Singapore: Singapore's First Case Of Enforcement Of Foreign Judgment Under The Choice Of Court Agreements Act 2016

Last Updated: 20 July 2018
Article by Sarjit Singh Gill and Jamal Siddique Peer
Most Read Contributor in Singapore, September 2018

In Ermgassen & Co Ltd v Sixcap Financials Pte Ltd [2018] SGHCR 8, the High Court considered the application of the Choice of Court Agreements Act 2016 ("Act"), in the context of recognition and enforcement of foreign judgments for the first time. In this case, the Plaintiff had obtained summary judgment against the Defendant from the High Court of England and Wales. The Plaintiff applied under the Act for the English judgment to be recognised and enforced in Singapore.

Shook Lin & Bok LLP acted for the Plaintiff in successfully applying under the Act for the English judgment to be recognised and enforced in Singapore

This update discusses the judgment of the Singapore High Court and the enforcement of judgments from the United Kingdom in Singapore.

Choice of Court Agreements Act 2016

The Act came into effect in Singapore on 1 October 2016. The Act, together with Order 111 of the Rules of Court, gives domestic effect to the Convention on Choice of Court Agreements done at the Hague on 30 June 2005 ("Hague Convention"), which Singapore ratified on 2 June 2016.

The Act deals mainly with two issues: Jurisdiction – Part 2 of the Act; and recognition or enforcement of foreign judgments – Part 3 of the Act.

Section 8 of the Act provides that the Act, in general, applies in every "international case" where there is an "exclusive choice of court agreement" concluded in a "civil or commercial matter". This is subject to the exceptions at sections 9, 10 and 22 of the Act. An "exclusive choice of court agreement" is defined, at section 3 of the Act, as an agreement designating a court of one contracting state for the purpose of deciding any dispute between two or more parties, to the exclusion of any other courts.

In the context of recognition and enforcement of foreign judgments, the Act becomes relevant where there is an exclusive choice of court agreement, or an exclusive jurisdiction clause, in favour of a contracting state to the Hague Convention.

Facts

In Ermgassen & Co Ltd v Sixcap Financials Pte Ltd [2018] SGHCR 8, the Plaintiff, Ermgassen & Co Ltd, had commenced a suit against the Defendant, Sixcap Financials Pte Ltd, in the High Court of Justice of England and Wales ("English High Court"). The Defendant was a company incorporated in Singapore.

The Plaintiff's claim was for unpaid invoices, due to the Plaintiff from the Defendant, for financial advice and related professional services provided pursuant to an engagement letter between the parties. Under the terms of the agreement between parties, they had submitted to the exclusive jurisdiction of the English High Court.

The Defendant had acknowledged service of the Plaintiff's claim and had also filed a defence. The Plaintiff applied for summary judgment against the Defendant in the English High Court. At the hearing of the application for summary judgment before Senior Master Fontaine in the English High Court, neither the Defendant, nor solicitors on its behalf, appeared. Senior Master Fontaine granted the application and the Plaintiff obtained summary judgment against the Defendant ("English Judgment").

The Plaintiff then made an application for the English Judgment to be recognised and enforced in the same manner, and to the same extent, as a judgment of the Singapore High Court ("Enforcement Application"). Pursuant to Order 111 rule 2 of the Rules of Court and section 13 of the Act, the Enforcement Application to the Singapore High Court was made ex parte.

This was the first case where such an application had been made to the Singapore High Court.

The High Court found that the requirements for recognition and/or enforcement under section 13 of the Act had been met and granted the Enforcement Application.

Framework for Recognition and Enforcement of Foreign Judgments under the Act

First, the Act applies to judgments obtained from courts of contracting states to the Hague Convention. A "foreign judgment" is defined as one given by a court of a contracting state, other than Singapore. A judgment is defined as a "court decision" and includes judgments on the merits, judgments given by default, consent orders, or orders in relation to costs. However, the High Court noted that interim relief or interim measures for protection, and procedural rulings, are excluded from the ambit of the Act.

Second, the Act only applies in an "international case" where there is an "exclusive choice of court agreement" concluded in a "civil or commercial matter." The High Court considered the Act and explanatory report on the Hague Convention ("Hartley Dogauchi Report"1) and noted the following in relation to the following definitions:

(a) an "exclusive choice of court agreement" is an agreement concluded between two or more parties which is concluded or documented and any designates a specific court with exclusive jurisdiction, to the exclusion of the jurisdiction of any other court;

(b) an "international case" is one where the claim is for the recognition or enforcement of a foreign judgment; or the enforcement of a judicial settlement recorded before a court of a contracting state; and

(c) a"civil or commercial matter" is not defined under the Act. Citing the Hartley Dogauchi Report, the High Court noted that the phrase was "primarily intended to exclude public law and criminal law".

