Recognition of foreign judgments: proposed amendments in Singapore

As the number of cross-border disputes increase, it is becoming more common for parties to wish to enforce a court judgment issued in one jurisdiction in another jurisdiction.  In April 2019, Singapore's Ministry of Law issued a public consultation paper on proposed amendments to Singapore's regime for recognising and enforcing foreign judgments.

The current regime for recognition of foreign court judgments and orders in Singapore

There are currently three regimes relevant to the recognition and enforcement of foreign judgments in Singapore.

1. Any foreign judgment may be recognised in Singapore as a matter of common law i.e. where the foreign court is shown to have competent jurisdiction over the party sought to be bound, and there are no relevant defences to such recognition.
2. The statutory schemes under the Reciprocal Enforcement of Foreign Judgments Act ("REFJA") and the Reciprocal Enforcement of Commonwealth Judgments Act ("RECJA") facilitate registration and subsequent enforcement of judgments from superior courts of specific notified jurisdictions.
3. Singapore's Choice of Court Agreements Act ("CCAA") implements the Hague Convention on Choice of Courts Agreements for the recognition of foreign judgments from courts of Contracting States to the Convention (see our previous blog post on this here).

Proposed amendments to the current regime

The proposed Reciprocal Enforcement of Foreign Judgments (Amendment) Bill (the "Bill") aims to streamline the legislative framework by repealing the RECJA and moving Singapore to a simpler statutory regime where qualifying judgments from Hague Convention states are enforced under the CCAA, and other judgments are enforced under the amended REFJA. The recognition of judgments from jurisdictions previously recognised under the RECJA will be preserved under the new regime.  Enforcement under common law will also remain an available option if needed.

While the current framework is limited to judgments for specific sums of money, one of the key changes the Bill proposes is to expand the definition of "judgment" to also cover:

• judicial settlements recorded by a foreign court;
• non-money judgments; and
• interlocutory orders (in addition to final judgments and orders).

If adopted, this would significantly broaden the range of foreign orders and judgments that would be recognised in Singapore.  Importantly, the recognition of interlocutory orders of foreign courts will help promote a consistent approach to the recognition and enforcement of court orders throughout the life of a cross-border dispute and strengthen the efficacy of interim measures (in particular, those of a protective nature) where final judgments of the foreign court in the same dispute would, in any case, be recognised and enforceable in Singapore.

Importantly, the Bill does not propose a carte blanche approach to recognition.  It proposes a number of safeguards.

1. The Bill anticipates recognition on the basis of reciprocity i.e. judgments of a particular court or a particular jurisdiction will be enforceable in Singapore only where substantial reciprocity will be given to orders and judgements of a Singapore court in the foreign jurisdiction.
2. The Bill anticipates that foreign judgments which are based on other foreign judgments will not be recognised. Instead, parties would need to bring the underlying foreign judgment for enforcement in Singapore.  This is presumably intended to avoid the circumvention of the reciprocity requirement and 'leapfrogging'.
3. In counterpoint to the expanded scope of enforceable judgments and orders, the Bill introduces new grounds for refusing registration or enforcement in certain cases. For example, a foreign non-money judgment may not be recognised if its enforcement would not be "just and convenient", and in those circumstances, the Singapore court may make an order for payment of what it considers to be the monetary equivalent of the non-money relief ordered by the foreign judgment. In other words, the Singapore courts have the power to amend non-money judgment orders granted by a foreign court (for e.g. orders for the specific performance of a contract) and to substitute terms that it considers to be "just and convenient".
4. Further and also importantly, the Bill would allow the Singapore courts to refuse to recognise a registered foreign judgment for damages in excess of actual loss or harm suffered (e.g. exemplary or punitive damages).

Commentary

The proposed Bill is consistent with Singapore's continuing drive to position itself as a leading global hub for international cross border dispute resolution, including through the further growth of the Singapore International Commercial Court.  Indeed, the changes are most likely prompted substantially by the wish to enhance the international enforceability of SICC judgments and orders.  The proposed increased scope for recognition and enforcement of foreign court orders and judgments in Singapore would play an important role in furthering this objective by inviting greater reciprocity.

For more information, please contact Alastair Henderson, Managing Partner – SE Asia, Dan Waldek, Of Counsel, Reshma Nair, Associate or your usual Herbert Smith Freehills contact.