There are sources of publicly available information that may help identify another party’s asset position, upon payment of the prescribed fees. These comprise the following:
Applications may also be made to court to obtain information on the assets of another party under the following circumstances:
Limited information on aircraft, ships and motor vehicles may also be obtained from searches performed with the Civil Aviation Authority of Singapore, the Maritime Port Authority of Singapore and the website of the Land Transport Authority of Singapore, known as “OneMotoring”, respectively.
Private investigators are sometimes also engaged to locate and identify the assets of another party. Evidence from such investigations is generally admissible in civil proceedings in Singapore, although the civil courts have the discretion to exclude evidence in circumstances where the prejudicial effect of such evidence outweighs its probative value. The ambit of such discretion remains unclear, but developing case law on the subject shows that unlawfully or improperly obtained evidence weighs against its admission by the court.
The types of judgments in Singapore may be divided into two categories based on the nature of the reliefs they grant:
Both money and non-money judgments can be granted after a full trial, with the benefit of cross-examination of affidavit evidence, or without a full trial in limited circumstances. Examples of this include the following:
There are several prescribed methods for the enforcement of domestic judgments in Singapore. The terminology for the methods of enforcement and their procedures involved under the Rules of Court 2014 (the “Revoked Rules”) have recently undergone changes due to the introduction of the new Rules of Court 2021 (the “ROC 2021”), as well as the new Singapore International Commercial Court Rules 2021 (the “SICC Rules”), both of which came into operation on 1 April 2022.
Under the ROC 2021, a single consolidated application must be filed by the enforcing applicant, regardless of whether that party intends to seek one or multiple types of enforcement orders (Order 22 Rule 2(1) of the ROC 2021). The single application must be filed by way of summons, supported by an affidavit that complies with the requirements set out in Order 22 Rule 2(4) of the ROC 2021. It may be filed without notice to the opposing party but cannot be filed earlier than three days after a judgment is served (Order 22 Rule 2(3) of the ROC 2021).
Where multiple methods of enforcement are sought, the application must specify the sequence in which they are to be carried out (Order 22 Rule 6(1) of the ROC 2021). If no such sequence is stated, the sheriff may carry out the enforcement terms in any sequence or concurrently in the sheriff’s discretion (Order 22 Rule 6(2) of the ROC 2021). Only one order should be drawn up by the party who takes out the application (Order 17 Rule 3(4) of the ROC 2021). This potentially simplifies the process but also means that applicants must take care to consider all available enforcement options before proceeding with any application.
In the UK, there appears to be a more liberal standard, which allows a new party to be joined after judgment for the purpose of enforcement (see C Inc plc v L (2001) 2 Lloyd’s Rep 459). The Singapore Court has not adopted this liberal standard but held that a person may not be added or joined after judgment is granted and expiry of the time for appeal (see Shanghai Shipyard Co Ltd v Opus Tiger 1 Pte Ltd and another and other appeals and another matter [2022] 1 SLR 643 at [11] to [17]).
Types of Enforcement Methods
An enforcing applicant may apply for the following types of enforcement orders:
Order for seizure and sale of property
This mode of enforcement involves the seizure and sale of such property belonging to an enforcement respondent as may be sufficient to satisfy a judgment debt (Order 22 Rule 2(a) of the ROC 2021).
Both movable and immovable property may be seized, except for the following types of property (Section 13 of the Supreme Court of Judicature Act 1969):
The sale of seized property must be conducted by an auctioneer and by public auction if the seized property is immovable property or if the estimated value of the seized property exceeds a particular limit. If not, the sale may be conducted by the sheriff and may be by private treaty or by public auction. Different limits apply under the Revoked Rules (Order 46 Rule 24) and the ROC 2021 (Order 22 Rules 7(4) and 7(5)).
Order for delivery or possession of property
An order for delivery or possession (Order 22 Rule 2(b) of the ROC 2021) authorises the sheriff to seize and deliver movable property or give possession of immovable property in the possession or control of an enforcement respondent. Orders of this type relating to immovable property are usually served on a tenant by a landlord, requiring the tenant to leave the premises by a certain time.
Order for attachment of debt
This is an order for a non-party (such as an employer, bank or financial institution) to pay to the enforcing applicant money (not being wages or salary) that it presently owes to the enforcement respondent, whether immediately or at some future date (such as a deposit) (Order 22 Rule 2(c) of the ROC 2021). It effectively places the non-party in the position of an assignee of the enforcement respondent.
This enforcement method does not apply to money standing to the credit of an enforcement respondent in court (see Order 22 Rule 5(1) of the ROC 2021). Instead, a separate summons application may be taken out for such money to be paid to the enforcing party.
Order for committal
An enforcing applicant may apply for an order for committal if an enforcement respondent fails or refuses to perform an act required by an order or judgment (Order 23 of the ROC 2021). The purpose or effect of the order is to penalise or sanction the committal respondent for non-compliance with the judgment, whether by way of a fine or imprisonment. This is to protect the administration of justice in Singapore.
An application for permission must first be filed by way of originating application supported by affidavit (Order 22 Rule 3 of the ROC 2021). If permission is granted, an application for the committal order must also be filed via summons within 14 days and personally served on the committal respondent. The matter will be heard in open court, and the criminal standard of proof will apply. The court will ultimately retain discretion as to whether to grant the order for committal.
Order for bankruptcy or winding-up
An enforcing applicant may also apply to wind up corporate debtors or to bankrupt individual debtors that fail to satisfy judgment debts. Such proceedings are not technically regarded as enforcement methods as they are not always based on judgment debts. However, they may be effective in persuading a debtor to comply with a money judgment, although applicants should always exercise caution as they may be precluded from pursuing other types of enforcement measures once a bankruptcy or winding-up order is made.
