A.     Overview

The Reciprocal Enforcement of Foreign Judgments Bill (the “Bill”) – presently in draft – proposes significant amendments to the Reciprocal Enforcement of Foreign Judgments Act (Cap. 91A) (the “REFJA” or the “Act”).

This article assumes that the REFJA will adopt all proposals set out in the Bill (the “Revised Act”).

It appears that these proposed amendments have been waiting in the wings for quite some time. See the Report of the Law Reform Committee on Enforcement of Foreign Judgments (Singapore Academy of Law, June 2005) (the “Law Reform Committee Report”) published in 2005.

The following are two fundamental changes introduced by the Bill:

  • Second, the amendment (and expansion) of the definition of “judgment” in the Revised Act to include the registration and enforcement of foreign non-monetary judgments (“FNMJs”).

This article focuses on the implications and difficulties likely to arise from the registration and enforcement of FNMJs in Singapore. For the avoidance of doubt, references to the enforcement of an FNMJ under the Revised Act assume that the criteria for registration are met and no defences applicable.

This is an issue of particular importance, as the species of FNMJs that a party is likely to seek enforcement of in Singapore are FNMJs granting interlocutory or injunctive relief (including Mareva injunctions).

B.     Executive Summary

For the reasons set out below, it would seem that the main thrust of revisions to the Act is precisely to allow for the Singapore Courts to grant interlocutory relief in aid of foreign proceedings.

The primary difficulty though is that such relief – granted by a foreign court – would only be capable of enforcement in Singapore under the Revised Act if to do so is considered as “just and convenient”.

That said, any foreign judgment that is successfully registered under the Revised Act would – in effect – be deemed to be a judgment or order of the Singapore Court itself.

This raises issues as to what – precisely – the principles of registration and grant of enforcement of an FNMJ would be, given that Singapore law prescribes settled criteria for the grant of such relief if an application for such relief were made directly to the Singapore Courts.

Consequently, the question(s) which arises is whether these requirements will be read or form part of the threshold of the enforcement of the FNMJ being “just and convenient”.

If so, practical difficulties may arise in having to establish the principles of grant of the substantive relief granted by the FNMJ. Effectively, the applicant may have to relitigate or re-establish his case.

One approach to avoid this issue would be for foreign counsel to take extreme care and ensure that the FNMJ “qualifies” under Singapore law to be enforced. As a matter of principle, the applicable law, the facts considered and even the wording of the FNMJ must – to some extent – mirror the principles of grant under Singapore law in order to increase the likelihood of registration and enforcement under the Revised Act.

 C.     The Present Position

At the time of writing, FNMJs may not be registered or enforced under either the RECJA or the REFJA. Only foreign judgments granted in personam for a fixed sum of money may be so registered and enforced.

However, this does not mean that an FNMJ has no effect in Singapore. Instead, it is the process of recognition and enforcement that is cumbersome. Presently, it would require the party seeking enforcement to satisfy the common law principles of recognition of a foreign judgment by commencing a fresh action before the Singapore Courts.

This process is fraught with jurisdictional and evidential hurdles.

More recently, the Singapore High Court declined to grant a Mareva injunction in aid of foreign court proceedings in PT Gunung Madu Plantations v Muhammad Jimmy Goh Mashun [2018] SGHC 64. In refusing to grant the relief sought, Justice Woo Bih Li concluded that the Singapore Court lacked in personam jurisdiction over the defendant.

Besides, it has separately been held that the Singapore Court is only seized of jurisdiction to grant a Mareva injunction in aid of foreign court proceedings where the underlying cause of action is recognised or justiciable by a Singapore Court.

D.      The Revised Statutory Mechanism

At first blush, the Revised Act sets out a straightforward regime for the registration and subsequent enforcement of an FNMJ.

In this respect, the Bill proposes, inter alia, the following amendments to the Act:

  • The amendment of the definition of “judgment” in Section 2(1) of the Revised Act to include:

“…an interlocutory or final judgment or order given or made by a court in any civil proceedings”.

See Paragraph 2(c) of the Bill.

  • The insertion of the definition of an NFMJ as “a judgment that is not a money judgment”, dovetailing with the proposed mode of registration and enforcement of FNMJs by amending Section 4 of the Act.
  • See Paragraph 2(f) and 4A(a) of the Bill.

In line with the recommendations of the Law Reform Committee report, the species of FNMJs contemplated as being ripe for enforcement under the Revised Act are likely to be orders by foreign courts granting injunctive or interlocutory relief. The Committee’s observations and recommendations at [77] and [78] of the Report bear reproduction:

…the operation of the enforcement by registration scheme should be extended in the Court’s discretion to non-money judgments provided there is substantial reciprocity of treatment as between Singapore and the third country concerned. The non-money judgments we envisage should be confined to those given in aid of an in personam cause but include those of an interlocutory nature. This means that we recommend the enforcement of judgments which provide additional relief to the money judgment as well as those which call for the recovery or delivery of personal property given or made in civil proceedings. Perhaps more important as a practical consideration, under our further recommendation the enforcement facilities of the scheme will be made available to all types of judgments, especially interlocutory judgments and injunctions.

