Enforcement of Judgments 2020 Comparisons

Last Updated August 04, 2020

Contributed By LVM Law Chambers LLC

Law and Practice

Authors



LVM Law Chambers LLC is a vibrant and technology-enabled boutique disputes practice in Singapore founded in 2017. Its dynamic team of 20-plus lawyers and legal professionals is led by Mr Lok Vi Ming SC and Mr Joseph Lee. As an independent disputes-focused firm, it provides practical and legal advice on a wide range of disputes to a large base of domestic and international clients. Since its inception, the firm has handled litigation, arbitration, mediation, evaluation, and negotiation matters and its practice areas span many disciplines, including arbitration, aviation, banking, civil and commercial litigation, construction, dispute resolution, insolvency (judicial management, liquidation, scheme of arrangement), insurance, media and telecommunications disputes, tax disputes, mediation, real estate disputes, regulatory, shareholders' disputes, tax, and white-collar crimes.

There are several sources of publicly available information from which one may identify another party’s assets upon the payment of a fee. These are as follows.

  • The Ministry of Law’s e-services provides information on the bankruptcy status of an individual and the insolvency status of a company.
  • The Accounting and Corporate Regulatory Authority makes available:
    1. a business profile search which provides information on a company’s status, its directors, and its shareholders – where a company has filed annual returns, information on a company’s financial status may also be available;
    2. a personal profile search which provides information on a person’s past and present directorships and shareholdings.
  • The Integrated Land Information Service provides information on the ownership status of a property and whether there are any registered caveats against it.
  • The Civil Aviation Authority of Singapore provides a list of aircraft registered in Singapore.
  • The Maritime Port Authority of Singapore provides a list of ships registered in Singapore.
  • OneMotoring provides information on cars registered in Singapore.

Besides the above sources of information, one may choose to obtain information on another party’s asset position through the following ways:

  • apply to court for an order that the judgment debtor (or director of a company) attends court and sets out its financial position under oath;
  • apply for a Mareva injunction or freezing order, which restrains the judgment debtor from dissipating its assets as well as requesting the judgment debtor to deliver up information regarding its assets.

Judgments may be obtained for a sum of money, specific performance, injunctions, or a declaration as to the legal status of property or the legality of an action. Broadly, there are four types of domestic judgments obtainable in Singapore.

Firstly, a judgment may be obtained after a trial on the merits of the dispute. This is available even if the defendant does not enter an appearance in the matter. The High Court in Indian Overseas Bank v Svil Agro Pte Ltd and others [2014] 3 SLR 892 granted judgment on the merits even though the defendants had not entered an appearance in the matter as evidence was tendered that the Indian courts would not enforce a judgment that was not given on the merits of the case.

Secondly, a judgment may be obtained in default of the defendant entering an appearance in the litigation. This is known as a default judgment and can be obtained under Order 13 of the Rules of Court. The plaintiff merely needs to file a request for default judgment on e-litigation, the online platform for electronic filing of all court documents in Singapore. If the conditions for granting such judgment are met, default judgment will be granted.

Thirdly, a judgment may be obtained by way of the summary judgment procedure available under Order 14 of the Rules of Court. The summary judgment procedure allows a plaintiff to seek judgment in its favour where there is no defence to a claim or a part of the claim. The defendant may resist such an application and ask for permission to defend the claim. Where just to do so, the court may choose to grant permission subject to conditions such as the defendant furnishing security to the plaintiff instead of granting summary judgment.

Fourthly, an interim judgment may be obtained in some circumstances to support ongoing litigation proceedings. Such interim relief may take the form of the following, and most require an application to be made by way of summons supported by an affidavit. Additionally, some may require an undertaking as to damages and full and frank disclosure by the applicant of the merits of the case.

Mareva Injunctions or Freezing Orders

Such orders restrain a defendant from dealing with his or her assets for the purpose of preventing him or her from removing them from Singapore or from disposing of them within Singapore to defeat any later judgment against him or her. An applicant must show that it has a good arguable case against the defendant and there is a real risk of asset dissipation by the defendant.

