Asian Principles cited in Merck Sharp & Dohme Corp v Merck KGaA [2021] SGCA 14

On 26 February 2021, the Singapore Court of Appeal released its judgment in Merck Sharp & Dohme Corp v Merck KGaA [2021] SGCA 14 where the doctrine of issue estoppel in relation to a foreign judgment is examined in detail, among other points.

The disputes centre around whether the appellant is bound by an earlier English court decision interpreting an agreement between the parties’ predecessors which, among others, sets out the boundaries over the use of the name “Merck”.

As helpfully summarised on the website of the Supreme Court, the five-member bench clarified that:

• Foreign judgments are capable of giving rise to issue estoppel. Where there are multiple competing foreign judgments, the foreign judgment that is the first in time should be recognised for the purposes of creating an estoppel. On the other hand, where there is an inconsistent prior or subsequent local judgment between the same parties, the foreign judgment should not be recognised (at [25] and [36]).
• In order for a foreign judgment to give rise to issue estoppel, not only the foreign judgment as a whole, but also the decision on the specific issue that is said to be the subject matter of the estoppel must be final and conclusive under the law of the foreign judgment’s originating jurisdiction (at [43]).
• Issue estoppel does not apply to a foreign (or even local) judgment on a “pure” question of law that does not directly affect the parties’ rights, liabilities or legal relationship (at [51]).

​ABLI is grateful to see our publication Asian Principles for the Recognition and Enforcement of Foreign Judgments being cited at [39] where the judgment leaves open the question of whether reciprocity should be a precondition to the recognition of foreign judgments at common law.

Our first publication released under the Foreign Judgments Project, Recognition and Enforcement of Foreign Judgments in Asia, was relied upon by counsel in the first instance of the same case.

The full text of the judgment is available here. A summary by the Supreme Court can be read here.