Asian Principles for the Recognition and Enforcement of Foreign Judgments

The Asian Business Law Institute has summarised, compared and contrasted the laws of the ten ASEAN member states, Australia, China, India, Japan and South Korea under 13 concise principles.

This eBook is the output of an ambitious project by the Asian Business Law Institute to promote the harmonisation of foreign judgment rules in the region.

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About ABLI

Launched in January 2016, the Asian Business Law Institute (ABLI), a subsidiary of the Singapore Academy of Law, is a permanent institute based in Singapore that initiates, conducts and facilitates research with a view to providing practical guidance in the field of Asian legal development and promoting the convergence of Asian business laws. Its mission is to remove unnecessary or undesirable differences between Asian legal systems that pose obstacles to free and seamless trade.

ABLI’s long-term strategic direction in accordance with its aims is set by its Board of Governors chaired by The Honourable the Chief Justice Sundaresh Menon of the Supreme Court of Singapore. The Board comprises representatives from Australia, China, India and Singapore and other internationally renowned legal experts.

 

Index

Introduction

  • Background to the project
  • Recent developments on foreign judgments
  • The Asian Principles
  • Acknowledgements

Principle 1. General Principle

  • Meaning of judgment
  • "Commercial matter"
  • Recognition distinguished from enforcement (cf. Principle 7 and 12))
  • "On the merits"
  • General
  • Aims
  • Recognition and enforcement by way of international conventions and bilateral agreements
  • Enforcement by way of statutory schemes independent of international conventions or bilateral agreements
  • Recognition and enforcement outside of international conventions, bilateral agreements and statutory schemes
  • Soft law instruments
  • Theoretical bases
  • Indonesia and Thailand
  • Suggested way forward

Principle 2. Jurisdiction

  • Terminology (Due Process also uses "Terminology" but Fraud and Reciprocity use "Definition")
  • Concept of jurisdiction
  • Applicable law
  • Specific requirements
  • Exclusive jurisdiction
  • Suggested way forward

Principle 3. Finality

  • General
  • Applicable law
  • Default judgments
  • Interlocutory judgments
  • Judgments appealable in the court of origin
  • Suggested way forward

Principle 4. Merits

  • General
  • "Review of the merits"
  • Error of fact or law
  • Suggested way forward

Principle 5. Reciprocity

  • General (changed from "Introduction")
  • Definition of reciprocity (Change to just "Definition"?)
  • Criticisms
  • The criteria or standards of reciprocity
  • Reciprocity by way of international conventions and bilateral agreements
  • De facto reciprocity
  • De jure reciprocity
  • Comity
  • The loosening of attitude towards reciprocity
  • Suggested way forward

Principle 6. Money judgments

  • General
  • Non-money judgments
  • Suggested way forward

Principle 7. Non-money judgments

  • General
  • Recognition versus enforcement (cf. Principle 1 and 12)
  • Common law position
  • Civil law and hybrid law position
  • Other instruments
  • The test for enforcement
  • Interim measures of protection
  • Suggested way forward

Principle 8. Fraud

  • Definition (Reciprocity uses "Definition" but Jurisdiction and Due Process use "Terminology")
  • Categories of fraud
  • Defence to recognition and enforcement
  • Relationship with the prohibition against a review of the merits
  • Whether fraud can be raised if it was, or could have been, raised before the court of origin
  • Different rules for different forms of fraud
  • Limitation on type of fraud raised
  • Suggested way forward

Principle 9. Public policy

  • General (Changed from "Introduction")
  • Restraint
  • Scope
  • Suggested way forward

Principle 10. Due Process

  • Terminology (Jurisdiction and Due Process use "Terminology" but Reciprocity and Fraud use "Definition")
  • Importance
  • Relationship to public policy
  • Requirements
  • Applicable law
  • Hague Service Convention
  • Default judgments
  • Suggested way forward

Principle 11. Inconsistent Judgments

  • Res judicata
  • How conflicting judgments may arise
  • Operation of the defence
  • Conflicting local and foreign judgments
  • The effect of a foreign judgment in local (substantive) proceedings
  • Conflicting foreign judgments
  • Suggested way forward

Principle 12. In rem judgments

  • In rem judgment versus in personam judgment
  • Characterisation
  • Recognition as opposed to enforcement (cf. Principle 1 and Principle 7)
  • Requirements
  • Special considerations for certain types of property
  • Defences
  • Suggested way forward

Principle 13. Severability

  • Suggested way forward

 



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