– Asia may be moving rapidly towards a borderless trading environment but the diversity of legal systems in this region can pose much uncertainty and so add to the cost of resolving cross-border disputes when they arise.
The Asian Business Law Institute (ABLI) has compiled a compendium of 15 country reports to provide lawyers and businesses with an overview of how foreign judgments in civil and commercial matters are recognised in different jurisdictions in Asia and the requirements which would need to be fulfilled for a foreign judgment to be enforced in these jurisdictions.
This is the first time such a study is made covering the laws of all ASEAN countries and the major Asian economies of China, India, Japan, South Korea and Australia. The reports written by legal academics and practitioners from 15 countries* are freely available online at .
“Asia consists of a mix of common law countries, civil law countries and hybrid systems. The diversity of rules is not just confusing for litigants, who would potentially have to navigate both substantial and subtle differences in the various laws but the plaintiff may find that the judgment received after a hard-won litigation is not recognised or enforceable in a foreign country,” said Associate Professor Adeline Chong of the School of Law, Singapore Management University, who led the project.
Indonesia and Thailand are two countries that have not recognised and enforced foreign judgments. The litigant has to sue afresh in the same cause of action despite a prior foreign judgment in his favour, although it is possible that the foreign judgment may still have effect in these two countries as it may be introduced as evidence in the local proceedings.
Some of the other countries would only recognise and enforce a foreign judgment if there is a treaty on that issue between the country which is asked to enforce the judgment and the country from which the judgment stems. The requirement of reciprocity, under the civil law systems, may be thought to be one of the biggest stumbling blocks to harmonisation between the common law and civil law systems in this area of law. There are signs that some countries, at least, are moving towards a more generous interpretation of this requirement.
“While significant differences do exist, there is cause to believe that harmonisation of the recognition and enforcement of foreign judgment rules in Asia is no pipe dream,” said Associate Professor Chong. “This book will be a valuable resource to commercial entities engaged in business across Asia. We also hope that it will provoke constructive dialogue and law reform in Asia to facilitate the cross-border movement of judgments.”
“What is even more exciting is that this work sets the stage for the next step in a larger project which entails a consideration of whether there can be a convergence or harmonisation of these seemingly disparate systems of the recognition and enforcement of foreign judgments and, if so, how this is to be accomplished,” said The Honourable Justice Andrew Phang, Judge of Appeal of the Supreme Court of Singapore, who was the project adviser.
ABLI’s projects focus on key problems resulting from legal diversity in Asia identified by stakeholders in the public and private sector.
The Compendium is the output of the first phase of the “Project on Convergence in International Civil Procedure: The harmonisation of the recognition and enforcement of foreign judgment rules in ASEAN, Australia, China, India, Japan and Korea” (also known as the Foreign Judgments Project).
In addition, ABLI has two other projects ongoing and one more in the pipeline:
- Data Privacy Project: Convergence of rules and standards in the area of cross-border data transfers in Asia.
- Asian Principles of Restructuring Project in ASEAN, Australia, China, Hong Kong, India, Japan and South Korea: This is a joint project with the International Insolvency Institute.
- Contracts Project: ABLI is exploring a project on contractual issues in engineering and construction projects in ASEAN.
The Compendium will be swiftly followed by ABLI’s second publication. In the first quarter of 2018, the outcome of the first phase of the Data Privacy Project will be published in the form of a compendium of jurisdictional reports, together with a list of key issues to be considered in the second phase of the project.
* A list of the legal academics and practitioners who contributed towards the country reports in “” may be found at below:
- of the University of the Philippines;
- of Eleven Wentworth Chambers, Australia;
- of Ho Chi Minh City Open University;
- of Singapore Management University;
- of Bun & Associates, Cambodia;
- of the University of Malaya;
- of Wuhan University, China;
- of Kyushu University;
- of Allen & Gledhill (Myanmar) Co Ltd;
- of Dr Colin Ong Legal Services, Brunei;
- of the University of Indonesia;
- and of LS Horizon (Lao) Limited;
- of the Indian Society of International Law;
- of the University of Tasmania; and
- Professor Suk Kwang Hyun of Seoul National University.
ABLI was launched in January 2016.
It 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.
ABLI is a subsidiary of the Singapore Academy of Law (SAL). SAL is a promotion and development agency for Singapore’s legal industry. Our vision is to make Singapore the legal hub of Asia.
SAL works with our stakeholders to set new precedents of excellence in Singapore law through developing thought leadership, world class infrastructure and legal solutions. Our mandates are to build up the intellectual capital of the legal profession by enhancing legal knowledge, raise the international profile of Singapore law, promote Singapore as a centre for dispute resolution, and improve the standards and efficiency of legal practice through continuing professional development and the use of technology.
As a body established by statute, SAL also undertakes statutory functions such as stakeholding services and appointment of Senior Counsel, Commissioners for Oaths and Notaries Public.
SAL is led by a Senate headed by Chief Justice Sundaresh Menon, and comprising the Attorney-General, the Supreme Court Bench and key leaders of the various branches of the legal profession. It has more than 12,000 members, including the Bench, all persons who are called as advocates and solicitors of the Supreme Court (i.e. the Bar) or appointed as Legal Service Officers, corporate counsel, faculty members of the three local law schools (i.e. National University of Singapore, Singapore Management University and Singapore University of Social Sciences) and foreign lawyers in Singapore.
More information can be found at www.sal.org.sg.
9 January 2018: