Abstract
International commercial courts have emerged in different parts of the world. Such courts have typically been established to address a ‘market failure’, viz, by dealing with the peculiarities of international commercial dispute resolution that are not being met by international commercial arbitration. An oft-asked question about such courts is whether their judgments will be recognised and enforced elsewhere. Recent developments suggest that there is much to be optimistic about the recognition and enforcement of their judgments. In the absence of treaties and conventions, the judgments of international commercial courts should still generally be capable of recognition and enforcement under the principles or codes of many common law and civil law jurisdictions. There is more to recognition and enforcement than simply counting the number of Contracting States to treaties or conventions to which a country with an international commercial court is party.
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Notes
- 1.
Ramesh (2018, para 5).
- 2.
Other international commercial courts include the United States District Court for the Southern District of New York (established in 1789), the Delaware Court of Chancery (established in 1792), the Qatar International Court (established in 2009) and the Abu Dhabi Global Market Courts (established in 2015).
- 3.
Queen Mary, University of London and White and Case, ‘2018 International Arbitration Survey: The Evolution of International Arbitration’ lists costs as the worst feature of arbitration followed by lack of effective sanctions during the arbitral process, lack of power in relation to Third Parties and ‘lack of speed’.
- 4.
Reyes (2018, pp. 4–5).
- 5.
Briggs (2013, p. 140).
- 6.
For example, the remedy ordered by the rendering court may not be one which can be enforced in the enforcing court.
- 7.
Briggs (2013, p. 141).
- 8.
Song (2018).
- 9.
Reyes (2019, pp. 1–16).
- 10.
Hwang (2015, p. 199).
- 11.
Menon (2015, para 58(c)(i)).
- 12.
Articles 1 and 2, HCCA 2005.
- 13.
Article 7, HCCA 2005.
- 14.
Article 1, HCCA 2005.
- 15.
Article 5, HCCA 2005.
- 16.
These exceptions are: (a) the agreement is null and void under the law of the State of the chosen court; (b) a party lacked the capacity to conclude the agreement under the law of the State of the court seised; (c) giving effect to the agreement would lead to a manifest injustice or would be manifestly contrary to the public policy of the State of the court seised; (d) for exceptional reasons beyond the control of the parties, the agreement cannot reasonably be performed; or (e) the chosen court has decided not to hear the case.
- 17.
The parties are Albania, Cyprus, Kuwait, Portugal and the Netherlands.
- 18.
Article 4(1), 2019 Convention.
- 19.
Article 2(1), 2019 Convention.
- 20.
Brand (2019, pp. 19–20).
- 21.
Article 7, 2019 Convention.
- 22.
Reyes (2019, pp. 1–16).
- 23.
See Articles 36 and 39 of the Brussels I Recast Regulation, which provide that judgments given in member states shall be recognised and enforceable in other member states without any special procedures or declarations of enforceability respectively.
- 24.
The signatories include Algeria, Bahrain, Djibouti, Iraq, Jordan, Kuwait, Lebanon, Libya, Mauritania, Morocco, Oman, Palestine, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates (UAE) and Yemen.
- 25.
The signatories include Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and UAE.
- 26.
Article 30, Riyadh Convention; Articles 1 and 2, GCC Convention.
- 27.
Article VII of the Nanning Statement.
- 28.
Reyes (2019, pp. 1–17).
- 29.
Reyes (2018, p. 3).
- 30.
The RECJA covers New Zealand, Sri Lanka, Malaysia, Windward Islands, Pakistan, Brunei Darussalam, Papua New Guinea, India (except the states of Jammu and Kashmir), Commonwealth of Australia (High Court of Australia, Federal Court of Australia and Family Court of Australia), New South Wales (Supreme Court of New South Wales), Queensland (Supreme Court of Queensland), South Australia (Supreme Court of South Australia), Tasmania (Supreme Court of Tasmania), Victoria (Supreme Court of Victoria), Western Australia (Family Court of Western Australia and Supreme Court of Western Australia), Australian Capital Territory (Supreme Court of the Australian Capital Territory), Norfolk Island (Supreme Court of Norfolk Island), Northern Territory (Supreme Court of Northern Territory).
- 31.
The REFJA presently only extends to the Hong Kong Special Administrative Region of the People’s Republic of China.
- 32.
The AJA 1920 covers countries including Anguilla, Antigua and Barbuda, Bahamas, Barbados, Bermuda, Botswana, British Virgin Islands, Cayman Islands, Jamaica, Malaysia, New Zealand, Nigeria, Singapore, Sri Lanka, Lesotho, New South Wales and Western Australia.
