This LawFlash examines the framework of the Choice of Court Agreements Act (Cap 39A, 2017 Rev Ed) and the first application brought under it by a foreign creditor to enforce a UK summary judgment in Singapore.
The Singapore High Court determined on 19 June the first application brought under the Choice of Court Agreements Act (Cap 39A, 2017 Rev Ed) (the CCAA) since its inception on 1 October 2016 (the Application).
In granting the Application, the Singapore High Court provided an analysis of the legal framework surrounding the CCAA and the factors which the court would consider in such applications.
The CCAA governs international civil or commercial disputes and implements the 2005 Hague Convention on Choice of Court Agreements (the Convention) to which Singapore is a signatory.
Under the Convention, signatory states (Signatory States) are required to (i) recognize and enforce judgments of these courts subject to certain exceptions.; and (ii) uphold exclusive choice of court agreements which designate the courts of contracting states (i.e., uphold exclusive jurisdiction clauses).
(i) Enforcement of Judgments
The CCAA provides that judgments obtained from the courts of Signatory States must be recognized and enforced as if they were judgments obtained from the Singapore courts. The Singapore courts are not permitted to review the merits of the judgment and are bound by findings of fact of the courts of Signatory States.
However, in circumstances where the judgment was obtained by fraud, procedural unfairness, or is manifestly incompatible with the public policy of Singapore, the Singapore courts may refuse recognition and enforcement.
(ii) Upholding the Exclusive Jurisdiction Clause
The CCAA provides that where contracting parties located in Signatory States have chosen a Singapore court under the exclusive choice of court agreement, the Singapore court has jurisdiction to determine the dispute and cannot decline to exercise jurisdiction on grounds of forum non conveniens.
If Singapore is not the chosen court under the exclusive choice of court agreement, the Singapore court must stay or dismiss proceedings in favour of the chosen foreign court of the Signatory State.
In Ermgassen & Co Ltd v Sixcap Financials Pte Ltd [2018] SGHCR 8, the Singapore High Court considered an ex parte application filed by Ermgassen seeking the recognition and enforcement of a summary judgment awarded by the High Court of Justice of England and Wales, Queen’s Bench Division against Sixcap Financials, a Singapore registered company (the UK Summary Judgment).
First, the Court considered the applicability of the CCAA to the UK Summary Judgment. In determining that the UK Summary Judgment fell within the auspices of the CCAA, the Court held that
(i) the UK Summary Judgement was a judgment handed down by the High Court of Justice, Queen’s Bench Division;
(ii) UK is a Signatory State to the Convention;
(iii) the Application was for the recognition and enforcement of a foreign judgment and therefore, an “international case” as defined in the CCAA; and
(iv) there was an “exclusive choice of court agreement” applicable to the underlying dispute in which the UK Summary Judgment was obtained.
Second, in considering the Application, the Court considered the following documents exhibited in Ermgassen’s supporting affidavit:
(i) Ermgassen’s application seeking summary judgment in the UK;
(ii) the Order of the High Court of Justice, Queen’s Bench Division granting summary judgment in favour of Ermgassen (UK Order of Court);
(iii) the Order of the High Court of Justice, Queen’s Bench Division ordering the UK Summary Judgment to be certified for the purpose of enforcement out of jurisdiction in Singapore; and
(iv) a certificate for enforcement of the UK Summary Judgment in a foreign country signed and sealed by the High Court of Justice, Queen’s Bench Division.
In granting the Application, the Court held that
(i) the UK Order of Court was a judgment on a merits of the case and not a default judgment;
(ii) while Ermgassen failed to exhibit a “complete and certified copy of the foreign judgment” as required under Order 111 Rule 2(3)(a) of the Singapore Rules of Court, the UK Order of Court was sufficient to discharge the burden to corroborate its claim on the existence of the UK Summary Judgment; and
(iii) there were no grounds under Sections 14 or 15 of the CCAA on which the Court would refuse to recognize and/or enforce the UK Summary Judgment (e.g., fraud, procedural unfairness, or incompatibility with the public policy of Singapore, etc.)
The case of Ermgassen & Co Ltd v Sixcap Financials Pte Ltd provides welcome guidance on the procedure and factors considered by the Singapore courts in determining an application for the recognition and enforcement of a foreign judgment of a court of a Signatory State in Singapore.
In granting the Application, even though Ermgassen failed to support its Application with a “complete and certified copy” of the grounds of decision of the UK Summary Judgment, it appears that the Singapore courts are, within reason, willing to grant a wide berth on the evidential requirement by allowing the existence of the foreign judgment to be adduced using extrinsic evidence. This is of particular significance to foreign entities seeking to enforce court judgments obtained in Signatory States in Singapore in circumstances where the grounds of the decision of the foreign court are only issued orally or are not readily available.