Anton Pillar Orders or Search Orders

Such orders permit the applicant to enter the defendant’s premises to enable materials to be inspected and to seize and to remove into safe custody the materials. It is obtainable if an applicant shows that:

  • it has an extremely strong prima facie case against the defendant;
  • the damage suffered by the applicant would be very serious;
  • there is a real possibility that the defendant would destroy the relevant documents; and
  • the effect of the search order would not be out of proportion to the legitimate object of the order.

Sample-Taking

Such orders permit the court to order the taking of any sample of property which is the subject matter of the cause or matter.

Sale of Perishable Property

Such orders permit the court to order for the sale of any movable property which is the subject matter of the cause or matter if the subject matter is of a perishable nature or likely to deteriorate if kept or which for any other good reason is desirable to sell.

Sale of Immovable Property

Such orders permit the sale of immovable property where the court thinks it necessary or expedient to do so.

Interim Payment

Such orders mandate the defendant to make payment of monies where the defendant has admitted liability for payment of those monies. The court will make such order if it thinks it just to do so.

Order for Receiver and Injunction

Such orders allow the court to appoint a receiver over specified property. They are obtainable if:

  • the applicant has a good prima facie claim to title;
  • the property is in jeopardy; or
  • the applicant would be in a worse position if the appointment is delayed.

Where the ownership of goods being held by a third party is in dispute, a procedure known as an "interpleader action" is available to the third party to resolve any competing claims between different parties. Under this action, the court makes the necessary directions for a hearing on the merits of the various competing parties’ claim to the goods. Upon a hearing on the merits, the court then makes the necessary directions for the transfer or disposal of the goods.

The following remedies are available to a party who has obtained a domestic judgment in his or her favour. Enforcement action on a domestic judgment should be taken out within 12 years from the date of the judgment.

Writ of Seizure and Sale

The writ of seizure and sale is the mode for the enforcement of a money judgment by the seizure and sale of the judgment debtor’s property usually by action. It is typically expressed as a direction to the sheriff or bailiff to seize, in execution, the judgment debtor’s property in Singapore as may be sufficient to satisfy the amount of the judgment debt with interest. Once property is seized from the judgment debtor, it will be sold (usually by auction) to satisfy the judgment debt and costs of the execution.

An application for a writ of seizure and sale is by way of ex parte summons supported by affidavit. If such a writ is granted over immovable property, the practice is to register the order for the seizure in the applicable land registers under the Land Titles Act (Cap 157, 2004 Ed) or the Registration of Deeds Act (Cap 269, 1989 Ed).

Writ of Possession

The writ of possession is an order for the defendant to give possession to the plaintiff of the specified immovable property. It is usually served on a tenant by a landlord requiring the tenant to leave the premises by a certain time.

An application for a writ of possession is made by way of summons supported by affidavit.

Writ of Delivery

The writ of delivery is an order for the defendant to give possession to the applicant of the specified movable property. The plaintiff must first proceed to the assessment of the value of the property, after which he or she may issue the writ of delivery of the movable property or its assessed value.

An application for a writ of delivery is made by way of summons supported by affidavit.

Writ of Distress

Where a landlord is entitled to receive rent on the premises from which property has been seized by the sheriff, it is entitled to apply to the court before the property is sold for a writ of distress for the recovery of rental arrears. The writ of distress directs the sheriff to distrain the property in the premises.

An application for a writ of distress is made by way of summons supported by affidavit.

Garnishee Order

A garnishee order is obtained against a bank or other deposit-taking institutions in respect of the judgment debtor’s credit balance. This allows a judgment creditor to obtain payment out of the monies in these institutions as an attachable debt.

The application is initiated by way of ex parte summons supported by affidavit. It involves a two-stage process whereby the judgment creditor first obtains an interim order. A hearing will then follow in which the court considers whether the interim order should be made final. At this stage, the third party will be able to object to the order and attempt to prevent the order being made. After hearing the parties, the court will then render its judgment on whether the monies should be paid out to the judgment debtor.

Taking of Accounts

Accounts are a specialised form of inquiry most commonly ordered in administration actions, partnership actions, and actions for specific performance. Such orders are usually made in the situation where the court makes an order for account of profits.

The accounting party will generally be directed to lodge his or her account, verified by affidavit, and serve copies on the other parties concerned. The opposing parties will then file a notice of objections, or an affidavit setting out their contentions with regard to the account, so that it can be seen what issues require determination by the court.

