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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
This ICC Guide to National Rules of Procedure for Recognition and Enforcement of Foreign Awards under the New York Convention is the third, updated edition to mark the 60th anniversary of the New York Convention. Country Answers, which reflect the state of law at 1 October 2018, have been provided in response to a Questionnaire drawn up by a task force of the ICC Commission on Arbitration and ADR.
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
Republic of Singapore.
2. Date of entry into force of the New York Convention
19 Nov. 1986.
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(a) reciprocity?
Yes. Thus, an award will be recognised and enforced in Singapore pursuant to the New York Convention only if the State in which the award was made is a Contracting State to the New York Convention.
(b) commercial relationships?
No.
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
The Singapore courts have not directly addressed the second sentence of Art. I(1) of the New York Convention, which deals with arbitral awards not considered as domestic awards in the State where recognition and enforcement is sought.
To the extent the second sentence of Art. I(1) of the New York Convention encompasses ‘a-national’ or ‘delocalised’ arbitral awards, the Singapore Court of Appeal has observed that Singapore law does not support the notion that arbitral proceedings or arbitral awards can stand free from control of the national legal system of the seat of the arbitration.
(Source: Prometheus Marine Pte Ltd v King, Anna Rita [2018] 1 SLR 1 at [46].)
B. National sources of law
5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?
C. Limitation periods (time limits)
6.
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
Yes.
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
In general, the limitation period for recognition and enforcement of foreign awards is six years, starting from the date on which it becomes binding on the parties, and not the date on which the original cause of action giving rise to the arbitration proceedings arose.
(Source: International Arbitration Act, s. 8A; Limitation Act (Cap. 163), s. 6.)
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
The High Court of Singapore. On 9 Jan. 2018, the Parliament of Singapore passed a bill conferring jurisdiction on the Singapore International Commercial Court, being a division of the High Court, ‘to hear any proceedings relating to international commercial arbitration that the High Court may hear’.
(Source: International Arbitration Act, s. 29 read together with s. 19; Supreme Court of Judicature (Amendment) Bill No. 47/2017)
8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?
In general, there are no jurisdictional requirements, other than that the award must be a Convention award.
(Source: Definition of ‘foreign award’, International Arbitration Act, s. 27(1).)
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
An application for leave to enforce a foreign award may be made ex parte to the High Court of Singapore.
(Source: Rules of Court, O. 69A, r. 6(1A).)
10.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
As mentioned above, the first decision granting or denying recognition and enforcement is made ex parte by the High Court of Singapore. If an enforcement order is granted, the party against whom it is made may apply to have it set aside on the limited grounds set out in the International Arbitration Act, s. 31(2) and s. 31(4).
(Source: International Arbitration Act, s. 31.)
(b) How many levels of appeal or recourse are available against this decision?
One. The decision on the application to set aside may be appealed to the Court of Appeal of Singapore.
(Source: Rules of Court, O. 57, r. 1.)
11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?
The respondent has 14 days after service of the order or, if the order is to be served out of the jurisdiction, such other period as the court may fix, to apply for the order to be set aside. The award can be enforced against assets after the expiry of that period or after any application to set aside the order has been finally disposed of.
(Source: Rules of Court, O. 69A, r. 6(4).)
E. Evidence required
12.
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?
The applicant must supply the court with an affidavit which should:
(Source: International Arbitration Act, s 30; Rules of Court, O. 69A, r. 6(1A).)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
In general, the entire award and arbitration agreement are provided.
(c) Are originals or duly certified copies required?
Either originals or duly certified copies may be provided.
(Source: International Arbitration Act, s 30.)
(d) How many originals or duly certified copies are required?
One for the court.
(Source: International Arbitration Act, s. 30; Rules of Court, O. 69A, r. 6.)
(e) Does the authority or court keep the originals that are filed?
.
(Source: Rules of Court, O. 60, r. 9: ‘no document filed in or in the custody of the Registry shall be taken out of it without leave of the Court’.)
13.
(a) Is it necessary to provide a translation of the documents supplied?
Yes, if the award or agreement is in a language other than English.
(Source: International Arbitration Act, s. 30(c).)
(b) If yes, into what language?
English.
(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?
Yes. Translations must be duly certified in English as a correct translation by a sworn translator or by an official or by a diplomatic or consular agent of the country in which the award was made.
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?
A full translation is ordinarily required.
F. Stay of enforcement
14.
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?
Yes. Where, in any proceedings in which the enforcement of a foreign award (a Convention award) is sought pursuant to Part III of the International Arbitration Act, the court is satisfied that an application for the setting side or suspension of the award has been made to a competent authority of the country in which, or under whose law, the award was made, the court may, if the court considers it proper to do so, adjourn the proceedings or, as the case may be, so much of the proceedings as relates to the award.
(Source: International Arbitration Act, s. 31(5)(a).)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
The legislation is silent on this issue although it is possible that the court could do so pursuant to its inherent jurisdiction and para. 9 of the First Schedule read jointly with the Supreme Court of Judicature Act (Cap. 322, 2007 Rev Ed). Section 18 of this Act provides that the court has the ‘[p]ower to dismiss or stay proceedings where the matter in question is res judicata between the parties, or where by reason of multiplicity of proceedings in any court or courts or by reason of a court in Singapore not being the appropriate forum the proceedings ought not to be continued’.