The relevant applications are governed by Parts 8 and 16 of the Insolvency, Restructuring and Dissolution Act 2018. In general, bankruptcy or winding-up proceedings may be filed against a debtor if it is unable to pay its debts and is not eligible for any other repayment schemes. In the case of an individual debtor, the debt must also exceed SGD15,000. A corporate or individual debtor may be presumed to be unable to pay its debts if the debtor fails to respond to a statutory demand requiring payment of a sum exceeding SGD15,000 within 21 days.
The time required to enforce a judgment may range from two to eight months, depending on the number and type of proceedings that are taken out, and whether they are contested or heard over multiple rounds of hearings. More time will also be required if there is little to no information on the assets available for enforcement.
The following types of costs may be involved in the process:
Part payment of such costs may be recoverable from the enforcement respondent if the enforcement applications are granted, although this will usually be a fraction of the costs incurred.
The effectiveness of the enforcement process of a money judgment depends heavily on the type of assets held by the enforcement respondent, while non-money judgments are often enforced through committal proceedings.
If an enforcing party wishes to find out what assets an enforcement respondent has before taking out an enforcement application, they can seek an order for the examination of the enforcement respondent (EER) (Order 22 Rule 11 of the ROC 2021). This is an order requiring the enforcement respondent to appear before the court on a date to be fixed, and be questioned under oath as to the assets that they have and where these assets are located. Alternatively, the court may require the enforcement respondent to make an affidavit on the assets or may require the enforcement respondent to do both.
If the order is granted, it must be personally served on the enforcement respondent together with a list of questions the enforcing party wishes to ask. The enforcement respondent will have to complete answers to the questions and provide all supporting documents via affidavit or a statutory declaration prior to the scheduled hearing date. The enforcing party may ask further questions at the hearing, and may also request that the hearing be adjourned for the enforcement respondent to produce further documents in support of the answers given. If the enforcement respondent does not attend the hearing, the enforcing party may apply for a committal order to be made against them.
There are several ways in which a defendant may challenge enforcement of a domestic judgment. For example, the defendant may dispute the following.
The defendant may also take one of the following additional steps:
In general, the defendant must demonstrate special circumstances that render it inappropriate to enforce the judgment or order immediately (Order 22 r 13(1) Rules of Court 2021; Lee Kuan Yew v Jeyaretnam Joshua Benjamin [1990] 1 SLR(R) 772 at [6]; Strandore Invest A/S and others v Soh Kim Wat [2010] SGHC 174 at [7]). The existence of an appeal does not of itself warrant the grant of a stay, as the courts do not generally deprive a successful litigant of the fruits of litigation or lock up funds to which a successful litigant is prima facie entitled to. On the other hand, the court ought to see that any appeal, if successful, is not rendered nugatory. A stay may be granted if the defendant can demonstrate that there is no reasonable probability of getting back any costs or damages paid if the appeal succeeds. The court’s power to grant a stay is ultimately discretionary and may be exercised subject to such conditions as the court thinks fit to impose.
No specific domestic judgments are excluded from recognition and enforcement, save that where a judgment orders costs to be taxed (ie, assessed by the court), those costs must first be taxed (Order 47 Rule 2 of the Revoked Rules). However, it may not always be commercially viable to pursue enforcement where the costs are disproportionate to the judgment sum.
An enforcement applicant should always consider whether it is worthwhile to pursue enforcement, as time and effort will be spent to make the necessary applications and there is no guarantee that there will be actual recovery from the enforcement respondent.
In this regard, the Ministry of Law announced in its initiatives for 2022 that it will be studying proposals to make the enforcement of civil judgments simpler and more streamlined, to benefit small and medium-sized enterprises that may find the current processes too expensive, especially where lower-value judgments are concerned. There have been no concrete measures announced to date. Nonetheless, according to the latest updates available in 2023, the Ministry of Law has stated that possible future changes to the enforcement regime may entail:
The Ministry of Law also added that the proposed reforms are complex and may have far-reaching changes that have to be studied carefully, calling for more time to be spent reviewing such proposals before details are announced.
All cause papers (including judgments and orders) are filed with the Singapore Court Registry, and it is possible for interested parties to apply to inspect these cause papers, subject to permission of the court being obtained.
There are also private service providers who can perform litigation searches, to trace records of past proceedings.
As such, it is not likely that a debtor can apply to remove or expunge a judgment from the Registry once it has been satisfied. Instead, any judgment debtor who has satisfied a judgment debt should apply to the court for a formal record of satisfaction of the judgment to be recorded (Order 22 Rule 3 of the ROC 2021).
Legal issues with the enforcement of foreign judgments often arise due to confusion as to the scope and applicability of the various enforcement regimes in Singapore.
At present, there are both common law and statutory regimes for the enforcement of judgments in Singapore. The common law method essentially involves the filing of a fresh action on an implied debt. The statutory regimes have undergone several recent changes, as summarised below.
Prior to 1 March 2023, the statutory regimes consisted of the following.
However, the RECJA has since been repealed by the Reciprocal Enforcement of Commonwealth Judgments (Repeal Act) 2019 (RECJA Repeal Act) which took effect from 1 March 2023. The purpose of its repeal was to simplify and streamline the existing statutory framework for the recognition and enforcement of foreign judgments under the REFJA(A). Recognition of countries under the RECJA are now recognised under the REFJA(A), which now governs the enforcement of judgments from HKSAR, the United Kingdom, Australia, Malaysia, New Zealand, Sri Lanka, Pakistan, Brunei Darussalam, Papua New Guinea and India (Reciprocal Enforcement of Foreign Judgments (United Kingdom and Commonwealth) Order 2023).