An application for taking of accounts may be made by way of summons supported by an affidavit. It may not be brought after the expiration of any limitation period applicable to the claim which forms the basis of the duty to account. Where the court has not specified a time for the making of such applications, they should be made within one month from the date of the court order.

Appointment of a Receiver by way of Equitable Execution

A judgment creditor may apply for a receiver to be appointed by way of equitable execution where recovery by the more usual processes of execution or attachment of debts is impracticable. Such an order enables a judgment creditor to appoint a receiver over specific assets or property held by the judgment debtor or due to be received by him or her from third parties. Where necessary, an injunction may be granted together with the order for the appointment of a receiver.

An application for a receiver to be appointed over assets must be done by way of summons supported by affidavit. The overriding consideration in deciding whether to appoint a receiver over assets is the demands of justice – ie, where it is just and convenient to do so in the circumstances. 

Judgment creditors may find it more convenient to execute against life interests in trust funds, in land, and for legacies payable under will by appointing a receiver as compared to a charging order. Periodic payments under insurance policies may also be reached by this means. Where necessary, the court may also grant an injunction as an ancillary or incidental order to an order for the appointment of a receiver by way of equitable execution.

Order of Committal

Where a party is ordered to perform or refrain from performing an act, but disobeys the court order, the judgment creditor may apply for an order of committal to hold the judgment debtor liable for contempt of court. This power is exercised sparingly to protect the administration of justice in Singapore, and so the judgment creditor must show that the judgment debtor has acted in wilful refusal or neglect with an order for payment before a committal order is made. If so, the judgment debtor may be liable to pay a fine or be imprisoned, depending on the severity of the breach.

The process to commence an application for an order of committal is not a straightforward one as the first stage is to apply to court by way of an originating summons supported by an affidavit for permission to commence committal proceedings against a judgment debtor. It is only when the court grants leave for committal proceedings to be proceeded with that one progresses to the second stage where an application for an order of committal is made by way of originating summons supported by an affidavit.

Insolvency Proceedings

Judgment creditors are also able to commence bankruptcy or winding up proceedings against individuals or companies, respectively.

For bankruptcies, judgment debtors must first be served with a statutory demand requiring them to pay the debt. The threshold for issuing a statutory demand is SGD15,000. (Note: this threshold has been temporarily increased to SGD60,000 until 19 October 2020 under Section 20 of the Covid-19 (Temporary Measures) Act 2020 (No 14 of 2020) (Covid Act).) If the debt is not paid within 21 days, the next stage is to commence bankruptcy proceedings. If the bankruptcy order is granted, a trustee in bankruptcy will be appointed to administer the estate of the persons declared bankrupt. (Note: the time period of 21 days has been temporarily increased to six months until 19 October 2020 under Section 20 of the Covid Act.)

Before a bankruptcy order is made, debtors with unsecured debts not exceeding SGD100,000 will be assessed for their suitability to partake in the Debt Repayment Scheme. This is a pre-bankruptcy scheme which is administered by the official assignee under the Bankruptcy Act and seeks a win-win outcome for both the judgment debtor and creditor. Debtors will typically be referred by the court to the official assignee for consideration as to whether they may partake in the Debt Repayment Scheme.

For companies, judgment debtors must first be served with a statutory demand requiring them to pay the debt. The threshold for issuing a statutory demand is SGD10,000. (Note: this threshold has been temporarily increased to SGD100,000 until 19 October 2020 under Section 22 of the Covid Act.) If the debt is left unpaid within three weeks, winding up proceedings are then commenced with a view to appoint a liquidator to liquidate the company’s assets and wind up the company. (Note: the time period of three weeks has been temporarily increased to six months until 19 October 2020 under Section 22 of the Covid Act.)

Besides winding up, judgment debtors may also wish to consider applying for companies to be placed under judicial management, or apply for a scheme of arrangement for the restructuring of the debts of the companies, if these may assist in the recovery of more monies from the distressed companies.

