SINGAPORE Trends and Developments Contributed by: Koh Swee Yen SC, Wendy Lin, Tiong Teck Wee and Monica Chong Wan Yee, WongPartnership LLP
the foreign judgment was obtained by fraud or in breach of natural justice, or if it would amount to the direct or indirect enforcement of foreign penal, revenue or other public laws. • There must be commonality between the par- ties to the prior proceedings and the parties to the proceedings in which the estoppel is raised. • The subject matter of the estoppel must be the same as what has been decided in the prior judgment. Applying the Doctrine on the facts, the Court held that India was precluded from raising vari- ous arguments to resist enforcement of an award in Singapore, as those same arguments had already been traversed and dismissed by the Swiss seat court (“Swiss Decision”). In doing so, the Court noted that the second and third limbs of the three-part test above were satisfied as the issues and parties were the same. While the first limb of the three-part test presented the most controversy, the Court ultimately disagreed with India’s contention that only the dispositive sec- tion of the Swiss Decision was res judicata, and not its reasoning or considerations. The Swiss Decision was therefore regarded as “final and conclusive” in respect of the grounds raised by India in the Singapore enforcement proceedings. India’s application to set aside an enforcement order giving DT permission to enforce the arbitral award in Singapore was in the circumstances dismissed. By majority, the Court also discussed (in obiter) the “Primacy Principle”, which doctrinal basis “may be found in the rule that the Singapore courts are duty-bound to interpret our domes- tic legislation and hence develop our common law, as far as permissible, in a way that advanc- es Singapore’s international law obligations”.
Pursuant to the Primacy Principle, a prior seat court decision on matters relating to the validity of the award should be treated by an enforce- ment court as presumptively determinative. The onus then shifts to the party seeking to persuade the enforcement court to depart from the seat court’s findings to provide sufficient justification. In this regard, the majority noted the following possible exceptional situations in which the prior seat court’s findings would not be treated as pre- sumptively determinative: • where the seat court’s decision conflicts with the public policy of the enforcement jurisdic- tion; • where the seat court’s decision is tainted by serious procedural flaws; and • where the seat court’s decision is so wrong as to be perverse. The majority opinion concerning the Primacy Principle was notably not without controversy. In a concurring opinion (agreeing that India’s appeal should be dismissed based on the Doc- trine), Mance IJ questioned the utility and appro- priateness of recognising the “Primacy Princi- ple”, noting that the common law tool of issue estoppel and the procedural power recognised in Henderson v Henderson “are […] available and sufficient to enable justice to be done in cases where there has been a prior decision either of a court of the seat or of another enforcement court” and that the proposition (inherent in the Primacy Principle) “that a decision of the [seat court] enjoys a special legal status which [the enforcement court] lacks” may not be persua- sive. This decision is important for parties who are formulating global recovery and enforcement strategies (or counter-strategies) in multiple jurisdictions.
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