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
The court has discretion on whether security is required when ordering a stay of enforcement proceedings. Where, in any proceedings in which the enforcement of a Convention award is sought pursuant to Part III of the International Arbitration Act, the court is satisfied that an application for the setting aside or suspension of the award has been made to a competent authority of the country in which, or under whose law, the award was made, the court may, at the request of the party seeking enforcement, order the other party to give suitable security.
(Source: International Arbitration Act, s. 31(5)(b).)
G. Confidentiality
15.
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?
Yes, documents filed in an application for enforcement, which are filed in the form of a summons (or originating summons) pursuant to the Rules of Court Order 69A r. 3(2), become public documents. Any person may, with the leave of the Registrar and on payment of the prescribed fee, be entitled to search for, inspect and take a copy of any of the documents filed in the Registry.
(Source: Rules of Court, O. 60, r. 4.)
It is possible for a party to request to the court that all court documents and records in the enforcement proceedings be sealed, and access by third parties to those documents and records withheld. A request could be made pursuant to ss. 22 and 23 of the International Arbitration Act, or the court’s inherent power to grant a sealing order. If a sealing order is in place, the court will not grant leave to a member of the public to inspect or take copies of documents pursuant to Order 60 Rule 4(2) of the Rules of Court.
(Source: BBW v BBX [2016] 5 SLR 755.)
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
The default position is that enforcement hearings will be heard in open court. However, parties can apply to the court for the proceedings under the International Arbitration Act to be heard otherwise than in open court. The application is made to a judge or the registrar and should be made by way of summons. Where the case is urgent, this application can be made ex parte or on such terms as the court thinks fit.
(Source: International Arbitration Act, s 22; Rules of Court, O. 69A, rr. 3(1)–3(3).)
(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?
Where proceedings are heard in open court, certain selected judgments will be published both electronically and in hard copy. Transcripts of hearings in open court (but which are not published or officially reported) are also available on request.
Where the proceedings are heard otherwise than in open court, the court is permitted to publish information relating to the proceedings only if (a) all parties agree that such information may be published; or (b) the court is satisfied that the information, if published in accordance with such directions as it may give, would not reveal any matter, including the identity of any party to the proceedings, that any party to the proceedings reasonably wishes to remain confidential.
(Source: International Arbitration Act, s. 23(3).)
Notwithstanding the above, where a court considers that the judgment, and its grounds, to be of major legal interest, it shall direct that reports of the judgment may be published in law reports and professional publications. If any party reasonably wishes to conceal any matter, including the fact of being a party to the proceedings, the court shall (i) give directions as to the action that shall be taken to conceal that matter in those reports; (ii) if it considers that a report published in accordance with directions given under (i) would be likely to reveal that matter, direct that no report shall be published until after the end of such period, not exceeding ten years, as it considers appropriate.
(Source: International Arbitration Act, s. 23(4); ABC Co v. XYZ Ltd (2003) SGHC 107; AJT v AJU [2010] SGHC 201.)
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
The definition of award for purposes of the International Arbitration Act includes an interim and partial award. Interim and partial awards may also be recognized and enforced as long as they are final with respect to the matters decided.
(Source: International Arbitration Act, s. 2, s. 12.)
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?
Any foreign award, including any non-monetary relief granted in such an award, may be enforced in Singapore in the same manner as a judgment or an order to the same effect by leave of the High Court or a Judge thereof.
(Source: International Arbitration Act, s. 19, s. 29(1).)
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
In principle, it is possible to obtain recognition and enforcement of part of the relief granted in a foreign award.
When a foreign award contains decisions on matters not submitted to arbitration and those decisions can be separated from decisions on matters submitted to arbitration, the award may be enforced to the extent that it contains decisions on matters submitted to arbitration.
(Source: International Arbitration Act, s. 31(3).)
19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?
The Singapore courts have, in obiter dicta, expressed serious doubts as to whether an enforcement court would recognise and enforce a foreign award which has been set aside by the court at the seat of arbitration, on the basis that a successful application to set aside an award would generally lead to the conclusion that there is simply no award to enforce.
(Source: International Arbitration Act, s. 31(2)(f); PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v Astro Nusantara International BV and others and another appeal [2013] SGCA 57.)
20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?
The Law Reform Committee issued a consultation paper in January 2018 and completed a process of gathering feedback in March 2018. One of the issues considered was whether to order indemnity costs with regard to unsuccessful proceedings to set aside an award or to resist enforcement. At the time of writing, the consultation has been put on hold pending the outcome of proposals by the Ministry of Law and the Supreme Court to reform the civil justice system.
(Source: Singapore Academy of Law, Law Reform Committee, Consultation Paper on Certain Issues concerning Arbitration-Related Court Proceedings; https://www.sal.org.sg/Resources-Tools/Law-Reform/Certain-Issues-concerning-Arbitration-Related-Court-Proceedings).
Country Rapporteurs: John Choong, Christopher Lau