. Among these the Mareva injunction is a prime example. A meritorious party to an international commercial dispute not infrequently needs to obtain a world-wide Mareva injunction in order to enforce his money judgment successfully. Under existing law, while a world-wide Mareva injunction may be granted by a common law court, it has no binding effect outside the jurisdiction and is enforceable only in terrorem against the defendant. The burgeoning case law discloses at the same time a need for a Mareva injunction capable of binding third parties outside the jurisdiction and we think that provided there is reciprocity of treatment, this binding effect can appropriately be achieved by extension of the enforcement by registration scheme as between two law areas which recognise the world-wide Mareva injunction and are willing to allow it an enhanced extra-territorial effect. However, we do not think that registration of a non-money judgment should be as of right. The Court should have discretion to refuse registration if it is not just and convenient to enforce the non-money judgment in Singapore…

[emphasis added in bold and underline]

Consequently, Paragraph 4(d) of the Bill amends Section 4 of the Act by the insertion of a new Section 4A(a), allowing the enforcement of an FNMJ if the Court is satisfied that:

“…having regard to the circumstances of the case and the nature of the relief contained in the judgment, it is satisfied that such enforcement would be just and convenient

[emphasis added]

It is a question of what, precisely, “just and convenient” means that causes significant difficulties.

 E.     An Empty Alternative?

Notably, Paragraph 4(d) of the Bill adds a proviso to the proposed Section 4A(a) of the Revised Act with the inclusion of Section 4A(b), allowing the Singapore Court to:

…make an order for payment of such amount as it considers is the monetary equivalent of the relief” where the Court is of the opinion that the enforcement of the FNMJ would not be “just and convenient.”

In the context of an FNMJ granting interlocutory relief, the relevance of Section 4A(b) must be questioned. It is settled under Singapore law – and under common law principles in general – that in an application for an injunction (the main species of interlocutory relief), the Court must be satisfied that:

  • there is a serious question to be tried; and
  • that the balance of convenience lies in favour of granting the interlocutory relief sought.

See American Cyanamid Co v Ethicon Ltd [1975] AC 396 and Chuan Hong Petrol Station Pte Ltd v Shell Singapore (Pte) Ltd [1992] 2 SLR(R) 1.

A crucial factor considered in determining where the “balance of convenience” lies is whether – but for the grant of the injunction – an award of damages at a later stage would be an adequate remedy. If this is not the case, it is more likely that the Court would be prepared to grant the injunction sought.

See the Singapore Court of Appeal decision in Da Vinci Collection Pte Ltd v Richemont International SA [2006] 3 SLR(R) 560 at [15].

In this light, the fact that Section 4A(b) expressly empowers the Court to make an order for the payment of monies instead of enforcing an FNMJ seeking interlocutory relief conflicts with one of the fundamental factors considered in the application of the “balance of conveniencetest.

F.     Singapore Law – Principles of Grant

The more fundamental issue is the effect of registration and enforcement of an FNMJ under the Revised Act.

Where a foreign judgment (whether monetary or otherwise) is successfully registered under the Act, the Revised Act or the (soon to be repealed) RECJA, the foreign judgment becomes a judgment or order of the registering Court, in this case, the Supreme Court of Singapore.

As noted by Prof Yeo in Conflicts of Law at [75.151]:

A judgment from 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 court of the forum.”

[emphasis in underline]

As highlighted above, the “just and convenient” threshold under the Revised Act invites confusion as to interpretation and application. Ultimately, if the registered FNMJ takes effect as a Singapore Court order, it follows that the substantive relief granted by the FNMJ must satisfy the principles of grant under Singapore law.

If the purpose of the amendments to the Act is to expedite relief granted by foreign courts, it surely cannot be the intention of the legislature that a party must start from “ground zero” to obtain the remedy it seeks.

Is it then the case that the phrase “just and convenient” automatically imports, as part of the criteria for enforcement, the need to satisfy local principles of grant?[2]

If the FNMJ sought to be enforced is or has the effect of a Mareva Injunction, would the registering party have to prove that:

  • there is a valid cause of action over which the Court has jurisdiction;
  • there is a good arguable case on the merits of the plaintiff’s claim;
  • the defendant has assets within the jurisdiction; and
  • there is a real risk that the defendant will dissipate his assets to frustrate the enforcement of an anticipated judgment of the Court?

G.     Concluding Remarks

There is no straightforward answer to the questions raised above. It is likely that only revisions to the Bill or interpretation of the Revised Act by the Singapore Courts will shed light on what the threshold for enforcement of FNMJs will be.

In the event the Act is revised as per the present wording of the Bill, the best approach to minimise uncertainty would be to ensure that the foreign Court grants the FNMJ with registration and enforcement in Singapore in mind.

This may include the consideration of Singapore legal principles by the foreign Court in issuing its judgment. Although this is hardly ideal, if it facilitates the ultimate commercial objective and eases the enforcement process in Singapore under the Revised Act, prudence dictates that this approach be adopted.

[1] As an aside, the jurisdictional difficulties which arose in Official Receiver of Hong Kong v Kao Wei Tseng and Ors [1990] 1 SLR(R) 315 have been ameliorated by Singapore’s adoption of the UNCITRAL Model Law on Cross-Border Insolvency. The principle, however, remains the same.

[2] Under existing law, the Singapore Courts generally will not grant a free-standing Mareva injunction in aid of foreign court proceedings: see [29/1/60] of Singapore Civil Procedure (Sweet & Maxwell, 2017); and Karaha Bodas Co LLC v Pertamina Energy Trading Ltd and another appeal [2006] 1 SLR(R) 112, which adopted the House of Lords’ approach in Siskina v Distos Compania Naviera SA [1979] AC 210.


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