It should also be noted that section 24(2) the Act does not apply if the exclusive choice of court agreement, designating a court of a contracting state, was entered into before the Hague Convention enters into force in that contracting state.

Third, the High Court noted that section 13 of the Act provides the following rules which apply in an application to recognise/ enforce a foreign judgment under the Act:

(a) in deciding whether to enforce a foreign judgment, the High Court will not consider the merits of the foreign judgment;

(b) the High Court will be bound by any findings of fact of the origin court, unless the foreign judgment was given by default; and

(c) where the foreign judgment satisfies the requirements for enforcement under Part 3 of the Act, the High Court must recognise and enforce the foreign judgment (as the case may be), except under the specific circumstances provided under Part 3 of the Act, namely sections 14 and 15 of the Act.

Sections 14 and 15 of the Act, set out limited circumstances where the High Court must or may (respectively) refuse recognition/ enforcement of a foreign judgment under Part 3 of the Act. These grounds correspond to the grounds for refusal listed at Article 9 of the Hague Convention.

One point of note is that Article 9 only provides that a court may refuse recognition/ enforcement if any of the grounds in the Article are met. It does not oblige the court of the contracting state to refuse recognition/ enforcement. However, section 14 of the Act, provides certain instances where the High Court must refuse recognition/ enforcement. This is in addition to the grounds listed at section 15, on account of which the High Court may refuse recognition/ enforcement. It appears that, in certain circumstances, Parliament has intended for the Act to go further than required by the Hague Convention.

The Decision

Having considered the requirements under the Act, the High Court held that the English Judgment satisfied the requirements, and granted the Enforcement Application. The High Court noted the following:

(a) the English Judgment was a judgment of the High Court of Justice, Queen's Bench Division. The United Kingdom was a contracting state. As such, the English Judgment constituted a "foreign judgment";

(b) the Enforcement Application was an "international case", because it was an application for the recognition and enforcement of a foreign judgment;

(c) the agreement between the Plaintiff and Defendant, on the basis of which the English proceedings were commenced, and the English Judgment was obtained, contained an "exclusive choice of court agreement". The parties had therefore submitted to the exclusive jurisdiction of the English courts;

(d) the exclusive choice of court agreement was concluded in a "civil or commercial matter" since the proceedings in the English High Court appeared to be purely commercial in nature;

(e) the Enforcement Application was not for the recognition and enforcement of any interim measure of protection, and therefore was within the ambit of the Act; and

(f) the exclusive choice of court agreement was concluded after the Hague Convention entered into force for the EU.

The High Court considered two specific matters in further detail.

First, the High Court considered the effect of the fact that neither the Defendant, nor solicitors on its behalf, appeared at the hearing of the summary judgment application before Senior Master Fontaine.

The High Court noted that the English Judgment, being a summary judgment was in the nature of a judgment on the merits, as opposed to a default judgment. The High Court held that it may be assumed that the Defendant had been duly notified of the summary judgment application.

In support of this position, the High 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.

Second, the High Court considered whether the requirement under Order 111 r2(3)(a) of the Rules of Court, which provides that a 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.

The Plaintiff had exhibited a Certificate for Enforcement in a Foreign Country ("Certificate for Enforcement"), granted by the English High Court. This Certificate for Enforcement 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.

In addition, the Certificate for Enforcement certified in detail the following:

(a) that the Plaintiff's claim form in the English proceedings were served on the Defendant;

(b) the Defendant acknowledged service of the claim form with no objection made to the jurisdiction of the English High Court;

(c) the Plaintiff obtained judgment against the Defendant on its claim in the same sum as indicated in the English Judgment;

(d) the English Judgment had been served on the Defendant;

(e) no application to set aside the English Judgment had been made;

(f) no appeal had been brought against the English Judgment within the time prescribed;

(g) enforcement of the English Judgment had not been stayed or suspended;

(h) the time available for enforcement of the English Judgment had not expired; and

(i) as a result, the English Judgment was enforceable in the United Kingdom.

The High Court was of the view that the Plaintiff could have provided more material, over and above the Certificate for Enforcement granted by the English High Court. The High Court opined that, for instance, the Plaintiff could have procured a certified copy of the notes of argument in relation to the summary judgment application before the English High Court.

The High Court was of the view that it was "arguable" that the English Judgment was not "adequately supplemented by intrinsic documents to formally constitute a "complete and certified copy of the foreign judgment (including the reasons, if any, for the decision of the court which gave the judgment)"".

Notwithstanding the above, the High Court held that the Plaintiff may, nonetheless, be regarded as having discharged its burden by having adduced extrinsic documents which corroborated its claim. In this regard, the High Court referred to the Certificate for Enforcement, which was granted by a different Master of the English High Court, having considered the court file.

The High Court also noted the guidance in the Hartley Dogauchi Report, which cautioned against excessive formalism. The High Court accepted the guidance in the Hartley Dogauchi Report 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.