Recent reforms to the Companies Act modelled after Chapter 11 of the United States Bankruptcy Code have made it easier for distressed companies to obtain moratoriums from the court which protect them from legal action being commenced against them by their creditors. Distressed companies which seek to propose, or intend to propose, a compromise or an arrangement between them and their creditors are able to file for a moratorium under Section 211B of the Companies Act (Cap 50, 2006 Rev Ed). The court may then grant specified orders for such period as it thinks fit. In this regard, companies must file the following documents in court when making their applications:

  • evidence of support from the creditors for the intended or proposed compromise or arrangement, together with an explanation of how such support would be important for the success of the intended or proposed compromise or arrangement;
  • in a case where the companies have not proposed the compromise or arrangement to the creditors or class of creditors yet, a brief description of the intended compromise or arrangement, containing sufficient particulars to enable the court to assess whether the intended compromise or arrangement is feasible and merits consideration by the creditors;
  • a list of every secured creditor; and
  • a list of all unsecured creditors who are not related to the companies.

Mareva Injunctions

This is an application which is usually obtained pre-judgment to prevent a defendant from dissipating this or her assets and frustrate any subsequent attempts to enforce judgment against him or her. To succeed in obtaining such an injunction, an applicant must show that he or she has a good arguable case against the defendant and that there is objective evidence of the defendant seeking to dissipate his or her assets from Singapore.

Such an application may be made ex parte by way of summons supported by an affidavit in urgent cases in which there is a risk of dissipation by the defendant, or inter partes if there is no urgent risk of the assets being dissipated. However, the applicant will have an obligation of full and frank disclosure should an ex parte application be brought.

Appointment of a Receiver

A receiver can also be appointed where there is a pending cause of action to protect or enforce a legal or equitable right. Such an application is made by way of summons supported by affidavit.

The court may appoint a receiver either conditionally or on such terms and conditions as it thinks just. Relevant considerations are

  • whether the plaintiff has established a good prima facie claim to title;
  • whether the property is in jeopardy; or
  • at the very least the applicant would be in a worse situation if the appointment is delayed.

Where justified, receivers may also be appointed to support an injunction, especially where a defendant fails to disclose assets despite an order of court or has been evasive in accounting for assets.

Stop Notice

A stop notice is an order preventing securities from being dealt with without the person who issues it having an opportunity to assert his or her claim. It may be applied for by way of summons supported by affidavit.

There is an element of risk involved in issuing a stop notice as the securities may have been sold to a third party just before the stop notice takes effect. In such a case, loss may be caused to the third party if it is prevented from trading in the securities. The applicant for the stop notice may have to compensate the third party for such losses suffered.

The amount of costs and time taken to enforce domestic judgments varies depending on the judgment debtor and the amount of assets that are available for enforcement. Typically, a writ of seizure and sale, writ of possession, writ of distress, and garnishee order are all relatively straightforward processes. They can usually be executed with relative speed and ease provided that the judgment debtor does not apply for any of these to be set aside.

However, other applications such as commencing insolvency proceedings, taking of accounts, appointing a receiver, and an order of committal may take longer and can be more complicated. As these applications may involve consequences which have a greater degree of gravity as compared to the consequences of other enforcement actions, they can be highly contentious, require multiple rounds of hearings, or require the appointment of third parties which will prolong the time taken for enforcement of the judgment.

Singapore law affords judgment debtors an arsenal of options at their disposal for the enforcement of judgments. However, it is critical that one is familiar with the nature and value of the assets to be enforced against before taking out any enforcement proceedings. For instance, if one does not know what assets the judgment debtor possesses, the first option may be to seek an examination of the judgment debtor to ascertain what are the assets available for enforcement against. Thereafter, if most of the assets consist of cash held in bank accounts, it may make more sense to obtain a garnishee order against the cash in the bank accounts rather than a writ of seizure and sale.

A judgment creditor may also wish to concurrently pursue multiple avenues for recovery against assets of different nature and type; it is not uncommon to hear of judgment creditors taking out an application for a writ of seizure and sale along with a garnishee order to enforce against movable assets and cash in bank accounts respectively.

The examination of judgment debtor process prevents a judgment debtor from denying a plaintiff the fruits of his or her judgment by compelling a judgment debtor to provide information about the nature and whereabouts of his or her assets and produce documentary evidence that is relevant on which he or she can be examined. This assists a judgment creditor in gathering additional information which may or may not result in the implementation of actual execution of the judgment.

