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.
Besides the above sources of information, one may choose to obtain information on another party’s asset position through the following ways:
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  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:
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.
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:
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.
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.
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:
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
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.
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:
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:
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.
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 court may refuse to recognise or enforce the foreign judgment if:
Under the RECJA and REFJA
Under the RECJA, the court may refuse registration on the judgment if:
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 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:
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.
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:
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 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 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:
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:
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:
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.
The developments in relation to the enforcement of judgments emanating from Singapore cannot be divorced from the broader seismic shifts taking place in the Singapore legal sector. Indeed, it may be argued that the developments, which have led to the greater recognition and enforceability of Singapore judgments, must be viewed against the backdrop of the establishment of the Singapore International Commercial Court (SICC) and the Singapore International Mediation Centre (SIMC). These institutions represent perhaps the most significant developments in the Singapore commercial legal landscape in the last five years.
Ultimately, Singapore’s vision is for parties who choose to have their disputes resolved in Singapore to have at their disposal a full suite of dispute resolution options. To this end, the SICC and SIMC were conceived to further enhance Singapore’s status as a leading dispute resolution hub for Asia and to complement the existing work of the Singapore International Arbitration Centre (SIAC), which has also undertaken its own reforms to enhance its appeal to international parties.
For this vision to succeed, Singapore judgments must be readily and easily enforced in other jurisdictions in which the parties have their assets. As such, the development of the SICC and SIMC have been complemented by legislative and judicial developments to enhance not just the enforceability of Singapore judgments in other jurisdictions, but also mediated settlement agreements from Singapore.
This article will discuss these developments, particularly major developments such as Singapore’s ratification of the Hague Convention on Choice of Court Agreements (Hague Convention) and the United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention).
The SICC was launched on 5 January 2015 to provide commercial parties with an additional option among a suite of viable alternatives for the resolution of transnational commercial disputes. It is a division of the Singapore High Court and part of the Supreme Court of Singapore. Its jurisdiction extends to disputes which are of an international and commercial nature. Notably, the Singapore High Court has the power to transfer cases filed in the Singapore High Court to the SICC and vice versa. Consequently, parties which commence proceedings in the Singapore High Court may meet with enquiries from the Singapore Supreme Court Registry whether they are willing to consent to a transfer of their case from the Singapore High Court to the Singapore International Commercial Court.
In certain respects, the SICC possesses greater flexibility than the Singapore High Court. This gives the SICC a unique value proposition to parties which seek advantages offered by both court proceedings and arbitration. Set out below are some of these advantages which may enable the parties to save time and costs in litigating a dispute.
Perhaps the most significant feature of the SICC which may appeal to foreign lawyers is the fact that foreign lawyers are able to be registered under Section 36P of the Legal Profession Act (Cap 161, 2009 Rev Ed), after which they may have a right of audience before the SICC. This would be extremely relevant for offshore cases, which are cases that are decided in the Singapore court but otherwise have no substantial connection to Singapore.
While the SICC has only been in existence for six years since its launch on 5 January 2015, user feedback on the resolution of disputes in the SICC has been positive. Anecdotally, the cost of resolving disputes in the SICC as compared with arbitration is lower and disputes are resolved more quickly. International parties may therefore wish to consider choosing the SICC as their forum for dispute resolution instead of going for arbitration at the SIAC, especially since Singapore has ratified the Hague Convention.
The greater enforceability of Singapore court judgments due to the ratification of the Hague Convention will be discussed in the paragraphs to follow. Suffice it to say, besides the legislative changes which enable Singapore judgments to be more easily enforced in other jurisdictions, parties resolving their disputes in the Singapore court or the SICC may also choose to give an undertaking not to challenge the enforcement of the judgment obtained in the enforcing jurisdiction, waive their right to challenge the enforcement of the judgment obtained in the enforcing jurisdiction, or waive their right to rely on any bars to enforcement of the Singapore judgment in the enforcing jurisdiction.
The SIMC was officially launched in November 2014 and maintains a panel of more than 70 international mediators from 14 jurisdictions. These mediators are certified by the Singapore International Mediation Institute, an institute which regulates professional standards for mediation in Singapore. Since its inception, the SIMC administered mediations of claims ranging from SGD0.5 million to SGD600 million, involving parties from 20 jurisdictions.