Commentary

RECJA, REFJA and Choice of Courts Agreements Act 2016

Prior to the enactment of the Act, the key pieces of legislation governing the enforcement of foreign judgments were the Reciprocal Enforcement of Commonwealth Judgments Act ("RECJA") and Reciprocal Enforcement of Foreign Judgments Act ("REFJA"). RECJA and REFJA governed the enforcement of foreign judgments from Hong Kong and certain scheduled Commonwealth countries.

Where the Act applies to a foreign judgment, the application of RECJA or REFJA is disapplied. However, it must be noted that RECJA or REFJA is only disapplied to the extent that the Act applies. The practical effect of this is that the enforcement of two different judgments from the same jurisdiction may be governed by two different Acts.

At present, this situation exists in relation to judgments from the United Kingdom. Section 3(1) of RECJA provides that a judgment of a superior court of the United Kingdom may be registered in Singapore under RECJA. Once registered, such judgment can be enforced in the same manner as a judgment of the Singapore High Court. However, if a judgment from the United Kingdom also fell within the ambit of the Act, recognition and enforcement must be done through the Act.

Generally, where there is a judgment from the United Kingdom which:

(a) involves a civil or commercial matter;

(b) was referred to a court in the United Kingdom by reason of an exclusive choice of court agreement between the parties in favour of such court; and

(c) where the nature of the matter is not such that it is excluded under section 9 of the Act, 

recognition and enforcement of the judgment would have to be under the Act and not RECJA.

The enforcement of other judgments from courts in the United Kingdom would continue to be governed by RECJA.

Complete and Certified Copy of the Foreign Judgment

Order 111 r2(3)(a) provides that an applicant seeking recognition/ enforcement of a foreign judgment must exhibit in the supporting affidavit a "complete and certified copy of the foreign judgment (including the reasons, if any, for the decision of the court which gave the judgment)". The High Court in Ermgassen & Co opined that the Certificate for Enforcement in a Foreign Country, granted by the English High Court, may not have been sufficient for this purpose. The High Court suggested that the Plaintiff could have gone further to obtain certified copies of the note of argument from the hearing of the summary judgment application.

It appears that the relevant phrase which led the High Court to comment that the Plaintiff ought to have additionally obtained a certified copy of the notes of argument from the hearing, was "including any reasons, if any, for the decision of the court which gave judgment". This phrase is also found at Article 13(1)(a) of the Hague Convention.

In contrast, in relation to an application for registration under RECJA, Order 67 of the Rules of Court requires that the applicant exhibit "the judgment or a verified or certified or otherwise duly authenticated copy thereof, and where the judgment is not in the English language, a translation thereof in that language certified by a notary public". No mention is made of a requirement for reasons for judgment where available.

From the High Court's approach, it may be the case that the requirements under the Act may be slightly more demanding than under RECJA. However, it should also be noted that, in the present case, the High Court did not state categorically that notes of argument and similar documents would be necessary. It simply observed that it may be arguable that in the absence of such notes of argument, the Plaintiff had not provided a complete and certified copy of the English Judgment. Notwithstanding the lack of a definitive statement from the High Court, applicants seeking recognition and enforcement under the Act may wish to take additional steps.

Time Limitation

Section 3(1) of RECJA provides that an application to register a judgment from a court in the United Kingdom could be made "at any time within 12 months after the date of the judgment, or such longer period as [might] be allowed by the Court." In Westacre Investments Inc v The State-Owned Co Yugoimport SDPR (also known as Jugoimport-SDPR) [2009] 2 SLR (R) 166, the 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.

Therefore, under RECJA, applications for registration of judgments from the United Kingdom should ordinarily be made within 12 months of the date of the judgment. While failure to make an application in time is not fatal, the decision of whether to allow registration is left to the court's discretion.

The Act however, does not appear to provide any time limitation for making an application for the recognition and enforcement of a judgment.

This difference is one which must be considered when seeking to enforce a judgment from the United Kingdom in Singapore. If the Act does not apply, and enforcement is to be done through RECJA, the applicant should take care to make the application within 12 month from the date of judgment.

Conclusion

The case of Ermgassen & Co Ltd v Sixcap Financials Pte Ltd is the first application made for recognition and enforcement of a foreign judgment under the Act. The High Court has helpfully clarified the framework of the Act, and the requirements which have to be met for enforcement under the same. This provides useful guidance for future applicants who wish to enforce a foreign judgment under the Act in Singapore.

In the context of judgments from the United Kingdom, one of two Acts may apply, either the Act or RECJA. Generally, where parties refer their dispute to courts in the United Kingdom pursuant to an exclusive choice of court agreement, the Act will apply.

While the general procedural framework under the Act and under RECJA are almost identical, future applicants should take note of the differences between an application under the Act and under RECJA.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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