An application for an order for examination of judgment debtor is brought ex parte and supported by way of an affidavit. The court may order the judgment debtor to produce books or documents in the possession of the judgment debtor which are relevant to the identification of the debts owed to the judgment debtor and whether the judgment debtor has any property and/or means of satisfying the judgment or order.

The judgment debtor may apply for a stay of proceedings if it wishes to put a halt to the enforcement action taken against him or her. Such applications are usually made when a matter is on appeal from the High Court to the Court of Appeal.

An application to stay the execution of judgment may be made by way of summons supported by an affidavit. However, an order for stay of proceedings is not usually granted, unless the judgment debtor can demonstrate that special grounds exist which justify the grant of a stay. Such special grounds include potential insolvency or a situation where the appeal would be rendered nugatory if a stay is not granted.

Generally, all domestic judgments in Singapore are enforceable. However, the Court of Appeal has recently held that where parties have entered into a consent judgment which is unworkable because of a lack of clarity as to the terms of the order, and legal proceedings were discontinued as a consequence, such order will not be enforceable and will be set aside. This is because the court is functus officio once the legal proceedings are discontinued and would not be able to make any substantive amendments to the consent judgment. The only step that the court can take in such circumstance would be to set aside the consent judgment.

There is no register of domestic judgments in Singapore. However, the Singapore Court has launched a new system which allows court orders to be verified via a QR code. Now, court orders for civil cases in the state courts and the High Court will come with access information to retrieve an authentic copy from a secure government website.

Foreign judgments may be enforced in Singapore by way of the following methods:

  • by recognition and enforcement under the Choice of Court Agreements Act 2016 (No 14 of 2016) (COCAA);
  • by registration under the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) (RECJA) or Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 2001 Rev Ed) (REFJA); or
  • by recognition under the common law rules for recognising foreign judgments. The jurisdiction from which the foreign judgment emanates, date of judgment, and the subject matter of the judgment all determine which regime can apply.

Recognition and enforcement of a foreign judgment under the COCAA may be done on the same terms and extent as that of a judgment issued by the Singapore High Court.

Registration of a foreign judgment under the RECJA should ideally be brought within 12 months after the date of judgment. Registration of a foreign judgment under the REFJA must be brought within six years after the date of the judgment.

A common law action for the enforcement of a foreign judgment is regarded as an action on an implied debt and is subject to a limitation period of six years

The Choice of Court Agreements Act 2016

Singapore signed the Convention on Choice of Court Agreements (Hague Convention) on 25 March 2015. The Convention was ratified on 2 June 2016 and the Hague Convention entered into force for Singapore on 1 October 2016 via the COCAA.

The COCAA applies to a foreign judgment where there is an exclusive choice of court agreement concluded in a civil or commercial matter from the courts of a contracting state of the Hague Convention. This refers to a state which is a party to the Hague Convention.

The RECJA and the REFJA

The RECJA and REFJA provide for foreign judgments from courts designated under the respective statutes. The general scheme of both statutes is that the courts of a foreign country will be gazetted under the statute upon assurance of reciprocity of treatment from the foreign country. A money judgment from the courts of a gazetted country would, upon successful registration, be enforceable in the forum with the same legal force as if it had been a judgment from the domestic court.

The RECJA applies to judgments obtained from the superior courts of the UK, New Zealand, Sri Lanka, Malaysia, Winward Islands, Pakistan, Brunei Darussalam, Papua New Guinea, India (except the states of Jammu and Kashmir), and Australia.

The REFJA applies to foreign judgments from superior courts of such jurisdictions that may be gazetted from time to time. Judgments from the Hong Kong Special Administrative Region may be registered under the REFJA. However, if the relevant judgment can be enforced under the COCAA, the RECJA and REFJA will not apply.

The Common Law Position

Foreign judgments can also be enforced by way of recognition under the common law rules. This is effected by way of a fresh claim in court and obtaining a domestic judgment. The following requirements must be satisfied for foreign judgments to be recognised under the common law rules:

  • the foreign judgment must be pronounced in a court of law which assumed jurisdiction over the party under its internal rules;
  • the foreign judgment must make a final determination of rights between the parties on the merits of the dispute;
  • the foreign judgment must be for the payment of a fixed or ascertainable sum of money and the monetary award must not amount to direct or indirect enforcement of a foreign penal, revenue, or other public law.

