COMMON LAW DEVELOPMENTS RELATING TO FOREIGN JUDGMENTS

Transcription

1 NINTH YONG PUNG HOW PROFESSORSHIP OF LAW LECTURE 2016 COMMON LAW DEVELOPMENTS RELATING TO FOREIGN JUDGMENTS YEO TIONG MIN, YONG PUNG HOW PROFESSOR OF LAW SCHOOL OF LAW, SINGAPORE MANAGEMENT UNIVERSITY 18 MAY 2016 Text of lecture will be available on from 19 May 2016

2 4 REGIMES Common Law Reciprocal Enforcement of Commonwealth Judgments Act (RECJA) Reciprocal Enforcement of Foreign Judgments Act (REFJA) Choice of Court Agreements Act 2016 (CCAA) Implements the Hague Convention on Choice of Court Agreements 2005 (HCCCA)

3 COMMON LAW Foreign court of law Competent jurisdiction Final and conclusive Judgment on the merits International Jurisdiction Defences

4 INTERNATIONAL JURISDICTION International Jurisdiction in common law countries: Singapore: presence (?) or residence or submission England: presence or submission Canada: presence or residence or submission or real and substantial connection Australia: presence or residence or submission or nationality (or sufficient connection in equity)

5 INTERNATIONAL JURISDICTION Typology of international jurisdiction grounds in common law countries Allegiance: territorial dominion of foreign sovereign Consent: agreement to accept or acceptance of foreign court s jurisdiction Connection: foreign country sufficiently connected to subject matter of or parties to the dispute

6 WHAT DOES ALLEGIANCE REQUIRE? Allegiance from territorial dominion: Schibsby v Westenholz (1870): nationality or residence Carrick v Hancock (1895): all persons within any territorial dominion owe their allegiance to its sovereign power and obedience to all its laws and to the lawful jurisdiction of its courts was correlative to the protection given by a state to any person within its territory. This relationship and its inherent rights depended upon the fact of the person being within its territory. (emphasis added) Singh v Faridkote (1894): Territorial jurisdiction attaches upon all persons either permanently or temporarily resident within the territory while they are within it; but it does not follow them after they have withdrawn from it, and when they are living in another independent country. (emphasis added) Emanuel v Symon (1908): residence or nationality (not presence) Modern English law: Adams v Cape Industries (1990): presence, possibly residence Rubin v Eurofinance SA (2012): presence (not residence)

7 PRESENCE OR RESIDENCE? Old Singapore law: Kader Nina Merican v Kader Meydin (1876): presence RMS Veerappa Chitty v MPL Mootappa Chitty (1893): residence or nationality (not presence) Modern Singapore law: United Malayan Banking Corp Bhd v Khoo Boo Hor (1995): presence or residence (obiter only)

8 NATIONALITY? Nationality? Independent Trustee Services Ltd v Morris (2010, NSW Supreme Court) Not accepted in modern cases and texts in most major common law jurisdictions Rejection of nationality = rejection of allegiance rationale? Use alternative rationale for presence? (Briggs)

9 SUBMISSION BY AGREEMENT Vizcaya Partners Ltd v Picard (2016) An agreement to submit to the jurisdiction of the foreign court does not necessarily have to be contractual. The real question is whether the judgment debtor had consented in advance to the jurisdiction of the foreign court. It is commonplace that contractual agreement or a consent may be implied or inferred. The same applies to contractual agreement or consent to a foreign court s jurisdiction. The authorities denying the possibility of an implied submission by agreement really meant that there had to be actual agreement or consent. Whether the judgment debtor had submitted to the foreign court is determined by the law of the forum. Where the question is whether there is submission by agreement, the law of the forum looks to the law governing the agreement to determine as a matter of construction or implied terms whether there was actually contractual submission

10 SUBMISSION IN THE COURSE OF PROCEEDINGS Rubin v Eurofinance SA (2012) Proof of debt in bankruptcy = submission to bankruptcy court for subsequent proceedings arising out of the bankruptcy voluntary submission?

11 CONNECTION Beals v Saldanha (2003): There are conditions to be met before a domestic court will enforce a judgment from a foreign jurisdiction. The enforcing court must determine whether the foreign court had a real and substantial connection to the action or the parties... A real and substantial connection is the overriding factor in the determination of jurisdiction. The presence of more of the traditional indicia of jurisdiction (attornment, agreement to submit, residence and presence in the foreign jurisdiction) will serve to bolster the real and substantial connection to the action or parties. Major J (majority judgment)

12 CONNECTION Chevron Corp v Yaiguaje (2015): To recognize and enforce a [foreign] judgment, the only prerequisite is that the foreign court had a real and substantial connection with the litigants or with the subject matter of the dispute, or that the traditional bases of jurisdiction were satisfied order and fairness are protected by ensuring that a real and substantial connection existed between the foreign court and the underlying dispute. If such a connection did not exist, or if the defendant was not present in or did not attorn to the foreign jurisdiction, the resulting judgment will not be recognized and enforced in Canada. Gascon J (judgment of the court) (emphasis added)

