Key Points for the Memorandum Concerning Mutual Recognition and Enforcement of Money Judgments in Commercial Cases between Chinese Courts and Singaporean Courts

Written by Ellen Xie / Di Zhu

On 31 August 2018, the Supreme People’s Court of the People’s Republic of China (hereinafter “China”) and the Supreme Court of the Republic of Singapore (hereinafter “Singapore”) jointly signed a Memorandum of Guidance between the Supreme People’s Court of China and the Supreme Court of Singapore on Recognition and Enforcement of Money Judgments in Commercial Cases (hereinafter the “Memorandum”).  In the absence of a treaty or an international agreement between China and Singapore in respect of the recognition and enforcement of each other’s court judgments, this Memorandum (though not binding) provides a good guidance for both courts in China (hereinafter “Chinese Courts”) and courts in Singapore (hereinafter “Singaporean Courts”) to mutually recognize and enforce each other’s money judgements in commercial cases.

If you have a business that covers both jurisdictions of China and Singapore or have a commercial dispute either involving Chinese or Singaporean entities or persons or involving property located in China or Singapore, this legal newsletter summarizing certain key aspects of the Memorandum will be of relevance to you and your business.

I. Recognition and Enforcement of A Singaporean Court Judgment in China

在中国承认和执行新加坡法院判决

1. Chinese Court’s Review Approach and Scope

According to the Memorandum, Chinese Courts may recognize and enforce a Singaporean Court judgment filed by the claimant on the basis of reciprocity.  Chinese Courts will not review the merits of the judgment and may not challenge such judgment on the ground that it contains an error of fact or law.   

However, the Memorandum also provides that a Singaporean Court judgment submitted to Chinese Courts for recognition and enforcement must fulfil certain conditions.  In the case that such conditions are met, Chinese Courts will only have limited grounds to challenge such judgment.

2. Conditions That A Singaporean Court Judgement Should Satisfy

A Singaporean Court judgement must first meet the following conditions in order to be considered by Chinese Courts for recognition and enforcement:  

(a) It must be a judgment made by Singaporean Court(s) in commercial cases, i.e., a money judgement that includes a judgement on costs;

(b) It must be a final and conclusive judgment and is not subject to appeal or under appeal;   

(c) It must not fall within the scope of judgments of the courts of Singapore that Chinese Courts have explicitly rejected to recognize and enforce, including but not limited to the Singaporean Court judgment which would amount to the direct or indirect enforcement of any foreign penal, revenue or public law, or the Singaporean Court judgments of intellectual property rights cases, unfair competition cases and monopoly cases; and

3. Grounds That Chinese Courts Can Rely on to Challenge A Singaporean Court Judgment   

Pursuant to the Memorandum, once a Singaporean Court judgement has met all conditions specified in item 2 of Section I above, Chinese Courts can only challenge such judgment on limited grounds.  Such limited grounds include but not limited to, the following:

(a) the judgment is contrary to basic principles of the law of China or will prejudice to its sovereignty, security or public Interests;

(b) the judgment was obtained by fraud;

(c) the litigant had not been given proper notice of the judicial proceedings or had not been given a reasonable opportunity to defend the case;

(d) the judicial body is constituted by persons with personal interests in the outcome of the case;

(e) the litigant without capacity for action has not been properly represented;

(f) the litigation between the same litigants and on the same subject is pending in Chinese Courts, or Chinese Courts have rendered or made a final and conclusive judgment, or have recognized or enforced a final and conclusive judgment rendered by a third state or an arbitration award.

4. Procedures and Application Documents Required

According to the Memorandum, the following notarized and certified documents as well as their certified Chinese translations (if the aforesaid documents are not in Chinese) should be filed along with the application:

(b) documents to certify that the judgment is not subject to or under appeal, the appeal period has expired in respect of the judgment and there is no pending application for an extension of time to appeal, unless that is specified in the judgment itself;

(c) in the case of default judgment, documents to certify that the defaulting litigant has been legally summoned, unless that is specified in the judgment itself;

(d) documents to certify that the litigant without capacity for action has been properly represented, unless that is specified in the judgment itself.  

Once the Singaporean Court judgment is recognized by Chinese Courts, the claimant can apply for enforcing such judgment in accordance with the Civil Procedure Law of China.

5. Governing Law 

The recognition and enforcement of a Singaporean Court judgment will be reviewed and conducted by Chinese Courts in accordance with Chinese law.  

1. Singaporean Court’s Review Approach and Scope

2. Conditions That A Chinese Court Judgement Should Satisfy

A Chinese Court judgement must first meet the following conditions in order to be considered by Singaporean Courts for recognition and enforcement:     

(a) It must be a judgment made by Chinese Court(s) in commercial cases, i.e., a money judgement that includes a judgement on costs;

(b) It must be a final and conclusive judgment;

(c) It must not fall within the scope of judgments that Singaporean Courts have explicitly rejected to recognize and enforce, including the Chinese Court judgment which would amount to the direct or indirect enforcement of any foreign penal, revenue or public law; and

(d) It is made by Chinese Court(s) that must have had jurisdiction to determine the subject matter of the dispute, as determined by Singaporean Courts.  

3. Grounds That Singaporean Courts Can Rely on to Challenge A Chinese Court Judgment

(a) the judgment was obtained by fraud;  

(b) the judgment is contrary to Singapore public policy;

(c) the proceedings were conducted in a manner which Singaporean Court regards as contrary to the principles of nature justice, such as but not limited to, (1) the litigant had not been given proper notice of the judicial proceedings or had not been given a reasonable opportunity to be heard, or (2) the judicial body is constituted by persons with personal interests in the outcome of the case.

4. Procedures and Application Documents Required

If after serving the writ of summons, the defendant does not respond to the claim, the claimant will have the right to obtain a default judgement.  However, if after serving the writ of summons, the defendant does respond to the claim, the claimant must file and serve a statement of claim.

Unless the defendant can raise a triable issue related to a defence based on any ground specified in item 3 of Section II above, the claimant generally will have a right to obtain a summary judgement without trial.  

Once the judgement on the claim rendered by the Singaporean Court supports the claimant’s claim, the claimant will be entitled to apply for the enforcement of the Chinese Court Judgement at the Singaporean Court.

5. Governing Law

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This China Legal Update was written by attorney Xiaoyun Xie (Ellen), the Managing Director and Lawyer Admitted in China and US (California) of Shanghai Hui Xiao Law Group and the Lead Consultant of Shanghai Hui Xiao Law Consulting Group and trainee Di Zhu, and published by Shanghai Hui Xiao Law Group and Shanghai Hui Xiao Law Consulting Group.
   

Note: This document (including information contained herein) is for general information only and is not legal advice or opinion for any purpose.  All rights reserved.  No part of this document may be copied, reproduced or otherwise transmitted without prior permission in writing of Shanghai Hui Xiao Law Group and Shanghai Hui Xiao Law Consulting Group.

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