Generally, foreign judgments in which the defendant has no presence and has not submitted to the jurisdiction of the foreign court will not be enforceable in Singapore.

Foreign judgments must be for the payment of a fixed sum of money based on the merits of a decision. As such, judgments on procedure is not a decision on the merits of the case and so cannot be used by a party to raise an estoppel if the defendant is sued on the same cause of action in the forum. It is also unclear whether a foreign judgment enforcing the judgment of a third country will be enforceable in Singapore.

Default and summary judgments, however, can be final and conclusive so long as they can satisfy the general test of finality. A judgment which is on appeal but final and conclusive on the merits of the case may also be enforced if there has been no stay against its execution granted; however, as a matter of case management, the Singapore court is likely to agree to an application to stay the proceedings until the appeal in the foreign jurisdiction has been determined.

The COCCA

For recognition and enforcement of a foreign judgment under the COCCA, an application must be made by way of an ex parte originating summons supported by an affidavit. If the COCAA applies in relation to the recognition and enforcement of a foreign judgment, then the RECJA and REFJA do not apply. The Singapore court has recognised the enforcement of a summary judgment from the UK under the COCCA.

The RECJA and REFJA

To register a judgment under the RECJA and REFJA, a judgment creditor must file an ex parte originating summons supported by an affidavit.

Once the foreign judgment is registered, the applicant is required to serve notice of the registration of the foreign judgment on the judgment debtor, who can apply to the court to have the registration set aside. Execution of the registered foreign judgment can only be made after the expiry of the period allowed for setting aside the registration of the foreign judgment.

The Common Law Position

A judgment creditor may begin proceedings in court to recognise a foreign judgment for a fixed sum of money by commencing a suit and then applying for summary judgment since the judgment debtor’s liability has already been decided in the foreign court and therefore there should be no defence to the claim.

Registration under the COCAA, RECJA, and REFJA is a relatively inexpensive and speedy process, unless the registration is challenged by the judgment debtor on any of the abovementioned grounds. If there is a challenge, the process of registration could be prolonged and incur higher legal costs.

Recognition of a foreign judgment under the common law rules would be a lengthier process as a suit will have to be commenced on the basis of the foreign judgment, followed up by an application for summary judgment. The entire process is likely to take several months, assuming that there is no appeal against the High Court’s decision.

The grounds on which registration or recognition of a foreign judgment may be challenged depends on which avenue is taken to pursue its enforcement.

Under the COCAA

Under the COCAA, the court must refuse to recognise or enforce the foreign judgment if:

  • the defendant in the foreign proceedings was not notified of the proceedings in sufficient time to enable it to defend the proceedings, unless the notification can be challenged or the defendant had entered an appearance and presented its case without challenging such notification;
  • the foreign judgment was obtained by fraud in connection with a procedural matter;
  • the recognition or enforcement of the foreign judgment would be manifestly incompatible with the public policy of Singapore.

The court may refuse to recognise or enforce the foreign judgment if:

  • the exclusive choice of court agreement applicable is null and void under the law of the state of the chosen court unless determined valid;
  • a party lacked capacity to enter the agreement under the laws of Singapore;
  • the defendant was notified of the foreign proceedings in a manner incompatible with the fundamental principles of Singapore;
  • the foreign judgment is inconsistent with an earlier judgment given in another state between the same parties on the same dispute.

Under the RECJA and REFJA

Under the RECJA, the court may refuse registration on the judgment if:

  • the original court acted without jurisdiction;
  • the judgment debtor was not carrying on business or ordinarily resident within the jurisdiction of the original court and did not submit to the jurisdiction of that court;
  • the judgment debtor was not duly served with the process of the original court;
  • the judgment was obtained by fraud;
  • the judgment debtor satisfies the registering court that an appeal is pending or that he or she is entitled to and intends to appeal against the judgment;
  • the judgment was in respect of a cause of action which could not have been entertained by the registering court for reasons of public policy or some other reason.

Under the REFJA, the court may set aside a registered judgment on largely similar grounds.

