Let’s suppose you have a foreign judgment against someone residing in Singapore (let’s call this person the “debtor”) and you want something to be done about that judgment. Maybe the debtor owes you money now, or maybe you want to stop the debtor from restarting the case in Singapore. The point is, you want your foreign judgment to be given the same legal effect as a judgment made in Singapore by the courts here, so you’re wondering how you will go about it.
Where did you get that judgment from? This is the most important question because the way your judgment gets recognised and enforced can differ very heavily depending on the country of your judgment’s origin.
| Where did your judgment come from? (as of July 2019) | What law will be applied to that judgment? |
|---|---|
| Denmark, Mexico, Montenegro, or any European Union country, United Kingdom (whether it leaves the EU or not) This category also requires the existence of a valid choice of court agreement exclusively selecting only one of these countries that applies to your case. The judgment must be obtained in the selected country. | Hague Choice of Court Convention (“HCCC”), which is implemented in Singapore by the Choice of Court Agreements Act (“CCAA”) |
| United Kingdom, Australia, New Zealand, Sri Lanka, Malaysia, Pakistan, Brunei, Papua New Guinea, India (except Jammu and Kashmir), or the Windward Islands | Reciprocal Enforcement of Commonwealth Judgements Act (“RECJA”) |
| Hong Kong | Reciprocal Enforcement of Foreign Judgments Act (“REFJA”) |
| Anywhere other situation | Common law rules |
Going forward, we’re going to assume that you haven’t done anything shady in the process of getting that judgment:
- You have not bribed the foreign judge into making judgment in your favour;
- You did not submit false evidence to the court or prevent crucial witnesses from appearing in court;
- You made sure the debtor was duly served with the originating process of the foreign court and properly notified of proceedings over there;
- The subject matter of your case is not anything illegal; and You otherwise have not done anything that would generally not be received well by a judge.
If you have done any of the above, do not expect your judgment to be recognised, much less enforced.
Is your foreign judgment for the payment of a sum of money as compensation?
If you are looking to enforce your foreign judgment and compel someone to do something, the one thing you have to make sure is that that foreign judgment is for compensatory damages. Both the RECJA and the REFJA made that requirement explicit; both were based on the common law rules, which bars enforcement of judgment for anything other than monetary payments. In CCAA cases, the court may choose not to enforce judgment awarding damages in excess of compensation. This means that, if you were looking to enforce an injunction or even a declaration of liability, you are pretty much out of luck. In this case, your judgment can only be recognised in Singapore provided you follow the required steps, so at least the other party is not going to reopen the case here.
“My case falls under the CCAA. What should I do?”
Judgment that fall under the CCAA have the easiest path to being recognised and enforced because Singapore, as a contracting state in the HCCC, is obliged to enforce judgment made in other contracting states so long as there was an exclusive choice of court agreement. All you need to do is to make sure your judgement has effect in the country you obtained it from and can be enforced over there if you want the judgment to be enforced in Singapore. Once you have that settled, simply make an application to the High Court to have your judgment enforced and the court would most likely do so.
“What if I got my judgment from a Commonwealth country?”
If, by “Commonwealth country”, you mean the UK, and there was an exclusive choice of court agreement that applied to your dispute, then the CCAA takes priority over the RECJA. Otherwise, the RECJA should apply to your case. Once you have that judgment, you need to act quickly for you have only 12 months from the date of the judgement to apply for registration of judgment in the High Court. So long as the judge thinks it is just and convenient to do so, your judgment will be registered. You can choose to commence a common law action to have your judgment recognised (see common law rules below) instead of applying for registration. If you choose this option, however, be warned that you will not be allowed to recover for costs for the common law action even after your judgment is enforced. If your foreign judgment can be registered, just apply for registration.
“Hong Kong is the only state to which the REFJA applies? That seems oddly specific.”
Hong Kong was originally gazetted in the RECJA. Since its transfer of sovereignty to China in 1997, Hong Kong ceased to be a Commonwealth state and thus had to be gazetted in the REFJA instead. If you want to know why Singapore has not gazetted any other country since then, please approach the Ministry of Law. If you obtained judgment from Hong Kong, the path to recognition and enforcement is more straightforward than with the RECJA. Unlike the RECJA, you have six years from the date of the judgment to apply for registration here. Also, unlike the RECJA, you do not have the option of starting a common law action to enforce your judgment. The REFJA bars the court from enforcing a judgment that has not been registered if it is otherwise registrable.
“My case is under ‘everything else’. What now?”
Okay, this is where things start to get difficult. If you want your judgment to be recognised first, there is a set of requirements your judgment must meet. Firstly, the foreign judgment must be of a certain nature:
- The judgment must be made in a court of law.
- The court must have competence to decide the case.
- The judgment must relate to civil proceedings.
- The judgment must be final and conclusive. This means it cannot be opened by the same court. If the judgment can be appealed to a higher court, it still counts as “final and conclusive”, although the court may choose to delay recognition pending an appeal.
- The judgment must be on the merits of the case.
These requirements seem intuitive on the surface, but double check to make sure all these requirements are met anyway because courts have often refused recognition of foreign judgments over this requirement. Secondly, there must be sufficient connection between the parties and the foreign proceedings such that the courts here would consider the debtor bound by your foreign judgment. This means the debtor must, at the time of the proceedings, either:
- Be present in that foreign country;
- Have residence in that country; or
- Have submitted to the jurisdiction of that court, either by conduct or agreement.
Once these requirements are met, the court will recognise your foreign judgment. If you want to enforce the judgment, however, you need to start a separate action on the judgment. You have six years from the date of the judgment to do so.
What else can possibly go wrong?
There are a few possible obstacles to recognition and enforcement, even assuming you have not done anything overtly wrong in obtaining judgment overseas. The defences applicable under each set of rules are broadly similar across all four sets of rules:
- Is your judgment related to a gambling debt? Singapore considers gambling to be against their public policy even though they allow regulated gambling, so the courts have refused to enforce judgments related to gambling. Judgments related to other matters deemed to be against Singapore public policy will also not be recognised or enforced.
- Did the debtor get a conflicting judgment obtained or recognised in Singapore already? If so, the court is very unlikely to allow your judgment to be recognised.
- Is it still possible for the debtor to appeal against your judgment in the country of origin? The courts here would want to give the debtor a chance to appeal a judgment, so your application may be delayed at best, rejected at worst.
- Did you obtain your judgment in default? This is usually not a defence against recognition of a foreign judgment, but it presents complications:
– If the CCAA applies to your case, the courts here are not bound by any findings of fact made in the foreign court in default judgments, so it is possible for the debtor to reopen your dispute. – If the common law applies to your case, this could suggest the lack of connection between the debtor and the foreign court, depending on his conduct. Please note that this article does not constitute express or implied legal advice, whether in whole or in part. If you require legal advice, please contact me at walter@silvesterlegal.com.
