Posts
Oct. 26,
2018
In my last
post (Sept. 27, 2018) I described some recent developments regarding the
enforcement of foreign judgments in the People’s Republic of China (“PRC”), and
enforcement of PRC judgments in Canada, which suggest improved prospects for enforcement
of foreign judgment in the PRC.
In that same
vein, a new Memorandum of Guidance (“MOG”) between the Supreme People’s Court
of the People’s Republic of China and the Supreme Court of Singapore should
simplify the recognition and enforcement of Singapore judgments in the PRC, and
vice versa. The MOG, which was signed in August 2018,
sets out the requirements for enforcement, which include requirements familiar
to the common law such as that the judgment be final, that the court rendering
it had jurisdiction over the case, and that the judgment not be enforcement of
a penal or tax law. There are also
familiar defences, e.g. that the defendant did not get notice of the proceeding
in which the judgment was rendered, or that the judgment was obtained by fraud,
or that enforcement would be contrary to public policy. The MOG also sets out procedures for an
application to enforce the foreign judgment.
The MOG
applies only to monetary judgments (i.e. not injunctions) and only to judgments
in commercial cases, excluding intellectual property and competition law.
In general,
judgments from many countries have not been enforceable in the PRC. PRC courts will not enforce foreign
judgments unless there is a treaty with the other country or unless there is
reciprocity in enforcement, i.e. that the foreign court has enforced PRC
judgments.
Singapore
and the PRC have recognized judgments from each other in the past. In 2016 a court in Jiangsu Province in the
PRC recognized a Singaporean judgment in the Kolmar Group case (discussed in my
Sept. 27 post) on the basis that a Singaporean court had previously recognised
a judgment from a court in Jiangsu Province.
The extent of the reciprocity remains unclear, however. The Jiangsu court ruling did not say whether
the Jiangsu, PRC court would have found reciprocity if that previously
recognized judgment had been from a court somewhere else in the PRC.
On its face,
this MOG appears to be intended to ease the enforcement of Singaporean
judgments in the PRC and vice versa. What else could be its purpose? Unfortunately,
it is not clear how much of a change the MOG portends. The MOG clearly states it is not a treaty,
and does not have legal effect. The MOG states that “in the absence of a
relevant treaty, [a Singaporean judgment] may be enforced [by the PRC courts]
on the basis of reciprocity according to the Civil Procedure Law [of the
PRC]”. The parties could have included
in the MOG a declaration about reciprocity as between the two countries, but
chose not to do so.
Nonetheless,
the MOG is surely at least a small step toward liberalizing enforcement of
foreign judgments.
The text of
the MOG is found here: https://www.supremecourt.gov.sg/docs/default-source/default-document-library/spc-mog-english-version---signed.pdf