Under the Common Law

The following reasons may apply to resist the recognition of a foreign judgment:

  • the judgment debtor was neither present in the foreign jurisdiction nor submitted to its jurisdiction;
  • the foreign judgment was not final and conclusive on the merits;
  • the foreign judgment obtained was not for a sum of money, but some other remedy, or for liability only;
  • the foreign judgment is for the enforcement of foreign taxes;
  • the foreign judgment relates to foreign property;
  • the foreign judgment was not final and conclusive;
  • the foreign judgment was obtained by fraud, in breach of contract, or against Singapore public policy.

The recognition and enforcement of an arbitral award are governed by the Arbitration Act (Cap 10, 2002 Rev Ed) (AA) and the International Arbitration Act (Cap 143A, 2002 Rev Ed) (IAA). Section 5 of the IAA states that an arbitration is international if:

  • at least one party to an arbitration agreement has its place of business in a state other than Singapore at the time of the conclusion of the agreement;
  • either the place of arbitration or the place where a substantial part of the obligations of the commercial relationship to be performed is situated outside the state in which the parties have their places of business; or
  • the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country.

A domestic award, or an award made in Singapore, is recognised and enforced under the AA or Part II of the IAA, both of which have similar provisions for the recognition and enforcement of such an award.

A foreign award, on the other hand, is recognised and enforced in accordance with Part III of the IAA which gives effect to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted in 1958 by the United Nations Conference on International Commercial Arbitration (the New York Convention).

Arbitral awards which are set aside or not recognised by the Singapore court will not be enforceable in Singapore.

Domestic Awards

Section 44(1) of the AA provides that an award made by the arbitral tribunal pursuant to an arbitration agreement shall be final and binding on the parties and may be relied upon in any court of competent jurisdiction. Such an award may be enforced based on sections 46(1) and (2) of the AA, which provide that:

  • an award made by the arbitral tribunal may with leave of court be enforced in the same manner as a judgment or order of the court to the same effect;
  • where leave of court is granted, judgment may be entered in the terms of the award.

The procedure to enforce a domestic award is found in Order 69 Rule 14 of the Rules of Court. An ex parte application supported by an affidavit should be made, with the following information stated:

  • the arbitration agreement should be exhibited;
  • the name and usual or last-known place of residence or business of the judgment creditor and the person against whom the award is sought to be enforced should be stated;
  • the fact that the award has not been fully complied with at the date of the application must be stated.

The order granting leave to enforce the arbitral award must be served on the judgment debtor by delivering a copy of the order to him or her personally or sending a copy to him or her at this or her usual or last known place of residence or business or in such other manner as the court may direct.

Within 14 days after the service of the order or such other period fixed by the court, the judgment debtor may apply to set aside the order. The award will not be enforced until after the expiration of the period. If the debtor applies within that period to set aside the order, the application must be finally disposed of before enforcement of the award will be allowed to proceed.

Foreign Awards and International Awards

An international award heard domestically may be recognised through Section 19(1) of the IAA which provides that an award made by the arbitral tribunal pursuant to an arbitration agreement is final and binding on the parties and may be relied upon in any court of competent jurisdiction. It may be enforced by leave of the High Court in the same manner as a judgment from the court. For awards made under the New York Convention, they must be in writing and signed.

The procedure to enforce a foreign or international award is found in Order 69A of the Rules of Court. An ex parte application supported by an affidavit should be made, with the following information stated:

  • the arbitration agreement should be exhibited;
  • the name and usual or last known place of residence or business of the judgment creditor and the person against whom the award is sought to be enforced should be stated;
  • the fact that the award has not been fully complied with at the date of the application must be stated.

The order granting leave to enforce the arbitral award must be served on the judgment debtor by delivering a copy of the order to him personally or sending a copy to him at his usual or last known place of residence or business or in such other manner as the court may direct.

Within 14 days after the service of the order or such other period fixed by the court, the judgment debtor may apply to set aside the order. The award will not be enforced until after the expiration of the period. If the debtor applies within that period to set aside the order, the application must be finally disposed of before enforcement of the award will be allowed to proceed.

An application for leave to enforce an arbitral award is a relatively straightforward and quick process. However, if the judgment debtor chooses to resist the enforcement of the arbitral awards by putting in a setting aside application, this will lead to more time and costs incurred by the judgment creditor.

The entire process would usually take less than six months, depending on the availability of the court’s hearing dates.

