetted country which is registered under the RECJA or the REFJA would be enforceable in Singapore as if it had been an original judgment.23 Where the RECJA applies, the plaintiff can choose to enforce the judgment either by registration or through the common law. The caveat is that the judgment creditor will generally be unable to recover for costs if he proceeds on the common law.24 This is to discourage the common law action. On the other hand, where the REFJA applies, a foreign judgment cannot be enforced through the common law.25

7 At common law, an action to enforce a foreign judgment, being a fresh action on an implied debt based on the foreign judgment, must be brought within six years from the date on which the foreign judgment ought to have been satisfied.26 An application to register a foreign judgment under the RECJA must be made within 12 months of the judgment, unless an extension of time was granted by the Singapore courts.27 The REFJA, by contrast, stipulates that the registration of a foreign judgment must be commenced within six years of the judgment, or the date of the last judgment if the case was appealed.28

8 Whether the foreign court had international jurisdiction to hear the case is decided pursuant to Singapore private international law rules.29 It appears to be the Singapore position that international jurisdiction is established at common law if the party was present or resident at the time the foreign proceedings was commenced.30 This is opposed to the position under the RECJA and the REFJA, where presence is not a ground for international jurisdiction.31 If the judgment debtor is an individual, then international jurisdiction is established under the RECJA if that individual carries on business through an agent or representative.32 However, such a ground for international jurisdiction does not appear to be recognised at common law.33 For the REFJA, international jurisdiction is established if the individual has a place of business in the foreign country at the time the proceedings were commenced, provided that the proceedings were in respect of a transaction effected through that place of business.34 Again, this is not a common law ground for international jurisdiction.35

9 If the judgment debtor is a corporation, the test would be whether the corporation is carrying on business from a fixed place of business for more than a minimal period of time through an agent or representative.36 Residence of a corporation under the RECJA would likely hew to the same

test.37 On the other hand, the REFJA expressly provides for international jurisdiction based simply on the defendant corporation's principal place of business in the foreign country,38 or the corporation having an office or place of business in the foreign country provided that the transaction in dispute was effected through that office or place.39

10 The Singapore court will also adjudge the foreign court to have international jurisdiction if the party against whom the judgment was given had submitted to the jurisdiction of the foreign court. Submission may be by conduct40 or by an agreement to submit. The REFJA also has an additional requirement: the agreement must be concluded prior to the commencement of proceedings in the foreign court.41

11 A foreign judgment satisfying the prima facie requirements would be entitled to recognition and enforcement in Singapore, provided that no defences are successfully raised.42 The commonly raised defences include (a) fraud; (b) public policy;43 (c) breach of natural justice; and (d) conflict with a Singapore judgment or foreign judgment entitled to recognition under Singapore law. The RECJA and REFJA also contain additional grounds under which registration may be refused. For instance, under the RECJA, the Singapore courts can refuse registration if

it would not be “just and convenient” to do so.44 Another example would be in the REFJA, where registration would be refused if the bringing of the proceedings in the foreign court had been in breach of an agreement to settle the dispute, provided the defendant had not submitted to the jurisdiction of the foreign court.45 It has to be noted that the Singapore court will not re-examine the merits of a foreign judgment, regardless of whether the foreign court had made a mistake of law or fact.46

B. Amended Reciprocal Enforcement of Foreign Judgments Act

12 One should be careful to note that the amendments to the REFJA do not apply automatically to all judgments under the REFJA, but only to the extent gazetted under the statute.47 In other words, it is possible for Singapore to agree with Country A for the reciprocal enforcement of only a limited category of judgments, whereas with Country B, there could be reciprocal enforcement of the full range of judgments under the REFJA. The amendments simply expand the range of options available for Singapore to negotiate with other countries.

13 Regarding the scope of the judgments that can be recognised and enforced, three main differences between the amended REFJA and its predecessor must be highlighted. First, to the extent gazetted under the statute, the distinction between “superior” courts and “inferior” courts may be abolished.48 This means that unlike in...