Singapore

What are the main international treaties or conventions that apply?

Singapore is a party to the Convention on Choice of Courts Agreements adopted at The Hague on 30 June 2005 (“Hague Convention”), which is given effect via the Choice of Courts Agreement Act 2016 (CCAA).

What legal principles apply if there is no applicable international treaty or convention?

Foreign judgments which fall outside the scope of the CCAA may be enforceable under the Reciprocal Enforcement of Foreign Judgments Act 1959 (REFJA) or common law.

Common law

At common law, a foreign judgment will be recognised where:

• it is obtained from a court of law of competent jurisdiction;
• it is rendered by a court that possessed jurisdiction in the “international sense”. Such jurisdiction is established where the judgment debtor:
  • was present in the foreign country when the proceedings were commenced;
  • filed a claim/counterclaim before the court;
  • voluntarily submitted to the jurisdiction of the court by appearing in the proceedings; or
  • agreed to submit to the jurisdiction of the court before the commencement of proceedings.
• it is a decision on the merits of the case, and has final and conclusive effect on the parties according to the law under which it was granted (i.e. the decision cannot be varied, re-opened or set aside by the court that delivered it); and
• it is not subject to any defences to recognition.

Key defences include:

• recognition/enforcement would be contrary to the fundamental public policy of Singapore;
• the foreign judgment conflicts with an earlier Singapore judgment or a foreign judgment capable of recognition in Singapore;
• the foreign judgment was obtained by fraud or in breach of the rules of natural justice; or
• recognition/enforcement would amount to the direct or indirect enforcement of foreign penal, revenue or other public laws.

(See generally Humpuss Sea Transport Pte Ltd v. PT Humpuss Intermoda Transportasi TBK [2016] 5 SLR 1322 at [67]–[73].)

Where enforcement of a foreign judgment is sought, an additional requirement is that the judgment must be for a fixed or ascertainable sum of money (Poh Soon Kiat v. Desert Palace Inc (trading as Caesars Palace) [2010] 1 SLR 1129 at [13] and [14]).

CCAA

Subject to certain exceptions in sections 9, 10 and 22 of the CCAA, a foreign judgment is generally enforceable under the CCAA if the foreign judgment is:

• given by a court of a contracting state to the Hague Convention (other than Singapore), which is designated in an exclusive choice of court agreement;
• effective and enforceable in its state of origin; and
• a final (as opposed to interlocutory) decision on the merits, a consent judgment, or a default judgment (including a determination by a court of any costs or expenses).

(See, for example, sections 2(1), 8 and 13, CCAA, and Ermgassen & Co Ltd v. Sixcap Financials Pte Ltd [2018] SGHCR 8 at [6]–[9].)

The CCAA and the REFJA (see below) extend to non-monetary judgments and judicial settlements.

The grounds for refusal of enforcement of a foreign judgment under the CCAA are set out under section 14 (mandatory grounds), and sections 15 and 16 (discretionary grounds) of the CCAA. Beyond the principal defences to recognition at common law, the CCAA provides additional grounds for refusal, including the following.

Mandatory grounds

The defendant in the proceedings in which the foreign judgment was obtained was not notified of the document by which the proceedings were instituted or an equivalent document, including the essential elements of the claim, in sufficient time to enable the defendant to defend the proceedings, unless:

• the law of the state of origin allows the notification to be challenged; and
• the defendant entered an appearance and presented its case without challenging the notification in the court of origin.

Discretionary grounds

• The exclusive choice of court agreement applicable to the dispute in relation to which the foreign judgment was obtained is null and void under the law of the state of the chosen court, unless the chosen court has determined that the agreement is valid.
• A party to the exclusive choice of court agreement applicable to the dispute in relation to which the foreign judgment was obtained lacked the capacity, under the law of Singapore, to enter into or conclude the agreement.
• The defendant in the proceedings in which the foreign judgment was obtained was notified of the document by which the proceedings were instituted or an equivalent document, including the essential elements of the claim, in a manner incompatible with the fundamental principles in Singapore concerning the service of documents.
• The foreign judgment is being reviewed or appealed against in the state of origin.
• The time for applying for a review of or for appealing against the foreign judgment in the state of origin has not expired.
• The foreign judgment awards damages (including exemplary or punitive damages) in excess of compensation for the actual loss or harm suffered by the party awarded the damages.

