Obtaining a judgment is not the end in litigation. Enforcement is another hurdle that parties will have to cross, and this may be especially difficult when a judgment debtor does not have assets within the jurisdiction. If your judgment debtor has assets in Singapore, you may wish to have your judgment enforced in Singapore. Here we discuss the first ever application under the Singapore Choice of Court Agreement Act and explain how to ensure you can enforce your judgment in Singapore.
The 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (more commonly known as the New York Convention) was a landmark agreement which, upon ratification by member states (currently 159 state parties), obligated the state parties to recognise and enforce arbitration awards made in other contracting states. The benefit of a readily enforceable award is axiomatic and contributed widely towards the growth and popularity of international arbitration.
Enforcement of foreign court judgments, as opposed to foreign arbitral awards, has always been more difficult; although some advancement has been had in this aspect via the Convention of 30 June 2005 on Choice of Courts Agreements (also referred to as the Hague Choice of Court Convention). While not as widely subscribed to as the New York Convention, there are an increasing number of states subscribing to the Hague Choice of Court Convention whose latest members include Montenegro and China (both signatories in 2017 but not ratified as of the date of this publication).
Singapore became a signatory to the Hague Choice of Court Convention on 25 March 2015 and subsequently promulgated the Choice of Court Agreement Act (CCAA) which came into force on 1 October 2016. With the CCAA, there are now three statutory schemes in place governing the recognition and enforcement of foreign judgments in Singapore, namely, the CCAA, Reciprocal Enforcement of Commonwealth Judgments Act (RECJA), and Reciprocal Enforcement of Foreign Judgments Act (REFJA). These statutory rules are in addition to the common law regime.
Notably, both the RECJA and REFJA have been amended to clarify that they cease to apply where a foreign judgment may be recognised and/or enforced under the CCAA.
The advent of the CCAA is one that should be welcomed by parties seeking to enforce a foreign judgment in Singapore, given the relatively fewer constraints it presents.
For starters, the scope of jurisdictions from which judgments are capable of being recognised and enforced under the RECJA and REFJA regimes is considerably smaller than that of the CCAA. Whilst the former two apply to 11 gazetted countries to-date, the CCAA is applicable to judgments from all 31 Contracting Parties to the Hague Convention, which includes one Regional Economic Integration Organisation (viz., the European Union).
In addition, while both RECJA and REFJA stipulate limitation periods by which the judgment creditor must apply to the High Court, the CCAA does not provide for such time limits so long as the foreign judgment remains enforceable and/or effective in its state of origin.
To enforce a foreign judgment in Singapore under the CCAA, it has been legislated that the following documents must be submitted to the Singapore court:
- 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 exclusive choice of court agreement applicable to the dispute in relation to which the foreign judgment was obtained, a certified copy of that agreement or any other evidence of the existence of that agreement;
- Where the foreign judgment was given by default, the original or certified copy of a document showing that the party in default was notified of the document by which proceedings were instituted or an equivalent document thereof; and
- Any other documents necessary to establish, inter alia, that the foreign judgment has effect in the State of origin, that the foreign judgment is enforceable in the State of origin, and that the judgment has not been satisfied.
While the above requirements appear to be mandatory, recent case law seems to suggest otherwise
In Ermgassen & Co Ltd v Sixcap Financials Pte Ltd  SGHCR 8, the applicant sought to enforce a summary judgment entered by the UK's High Court of Justice, Queen's Bench Division. This was the first such application brought under the CCAA. The Singapore High Court allowed the application despite the applicant not having adduced a certified copy of the aforementioned foreign judgment. In coming to its decision, the Singapore High Court adopted a loose interpretation on the above requirements and held that the documents set out in (1) to (3) were not mandatory, and that adducing "other documents" that could satisfy the requirements under Part 3 of the CCAA was sufficient to circumvent the need to exhibit "a complete and certified copy of the foreign judgment".
Who can benefit?
Having examined the myriad of benefits that the CCAA brings to judgment creditors, this begs the question of the class of judgment creditors who may be eligible to apply for recognition and enforcement under the CCAA.
As such, regard shall be had to section 8 which sets out the subject matter scope of the CCAA. Essentially, the CCAA "applies in every international case where there is an exclusive choice of court agreement concluded in a civil or commercial matter" and is only limited to choice of court agreements for a Contracting State to the Hague Convention.
Thus, commercial parties who wish to benefit from the certainty and latitude provided by the CCAA should stipulate an exclusive choice of court agreement for a Contracting State when entering into contracts.
As for judgment creditors who are already at the stage of seeking recognition and enforcement of a foreign judgment from a Contracting State, it should be noted that the CCAA will only be applicable where the relevant choice of court agreement was concluded before the Hague Convention came into effect in said Contracting State.
This article was written in conjuction with Arthur Yap, associate director at JurisAsia LLC.