Asian Principles for the Recognition and Enforcement of Foreign Judgments

Background

The advent of the Association of Southeast Asian Nations (ASEAN) Economic Community (AEC) in 2015, a market valued at US$2.6 trillion and home to over 622 million people, will no doubt increase the number and size of cross-border transactions. The increase in cross-border transactions may lead to a concomitant rise in cross-border litigation.

In this regard, the recognition and enforcement of judgments made by the courts of one country in the courts of another has particular significance. The greater portability of judgments within ASEAN and its major trade partners such as Australia, China, India, Japan and South Korea will facilitate cross-border transactions by lowering transaction costs and associated legal friction among jurisdictions. In general terms, each country currently relies on its own specific recognition and enforcement rules to determine if a foreign judgment ought to be enforced within its jurisdiction.

The project involves two phases:

  • Phase one: A mapping exercise of the rules for the recognition and enforcement of foreign judgments in ASEAN, Australia, China, India, Japan and South Korea
  • Phase two: An examination of the output of the mapping exercise to determine common principles which will be published as a set of Asian Principles for the Recognition and Enforcement of Foreign Judgments directed at judges and practitioners, but also legislators and policy-makers in Asia.

Conception

The Project was first raised on 21 January 2016 by the Honourable the Chief Justice Sundaresh Menon in his Key Note Address at the Doing Business Across Asia: Legal Convergence in an Asian Century conference held in Singapore. His Honour stated:

Let me finally outline three examples of the sort of projects that the ABLI could undertake subject to the approval and further directions of the Board of Governors. The first is one that ... would focus on the harmonisation of the rules on the recognition and enforcement of foreign judgments in Asia including, of course, ASEAN and its major trade partners such as Australia, China and India. If the Board of Governors sanctions this, the aim would be to publish, within a fairly ambitious timescale of two to three years, a product that contains a comprehensive review and discussion on the treatment of foreign judgments in Asia. This could be published as a handbook, a best practices guide, a core text, a model law or a draft treaty. Whatever the precise form of this output, it would provide a springboard for discussions on how to promote harmonisation of the rules governing recognition and enforcement of judgements. Both the commentary and the discussions on the law should also serve as valuable reference points for judges and practitioners alike

Phase one. Recognition and Enforcement of Foreign Judgments in Asia

In December 2017, ABLI published its first publication in its Legal Convergence Series titled Recognition and Enforcement of Foreign Judgments in Asia (Compendium). The Compendium was launched during the Honourable the Chief Justice Sundaresh Menon's Response at the Opening of Singapore's Legal Year, held at the Supreme Court of Singapore.

 

Recognition and enforcement of foreign judgments in Asia
   Recognition and Enforcement of Foreign Judgments in Asia (softcover)
December 2017
by Adeline Chong (editor)

Download the free pdf

 

The Compendium comprises 15 concise reports (Jurisdictional Reports) written by legal scholars and legal practitioners in the respective countries (Jurisdictional Reporters), identifying the existing recognition and enforcement of foreign judgment rules of the ten ASEAN countries and their major Asian trade partners (Australia, China, India, Japan and South Korea). In addition, the Jurisdictional Reports distinguish between monetary and non- monetary judgments.

The Compendium is of utility to lawyers and businesses in the region as it provides an overview of how foreign judgments in civil and commercial matters are recognised in different jurisdictions in Asia and the requirements which need to be fulfilled for a foreign judgment to be enforced in these jurisdictions.

Translations of the Compendium

In August 2018, Bun & Associates (ប៊ុន និង​សហការី) produced a Khmer translation of the Cambodia chapter of the Compendium.

On 10 October 2018, Allen & Gledhill (Myanmar) produced a Burmese translation of the Myanmar chapter of the Compendium.

Phase two. Asian Principles for the Recognition and Enforcement of Foreign Judgments

The Compendium acts as a springboard for phase two of the Project which considers whether sufficient areas of commonality exist for convergence in this area of the law and how convergence may best be achieved.

The aim of phase two is to publish a set of Asian Principles for the Recognition and Enforcement of Foreign Judgments (Asian Principles). The Asian Principles will be based on the leading English law textbook on the conflict of laws, Dicey, Morris & Collins on the Conflict of Laws◌, with accompanying commentary and examples.