REFJA

The REFJA does not apply to any judgment that may be recognised or enforced under the CCAA (section 2A, REFJA). It applies only to judgments from Hong Kong and specified courts from gazetted countries (i.e. Brunei Darussalam, Australia, India, Malaysia, New Zealand, Pakistan, Papua New Guinea, Sri Lanka, and the United Kingdom) (Reciprocal Enforcement of Foreign Judgments (United Kingdom and the Commonwealth) Order 2023 (“UK and Commonwealth Order”)).

Given that the enforcement regime under the REFJA is based on and intended to replace the common law action on a foreign judgment (see Chen Aun-Li Andrew v. Hai Chi Kut (suing as the sole executrix of the estate of Khoo Ee Liam, deceased) [2023] 1 SLR 341 at [9] and Merck Sharp & Dohme Corp (formerly known as Merck & Co, Inc) v. Merck KGaA (formerly known as E Merck) [2021] 1 SLR 1102 at [37]), the requirements at common law (see above) generally apply under the REFJA as well. These are prescribed at sections 3 and 4 of the REFJA.

Notably, the REFJA extends the scope of recognition and enforcement of foreign judgments under the common law in three significant ways:

• beyond final judgments to interlocutory judgments;
• to judicial settlements; and
• beyond monetary judgments to non-monetary judgments.

The enforcement of non-monetary and/or interlocutory judgments does not, however, apply to the gazetted countries pursuant to the UK and Commonwealth Order, as the order provides that the only judgments enforceable from the gazetted countries are “any money judgment that is final and conclusive as between the parties to it”.

The key grounds to set aside the registration of a foreign judgment under the REFJA are set out at section 5(1) of the REFJA, and mirror those at common law.

Foreign arbitration awards are enforceable under Part 3 of the International Arbitration Act 1994 (IAA) which gives effect to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”).

Enforcement of a foreign arbitration award proceeds in two stages.

First, a without notice (ex parte) application for permission to enforce the award is filed, supported by an affidavit satisfying the formal requirements of Order 48, rule 6(2) of the Rules of Court 2021 (“ROC 2021”) and section 30(1) of the IAA. In particular, the supporting affidavit must:

• exhibit the relevant arbitration agreement and the award;
• state the name and the usual or last known place of residence or business of the award creditor and the award debtor; and
• state either that the award has not been complied with or the extent to which it has not been complied with at the date of the application.

At this stage, the court adopts a mechanistic approach. Where these formal requirements are satisfied, the court will ordinarily make an order granting permission to enforce (usually within a matter of days).

Upon effective service of the order on the award debtor, time for challenging the enforcement order starts to run. The award debtor, if it so wishes, must apply to set aside the enforcement order within 14 days after service, or if the order is served out of jurisdiction, within such other period as the court may fix (Order 48, rule 6(5), ROC 2021). If there is no challenge against the enforcement order, the award creditor may proceed to enter judgment in terms of the award.

If the award debtor applies within the prescribed timeframe to set aside the enforcement order, the proceedings will move to the second inter partes stage, which typically takes four to six months to resolve. At this stage, the award debtor bears the burden of proving that one or more of the exclusive grounds for resisting enforcement under sections 31(2) and 31(4) of the IAA are made out, that is:

• A party to the arbitration agreement pursuant to which the award was made was, under the law applicable to the party, under some incapacity at the time when the agreement was made.
• The arbitration agreement is not valid under the law to which the parties have subjected it or, in the absence of any indication in that respect, under the law of the country where the award was made.
• The party was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present the party’s case in the arbitration proceedings.
• The award deals with a difference not contemplated by, or not falling within the terms of, the submission to arbitration or contains a decision on the matter beyond the scope of the submission to arbitration.
• The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place.
• The award has not yet become binding on the parties to the arbitral award or has been set aside or suspended by a competent authority of the country in which, or under the law of which, the award was made.
• The subject matter of the difference between the parties to the award is not capable of settlement by arbitration under the law of Singapore or enforcement of the award would be contrary to the public policy of Singapore.

The Singapore courts adopt a pro-arbitration stance, guided by the principle of minimal curial intervention. Save to the limited extent permitted by the recognised grounds for refusal, the court will not revisit the merits of the award or permit a relitigation of issues already determined by the arbitral tribunal (Aloe Vera of America, Inc v. Asianic Food (S) Pte Ltd and another [2006] SGHC 78 at [56]). However, in the confined category of jurisdictional objections, the court is entitled to undertake a de novo examination of whether the ground for resisting enforcement has been made out (PT First Media TBK v. Astro Nusantara International BV and others and another appeal [2014] 1 SLR 372 at [162]–[164]).

