Singapore and China’s Memorandum of Guidance: Greater clarity over reciprocal enforcement of Court Judgments
The Supreme Court of Singapore and the Supreme People’s Court of the People’s Republic of China signed a Memorandum of Guidance (MOG) in September 2018.
The MOG provides much-needed clarity on the test be applied by Chinese courts in deciding whether to recognise a Singapore court judgment.
In context: Judgments in the PRC
Enforcing judgments in China has its challenges, as China is not a party to any general convention for the recognition and enforcement of foreign judgments.
Furthermore, reciprocity is a condition for the recognition and enforcement of foreign judgments in China. Reciprocity is not easy to establish before Chinese courts.
The MOG's remit
The MOG provides a framework under which money judgments heard and obtained in Singapore may be brought before Chinese courts for recognition and enforcement, and vice versa.
The MOG's key Articles are:
- Article 6: The principle of reciprocity still stands, i.e. Singapore court judgments can only be recognised and enforced on the basis of reciprocity according to the Civil Procedure Law of the People's Republic of China.
- Article 7: The judgment to be recognised and enforced in China must be a final and conclusive judgment, with finality and conclusiveness to be determined in accordance with Chinese law.
- Article 8: Chinese courts will not recognise and enforce certain types of judgments, including but not limited to intellectual property rights cases, unfair competition cases and monopoly cases.
- Article 9: Singapore courts must have had jurisdiction to decide the case, with jurisdiction assessed in accordance with Chinese law.
The MOG also provides that Chinese courts may not look into the merits of the judgment.
Once the criteria for recognition and enforcement have been satisfied, Singapore court judgments may only be challenged on a number of limited grounds, including that the judgment had been obtained by fraud (Article 10).
The MOG is helpful insofar as it clarifies the criteria for enforcing Singapore court judgments in China. However it has no binding effect, and therefore time will tell whether Chinese courts actually take account of the MOG when asked to enforce Singapore court judgments in China.
It is also worth noting that it only applies to money judgments for a specific sum, and therefore it does not apply to other types of judgments or orders, such as orders for injunctive relief or specific performance.
This is, nevertheless, an interesting development, and its indication of a commitment by China to international comity is a welcome one.
Research conducted by Stephanie Koh, Trainee Solicitor.