Foreign Judgments PDF

The Conflict of Laws A portion of the Part B Contemporary Legal Knowledge & Practice Module Marcus Teo, Sheridan Fellow, NUS Law Foreign Judgments Overview: Why are foreign judgments important? Requirements for recognition Defences to recognition Consequences of recognition Why are fo...

The Conflict of Laws A portion of the Part B Contemporary Legal Knowledge & Practice Module Marcus Teo, Sheridan Fellow, NUS Law Foreign Judgments Overview: Why are foreign judgments important? Requirements for recognition Defences to recognition Consequences of recognition Why are foreign judgments important? A recognised foreign judgment can have (almost) the same consequences as a prior domestic judgment – it can be: Directly enforced in Singapore (if it is a money judgment); or Used to estop parties to Singapore proceedings from raising certain issues (if the further requirements for estoppel are met). Requirements for recognition Requirements for recognition A foreign judgment must fulfil two requirements for recognition (Giant Light) – it must be: Issued by a foreign court with jurisdiction over the judgment-debtor; and Be final and conclusive as to the merits of parties’ dispute. Jurisdiction A foreign court has jurisdiction over a judgment-debtor if he (Giant Light): Was the claimant in the foreign proceedings; Was present in the foreign state; Had submitted by conduct to the foreign proceedings; or Was party to a jurisdiction clause choosing the foreign court, in relation to the dispute that court adjudicated. Jurisdiction Three notes on jurisdiction: Service is not required to establish the foreign court’s jurisdiction (Pemberton v Hughes) The foreign court cannot obtain jurisdiction by virtue of some nexus akin to those in PD 63(3) There are subtle differences in the submission by conduct test for foreign proceedings, as compared to Singapore proceedings, but we will not cover them (i.e., you may assume the rules are identical) Final and conclusive as to the merits A foreign judgment is final and conclusive as to the merits of the foreign dispute if the issue the foreign court adjudicates on is determined finally (Bunga Melati 5): “A judgment is final and conclusive on the merits if it is one which cannot be varied, re- opened or set aside by the court that delivered it … [i.e., if it establishes certain facts as proved or not in dispute; states what are the relevant principles of law applicable to such facts; and expresses a conclusion with regard to the effect of applying those principles to the factual situation concerned.” Examples of foreign judgments which are not final and conclusive (Bunga Melati 5) – an order stating that one party: Is entitled to an interim order protecting the status quo before trial (not final and conclusive) Has a “good arguable case” on the merits of his claim (not final and conclusive) Final and conclusive as to the merits Two notes on the final and conclusive requirement: A foreign first instance judgment is still final and conclusive because it remains res judicata (cf relevant portion of Civ Pro syllabus) A foreign interlocutory order can still be final and conclusive on (only) the merits of issues which the foreign court must finally determine to issue the order (Lakshmi) E.g., a foreign court order that it will exercise jurisdiction over the dispute on grounds that no Singapore jurisdiction clause exists is final and conclusive on that issue, but not on whether Singapore’s courts should otherwise exercise jurisdiction over the dispute – the latter question, unlike the former, was never before the former court Defences to recognition Defences to recognition A judgment which meets the requirements for recognition can still be denied recognition if one of several defences can be established, such as: Breaches of natural justice Fraud Public policy Breaches of natural justice Rules of natural justice are those meant to secure a fair trial – “the heart of the issue of natural justice lies in the concepts of notice and of the opportunity to be heard” (Paulus Tannos) A judgment-debtor must have had: Notice of foreign proceedings – he must either have been served with process, or otherwise actually knew they were ongoing An opportunity to be heard in foreign proceedings – he must have been able to meaningfully “register [his] protest” against a decision against him Fraud An allegation that a foreign judgment was procured by fraud may support a defence against recognition But the extent of the defence depends on whether the fraud is (Les Placements): Intrinsic fraud, or sabotaging the trial from within E.g., by forging evidence or concocting testimony in court; or This provides a defence only if based on evidence not considered by the foreign court Extrinsic fraud, or sabotaging the trial from outside E.g., by bribing witnesses, tricking the judgment-debtor into settling the case, obtaining default judgment without full and frank disclosure This provides a defence even if based on evidence considered by the foreign court Public Policy In general, the public policy defence against recognition of foreign judmgents is the same as the public policy exception for choice of law rules (see Burswood Nominees, cf Desert Palace) But specifically, it is also contrary to public policy to recognise a foreign judgment when it: Is based on a “manifest, patent or egregious” error of Singapore law (Merck); or Is procured contrary to an anti-suit injunction issued by a Singapore court (WSG Nimbus) Consequences of recognition Consequences of recognition A recognised foreign judgment can be used for two different purposes – subject to different further requirements – it can be: Enforced – but only if it is a money judgment; Used to estop parties raising issues in Singaporean proceedings – but only if the requirements for estoppel are met Enforcement A foreign judgment can be enforced via an action for an agreed sum (i.e., a debt action), usually via an application for summary judgment Jurisdictional nexus: PD 63(3)(m) (claim to “enforce any judgment or arbitral award) Natural forum: Singapore will be natural forum if the judgment-debtor has property here However, for a foreign judgment to support an action for an agreed sum, it must be a judgment for a definite sum of money – and not a determination of judgment-debtor’s liability, an injunction or order of specific performance, or a proprietary remedy (Desert Palace) Estoppel Two kinds of estoppel: Issue estoppel Henderson estoppel (the “extended doctrine of res judicata”) Issue Estoppel A prior recogniseable foreign judgment can be used to estop parties in Singapore proceedings from litigating an issue decided in those earlier proceedings, if: The prior foreign proceedings involved the same parties to the current Singapore proceedings; and The foreign court decided the same issue which is being litigated in Singapore proceedings. Note: the foreign court must have finally and conclusively decided the issue, not merely expressed tentative comments thereon (Merck) Henderson estoppel A prior recogniseable foreign judgment can be used to estop parties in Singapore proceedings from litigating an issue, even if: That issue was not decided in the prior foreign proceedings, if it was so closely-related to issues decided in those foreign proceedings that should have been raised there (Merck); or The parties to the prior foreign proceedings were not identical to those in the current domestic proceedings, if the parties to the current proceedings were so obviously involved in the dispute that they should have been joined to those proceedings (Humpuss Sea Transport) This may be so when the closely-related issue or the obviously-involved party was only raised/joined in the subsequent Singapore proceedings, but no relevant fresh evidence has arisen since the prior foreign proceedings concluded, and no bona fide reason or special circumstances for not raising that issue/joining that party in the foreign proceedings exists (Humpuss) End