As a general rule of thumb, the common law route should be pursued only if none of the statutory regimes apply. However, the latter are to some extent mutually exclusive. The REFJA(A) does not apply to judgments that may be recognised or enforced under the CCAA (Section 2A of the REFJA(A)). Additionally, where the REFJA(A) applies, a foreign judgment cannot be enforced through the common law at all (Section 7(1) of the REFJA(A)).
There may be further changes to the local enforcement regime, with the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (concluded on 2 July 2019) being billed as a game-changer for cross-border dispute settlement. However, this Convention has yet to be adopted under Singapore domestic law.
As mentioned above in 3.1 Legal Issues Concerning Enforcement of Foreign Judgments, there are both statutory and common law regimes for the enforcement of foreign judgments in the Singapore courts.
Common Law
The common law method of enforcement involves the filing of a fresh action on an implied debt. As such, to be enforceable under the common law, a foreign judgment must have the following characteristics (see Chen Aun-Li Andrew v Ha Chi Kut (suing as the sole executrix of the estate of Khoo Ee Liam, deceased) [2023] 1 SLR 341 at [9]).
REFJA and REFJA(A)
Only the following types of judgments could be registered and enforced under the REFJA, prior to the REFJA(A).
By contrast, under the REFJA(A), a broader scope of judgments may potentially be enforced as follows.
Notwithstanding the above, it should be noted that the REFJA(A) operates solely on the basis of reciprocity or agreement between Singapore and the individual countries gazetted under it. As such, not all judgments of the countries gazetted are immediately registrable under the REFJA(A). Only particular judgments described in an order made by the Minister for Law under Section 3(1) of the REFJA(A) are registrable under the REFJA(A) (see Ha Chi Kut (suing as the sole executrix of the estate of Khoo Ee Liam, deceased) v Chen Aun-Li Andrew [2023] 3 SLR 283 at [51]).
At the time of writing, the only types of judgments from the United Kingdom and other Commonwealth states that may be enforced under the REFJA are “money judgments that are final and conclusive as between the parties to it”: see Schedule 1 of the Reciprocal Enforcement of Foreign Judgments (United Kingdom and the Commonwealth) Order 2023.
Likewise, the only judgments from the HKSAR that may be registered under the REFJA(A) are money judgments. This is because, to date, no orders have been made under Section 3(1) of the REFJA(A) to extend Part I of the REFJA(A) to non-money judgments of any description from the HKSAR (see Ha Chi Kut (suing as the sole executrix of the estate of Khoo Ee Liam, deceased) v Chen Aun-Li Andrew [2023] 3 SLR 283).
The High Court in DGX v DGY [2024] SGHC 17 cited Singapore Parliamentary debates in which it was stated that the precise scope of enforceable judgments has to be negotiated with each state individually. Hence, there is a possibility that there could be an expanded or variable range of enforceable judgments in the future.
CCAA
To be recognised and enforced under the CCAA, a foreign judgment from a court of a contracting state to the HCCCA need only satisfy the following two basic requirements.
The CCAA is not confined to money judgments. However, it will not apply to judgments concerning certain matters, including but not limited to (Section 9 of the CCAA):
The CCAA currently applies to judgments obtained in Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Mexico, Montenegro, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Ukraine and the United Kingdom.
Judgments that do not meet the criteria of the various common law and statutory enforcement regimes cannot be enforced in Singapore. For example, any default judgments obtained without any determination on the merits of the case may face enforcement difficulties in Singapore.
Two specific areas merit special mention:
Interim and Final Injunctions
At present, interim injunctions (eg, interim freezing orders and interlocutory prohibitory or mandatory injunctions) granted by a foreign court will only be enforced under the REFJA(A) if an order is made under Section 3(1) of the REFJA(A) to extend Part I of the REFJA(A) to such judgments from the relevant country. This is because they are not final or conclusive in nature.
If no such order is made, a party will instead have to obtain an interim/interlocutory injunction from the Singapore courts (Section 4(1) of the Civil Law Act 1909; Section 18(2) of the Supreme Court of Judicature Act 1969). This will require the actual commencement of legal proceedings in Singapore, though it is possible for such local proceedings to be stayed as a matter of case management (in the case of freezing orders, see Bi Xiaoqiong v China Medical Technologies, Inc [2019] 2 SLR 595 at [62]; in the case of prohibitory or mandatory injunctions, see Virsagi Management (S) Pte Ltd v Welltech Construction Pte Ltd [2012] SGHC 207 at [41]).
Final injunctions may potentially be enforced only under the REFJA(A) or the CCAA (if they are not anti-suit injunctions), as they are non-money judgments. Where the REFJA(A) and the CCAA do not apply, recent case law suggests that a judgment creditor may seek the grant of a freestanding injunction from the Singapore courts without having to commence substantive legal action in Singapore. In Sulzer Pumps Spain, SA v Hyflux Membrane Manufacturing (S) Pte Ltd and another [2020] 5 SLR 634 (at [75] and [91] to [93]), the High Court held that it has the power to grant freestanding injunctions (as opposed to interlocutory injunctions) where doing so is necessary to prevent injustice in the exercise of its equitable jurisdiction. The decision was cited with approval in Tanoto Sau v USP Group Ltd and another matter [2023] 5 SLR 909, but it remains to be seen whether it will be endorsed by the Court of Appeal.
Divorce and Family-Related Orders
While a foreign divorce decree may potentially be recognised in Singapore pursuant to Section 108 of the Women’s Charter (see Ho Ah Chye v Hsinchieh Hsu Irene [1994] 2 SLR 316; UFN v UFM and another matter (2019) 2 SLR 650), ancillary orders to the divorce relating to the custody of children, maintenance and the division of assets may not be enforceable if they are amenable to variation or involve rights in immovable property that is located outside of the jurisdiction. This can be problematic for divorcing couples who have decided to live in separate countries and have assets located in different jurisdictions.
