Recognition and enforcement of a foreign judgment under the Choice of Court Agreements Act: What you need to know
On 1 October 2016, the Choice of Court Agreements Act (Cap 39A, 2017 Rev Ed) (the “Act”) and Order 111 (“O 111”) of the Rules of Court (Cap 322, R5, 2014 Rev Ed) (the “ROC”) were brought into effect in Singapore. The main purpose of the Act and the new O 111 is give domestic effect to the Choice of Court Agreements at The Hague on 30 June 2005 (the “Hague Convention”) that was signed by Singapore on 25 March 2015. One particular significance of the adoption of the Hague Convention was the increase in the number of jurisdictions in which judgments will be mutually recognised and/or enforced, from the existing jurisdictions covered under the Reciprocal Enforcement of Commonwealth Judgments Act and the Reciprocal Enforcement of Foreign Judgments Act.
The High Court case of Ermgassen & Co Ltd v Sixcap Financials Pte Ltd  SGHCR 8 (“Ermgassen”) is the first application brought under the Act since its enactment. In Ermgassen, the Court set out the legal framework for the recognition and/or enforcement of foreign judgments under the Act and demonstrated how such a framework is to be applied in deciding whether an application ought to be granted.
The Legal Framework
First and foremost, the Act is only applicable to foreign judgments obtained from the courts of contracting states of the Hague Convention (the “Contracting States”). Section 8 of the Act further provides that the Act applies in every “international case” where there is an “exclusive choice of court agreement” concluded in a “civil or commercial matter”, subject to certain exceptions stipulated in Sections 9, 10 and 22. For example, Section 10(1) of the Act expressly excludes the applicability of the Act to any interim measure of protection.
Part 3 of the Act (“Part 3”), in particular, sets out the provisions relating to the recognition and/or enforcement of foreign judgments. Section 13(2) of the Act provides conditions under which a foreign judgment is to be recognised and/or enforced and Sections 13(3) and 13(4) set out the following rules:
- The High Court must not review the merits of the foreign judgment, except the extent necessary to apply Part 3.
- The High Court is bound by any findings of fact on which the court of origin assumed jurisdiction, unless the foreign judgment was given by default.
- Where a foreign judgment satisfies the requirements under Part 3, the High Court must recognise and/or enforce the foreign judgment, except in the circumstances provided under Part 3 for the refusal of such recognition or enforcement.
The key circumstances under Part 3 for the refusal of recognition or enforcement of a foreign judgment can be found at Sections 14 and 15 of the Act, which specify the limited grounds on which the High Court must or may, inter alia, refuse to recognise and/or enforce a foreign judgment. The only grounds on which the High Court must make such refusal are when the foreign judgment was obtained by procedural fraud, when the recognition and/or enforcement would be against the public policy of Singapore, or when the defendant (in the proceedings in which the judgment was obtained) was not notified of the document by which the proceedings were instituted in sufficient time to enable them to defend the proceedings.
O 111 of the ROC, on the other hand, lists out the procedural rules relating to an application seeking recognition and/or enforcement of a foreign judgment in Singapore under the Act.
Application of the legal framework in Ermgassen
In Ermgassen, an ex parte Originating Summons (the “Application”) was filed by the plaintiff, a UK company, in the High Court of Singapore. In the Application, the plaintiff sought the recognition and enforcement of a summary judgment (the “Judgment”) made by the High Court of Justice of England and Wales against the defendant, a Singapore company.
As a preliminary point, the Court considered the applicability of the Act to the Judgment and held that it was applicable because first, the Judgment is a UK judgment and the UK is a Contracting State. Second, the Application was made in relation to an international case which consisted of an exclusive choice of court agreement concluded in a commercial matter. Last, the Application was not in relation to any interim measure of protection.
The Court then turned to consider whether the plaintiff had succeeded in satisfying the Court, on an ex parte basis, that the Application should be granted. Upon examining the merits of the Application, the Court granted the Application for the following reasons:
- It was evident from the UK court order that the Judgment was in the nature of a judgment on the merits, as opposed to one that was given by default.
- Although the plaintiff could have done better in providing in its supporting affidavit “a complete and certified copy of the foreign judgment” (as mandated under O 111 r 2(3)(a) of the ROC), such omission is not fatal. At the present stage, the plaintiff may be regarded as having sufficiently discharged its burden by adducing extrinsic documents that corroborate its claim on the existence of the Judgment in the UK.
- No grounds under Section 14 or 15 of the Act on which the Court must or may refuse to recognise and/or enforce the Judgment was detected.
The Court added, however, that the Application was granted without prejudice to the right of the defendant to pursue any actual grounds for determination on an inter partes basis in any setting aside application that it may subsequently bring under O 111 r 7 of the ROC.
The case of Ermgassen is instructive on how the legal framework under the Act and O 111 should be applied in determining whether an application for the recognition and/or enforcement of a foreign judgment ought to be granted. However, it remains to be seen how the courts will allocate weight on the same factors and conduct the necessary balancing exercise when a setting aside application under O 111 r 7 of the ROC is made.
Deputy Managing Partner