Common law

The limitation period for enforcement under common law is six years from the date the foreign judgment is final and conclusive under foreign law (section 6(1)(a), Limitation Act 1959). There is no limitation period for recognition of a foreign judgment.

To enforce a foreign judgment at common law, the judgment creditor should file an originating claim to commence a claim for the judgment debt. Thereafter, summary judgment can be sought on the basis that there is no defence to the claim. A summary judgment application usually takes around two to six months to resolve. If no application for summary judgment is made, the claim will be determined after a full trial, which can take about six to 12 months.

The claim for the judgment debt should be filed in:

• the Magistrate’s Court — if the claim amount is SGD 60,000 or less (sections 2 and 52(1A)(b), State Courts Act 1970);
• the District Court — if the claim amount is SGD 250,000 or less (sections 2 and 19(4)(a), State Courts Act 1970); or
• the General Division of the High Court (GDHC) — if the claim amount exceeds SGD 250,000.

REFJA

The limitation period for registration under the REFJA is six years from the date of the foreign judgment (section 4(1), REFJA).

The judgment creditor must first register the foreign judgment in the GDHC before the foreign judgment is enforceable as a judgment of the GDHC.

Application for registration is made by originating application without notice, supported by an affidavit (Order 60, ROC 2021). The matters which must be contained in the supporting affidavit include the judgment or a verified, certified or otherwise duly authenticated copy of the judgment, and, where the judgment is not in English, a certified English translation and evidence of the enforceability of the judgment in the country of the original court (Order 60, rule 3, ROC 2021). Here, an order is expected to be made within one to two weeks.

Once permission to register is granted, the judgment creditor must serve the order for registration on the judgment debtor, stating the period within which an application may be made to set aside the registration and containing a notification that an enforcement order to enforce the judgment will not be issued until after the expiration of that period (Order 60, rule 5, ROC 2021). Notice of registration of a foreign judgment must also be served on the judgment debtor personally (Order 60, rule 7, ROC 2021), unless the Court otherwise orders; and within three days after service, the notice or a copy of the notice must be endorsed by the person who served it with the day of the week and date on which the notice was served (Order 60, rule 8, ROC 2021).

A challenge against registration typically takes about two to six months.

CCAA

Under the CCAA, the foreign judgment can be recognised and enforced as long as it remains enforceable in the country of its origin (section 13(2), CCAA).

Application for recognition and/or enforcement under the CCAA is made by originating application without notice supported by an affidavit (Order 37, ROC 2021). The supporting affidavit must, inter alia, exhibit:

• a complete and certified copy of the foreign judgment;
• the applicable exclusive choice of court agreement; and
• any other documents necessary to establish the matters which must be stated in the supporting affidavit (including that the foreign judgment is effective and enforceable in the state of origin) (Order 37, rule 2(3), ROC 2021). Such order is expected to be made within one to two weeks.

If granted, the applicant must draw up the court order, and within 28 days after the order is made, serve the order, together with a copy of the foreign judgment, personally on every party to the case or proceedings in which the foreign judgment was obtained (Order 37, rule 6, ROC 2021).

A challenge against recognition and/or enforcement typically takes about two to six months.

Enforcement of foreign arbitration awards

An enforcement application must be made within six years of the date of the award (section 6(1)(c), Limitation Act 1959). For the enforcement process, see Question 3, above.

Practical tips:

• Where the judgment creditor is not in a position to enforce before the expiry of the limitation period, they can file a “protective writ” (i.e. the relevant application for enforcement of the foreign judgment/award) to ensure the cause of action is not time-barred.
• Where there is a real risk that the assets of the judgment debtor in Singapore may be disposed of or dissipated to frustrate the judgment creditor’s attempts to enforce the judgment/award, the judgment creditor should consider obtaining interim relief (see Question 7, below) to preserve the assets pending enforcement.
• While service out of Singapore for the relevant orders under the CCAA (Order 37, rule 6(4), ROC 2021), REFJA (Order 60, rule 7(2), ROC 2021), and the IAA (Order 48, rule 6(4) of the ROC 2021) can be effected without permission of the court, the manner of service must nevertheless comply with the laws of the foreign country (Order 8, rule 2(6), ROC 2021).
• While the costs of enforcement are generally recoverable from the judgment debtor, certain categories of costs such as a party’s costs of instructing lawyers are not typically awarded by the court.