The state of the law with regard to foreign divorce and family-related orders may be summarised as follows.
Custody orders
Generally, the law does not recognise foreign custody orders unconditionally because the court’s own independent view on the welfare of the child is of paramount importance (TSH v TSE [2017] SCHCF 21 at [50]). A fresh application for custody would thus have to be filed in the Singapore courts, although it may be challenged on grounds of forum non conveniens.
Division of assets
Foreign orders for the division of matrimonial assets are typically unenforceable for two reasons:
To address these issues, Sections 121A to 121G of the Women’s Charter 1961 empower the courts to grant financial relief consequential to the termination of a marriage by a foreign decree. However, the court will only agree to do so if it would be appropriate in all the circumstances of the case.
Maintenance
With the repeal of the RECJA (see Lee Pauline Bradnam v Lee Thien Terh George [2006] SGHC 84), foreign maintenance orders now have limited enforcement channels within Singapore. Only final orders of lump sum maintenance or accrued arrears may be enforced under the common law regime or the REFJA(A). Orders for periodic maintenance must be enforced by registration under the Maintenance Orders (Reciprocal Enforcement) Act 1975 (MO(RE)A), but this only applies to judgments from Australia, HKSAR, New Zealand, the UK and Manitoba. Where the MO(RE)A applies, however, enforcing parties can expect to benefit from the new maintenance enforcement process introduced by the Family Justice Reform Bill 2023. The proposed changes include the ability of Court-Appointed Maintenance Enforcement Officers to obtain information about the parties’ assets and means from banks and government agencies. This could lead to more sustainable maintenance outcomes.
The steps required for enforcement under the various regimes are briefly outlined as follows.
Common Law
This involves the filing of a fresh action for the judgment debt in Singapore (Order 6 Rule 1 of the ROC 2021). To expedite matters, the enforcing party should apply for summary judgment on the basis that there is no defence to the claim (Order 9 Rule 17 of the ROC 2021). If the judgment debtor is not in Singapore, the enforcing party must also apply for permission to serve the originating process out of the jurisdiction (Order 8 Rule 1 of the ROC 2021).
The application must be made within six years from the time the foreign judgment is final and conclusive under foreign law (Section 6 (1)(a) Limited Act 1959; see Sang Cheol Woo v Charles Choi Spackman [2024] 4 SLR 66).
REFJA(A)
Enforcement under the REFJA(A) operates by way of registration. Once a foreign judgment is registered under this regime, it may be enforced as if it were a domestic judgment. The registration procedure is set out in Order 60 of the ROC 2021 and involves, amongst other things, making an originating application without notice and the filing of an affidavit exhibiting the duly authenticated judgment and its certified translation in English, and evidence as to the enforceability of the judgment by execution in the country of the original court.
Under the REFJA(A), the application must be filed within six years of the date of the judgment, or if there is an appeal against the judgment, after the date of the last judgment given in respect of the appeal (Section 4(1) REFJA(A), Ha Chi Kut (suing as the sole executrix of the estate of Khoo Ee Liam, deceased) v Chen Aun-Li Andrew [2023] 3 SLR 283 at [24]). The enforcing party may also be required to furnish security for costs (Order 60 Rule 4 of the ROC 2021). If the application is successful, the enforcing party will have to extract the order of registration and arrange for personal service of both the order of registration and notice of registration on the judgment debtor. Execution on the foreign judgment will only be permitted after expiry of the period allowed for the judgment debtor to set aside the registration.
CCAA
Registration is not required under the CCAA and there is accordingly no procedural time limit. However, an enforcing party must still file an originating application without notice for enforcement to the High Court (Order 37 of the ROC 2021; Section 13(1) of the CCAA). This application must be supported by an affidavit exhibiting:
The application may be made any time so long as the judgment is enforceable in the state of origin (Section 13(2) CCAA).
The costs and time it takes to enforce foreign judgments will vary depending on the number of enforcement orders required to be sought and whether the applications are challenged. If contested, the entire process will likely take several months, even if no appeals are filed.
In general, registration and enforcement under the statutory regimes is faster than the common law method of enforcement as the process is more straightforward. Under the common law regime, there is a risk that the opposing party will try to challenge its enforceability in Singapore.
The following types of costs may be involved, in addition to the costs highlighted in respect of domestic judgments:
On this note, it is worth highlighting that Singapore deposited its instrument of accession to the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters on 16 May 2023. This Convention facilitates and streamlines the process for the service of court and related documents in civil and commercial matters overseas, thereby ensuring that Singapore judgments may be recognised or enforced outside Singapore, and in turn providing greater legal certainty for Singapore litigants to enforce their rights in foreign jurisdictions. The terms of the Convention came into force in Singapore on 1 December 2023, through amendments to the ROC 2021 and the SICC Rules. This is expected to lead to overall reductions in cost and delays.
The common defences to enforcement across both the statutory and common law enforcement regimes (Section 5 of the REFJA(A); Sections 14 and 16 of the CCAA) are that:
Under the CCAA, there are other discretionary grounds on which the court may refuse to recognise or enforce a foreign judgment (Section 15 of the CCAA). Two of the more notable grounds are:
In relation to this, the CCAA expressly provides that the Singapore courts cannot review the merits of the foreign judgment nor challenge any findings of fact on which the court assumed jurisdiction unless the judgment was given by default (Section 13(3)(b) of the CCAA). However, a finding that a choice of court agreement is valid would be binding on the Singapore courts, regardless of whether or not the foreign judgment was given in default (Section 15(1)(a) of the CCAA).