The SIMC is not an institution that works alone and collaborates with both the SICC and the SIAC to offer mediation as an alternative to litigation or arbitration as a means of dispute resolution. It is entirely possible for parties to opt to participate in mediation despite having commenced litigation in the Singapore courts (including the SICC), or arbitration in the SIAC. In particular, it is worth noting that the SIAC and the SIMC together offer an arbitration-mediation-arbitration (Arb-Med-Arb) service in which the following applies.
Through the Arb-Med-Arb process, parties can achieve finality from both the mediation process and the arbitration process. This service is governed by an Arb-Med-Arb Protocol, which provides a framework for the smooth conduct of the Arb-Med-Arb process. Among other things, it stipulates an eight-week maximum timeframe within which mediation must be completed. The Protocol seeks to enhance the integrity of the process and enforceability of the mediated settlement agreement through enabling its conversion into an arbitral award while providing control mechanisms to ensure efficient and effective dispute resolution. After conversion to an arbitral award, the mediated agreement is enforceable in other jurisdictions just like any other arbitral award.
The SIAC has also undertaken its own reforms to enhance its own appeal by updating the 2013 edition of its rules to incorporate further institutional best practices. The following reforms significantly enhances the appeal of arbitrating at the SIAC.
First, the following additions to the SIAC Rules 2016 allows for easier joinder and consolidation of multiple arbitrations.
Secondly, the SIAC Rules 2016 permits early dismissal of claims and defences. Rule 29 of the SIAC Rules 2016 allows a party the right to object to or file for a dismissal of a claim on the basis that the claim is “manifestly without legal merit” or “manifestly outside the tribunal’s jurisdiction”. This is achieved via a three-step objection process:
The early dismissal procedure allows for clearly unmeritorious claims to be dismissed summarily, which obviates the need for significant time and costs to be incurred before an unmeritorious claim is disposed of.
The Hague Convention
The first major development is Singapore’s signing and ratification of the Hague Convention. Presently, Singapore gives effect to the Hague Convention by way of the Choice of Court Agreements Act 2016, which was passed by Parliament on 14 May 2016 and assented to by the President on 28 April 2016.
Practically, this development means that if a Singapore court is the chosen court of an exclusive choice of court agreement covered by the Hague Convention, the dispute must be heard in Singapore only. Where enforcement is concerned, the courts of other contracting states to the Hague Convention will be obliged to recognise and enforce the Singapore court judgment which has pronounced on that dispute.
Currently there are 28 state parties which are party to the Hague Convention. This includes the EU. The USA and Mexico have also signed the Hague Convention, though they have yet to ratify it. With this development, Singapore judgments will be recognised and enforceable in the states which have signed and ratified the Hague Convention, thus improving the recognition and enforceability of Singapore judgments.
To seek recognition or enforcement of a foreign judgment under the Act, the application must be made by way of an ex parteoriginating summons supported by an affidavit. Since the enactment of the Choice of Court Agreements Act 2016, the Singapore court has enforced a foreign judgment under its auspices in Ermgassen & Co Ltd v Sixcap Financials Pte Ltd  SGHCR 8 (Ermgassen) on the basis of a summary judgment from the UK, even though the defendant was absent at the hearing of the application.
Ermgassen held that the Choice of Court Agreements Act 2016 applies to (i) foreign judgments obtained from the courts of contracting states of the Hague Convention; and (ii) in every international case where there is an exclusive choice of court agreement concluded in a civil and commercial matter. In this regard, a summary judgment falls within the scope of the Choice of Court Agreements Act 2016 as the UK was a contracting state of the Hague Convention.
Memorandums of Understanding with Other Courts
To further improve the enforceability of money judgments from the Supreme Court of Singapore, Memorandums of Guidance as to Enforcement of Money Judgments (MOUs) were also signed with Dubai International Financial Centre Courts on 21 January 2015, the Abu Dhabi Global Market Courts on 8 March 2017, the Supreme Court of Bermuda on 6 September 2017, and the Qatar International Court and Dispute Resolution Centre on 17 October 2017.
Additionally, in a letter dated 24 March 2017, the Supreme Court of Victoria (Australia) reaffirmed that a money judgment obtained in the Supreme Court of Singapore for a monetary sum may be registered and enforced in the Supreme Court of Victoria under the Foreign Judgments Act 1991(Cth) (FJA), Section 5(1) of the FJA and item 24 of the Schedule to the Foreign Judgments Regulations 1992(Cth).