At first instance, a dissatisfied judgment/award debtor’s only recourse is to apply to:

• set aside an order to recognise/enforce a foreign judgment/award obtained under the REFJA, CCAA, IAA; or
• resist the claim (and potentially application for summary judgment) brought at common law to enforce a foreign judgment.

Thereafter, the unsuccessful party has a right of appeal against the first-instance decision:

• For appeals against the recognition and enforcement of a foreign judgment before the GDHC, an appeal must be made to the Appellate Division of the High Court.
• For appeals against the enforcement of a foreign arbitral award, an appeal must be made to the Court of Appeal.

(Section 29C and Sixth Schedule, Supreme Court of Judicature Act 1969.)

Under the REFJA, there is an automatic prohibition on issuing an enforcement order until after the period to set aside the registration of the judgment or until such proceedings are “finally determined” (section 4(8), REFJA; Order 60, rule 10, ROC 2021). Under the IAA, the award cannot be enforced until the period to set aside an order to enforce expires or where such application is “finally disposed of” (Order 48, rule 6(5), ROC 2021). The “finally determined”/“finally disposed of” language in section 4(8) of the REFJA, Order 60, rule 10 of the ROC 2021 and Order 48, rule 6(5) of the ROC 2021, which refers to a situation “where all avenues of appeal have been exhausted or where parties are barred from making further appeals” (Global Distressed Alpha Fund I Ltd Partnership v. PT Bakrie Investindo [2013] 2 SLR 429 at [40] and [44]), makes clear that enforcement under the REFJA and IAA cannot proceed pending the conclusion of any setting aside application and appeal therefrom.

This differs from the regime under the CCAA; pursuant to Order 37, rule 8 of the ROC 2021, a court order made under the CCAA does not take effect when an application to set aside the court order “may still be filed” or “is pending”. This suggests the court order becomes effective following the disposal of the setting aside application and despite pending any appeal therefrom (unless a stay order is obtained).

On the last point, note that an appeal does not automatically stay enforcement (Order 19, rule 6, ROC 2021), but the appellant may apply for a stay pending appeal (Order 22, rule 13, ROC 2021).

The judgment creditor may apply for an order for the Examination of Enforcement Respondent (EER) under Order 22, rule 11 of the ROC 2021, for the judgment debtor to be examined under oath or to make an affidavit or both, to find out what assets are available for execution (whether in Singapore or elsewhere). The court may also order the judgment debtor to produce supporting documents as appropriate.

A judgment creditor applying for a Mareva injunction (see Question 7, below) will typically seek ancillary disclosure orders compelling disclosure of the judgment debtor’s assets, to enable the judgment creditor to police the Mareva injunction.

Intentional non‑compliance with an EER or disclosure order may constitute contempt, allowing the court to make a committal order and impose a fine and/or imprisonment.

Where there is a real risk of dissipation of assets by the judgment debtor, the judgment creditor may apply for a Mareva (freezing) injunction to restrain a defendant from dealing with his assets. Such an injunction may be granted on either a domestic or worldwide basis, depending on the location of the judgment debtor’s assets.

To obtain a post-judgment or post-award Mareva injunction, the judgment creditor must satisfy the court that:

• there is a real risk of the judgment debtor dissipating their assets with the intention of depriving the judgment creditor of satisfaction of the judgment debt;
• the injunction is in aid of execution; and
• it is in the interests of justice to grant the injunction.

(JTrust Asia Pte Ltd v. Group Lease Holdings Pte Ltd and others [2021] 1 SLR 1298 at [21].)

Bank accounts

An enforcement order for attachment of a debt due from the relevant bank to the enforcement respondent (formerly known as a garnishee order) (Order 22, rule 2(2)(c), ROC 2021).

Shares

An enforcement order for the seizure and sale of the shares belonging to the enforcement respondent as may be sufficient to satisfy the judgment debt (Order 22, rule 2(2)(a), ROC 2021).

For all sales of seized property, where the estimated value of the seized property is SGD 20,000 or less, the sale may be conducted by the Sheriff by private treaty or public auction (Order 22, rule 7(4), ROC 2021). Where the estimated value exceeds SGD 20,000, the sale must be conducted by an auctioneer and by public auction (Order 22, rule 7(5), ROC 2021).

Debts due to the judgment debtor from third parties

Same as bank accounts, see above.