The Arbitration Act 2001 (AA) governs the enforcement of domestic arbitral awards, while international arbitration awards are recognised and enforced under the International Arbitration Act 1994 (IAA).
The AA applies to any arbitration where the place of arbitration is Singapore and where Part II of the IAA does not apply to the given arbitration. Under Section 5 of the IAA, an arbitration is international in nature and governed by the IAA where:
The UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”) has force of law in Singapore, subject to modifications and exceptions in the IAA. However, Chapter VIII of the Model Law (on recognition and enforcement of arbitral awards) is expressly excluded under Singapore law by Section 3(1) of the IAA.
A domestic arbitration award is enforced in the same manner as a judgment or order of the Singapore court, under Section 46 of the AA. An international arbitral award made in Singapore is also enforced in Singapore as a court judgment under Section 19 of the IAA.
Generally, the seat of an arbitration determines where the award is made. The IAA distinguishes between an award made in Singapore and an award made in another state. Section 29 of the IAA deals with the recognition and enforcement of an award made in another state, and 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”).
Foreign awards made in the few jurisdictions that are not parties to the New York Convention are excluded from the enforcement provisions of the IAA by Section 27(1) thereof. Such awards are conceivably enforceable under Section 46 of the AA. Section 46(3) of the AA provides that an arbitration award may be enforced as a Singapore court judgment “irrespective of whether the place of arbitration is Singapore or elsewhere”.
Arbitration awards that have been set aside or that are not recognised by the Singapore courts will not be enforced. In PT First Media TBK v Astro Nusantara International BV [2014] 1 SLR 372 (“Astro”) (at [99]), the highest court in Singapore held that enforcement of a Singapore-seated award may be resisted under the grounds in Article 36(1) of the Model Law, despite this article being in Part VIII of the Model Law, which is excluded from operation in Singapore (as explained in 4.1 Legal Issues Concerning Enforcement of Arbitral Awards). The case of Astro decided that this was the most efficacious way to give effect to the policy of the Model Law and the New York Convention, with the following grounds under Article 36(1) being regarded as guidance to the Singapore courts in exercising their discretion over whether to enforce a Singapore-seated award:
The enforcement of foreign awards made in a New York Convention state other than Singapore may be refused on the grounds set out in Section 31(2) or 31(4) of the IAA (Aloe Vera of America, Inc v Asianic Food (S) Pte Ltd [2006] 3 SLR(R) 174 at [46]).
Generally, there are two stages involved in the enforcement of an arbitral award.
First Stage
An application is made by the award creditor to the court for permission to enforce the award
At this stage, the award creditor applies (without notice to the award debtor) for permission from the court under Section 46 of the AA or Section 19 or 29 of the IAA (depending on whether it is a non-foreign or foreign award) to enforce the award. The application must be supported by an affidavit (under Order 34 Rule 14 or Order 48 Rule 6 of the ROC 2021, whichever is applicable) that:
Upon permission to enforce being granted by the court, the order granting permission to enforce is served on the award debtor.
Within 14 days of service of the order (or such other period fixed by the court), the award debtor may apply to set aside the order granting permission to enforce. An award cannot be enforced until after the expiry of the period fixed by the court. If the award debtor does not contest the order, the award creditor can proceed to enforce the award like a court judgment, after the expiry of the applicable time limit.
If the award debtor applies to set aside the order granting permission to enforce within the time stipulated in the order, the second stage of the enforcement process is engaged, which entails substantive arguments over whether there are grounds for resisting enforcement.
Second Stage
The court considers whether there are grounds for refusal of recognition and enforcement
At the second stage, the award debtor must show that one of the grounds for resisting enforcement exists (as stated in 4.3 Categories of Arbitral Awards Not Enforced). The standard of proof is that of a balance of probabilities (Beijing Sinozonto Mining Investment Co Ltd v Goldenray Consortium (Singapore) Pte Ltd [2014] 1 SLR 814 at [48]). At this stage, if the challenge to enforcement is jurisdictional in nature, the court will conduct a de novo review of the arbitral tribunal’s decision on the question of jurisdiction. The court would otherwise not interfere with the tribunal’s decisions on the merits of the dispute (Bloomberry Resorts and Hotels v Global Gaming Philippines LLC [2020] SGHC 113 at [38]).
If the court rejects a challenge against enforcement, the award creditor will then obtain a judgment of the Singapore courts in terms of the arbitral award, as provided for under Section 46 of the AA and Sections 19 and 29 of the IAA. That judgment becomes enforceable like a regular Singapore court judgment.
An uncontested application to enforce an arbitral award is a relatively straightforward and quick process. Costs would begin to escalate if the award debtor resists the order granting permission to enforce the award. The costs of a fully contested application can be quite substantial, and may typically be several times the costs incurred for an undefended application to enforce an arbitral award.
The entire process for an uncontested enforcement may take less than six months, depending on the availability of the court’s hearing dates. However, if an award debtor chooses to resist enforcement of the arbitral award, the second stage of the enforcement process will usually result in the award creditor incurring substantial time and costs in dealing with such resistance. If the outcome of the challenge to enforcement is appealed to a higher court, it could take a few years to reach a definitive conclusion of the overall process of enforcement.
Choice of Remedies Doctrine
An award debtor has a choice to pursue an active strategy against enforcement by applying to pre-emptively invalidate the award through filing a setting-aside application at the place where the arbitration is seated. Alternatively, the award debtor can adopt a passive approach of resisting enforcement of the award by the award creditor in a country where its assets may be located. A party is not compelled to pursue the active remedy. Its rights to pursue a passive approach are not waived or rendered unavailable just because the pre-emptive strategy is not pursued.