The judgment debtor can either choose to take active steps to invalidate an award, or passive steps to resist the enforcement of the award where and when the award is sought to be enforced.

Grounds for Setting Aside a Domestic Award

Under Section 48 of the AA, an award may be set aside by the court if it is proved that:

  • a party to the arbitration agreement was under some incapacity;
  • the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the laws of Singapore;
  • the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his or her case;
  • the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration;
  • the composition of the arbitral tribunal or the arbitral procedure is not in accordance with the agreement of the parties or contrary to the provisions of the AA;
  • the making of the award was induced or affected by fraud or corruption;
  • a breach of the rules of natural justice occurred in connection with the making of the award by which the rights of any party have been prejudiced;
  • the subject matter of the dispute is not capable of settlement by arbitration under the AA;
  • the award is contrary to public policy.

An application to set aside an award may not be made after the expiry of three months from the date on which the party making the application had received the award. Where such an application is made, the court may, where appropriate and requested, suspend the proceedings for setting aside an award to allow the arbitral tribunal to resume arbitral proceedings or take other action which may eliminate the grounds for setting aside the award.

An application to set aside an arbitral award governed by the AA must be made by way of originating summons supported by affidavit stating the grounds on which it is contended that the award should be set aside.

Appeal on Question of Law Arising out of Domestic Award

A dissatisfied party may also challenge the domestic award by appealing on a question of law by consent or seeking leave from the court to do so. Such applications should be brought before the expiry of three months from the date of the award and should be made by way of originating summons supported by affidavit.

Grounds for Setting Aside or Refusing to Enforce Foreign Awards

Under Section 24 of the IAA, an award may be set aside by the court if it is proved that:

  • a party to the arbitration agreement was under some incapacity;
  • the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his or her case;
  • the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration;
  • the composition of the arbitral tribunal or the arbitral procedure is not in accordance with the agreement of the parties or contrary to the provisions of the AA;
  • the making of the award was induced or affected by fraud or corruption;
  • a breach of the rules of natural justice had occurred in connection with the making of the award and the rights of any party have been prejudiced.

Under Section 31 of the IAA, the court is entitled to refuse to enforce foreign awards made under the New York Convention if any of the following grounds can be proved:

  • a party to the arbitration agreement was under some incapacity at the time when the agreement was made;
  • the arbitration agreement is not valid under the law to which the parties have subjected it or, in the absence of such a law, under the law of the country where the award was made;
  • the judgment debtor was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings, or was otherwise unable to present his or her case in the arbitration proceedings;
  • the award deals with an issue not falling within the terms of the submission to arbitration or contains a decision on the matter beyond the scope of the submission to arbitration;
  • the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place;
  • the award has not yet become binding on the parties to the arbitral award or has been set aside or suspended by a competent authority of the country in which, or under the law of which, the award was made.

An application to set aside a foreign award must be made by originating summons supported by affidavit.

The court has the discretion to adjourn enforcement proceedings pursuant to Section 31(5)(a) of the IAA pending the conclusion of setting aside applications at the seat of the arbitration. If permission to enforce the award has already been granted, the court also has the power to order a stay of execution. In this regard, the court will have to evaluate the factors of the case for and against adjournment and will come down on the side of an outcome which is the most just or least unjust. Prejudice and the likely consequences of an adjournment would be relevant factors that the court will consider.

LVM Law Chambers LLC

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+65 6206 7898 www.lvmlawchambers.com
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Law and Practice in Singapore

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LVM Law Chambers LLC is a vibrant and technology-enabled boutique disputes practice in Singapore founded in 2017. Its dynamic team of 20-plus lawyers and legal professionals is led by Mr Lok Vi Ming SC and Mr Joseph Lee. As an independent disputes-focused firm, it provides practical and legal advice on a wide range of disputes to a large base of domestic and international clients. Since its inception, the firm has handled litigation, arbitration, mediation, evaluation, and negotiation matters and its practice areas span many disciplines, including arbitration, aviation, banking, civil and commercial litigation, construction, dispute resolution, insolvency (judicial management, liquidation, scheme of arrangement), insurance, media and telecommunications disputes, tax disputes, mediation, real estate disputes, regulatory, shareholders' disputes, tax, and white-collar crimes.