Real estate

An enforcement order for the seizure and sale of the judgment debtor’s real estate/immovable property (Order 22, rule 2(2)(a), ROC 2021): see under Shares, above. Sale of immovable property must be conducted by an auctioneer and by public auction (Order 22, rule 7(7), ROC 2021).

To the extent the enforcement order is for the seizure and sale of registered land, the judgment creditor should present the enforcement order for registration by the Registrar of Titles pursuant to section 132 of the Land Titles Act 1993 (LTA). An enforcement order does not bind or affect the land until the particulars of the enforcement order have been entered in the land register (section 132(1), LTA). Registration also enables the Sheriff or any other person named in the order to execute instruments that are registrable in accordance with the LTA (section 132(4), LTA).

Moveable property

For the satisfaction of a money judgment/award: enforcement order for the seizure and sale of property. See under Shares, above.

For the satisfaction of a judgment/award granting delivery of movable property: enforcement order for delivery of the property (Order 22, rule 2(2)(b), ROC 2021). The Sheriff will carry out this order by taking physical possession of the movable property or affixing the Sheriff’s seal on the movable property (Order 22, rule 6(4)(a), ROC 2021).

Yes. The judgment creditor may apply to the court to appoint a receiver(s) over the assets (La Dolce Vita Fine Dining Co Ltd v. Zhang Lan and others and another matter [2022] SGHC 278 (“Zhang Lan”) at [1]).

The court’s discretionary power to appoint a receiver is codified in section 4(10) of the Civil Law Act 1909 and can be invoked if the judgment creditor can demonstrate that the assets in question belong beneficially to the judgment debtor and that it is just and convenient for receivers to be appointed in aid of satisfaction of the judgment (Zhang Lan at [4]).

Joint property

Whether a joint tenant’s interest in immovable property may be seized and sold pursuant to an enforcement order remains in a state of flux. The High Court has taken divergent approaches on this question:

• Earlier decisions have decided the issue in the negative, reasoning that a joint tenant had no “distinct and identifiable” interest in the property (see, for example, Malayan BankingBhd v. Focal Finance Ltd [1998] 3 SLR(R) 1008 and Chan Lung Kien v. Chan Shwe Ching [2018] 4 SLR 208).
• Later decisions have decided the issue in the affirmative on the basis that the joint tenant had a real ownership interest which was capable of immediate alienation without the consent of the other joint tenants, such that a joint tenant should be regarded as having an interest capable of attachment under an enforcement order for seizure and sale (see, for example, Peter Low LLC v. Higgins, Danial Patrick [2018] 4 SLR 1003 (“Peter Low”), Chain Land Elevator Corp v. FB Industries Pte Ltd and others [2020] 5 SLR 1336 (“Chain Land”)).

Pending authoritative guidance from the apex court, it is likely that Singapore courts will follow the later High Court decisions, which not only grapple with the reasoning in the earlier authorities but also provide a more comprehensive analysis of the issue.

Joint bank accounts

The general rule is that joint bank accounts cannot be garnished (i.e. subject to an enforcement order for attachment to satisfy the judgment debt) (One Investment and Consultancy Ltd and another v. Cham Poh Meng (DBS Bank Ltd, garnishee) [2016] 5 SLR 923 (“One Investment”)), although it remains to be seen if it can be argued that the recent decisions on a joint tenant’s interest being capable of attachment (as explained above) can be applied in this context as well. The Court of Appeal has not yet settled this issue. The High Court, in Peter Low, Chain Land, and One Investment, has drawn a distinction between the two contexts, noting that in joint tenancy cases there was no risk that the judgment debtor could access the assets of the innocent co-owner (as severance would occur before the property’s sale and the sheriff may only market the judgment debtor’s share) and there is an existing framework which allows joint tenants to monitor and challenge the sale; whereas no such framework exists in respect of a garnishee order against a joint account. Where, however, there is a strong prima facie basis for concluding that all the moneys in a joint account belong to the judgment debtor, the joint account can be garnished, subject to the following requirements:

• a strong prima facie case that all the moneys in the joint account(s) belong to the judgment debtor;
• notice on any joint account holder(s) must be served; and
• the applicant must provide an undertaking to pay for any costs and reasonably foreseeable losses of the garnishee, or non-judgment debtor joint account holder(s), if the moneys subject to the garnishee order are not in fact payable to the judgment debtor.

(See Timing Ltd v. Tay Toh Hin and another [2020] 5 SLR 974 at [26], [30] and [36].)