Nature of the Award
Consistent with Singapore’s reputation as an arbitration-friendly jurisdiction, Section 27(1) of the IAA defines an “arbitral award” very broadly to include “an order or a direction made or given by an arbitral tribunal in the course of an arbitration”. This approach facilitates the enforceability of an award as to interim measures. Policy considerations to develop Singapore as a hub for international arbitration have also given impetus to legislative amendments to include emergency arbitrators within the definition of an “arbitral tribunal” under Section 2(1) of the IAA. This amendment makes clear that awards by emergency arbitrators are enforceable in Singapore courts in the same way as a final award of an arbitral tribunal. This interpretation of Section 2(1) of the IAA was confirmed in CVG v CVH [2023] 3 SLR 1559, which affirmed that an interim award issued by an emergency arbitrator in an arbitration seated outside of Singapore was, in principle, enforceable in Singapore. The court held that such an interim award would meet the definition of a “foreign award” under the IAA and would correspondingly be enforceable under that Act.
Finality of the Award
Section 19B of the IAA provides that an award is final and binding when it is made by the arbitral tribunal, signed and delivered to the parties. The widely held view is that an award remains binding notwithstanding the right of appeal. A party challenging enforcement has to prove to the satisfaction of the court that the award has not yet become binding on the parties, or that the award 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. While the highest court in Singapore in Astro took the view that an award that has been set aside would generally lead to the conclusion that “there is simply no award to enforce”, any foreign court decision in Singapore would ultimately only have legal value if it was recognised under Singapore’s private international law rules.
In PT Perusahaan Gas Negara (Persero) TBK v CRW Joint Operation [2015] 4 SLR 364, it was held that an interim award enforcing a Dispute Adjudication Board (DAB) decision under the FIDIC Conditions of Contract for Construction 1999 is “final and binding” within the meaning of Section 19B of the IAA. This decision of the highest court in Singapore effectively removes any ambiguity as to the enforceability of such interim awards under Singapore’s international arbitration legislation, and was welcomed not only in international arbitration circles but also in the construction industry, as it gave effect to the “argue now, pay later” principle that is crucial to the success of DABs under the FIDIC suite of contracts in ensuring security of payment in large international projects.
Limitation Period for the Enforcement and Setting Aside of Arbitral Awards
A party seeking to enforce an arbitral award in Singapore must do so within six years from the date the award was issued (Section 6(1)(c) of the Limitation Act 1959). An application to set aside an award made under the AA and IAA must be made within three months of the date the applicant receives the award (Section 48(2) of the AA and Article 34(3) of the Model Law).
Appealing an Order for the Enforcement of an Arbitral Award
Any appeal against a decision of the General Division of the High Court in the exercise of its original or appellate civil jurisdiction that arises from a case relating to the law of arbitration is made to the Court of Appeal (Sixth Schedule of the Supreme Court of Judicature Act 1969).
Judicial Attitude Towards Challenges to Enforcement of Arbitral Awards
In order to give effect to the New York Convention, which seeks to promote arbitration and eschews curial intervention, the grounds for resisting enforcement are generally construed narrowly. In CKG v CKH [2021] 5 SLR 84, the Singapore International Commercial Court held that the courts have to be satisfied that the challenge against an award falls squarely within the grounds for resisting the enforcement, and that, in its assessment of the award, the court will not be overly technical in its interpretation thereof.
For instance, to succeed in a challenge to enforcement of an arbitral award on the grounds of public policy, the award must “offend against our basic notions of justice and morality” or there must be “exceptional circumstances to justify a refusal of enforcement” (Galsworthy Ltd of the Republic of Liberia v Glory Wealth Shipping Pte Ltd [2011] 1 SLR 727 at [17]). These high standards are driven by notions of international comity and the spirit of the New York Convention.
In CEF v CEH [2022] 2 SLR 918, the Court of Appeal held that Article 41 of the ICC Arbitration Rules 2012 – which provides that an arbitral tribunal “shall make every effort to make sure that an award is enforceable at law” – only created a duty for the tribunal to ensure that procedural requirements for enforcement are met. As long as a tribunal has used every effort to ensure enforceability of the award in places where it could reasonably be expected to be enforced, the tribunal would have met its obligations under Article 41. The Court of Appeal held that an arbitral tribunal was not expected to predict or guarantee the outcome of any enforcement proceedings with respect to the award it makes. It also held that there is no implied term in every arbitration agreement that any award made shall be in a form that is enforceable in the same manner as a court judgment.
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mail@drewnapier.com www.drewnapier.comLegal Principles on Enforcement Continue to Apply Post-Rules of Court 2021
Singapore revamped its civil procedure in 2021, with the Rules of Court 2014 (“ROC 2014”) being revoked and the Rules of Court 2021 (“ROC 2021”) coming into operation on 1 April 2022. Significant amendments were made to the rules governing the enforcement of judgments and orders. In particular, the ROC 2021 consolidates previous methods of enforcement into a single enforcement order. As a result, certain rules under the ROC 2014 were removed, giving rise to uncertainty as to whether the legal principles developed in case law regarding those rules continue to apply under the ROC 2021.
The recent cases outlined below clarify that even though the statutory basis for certain principles is no longer found in the ROC 2021, the general principles derived from cases on the ROC 2014 continue to apply to cases under the ROC 2021.
Debts that may be attached to enforcement orders
Under O 22 of the ROC 2021, an objector may continue to object to any attachment of debts that do not arise from any existing obligation or are not due at the time of service of the notice of attachment (NOA).
