Reforms two years on have bolstered enforceability of Singapore judgments in Asia-Pacific

Following changes in 2023 to Singapore’s legal framework for the recognition and enforcement of civil judgments, in which Asia-Pacific (APAC) countries can a Singapore High Court Judgment be enforced?  And, with these changes, will court proceedings be preferred over arbitration?

In March 2023, Singapore’s legal framework for the statutory recognition and enforcement of foreign judgments in civil proceedings was streamlined and consolidated under the Reciprocal Enforcement of Foreign Judgments Act 1959 (REFJA). This involved the repeal of the Reciprocal Enforcement of Commonwealth Judgments Act 1921 (RECJA) and the transfer of jurisdictions listed under the RECJA to the REFJA.

APAC jurisdictions with reciprocal arrangements with Singapore

The APAC jurisdictions that have reciprocal arrangements with Singapore for the recognition and enforcement of judgments are:

• Those listed as contracting parties to the Hague Convention on Choice of Court Agreements. Currently, China and Singapore are the only APAC contracting parties to the Hague Convention. China has signed, but not ratified, the Hague Convention.
• Those gazetted under the REFJA. The listed APAC jurisdictions are Hong Kong, Brunei, Australia, India, Malaysia, New Zealand, Pakistan, Papua New Guinea and Sri Lanka. With the exception of Hong Kong, all of these jurisdictions were transferred from the RECJA.

In addition to these regimes, the Singapore International Commercial Court, a division of the Singapore High Court, has published memoranda of guidance on mutual enforcement of money judgments with three APAC jurisdictions: China, Myanmar and Victoria, Australia. However, the memoranda do not have binding legal effect.

Enforcement of arbitral awards in APAC

The APAC jurisdictions without reciprocal recognition and enforcement of judgments with Singapore are Japan, South Korea, Taiwan, Cambodia, Indonesia, Laos, Myanmar, Philippines, Thailand, Timor Leste, Vietnam, Afghanistan, Bangladesh, Bhutan, Maldives and Nepal.

Of all APAC jurisdictions, only Taiwan is not a signatory to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention).

Contracting states to the New York Convention are obliged to recognize and enforce an arbitral award made in the territory of another contracting state.

Effect on choice of method of dispute resolution

Whether arbitration or court proceedings should be preferred in dispute resolution clauses of cross-border transactions depends significantly on the jurisdictions for which enforcement is likely required. This, in turn, depends on which jurisdictions the commercial parties have their assets or business in.

Within APAC, the choice of Singapore courts would be advantageous if enforcement is sought predominantly in the APAC jurisdictions which reciprocate enforcement. Conversely, if it is expected that enforcement will occur mostly in jurisdictions without reciprocal arrangements with Singapore, it may be more suitable to specify arbitration – seated in Singapore, for instance – as the primary method of dispute resolution.

In deciding between arbitration and court proceedings as the preferred mode of dispute resolution, other significant considerations include the types of orders that are enforceable in the foreign jurisdiction, as well as possible grounds for refusal of enforcement under international conventions or the law of the jurisdiction in which enforcement is sought.

Osborne Clarke comment

The overall number of reciprocating APAC jurisdictions did not change with the introduction of the legislative changes in 2023. As such, the enforceability of Singapore judgments across APAC remains quantitatively the same.

Rather, the significance of the new regime lies in a streamlined framework for new reciprocity arrangements to be added to the REFJA. As such, the addition of new jurisdictions to the reciprocal enforcement list in the future would increase the appeal of a choice of Singapore courts as compared to arbitration as a dispute resolution mechanism.

Bryan Tan, a trainee solicitor with OC QueenStreet Singapore, co-authored this Insight.