On 31 August 2018, the Supreme Court of Singapore and the Supreme People’s Court of the People’s Republic of China (PRC) signed a Memorandum of Guidance on the Recognition and Enforcement of Money Judgments in Commercial Cases (PRC Memorandum).
While the PRC Memorandum does not have binding legal effect (Article 2 of the PRC Memorandum), it clarifies that in the absence of a relevant treaty, a judgment of the Singapore Court may be recognised and enforced in the courts of the People’s Republic of China on the basis of reciprocity according to the Civil Procedure Law of the People’s Republic of China upon the application submitted by the claimant (Article 6 of the PRC Memorandum).
These Memorandums of Understanding reaffirm the understanding which the Supreme Court of Singapore has with these courts that Singapore judgments will be recognised and enforced in their respective jurisdictions.
Continued Recognition and Enforcement of Singapore Judgments in Other Jurisdictions
Besides these initiatives, which will no doubt lead to Singapore judgments being more readily recognised and enforced overseas, there are the following instances in which courts from non-common law countries have recognised Singapore judgments, which is based on a common law system.
On 19 January 2006, the Tokyo District Court enforced a Singapore High Court judgment on the basis of “mutual guarantee” that the Singapore court’s requirements for the recognition and enforcement of foreign judgments are similar to the Japanese rules for doing so.
Legal developments from the Chinese courts also reaffirm our belief that Singapore judgments will be recognised and enforced in the Chinese courts. For instance, the Nanjing Intermediate People’s Court (Jiangsu Province) has recognised and enforced a Singapore High Court judgment and this Chinese judgment has been included as one of 18 reference judgments in the Supreme People’s Court provision of judicial services and safeguards for the Belt and Road Initiative. Given the importance of the Belt and Road Initiative to China, the inclusion of the Nanjing Court’s judgment underscores the importance which the Chinese courts pay to this case’s precedential value.
The Mediation Act 2017
Singapore has also passed legislation to improve the enforceability of domestic settlement agreements. The Mediation Act 2017 was passed on 10 January 2017 and makes provision to improve the enforceability of mediated settlements at Section 12 of the Act.
Section 12 of the Mediation Act 2017 states that where a mediated settlement agreement has been made in a mediation in relation to a dispute for which no proceedings have been commenced in court, any party may with the consent of all the other parties to that agreement apply to a court to record the agreement as an order of court within eight weeks after the mediated settlement agreement was made. The following conditions must be fulfilled:
The mediated settlement agreement may then be recorded as an order of court to be enforced in the same manner as a judgment given or an order made by the court. This allows mediated settlement agreements from Singapore to be enforceable as an order of the Singapore Court in other jurisdictions.
The Signing and Ratification of the Singapore Convention
The signing and ratification of the Singapore Convention also means that mediated international settlement agreements from Singapore will be recognised and enforced in countries which have signed and ratified the Singapore Convention.
The Singapore Convention was adopted by consensus at the United Nations General Assembly on 20 December 2018. It provides a process for the direct enforcement of cross-border settlement agreement between parties resulting from mediation and will enter into force on 12 September 2020.
In a ceremony hosted by Singapore in 2019, 46 countries signed the Singapore Convention. These countries include major economies such as China, the USA, India, and South Korea. Thus far, Singapore, Fiji, Qatar, and Saudi Arabia have deposited their respective instruments of ratification. Singapore has also passed the Singapore Convention on Mediation Act 2020 (SCMA) which represents a large step towards strengthening Singapore’s international commercial dispute resolution framework.
The Singapore Convention applies to an agreement resulting from mediation and concluded in writing by parties to resolve an international commercial dispute. It allows a party to invoke the use of settlement agreements to prove that a matter has already been resolved. Should a party wish to rely on a settlement agreement under the Singapore Convention, it must provide to the competent authority the settlement agreement signed by the parties and evidence that the settlement agreement resulted from mediation. Reliance on such settlement agreement may however be challenged if it can be shown that:
Relief may also be refused if it finds that granting relief would be contrary to the public policy of the state party, or the subject matter is not capable of settlement by mediation under the law of the state party.
All in all, the above-mentioned developments mean that new dispute resolution options are available to parties resolving their disputes in Singapore, and Singapore judgments and mediated international settlement agreements will have greater recognition and enforceability globally. These bode well for Singapore’s ambitions to be a leading dispute resolution hub in Asia.