In Art Ask Agency SL v Person(s) Unknown (“LXS-WL STORE”) and others [2023] SGHCR 14, an Assistant Registrar (AR) of the General Division of the High Court (GDHC) affirmed that the burden is on the objector of any attachment of a debt by the Sheriff under O 22 r 10(4) to provide sufficient basis for the grounds of its objection. The AR clarified that the same requirements under O 49 of the ROC 2014 continue to apply to O 22 of the ROC 2021. What was required of the objector was “no more than what would have been required at the show cause stage of a garnishee proceeding” under O 49 of the ROC 2014.
The AR further extended the common law principles applicable under the ROC 2014 to O 22 r 6(4)(f) of the ROC 2021, reasoning that the ROC 2021 served only to streamline the various modes of enforcement into a single application, but did not make a significant change to the substantive law governing each mode of enforcement. Hence, debts payable at a future time but arising from an existing obligation could be attached by an NOA, but debts arising from a contingent obligation could not. Accordingly, the debts in the enforcement respondents’ accounts that were “due” when the NOA was served were attached by the NOA, but not the debts which became due or may become due on the happening of a contingency which had not materialised when the NOA was served.
Likewise, in Mitsui E&S Power Systems Inc v Neptun International Pte Ltd and another (DBS Bank Ltd, non-party) [2024] SGHCR 3, the AR found that the debts could still be attached despite an order by the Singapore Police Force’s Commercial Affairs Department (“CAD Order”) directing the non-party not to allow any dealings with the monies in the account concerned. The AR confirmed that notwithstanding the different language of O 22 r 2(2)(c) of the ROC 2021, common law principles concerning the attachment of debts under O 49 r 1(1) of the ROC 2014 continue to be relevant. On the facts, the debts could still be attached as the CAD Order did not extinguish the debts owed by the non-party to the creditor and there was still a creditor–debtor relationship. However, the monies that were attached could not be released to the creditor in breach of the CAD Order.
One question which may commonly arise in the context of attachment of debts is whether sums held in a joint bank account may be attached under O 22 of ROC 2021. In Timing Limited v Tay Toh Hin & Anor [2020] 5 SLR 974 (“Timing”), the High Court held that a joint bank account may be garnished under O 49 of ROC 2014, declining to follow its earlier decision in One Investment and Consultancy Ltd and another v Cham Poh Meng (DBS Bank Ltd, garnishee) [2016] 5 SLR 923.
The High Court in Timing explained that where there was strong prima facie evidence that all the money belonged to the judgment debtor, there is no reason why the judgment creditor should not be able to, at the very least, have the garnishee show cause why the joint account should not be garnished. Otherwise, judgment debtors would be able to insulate their assets by holding them in joint accounts. Indeed, this would undermine the position of judgment creditors and frustrate their enforcement efforts.
While the High Court in Timing recognised the potential prejudice to the garnishee bank and the non-judgment debtor account holder(s), the High Court held that any potential prejudice could be ameliorated by requiring the applicant to (i) show that there is strong prima facie evidence that the sums held in the joint account belong to the judgment debtor; (ii) give notice to the non-judgment debtor joint account-holder; and (iii) provide an undertaking as to costs and foreseeable losses of the garnishee or non-judgment debtor joint account-holder(s). If the common law principles under O 49 of ROC 2014 continue to be relevant in applying O 22 of ROC 2021, it may well mean that sums held in joint bank accounts could still be attached under O 22 of ROC 2021, if the High Court’s decision in Timing is followed.
Setting aside of judgments and orders
In ST Group Co Ltd and others v Sanum Investments Ltd [2022] 1 SLR 1280 (“ST v Sanum”), the Court of Appeal (CA) confirmed that the courts have a residual discretion to set aside a judgment or court order in order to prevent injustice. The CA held the following.
The authors note that the CA’s reasoning in ST v Sanum was based on O 92 r 4 of the ROC 2014, which provided that: “For the avoidance of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.” This reasoning is likely to apply to cases concerning the ROC 2021, given the similarities between O 92 r 4 of the ROC 2014 and O 3 r 2(2) of the ROC 2021, which provides that “[w]here there is no express provision in these Rules or any other written law on any matter, the Court may do whatever the Court considers necessary on the facts of the case before it to ensure that justice is done or to prevent an abuse of the process of the Court, so long as it is not prohibited by law and is consistent with the Ideals”.
In Sundar Venkatachalam v Bharathi d/o Subbiah (Official Assignee, non-party) [2024] SGHCR 6, the AR without referring expressly to O 3 r 2(1) of the ROC 2021 held that under the ROC 2021, a first instance court continues to possess a free-standing power to set aside a bankruptcy order pursuant to its inherent jurisdiction in order to prevent injustice. However, the court should only exercise such inherent powers in exceptional circumstances.
Development of the Riddick principle in examination of judgment debtor proceedings
Under the Riddick principle, a party who was compelled to disclose a document in an action is entitled to protection against the use of the document for a purpose besides that action. In Ong Jane Rebecca v Lim Lie Hoa and other appeals and other matters [2021] 2 SLR 584 (“Ong Jane Rebecca”), the Court of Appeal held that documents disclosed in examination of judgment debtor (EJD) proceedings under O 48 of ROC 2014 is subject to the Riddick principle, as EJD proceedings under O 48 of the ROC 2014 “represent an invocation of the coercive powers of the court” and there was an “element of compulsion” present.
Applying Ong Jane Rebecca, there is no reason why the Riddick principle would not apply to documents disclosed in the examination of enforcement respondent proceedings under O 22 r 11 of ROC 2021, as it similarly involves the invocation of the Court’s coercive powers.
However, the protected document or information obtained through EJD proceedings may still be used without permission for “related enforcement proceeding”. In Ong Jane Rebecca, the Court of Appeal outlined a few factors to determine if a proceeding could be considered to be a “related enforcement proceeding”, such as whether there is an identity of parties. If the proceeding in question is not a “related enforcement proceeding”, the party seeking to use the information may only do so with the permission of the court.