13 CONNECTION Flightlease (2012) (Irish court rejects Beals v Saldanha) There was no evidence to show that any other common law country had followed the Canadian approach. This was an area of law where international consensus was an important factor. Adopting the Canadian approach would upset the expectations of many who have relied on the traditional common law. Defences to enforcement would need to be reconsidered if changes are made to the existing grounds of international jurisdiction. A change of this type is best left to legislation, and in accordance with international conventions. Benefits (modernity) outweighed by costs (uncertainty)

14 CONNECTION Independent Trustee Services Ltd v Morris (2010, NSW Supreme Court) Sufficient connection between defendant and foreign jurisdiction Order from equitable jurisdiction of foreign country Enforced in equitable jurisdiction of the forum

15 NON-MONEY JUDGMENTS Distinction between monetary and non-monetary judgments: Recognition (of substantive obligation) v. Enforcement (of that obligation) Poh Soon Kiat v Desert Palace (SGCA, 2010): no enforcement of non-monetary obligation? Implications Pro Swing Inc v Elta Golf Inc (SCC, 2006) Non-monetary judgments under the HCCCA Enforcement: common law v equity?

16 FORUM NON CONVENIENS Alberto Justo Rodriguez Licea v Curacao Drydock Co, Inc (2015): the issue of forum non conveniens was irrelevant to the enforceability of foreign judgments and therefore, did not constitute a triable issue. England: Fonu v Demiral (2007) (fnc applicable) Canada: Chevron Corp v Yaiguaje (2016) (fnc applicable) US: fnc not applicable (?) (but applicable to enforcement of arbitral awards) Possible scenarios: Collateral issues of identity of defendant and ownership of assets Forum-shopping in enforcement

17 RECJA/REFJA Modelled on common law Registration sufficient; no need to sue afresh International jurisdiction (primarily): Residence Submission

18 CCAA Will enter into force at a date to be designated by the Minister Will apply to an agreement on the exclusive choice of court of a Contracting State entered into after HCCCA enters into force in that State Jurisdiction: Chosen court to assume jurisdiction unless choice of court agreement is null and void Non-chosen court in Contracting State not to assume jurisdiction except in narrowly prescribed circumstances Judgments: Judgment of chosen court in one Contracting State to be recognised and enforced in all other Contracting States, subject to limited defences

19 INTERNATIONAL JURISDICTION Common law/recja/refja International jurisdiction (eg, whether parties consented to choice of court agreement, whether agreement valid) to be determined by the enforcing court according to its own private international law; foreign judgment not recognised until international jurisdiction is established. CCAA/HCCCA Chosen court s determination on validity of choice of court agreement cannot be questioned Chosen court s findings on jurisdictional facts cannot be questioned unless it is a default judgment

20 THE FOUR FOREIGN JUDGMENTS REGIMES CCAA judgment REFJA judgment RECJA judgment Other judgment CCAA REFJA RECJA Common Law (recognise) (enforce)

21 CCAA CCAA, s 21: To avoid doubt, this Act does not affect any of the following matters: (b) the recognition and enforcement, under any written law or rule of law, of a judgment to which this Act does not apply; RECJA: 2A. This Act does not apply to any judgment which may be recognised or enforced in Singapore under the Choice of Court 20 Agreements Act REFJA: 2A. This Act does not apply to any judgment which may be recognised or enforced in Singapore under the Choice of Court Agreements Act 2016.

22 RELATION OF CCAA TO EXISTING REGIMES Can judgment creditor who fails to enforce CCAA judgment under the CCAA sue under the common law? How will the court decide whether to enforce a CCAA judgment which it may refuse to enforce (eg, invalid choice of court clause), if the judgment would be enforceable under the common law? How will the court decide whether to enforce a CCAA judgment which it may refuse to enforce (eg, invalid choice of court clause), if the judgment would have been registrable under the RECJA/REFJA but for the CCAA exclusion (but not enforceable under the common law)? Is a CCAA judgment which must be refused enforcement a judgment which may be enforced under the CCAA for the purpose of exclusion from RECJA/REFJA?

23 CHOICE OF SINGAPORE COURT AGREEMENT The parties agree that the Singapore High Court has jurisdiction to hear disputes arising in connection with this contract. The parties agree that the Singapore High Court has exclusive jurisdiction to hear disputes arising in connection with this contract. [CCAA, s 3(2)] The parties agree that the Singapore High Court (including the SICC) has exclusive jurisdiction to hear disputes arising in connection with this contract. [CCAA, s 2(2)] The parties agree that the Singapore High Court (including the SICC) has exclusive jurisdiction to hear disputes arising in connection with this contract. The parties further agree to carry out any judgment or order of the SICC, and to waive any recourse outside Singapore against the enforcement of such judgment or order to the extent permissible under the foreign jurisdiction. [SCJA, s 18F]

24 JUDGMENTS PROJECT Project of the Hague Conference on Private International Law To complement HCCCA to expand grounds for recognition and enforcement of foreign judgments Not intended to deal with grounds for assuming primary jurisdiction

25 CONCLUSIONS 1. Nationality? Should allegiance continue to be a justification? 2. Real and substantial connection test? view with some caution 3. Incremental expansion of consent-based grounds (submission) 4. Removing barriers to enforcement: no forum non conveniens? 5. Incremental expansion of common law to non-monetary foreign judgments? 6. Balance between judicial development and legislation/international conventions 7. CCAA and its relationship with existing law 8. Judgments Project way of the future?