Recognition and/or enforcement of foreign money judgments

(1) Choice of Courts Agreement Act 2016

The Choice of Court Agreements Act 2016 (“CCAA”) is an Act to give effect to the 2005 Hague Convention on Choice of Court Agreements (the “Hague Convention”), to which Singapore is a signatory. The CCAA came into effect on 1 October 2016.

Scope of the CCAA

In general, the CCAA applies to recognise and enforce, in Singapore, foreign judgments from the courts of the contracting states to the Hague Convention, where they relate to international civil or commercial disputes. This is subject to the exceptions contained in the CCAA. A list of the contracting states to the Hague Convention may be found here:  https://www.hcch.net/en/instruments/conventions/status-table/?cid=98

The precise scope of the CCAA is set out in the definitions at s 2 of the CCAA, as summarised below:

• A “Contracting State” means, amongst others, a State that is a party to the Hague Convention;
• A “foreign judgment” means a judgment given by a court of a Contracting State (other than Singapore), being (a) a chosen court; or (b) a court to which a chosen court has transferred under the laws and practice in the Contracting State.
• A “chosen court” means a court, of a Contracting State, designated in an exclusive choice of court agreement; and
• A “judgment” means (a) a final court decision on the merits, a consent order, a consent judgment or a judgment given by default; or (b) a determination by a court of any costs or expenses relating to any such court decision, consent order, consent judgment or judgment given by default.

The CCAA applies in every international case where there is an exclusive choice of court agreement concluded in a civil or commercial matter (see s 8 of the CCAA). This is subject to exceptions under ss 9, 10 and 22 of the CCAA.

• For the purposes of recognition and enforcement, a case is considered an “international case” under s 4 of the CCAA if “the claim is for (a) the recognition, or recognition and enforcement, of a foreign judgment; or (b) the enforcement of a judicial settlement recorded before a court of a Contracting State (other than Singapore).”
• An “exclusive choice of court agreement” is defined under s 3(1) of the CCAA as an agreement between two or more parties that: (a) is concluded or documented (i) in writing; or (ii) by any other means of communication that renders the information communicated accessible so as to be usable for subsequent reference; and (b) designates, for the purpose of deciding any dispute that arises or may arise in connection with a particular legal relationship, the courts, or one or more specific courts, of one Contracting State to the exclusion of the jurisdiction of any other court.
• Even where the agreement does not designate the courts of one Contracting State to the exclusion of the jurisdiction of any other court, s 3(2) of the CCAA operates to deem such an agreement as an exclusive choice of court agreement, unless the parties to the agreement expressly provide otherwise.

Exceptions to the scope of the CCAA

As explained above, the CCAA only applies to international civil or commercial disputes. It does not apply to issues relating to personal law, eg in consumer law, employment law, or collective agreements (see s 9(1) of the CCAA). Arbitration matters are also excluded (see s 9(3) of the CCAA). Other excluded matters include: family law, insolvency law, carriage of passenger and goods, competition or anti-trust law, tortious claims that do not arise from a contractual relationship, personal injury claims, intellectual property matters (save for copyright and related rights), etc (see s 9(2) of the CCAA).

While the CCAA does not apply to interim measures of protection, the CCAA does not prevent a party from applying to a Singapore court for an interim measure of protection in any case or proceeding involving an exclusive choice of court agreement, and does not prevent a Singapore court from granting, in any such case or proceeding, any interim measure of protection under the law of Singapore (see ss 10(1) and (2) of the CCAA).

Application for recognition, or recognition and enforcement, of foreign judgment under the CCAA

Pursuant to s 13(1) of the CCAA, an application may be made to the General Division of the High Court for a foreign judgment to be recognised, or to be recognised and enforced, in the same manner and to the same extent as a judgment issued by the General Division of the High Court (the “CCAA Application”).

The procedural rules for the CCAA Application are set out in Order 37 of the Rules of Court 2021 (the “ROC 2021”) (https://sso.agc.gov.sg/SL/SCJA1969-S914-2021?DocDate=20211201&ProvIds=P12-PO37-#P12-PO37-). Pursuant to Order 37 rule 2(1) of the ROC 2021, the CCAA Application must be made by an originating application without notice, which is supported by an affidavit. The supporting affidavit must contain the information and documents as listed in Order 37 rules 2(2) and 2(3) of the ROC 2021.

Of note is the requirement under Order 37 rule 5 of the ROC 2021 for documents that are not in the English language to be translated. If the whole or any part of any document to be exhibited or produced as part of the CCAA Application is not in the English language, the document must be accompanied by a translation in the English language of the whole or that part (as the case may be) of that document. Such a translation must be certified in accordance with the requirements in Order 37 rule 5(2) of the ROC 2021.

