As the Singapore International Commercial Court completes its first tranche of cases, the question arises how will those judgments be enforced in foreign courts?
The SICC is part of the Supreme Court of Singapore and is a division of the High Court. It is a superior court of law. The enforcement of judgments of the SICC is thus no different to the enforcement of judgments of other superior courts.
Unfortunately, that also means the SICC has the same problems with enforceability as any other court judgment. Court judgments are enforceable in foreign jurisdictions only if there is a treaty or reciprocity relationship between the countries. Thus, although SICC judgments are enforceable in Australia under the Foreign Judgments Act 1991, there is no direct enforceability in the United States of America, most major European countries and China.
Enforcement by Registration
As a judgment of a division of the High Court of Singapore, SICC judgments can be enforced by registration in countries and/or territories scheduled under:
(a) the Reciprocal Enforcement of Commonwealth Judgments Act, which covers the United Kingdom, Australia, New Zealand, Sri Lanka, Malaysia, Windward Islands, Pakistan, Brunei Darussalam, Papua New Guinea and India (except the State of Jammu and Kashmir); and
(b) the Reciprocal Enforcement of Foreign Judgments Act, which covers Hong Kong.
Enforcement in Australia includes the federal jurisdiction of Australia, as well as the State Supreme Courts of New South Wales, Queensland, South Australia, Tasmania, Victoria, Western Australia, Australian Capital Territory, Norfolk Island, and Northern Territory.
Once registered, an SICC judgment can be expected to be enforced directly by the foreign court as if it was its own judgment. In Australia, the Foreign Judgments Act 1991 provides for the procedure and scope of the judgments that can be enforceable under the statutory regime. The Singapore High Court, of which the SICC is a division, is listed in the Schedule of Superior Courts to the Foreign Judgments Regulations 1992.
Enforcement by Action
In common law jurisdictions, enforcement may also be achieved by commencing an action on the SICC judgment against the losing party. This action is based on the common law cause of action of debt, with the SICC judgment as evidence of that debt, so that the merits of the original action may not have to be re-litigated. This may be a more simplified action, with limited defences; indeed, summary judgment may be available.
In civil law jurisdictions, foreign judgments may be enforced even in the absence of treaties if certain requirements are met. For example, Dutch courts have given effect to judgments rendered by the court contractually chosen by the parties, without requiring re-litigation of the merits. In France, the defendant cannot obtain a review of the case but may only raise defences of non-compliance with procedural regularities according to French international public policy, the lack of competence of the foreign court or the existence of fraud in the prior action.
SICC Dispute Resolution Clause
Parties may enforce an SICC judgment because they elected to include a model SICC dispute resolution clause in their jurisdiction agreement, which provided that parties who have submitted to or agreed to submit to the SICC’s jurisdiction are deemed to have waived their right to defend against an action based on an SICC judgment in any jurisdiction.
The various methods of enforcement are complemented by the deeming provisions in the Supreme Court of Judicature Act (Cap 322), which provides at section 18F(1)(b) and (c) that parties to an agreement to submit to the jurisdiction of the SICC shall, subject to express provision in the agreement to the contrary, be considered to have agreed to
(b) carry out any SICC judgment without undue delay; and
(c) waive any recourse to any court or tribunal outside Singapore against any SICC judgment and the enforcement of such judgment.
Hague Convention on Choice of Court Agreements
Singapore signed the Hague Convention on Choice of Court Agreements on 25 March 2015 and ratified the Convention on 2 June 2016. The Convention will come into force for Singapore on 1 October 2016.
The Convention, which serves to enhance the enforceability of court judgments across contracting States in a way that is akin to how the New York Convention on the Enforcement and Recognition of Foreign Arbitral Awards has enhanced the enforceability of arbitral awards, entered into force on 1 October 2015 in 28 States (Mexico and all Members of the European Union, except Denmark). The Convention has also been signed by the United States and Ukraine, but has yet to be ratified by these two countries.
The Convention has two basic aims – first, to ensure that exclusive choice of court agreements in favour of courts of Contracting States are effectively enforced, and second, that judgments rendered by the chosen courts are recognised and enforced in Contracting States.
If a Singapore court is the chosen court of an exclusive choice of court agreement covered by the Convention, the dispute must be heard in Singapore only. This strengthens the enforcement of agreements which specify Singapore courts as the exclusive dispute resolution forum. The courts of other Contracting States will also be obliged to recognise and enforce the Singapore court judgment on that dispute. This enhances the international enforceability of Singapore court judgments, including those of the SICC.
Dominique Hogan-Doran SC is a Senior Counsel of the Australian Bar and Registered Foreign Lawyer of the Singapore International Commercial Court. This note is general only and does not constitute legal advice. Liability limited pursuant to a scheme approved under Australian professional standards legislation.