Seven of the 16 Jurisdictional Reporters from phase one of the Project volunteered their expertise and time to prepare draft chapters for the Asian Principles (Authors). Each of the Authors is identified out below.

On 12 October 2018, ABLI held a workshop at ABLI's offices at the Supreme Court of Singapore to discuss drafts of the Asian Principles prepared by the Authors.

In December 2018, ABLI received updated draft chapters from the Authors of the Asian Principles.

The draft Asian Principles are currently being edited.

Jurisdictions

The Project considers the laws in each of the ten ASEAN member states in addition to five1 of the six Asia-Pacific states with which ASEAN has existing free trade agreements. That is:

Contributors

The project has 16 contributors from Asia. Consistent with ABLI's Asia-centric focus, 94% of the contributors are from Asia, with an additional 6% from Australia. The project also brings together both the academic and legal professions, with 63% of contributors being academics and 38% being legal practitioners.

Project Lead and Editor

Dr Adeline CHONG
   Dr Adeline CHONG is an Associate Professor of Law at the School of Law of Singapore Management University. Her research areas are private international law, equity and trusts and restitution.

 

Project Adviser

  • The Honourable Justice Andrew Phang, Judge of Appeal of the Supreme Court of Singapore.
  •  

    Jurisdictional Reporters

    1. Dr Andrew BELL SC (as he then was; now President Andrew BELL)
    2. Dr Colin ONG SC
    3. Mr Youdy BUN
    4. Dr Yujun GUO
    5. Professor Narinder SINGH
    6. Dr Yu Un OPPUSUNGGU
    7. Professor Toshiyuki KONO
    8. Ms Xaynari CHANTHALA
    9. Mr Kongphanh SANTIVONG
    10. Dr CHOONG Yeow Choy
    11. Mr Minn Naing Oo
    12. Professor Elizabeth AGUILING-PANGALANGAN
    13. Dr Adeline CHONG
    14. Dr Kwang Hyun SUK
    15. Dr Poomintr SOOKSRIPAISARNKIT
    16. Dr Ngọc Bích DU

    Authors of the Asian Principles

    1. Dr Colin ONG SC
    2. Dr Yujun GUO
    3. Professor Narinder SINGH
    4. Dr Yu Un OPPUSUNGGU
    5. Dr Adeline CHONG
    6. Dr Poomintr SOOKSRIPAISARNKIT
    7. Dr Ngọc Bích DU

    Chronology

    • 1 April 2019, ABLI is invited to participate as an Observer at the Twenty-Second Diplomatic Session of the Hague Conference on Private International Law.
    • December 2018, ABLI receives drafts for phase 2 of the Project
    • 12 October 2018, ABLI holds workshop for phase 2 of the Project
    • 10 October 2018, Allen & Gledhill (Myanmar) produces Burmese translation of the Myanmar chapter of Recognition and Enforcement of Foreign Judgments in Asia
    • August 2018, Bun & Associates produces Khmer translation of the Cambodian chapter of Recognition and Enforcement of Foreign Judgments in Asia
    • 27 July 2018, Project Lead, Dr Adeline Chong, presents the Project at the 20th Congress of the International Academy of Comparative Law
    • 8 January 2018, ABLI launches Recognition and Enforcement of Foreign Judgments
    • December 2017, ABLI publishes Recognition and Enforcement of Foreign Judgments in Asia
    • August 2016, ABLI's Board of Governors approves the Project
    • 21 January 2016, The Hon the Chief Justice Sundaresh Menon proposes the Project at the Doing Business Across Asia: Legal Convergence in an Asian Century conference held in Singapore

    Media

    • Recognition and Enforcement of Foreign Judgments in Asia launch flyer (PDF). 
    • Recognition and Enforcement of Foreign Judgments in Asia news release (PDF).
    • The Honourable the Chief Justice Sundaresh Menon, "Response by Chief Justice Sundaresh Menon: Opening of the Legal Year 2018", 8 January 2018 (link).
    • Grace Leong, “Study done on how foreign judgments are recognised in Asia”, The Straits Times, 9 January 2018.

     

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    1. The other Asia-Pacific state with which the ASEAN members have a free trade agreement is New Zealand, which is not considered by this Project.  

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