- 33.
The FJA also covers judgments from recognised courts in Israel, Guernsey, Jersey, India and the Isle of Man.
- 34.
The FJA also applies to Alberta (Canada), Bahamas, British Columbia (Canada), British Virgin Islands, Cayman Islands, Dominica, Falkland Islands, Fiji, Gibraltar, Grenada, Hong Kong, Israel, Italy, Malawi, Manitoba (Canada), Montserrat, Papua New Guinea, Poland, South Korea, St Helena, St Kitts and Nevis, St Vincent and the Grenadines, Seychelles, Solomon Islands, Sri Lanka, Switzerland, Taiwan, Tonga, Tuvalu, and Western Samoa.
- 35.
See for instance Section 9(3) of the AJA and Section 2(2) of the FJA 1933; Section 3(3) of the RECJA and Section 4(4) of the REFJA.
- 36.
Briggs (2013, p. 139).
- 37.
In England, only monetary judgments are enforceable under the AJA and FJA: see Section 12(1) of the AJA and Section 1(2)(b) of the FJA. In Singapore, non-monetary relief such as an injunction may be enforced if it falls within the ambit of the Choice of Court Agreements Act (No. 14 of 2016) (CCAA). In Australia, provision is made under Section 5(6) of the FJA 1991 for the enforcement of non-money judgments ‘if the Governor‑General is satisfied that … substantial reciprocity of treatment will be assured in relation to the enforcement in that country of all or some non-money judgments given in Australian courts’, and if so the regulations may provide that the FJA applies to such non-money judgments.
- 38.
Briggs (2013, p. 168).
- 39.
See for instance, Manharlal Trikamdas Mody v Sumikin Busan International HK Ltd. [2014] 3 SLR 1161 at [140], cf section 3(2) of the RECJA and section 6(1) of the REFJA, which provide respectively that the foreign judgment will not be registered or that the registration may be set aside if the judgment debtor satisfies the registering court either that an appeal is pending or that he is entitled or intends to appeal the judgment.
- 40.
Humpuss Sea Transport Pte Ltd v PT Humpuss Intermoda Transportasi TBK [2016] 5 SLR 1322 at [77]; Lord Collins of Mapesbury and Harris (eds) (2012, [14-023]).
- 41.
Adams v Cape Industries plc [1990] 1 Ch 433 at 518B.
- 42.
Joint Stock Company Aeroflot Russian Airlines v Berezovsky and another [2012] EWHC 3017 at [61].
- 43.
Briggs (2013, p. 170).
- 44.
United Malayan Banking Corp Bhd v Khoo Boo Hor [1995] 3 SLR(R) 839 at [9]; cf RECJA s 3(2)(b) and REFJA s 5(2)(a)(iv) which require residence.
- 45.
Section 33, Civil Jurisdiction and Judgments Act 1982; see also Section 5(2)(a)(i), REFJA.
- 46.
For the Singapore position, see Section 3(2)(d) of the RECJA, Section 5(1)(a)(iv) of the REFJA and also under the common law [Hong Pian Tee v Les Placements Germain Gauthier Inc [2002] 1 SLR(R) 515 (hereafter ‘Hong Pian Tee’)]. See also Section 7(2)(a)(vi) of the FJA 1991 and Section 9(2)(d) of the AJA and Section 4(1)(a)(iv) of the FJA 1933.
- 47.
In Singapore, this defence is provided for in Section 3(2)(f) of the RECJA and Section 5(1)(a)(v) of the REFJA; in Australia, it is provided for in Section 7(2)(a)(xi) of the FJA 1991; in England, it is provided for in Section 9(2)(f) of the AJA and Section 4(1)(a)(v) of the FJA 1933.
- 48.
In Singapore, under Section 3(2)(c) of the RECJA and Section 5(1)(a)(iii) of the REFJA, what is required is that the judgment debtor must have been duly served with process. In Australia, under Section 7(2)(a)(v) of the FJA, the judgment debtor must have received notice of the proceedings in sufficient time for him to defend the proceedings. Similarly, in England, Section 9(2)(c) of the AJA requires the judgment debtor to have been duly served with the process of the original court and Section 4(1)(a)(iii) of the FJA 1933 requires the judgment debtor to have received notice of the proceedings in sufficient time to enable him to defend the proceedings.
- 49.
See Section 4(1)(b) of the FJA 1933; Section 5(1)(b) of the REFJA; and in Australia, under Section 7(2)(b) of the FJA 1991.
- 50.
Abouloff v Oppenheimer (1882) 10 QBD 295 at 304 and 308.
- 51.