(2) Reciprocal Enforcement of Foreign Judgments Act 1959

The Reciprocal Enforcement of Foreign Judgments Act 1959 (“REFJA”) is an Act to make provision for the enforcement in Singapore of judgments and awards given in foreign countries which afford reciprocal treatment to judgments given in Singapore, for facilitating the enforcement in foreign countries of judgments given in Singapore and for matters connected therewith.

Scope of the REFJA

The REFJA does not apply to any judgment which may be recognised or enforced in Singapore under the CCAA (see s 2A of the REFJA). The REFJA operates on the basis of reciprocity. Under s 3 of the REFJA, if the Minister is satisfied that substantial reciprocity of treatment will be assured as respects the enforcement in a foreign country of judgments given in Singapore courts, the Minister may direct that Part 1 of the REFJA relating to the registration of foreign judgments be applicable to such foreign countries.

Presently, Part 1 of the REFJA is extended to the superior courts of the Hong Kong Special Administrative Region of the People’s Republic of China (see the Reciprocal Enforcement of Foreign Judgments (Hong Kong Special Administrative Region of the People’s Republic of China) Order (https://sso.agc.gov.sg/SL/REFJA1959-OR1?DocDate=20010131)).

In addition, Part 1 of the REFJA is extended specifically to final money judgments given by the superior courts of the following countries: Brunei Darussalam, Australia, India, Malaysia, New Zealand, Pakistan, Papua New Guinea, Sri Lanka, and the United Kingdom of Great Britain and Northern Ireland (see the Reciprocal Enforcement of Foreign Judgments (United Kingdom and the Commonwealth) Order 2023 (https://sso.agc.gov.sg/SL/REFJA1959-S90-2023?DocDate=20230221)). This previously fell within the ambit of the Reciprocal Enforcement of Commonwealth Judgments Act 1921 (“RECJA”), which has been repealed with effect from 1 March 2023. Accordingly, such final money judgments which were previously registrable under the RECJA are now registrable under the REFJA. With the repeal of RECJA, Singapore’s legal framework for the statutory recognition and enforcement of foreign judgments in civil proceedings is streamlined and consolidated under the REFJA (see more information at https://www.mlaw.gov.sg/news/announcements/2023-03-01-repeal-of-recja/).

Application for registration of a foreign judgment

A judgment creditor may apply to the General Division of the High Court to have a foreign judgment registered in the General Division of the High Court (the “REFJA Application”). This must be done (a) within 6 years after the date of the judgment; or (b) where there have been proceedings by way of appeal against the judgment, after the date of the last judgment given in those proceedings (see s 4(1) of the REFJA).

A judgment will not be registered if, at the date of the application, (a) it has been wholly satisfied; (b) it has been discharged; or (c) it could not be enforced in the country of the original court (see s 4(3) of the REFJA).

The applicable procedural rules governing the REFJA Application may be found at Order 60 of the ROC 2021 (https://sso.agc.gov.sg/SL/SCJA1969-S914-2021?DocDate=20211201&ProvIds=P12-PO60-#P12-PO60-). Pursuant to Order 60 rule 2 of the ROC 2021, the REFJA Application must be made by an originating application without notice, which is supported by an affidavit. The supporting affidavit must contain the information and documents as listed in Order 60 rule 3(1) of the ROC 2021. Amongst others, the affidavit must exhibit the judgment or a verified or certified or otherwise duly authenticated copy of the judgment, and, when the judgment is not in the English language, a translation of the judgment in that language certified by a notary public or authenticated by affidavit (see Order 60 rule 3(1)(a) of the ROC 2021).

(3) Common law

For foreign judgments which do not fall within the scope of the CCAA or REFJA, they may be enforceable under the common law.

Generally, a foreign judgment may be enforced by way of a common law action if it is an in personam final and conclusive foreign judgment for a definite sum of money rendered by a court of competent jurisdiction. The enforcement of a foreign judgment under the common law creates a fresh obligation to pay the judgment debt which is an independent obligation, distinct from the original cause of action underlying the foreign judgment. Thus, in order to enforce a foreign judgment at common law, the judgment creditor is to commence fresh civil proceedings claiming the judgment sum under the foreign judgment as a debt.

However, an action to enforce a foreign judgment would be subject to defences. In general, a foreign judgment would not be given effect to if its recognition or enforcement would be contrary to the fundamental public policy of the forum, or if it would conflict with an earlier judgment from the forum or an earlier foreign judgment recognised under the private international law of the forum, or if the foreign judgment had been obtained by fraud or in breach of principles of natural justice, or if it would amount to the direct or indirect enforcement of foreign penal, revenue or other public laws.

(see, in general, Poh Soon Kiat v Desert Palace Inc (trading as Caesars Palace) [2009] SGCA 60 at [13] to [14]; Alberto Justo Rodriguez Licea and others v Curacao Drydock Co, Inc [2015] SGHC 136 at [21] to [23]; Giant Light Metal Technology (Kunshan) Co Ltd v Aksa Far East Pte Ltd [2014] SGHC 16 at [62]).