In Third Eye Capital Corp v Pretty View Shipping SA and others [2024] SGHC 96, the GDHC clarified two further points which are relevant generally and in the context of EJD proceedings. In that case, the plaintiff was seeking permission to use all the documents and information disclosed during the EJD proceedings to support proceedings it intended to file in the Republic of the Marshall Islands (RMI) in order to hold the defendant’s director liable under the RMI judgment. The GDHC held the following.
Enforcement of foreign arbitral awards
In The Republic of India v Deutsche Telekom AG [2024] 1 SLR 56 (“India v DT”), the award debtor (“India”) applied to set aside an order obtained by the award creditor that permitted it to enforce a foreign arbitral award made against India. India resisted enforcement of the award in Singapore principally based on its contention that the arbitral tribunal lacked jurisdiction. In doing so, India raised certain arguments that had already been rejected by the Swiss Federal Supreme Court in Switzerland (which was the seat of arbitration), where India had failed in its attempt to set aside the award.
The CA held that the doctrine of transnational issue estoppel precluded India from re-litigating issues that had been decided by the Swiss Federal Supreme Court. The CA noted that the doctrine was already applied by the Singapore courts in the context of the enforcement of foreign judgments, and held that the doctrine should also be applied when determining whether preclusive effect should be accorded to a foreign seat court’s decision going towards the validity of an arbitral award.
The CA set out the test for transnational issue estoppel as follows.
The majority of the Court of Appeal also recognised the existence of a “Primacy Principle” as a doctrine of Singapore arbitration law which applies in addition to transnational issue estoppel – that an enforcement court will act upon a presumption that it should regard a prior decision of the seat court on matters pertaining to the validity of an arbitral award as determinative of those matters, which presumption may be displaced by certain considerations (for example, public policy considerations applicable in the jurisdiction of an enforcement court).
The practical consequence following from this decision is that once the jurisdiction of the seat court (as the primary court supervising the arbitration) has been invoked on issues concerning the validity of an award, it would be challenging for a party to re-litigate these issues before an enforcement court which recognises the principles of transnational issue estoppel such as Singapore, England and Australia. This makes it all the more important for parties to take care when choosing the seat of arbitration. Depending on the seat of arbitration, an unsuccessful party in an arbitration should carefully consider whether to invoke the active remedy of challenging the award at the seat court as opposed to exercising its passive remedy of challenging the award before the enforcement court.
Notably, the Court of Appeal in India v DT left open the question of the applicability of transnational issue estoppel in respect of a prior decision of an enforcement court (as opposed to the seat court). The Court of Appeal recognised that in Diag Human SE v The Czech Republic [2014] EWHC 1639 (Comm), the English High Court applied transnational issue estoppel in respect of a prior decision of an enforcement court. However, it went on to note that applying transnational issue estoppel to an earlier decision of another enforcement court may have the unintended effect of raising the status of the first enforcement court’s decision to something akin to that of a seat court judgment, and that this might run contrary to the structure of the New York Convention and the importance of according to the seat the primary role of supervising the arbitration.
This issue was considered in the subsequent GDHC decision of Sacofa Sdn Bhd v Super Sea Cable Networks Pte Ltd [2024] SGHC 54. While the court opined that it found the concerns raised by the Court of Appeal in India v DT persuasive and therefore did not think that transnational issue estoppel should apply to a decision of an enforcement court, the issue was ultimately not critical to the outcome as the court had already concluded that the claimant’s challenge to the award on the merits was not made out.
Service of notice of registration of foreign judgment
The question of whether a notice of registration of foreign judgments may be served by way of substituted service out of Singapore was answered in Guanghua SS Holdings Ltd v Lim Yew Cheng and another [2023] SGHCR 7 (“Guanghua SS”). In Guanghua SS, the claimant obtained judgment in Hong Kong (“HK Judgment”) and was later granted an order by the Singapore Court to register the HK Judgment as a judgment of the GDHC. The claimant obtained permission to serve the notice of the registration of the HK Judgment (“Registration Notice”) on the 1st defendant (D1) by way of substituted service but D1 sought to set aside the order granting substituted service.
Under O 67 r 7(1) of ROC 2014, a notice of registration of a foreign judgment must be personally served on the judgment debtor unless the court orders otherwise. The same requirement applies under O 60 r 7 of ROC 2021.
The AR noted that pursuant to O 67 r 7(2) read with O 11 r 3 and O 62 r 5, the clear terms of ROC 2014 allowed a notice of registration to be served on defendant by way of way of substituted service out of jurisdiction. However, there is no express provision in ROC 2021 permitting substituted service out of jurisdiction. The AR referred to the GDHC’s decision in Janesh s/o Rajkumar v Unknown Person (“CHEFPIERRE”) [2023] 3 SLR 1191 (“Janesh”) where the GDHC held that substituted service out of jurisdiction was permissible under O 8 r 2(1) of the ROC 2021. The GDHC observed that O 8 r 2(1) of ROC 2021 did not prescribe a closed list as to how service of a document could be effected out of Singapore. Moreover, ROC 2021 was not intended to drastically change the regime relating to jurisdiction in general or the regime relating to the service of originating processes or other court documents out of Singapore.
Applying Janesh, the AR held that a notice of registration may be served by substituted service out of jurisdiction. However, it remains unclear whether the Court’s permission was required, and whether the tests under O 7 r 7(1) (to show that it is impractical to effect personal service) and O 7 r 7(2) of ROC 2021 (the method of substituted service must be effective in bringing the document to the notice of the person to be served) applied.
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