House of Spring Gardens Ltd v Waite [1991] 1 QB 241 (hereafter ‘House of Spring Gardens Ltd’).
- 52.
House of Spring Gardens Ltd., 251.
- 53.
See Hong Pian Tee for the Singapore approach.
- 54.
Hong Pian Tee, [30].
- 55.
Hong Pian Tee, [30].
- 56.
Beals v Saldanha [2003] 3 SCR 416 at [50]–[53].
- 57.
See for instance Japan, where the treatment of Choice of Court Agreements is dealt with under Article 3–7 of the Code of Civil Procedure.
- 58.
See Japan: Article 24(3) of the Civil Execution Act which requires proving that the judgment of the foreign court has become ‘final and binding’ or when the judgment fails to satisfy the requirements listed in Article 118 of the Code of Civil Procedure (Law No. 109 of 26 June 1996 as amended); South Korea: Article 217(1) of the Civil Procedure Act which requires a ‘final and conclusive’ judgment; UAE: Article 235(2)(d) of the Civil Procedure Code requires that the judgment or order has ‘obtained the absolute degree in accordance with law of the issuing court’.
- 59.
UAE: Article 235(2)(c) of the Civil Procedure Code.
- 60.
Germany: Section 328(1)(2) of the Code of Civil Procedure.
- 61.
Elbati (2017, p. 191).
- 62.
These include jurisdictions such as Venezuela, Lithuania, Bulgaria and Poland. For more information, see Elbati (2017, pp. 187–188).
- 63.
Elbati (2017, p. 185).
- 64.
In Reyes (2019, pp. 1–28), where the author explains that comity means that the requirements of a sovereign state should be accorded due respect and that subject to certain conditions, foreign judgments should be recognised and enforced as a matter of course.
- 65.
For more information, see Elbati (2017, pp. 201–205).
- 66.
Kolmar Group AG and Jiangsu Textile Industry (Group) Import & Export Co., Ltd. (2016 Su 01 Xie Wai Ren No. 3); see also Giant Light Metal Technology (Kunshan) Co Ltd v Aksa Far East Pte Ltd. [2014] 2 SLR 545 which concerned the recognition and enforcement of a Chinese judgment in Singapore.
- 67.
Liu Li v Tao Li & Tong Wu, Intermediate People’s Court of Wuhan, Hubei Province, China, 30 June 2017.
- 68.
Section 235(2)(e) of the UAE Civil Procedure Code.
- 69.
Article 282 of Chinese Civil Procedure law.
- 70.
See the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 (SI 2019/479).
- 71.
‘Guidance—Handling civil legal cases that involve EU countries if there’s no Brexit deal’ (13 September 2018).
- 72.
See the UK’s Declaration dated 12 April 2019 in relation to the HCCA 2005: www.hcch.net/en/instruments/conventions/status-table/notifications/?csid=1318&disp=resdn.
- 73.
HM Government (2018, paras 147 and 148).
- 74.
See Article 509 of the French Code of Civil Procedure.
- 75.
Dutch Supreme Court, 26 September 2014, ECLI:NL:HR:2014:2838.
- 76.
Article 7, Dubai Law No. 12 of 2004.
- 77.
See Amended DIFC Practice Direction (2 of 2015)—Referral of judgment payment disputes to Arbitration, which allows parties to refer a ‘Judgment Payment Dispute’ (defined as any dispute, difference, controversy or claim between a judgment creditor and judgment debtor with respect to any money (including interest and costs) due under an unsatisfied judgment) to arbitration under the DIFC-LCIA Rules.
- 78.
Hwang (2015, p. 203).
- 79.
Article 13(8) of the Constitutional Statute of the Republic of Kazakhstan.
- 80.
For example, Kazakhstan has entered into the Kiev Agreement between the CIS Countries on the Procedure for Settlement of Disputes Associated with Commercial Activities (20 March 1992), which is force between Armenia, Azerbaijan, Belarus, Kazakhstan, Kyrgyzstan, Russian Federation, Turkmenistan, Tajikistan, Ukraine, Uzbekistan and the Minsk Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters. See also the agreement entered into between the Republic of Kazakhstan and the UAE on Judicial Assistance in Civil and Commercial Matters.
- 81.
See Sections 14 and 15, CCAA.
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Reyes, A., Tan, K. (2020). Recognition and Enforcement of International Commercial Court Judgments. In: Chen, L., Janssen, A. (eds) Dispute Resolution in China, Europe and World. Ius Gentium: Comparative Perspectives on Law and Justice, vol 79. Springer, Cham. https://doi.org/10.1007/978-3-030-42974-4_2
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