27 February 2020
On 10 February 2020, Chief Justice Sundaresh Menon of the Supreme Court of Singapore and Chief Justice U Htun Htun Oo of the Supreme Court of the Union of Myanmar signed a Memorandum of Guidance as to Enforcement of Money Judgments (“MOG”) in Nay Pyi Taw, Myanmar.
The MOG seeks to enhance clarity and promote mutual understanding of the laws and judicial processes concerning the enforcement of money judgments between the two courts. It sets out the parties’ understanding of the procedures for the enforcement of each party’s money judgments in the other party’s courts.
The signing of the MOG marks a significant milestone in bilateral relations between the Singapore and Myanmar judiciaries. This is also the first such MOG established between the courts of two ASEAN member states.
Applicability of MOG
The MOG states that it is only concerned with judgments requiring a person to pay a sum of money to another person. The MOG also states that it does not create any binding legal obligations on the parties, nor is it intended to be exhaustive or create or alter existing or future legal rights or relations or create any binding arrangements for the reciprocal enforcement of each party’s money judgments in the other party’s courts.
Requirements for enforcement in Singapore
The MOG stipulates the requirements for enforcing judgments of the Myanmar courts in Singapore, including noting that the judgment must be final and conclusive on the merits of the case and for a fixed or ascertainable sum of money. The fact that there is an appeal to a higher court does not prevent the judgment from being final and conclusive.
The courts of Singapore will not enforce a judgment of the Myanmar courts which would amount to the direct or indirect enforcement of any foreign penal, revenue or public law, or that orders the person against whom the judgment was given to do anything else apart from the payment of the judgment sum.
The Myanmar courts must have had jurisdiction, according to the conflict of laws rules determined to be applicable by the Singapore courts, to determine the subject matter of the dispute. The MOG sets out the requirements that must be met for the Singapore courts to accept that the Myanmar courts had the required jurisdiction regarding the judgment at issue. For example, the person against whom judgment was rendered must have been present or resident within the jurisdiction of the Myanmar courts at the time the proceedings were commenced.
Where the requirements to establish the Myanmar courts’ jurisdiction have been met, the judgment can only be challenged before the Singapore courts on limited grounds, which are stipulated in the MOG, and include where the judgment was procured by fraud and where the enforcement of the judgment would be contrary to Singapore public policy.
The Singapore courts will not re-examine the merits of a judgment of the Myanmar courts and the judgment may not be challenged on the grounds that it contains an error of fact or law. A judgment of the Myanmar courts will be enforced on the basis that the judgment debtor has a legal obligation, recognised by the Singapore courts, to satisfy a judgment of the Myanmar courts.
The MOG also sets out the procedure to be employed when seeking the enforcement of a Myanmar judgment in Singapore noting, for example, that the action should be commenced by writ and include a certified copy of the judgment.
Requirements for enforcement in Myanmar
In order to be enforced in any Myanmar court of competent jurisdiction, a judgment of a Singapore court shall be conclusive as to any matter thereby directly adjudicated upon between the same litigating parties, or between litigating parties under whom they or any of them claim litigation under the same legal suit. The fact that there is an appeal to a higher court does not prevent the judgment from being conclusive. The Myanmar courts will not enforce a Singapore court judgment for the payment of taxes or the payment of a similar nature or for a fine or other penalty.
The determination of whether the court had the requisite jurisdiction to render the judgment at issue is made with the same considerations employed by the Singapore courts as set out above. Where jurisdiction has been satisfied, a judgment of the courts of Singapore will be considered conclusive except in stipulated circumstances, including where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the laws of Myanmar in cases in which such law is applicable. The MOG sets out the procedure the Myanmar courts require to enforce a Singapore judgment, including noting that judgment may be enforced in Myanmar as if it had been passed by a Myanmar court of competent jurisdiction.
The following materials are available from the Supreme Court of Singapore website www.supremecourt.gov.sg: