By Gan Kam Yuin - Partner, Bih Li & Lee LLP and Timothy Quek - Associate, Bih Li & Lee LLP
1. The issue before the High Court was whether section 14 of the State Immunity Act (Cap 313, 2014 Rev Ed) (“SIA”) applied to the service of an order granting leave to enforce an arbitral award.1 The material portion of section 14 is reproduced below:
Service of process and judgments in default of appearance
14.—(1) Any writ or other document required to be served for instituting proceedings against a State shall be served by being transmitted through the Ministry of Foreign Affairs, Singapore, to the ministry of foreign affairs of that State, and service shall be deemed to have been effected when the writ or document is received at that ministry.
2. In short, His Honour Justice Kannan Ramesh (“Ramesh J”) found that it did.2
Background
3. The Plaintiffs obtained two favourable arbitration awards: one on jurisdiction and merits on 18 April 2016 and another on costs on 20 October 2016. It was the award on costs that was the subject of OS 95 of 2017 (“OS 95”).
4. After obtaining the award on costs, the Plaintiffs obtained an order (“Leave Order”) giving them leave to enforce the award as if it were a judgment from the Singapore High Court. Later, the Plaintiffs sought to serve the Leave Order on the Defendant. This brought about OS 95.
5. In OS 95, the Plaintiffs applied to have the Leave Order served on the Defendant via substituted service on the Defendant’s solicitors – M/s Rajah & Tann Singapore LLP. However, the AR dismissed the Plaintiffs’ application because of non- compliance with section 14 of the SIA.
Analysis
6. Ramesh J held that the Leave Order fell within the definition of a “writ or other document required to be served for instituting proceedings against a State” under section 14 of the SIA.3 His Honour noted that section 12 of the UK State Immunity Act 1978 (“UK Act”) was in pari materia with section 14 of the SIA. The English authorities on the UK Act would therefore provide valuable insight into the meaning of section 14 of the SIA.4
7. In Norsk Hydro ASA v State Property Fund of Ukraine and others [2002] EWHC 2120 (Comm) (“Norsk Hydro”), the defendants sought to set aside the permission order (the English equivalent of a Leave Order) of the plaintiff on the basis that the time given for the defendants to respond was shorter than the prescribed 2 month and 21-day period under section 12 of the UK Act. The plaintiff sought to excuse its non-compliance with the UK Act on the basis that section 12 applied only to the court’s “adjudicative jurisdiction” but not its “enforcement jurisdiction”. The court in Norsk Hydro rejected the plaintiff’s argument. It held that section 12(2) of the UK Act was applicable to both.5
8. In PCL and others v Y Regional Government of X [2015] EWHC 68 (Comm) (“PCL”), the defendants sought an order that the plaintiff’s act of serving the arbitration claim form at the address of the defendant’s solicitors, and abridging the time for filing an acknowledgment of service to three business days, was improper because they did not comply with section 12(1) of the UK Act.
9. The court in PCL agreed with the defendants. It held that the plaintiff’s act of issuing the arbitration claim form amounted to “instituting proceedings” (under s 12(1) of the UK Act) against the defendants.6 The court explained that enforcement proceedings were distinct from the arbitration proceedings even though they might be considered as ancillary to them. On the other hand, interlocutory applications did not involve the initiation of separate proceedings.
10. After considering the UK authorities, Ramesh J held that the local position would be similar to the English position where the Leave Order is concerned.7 The Leave Order fell within section 14(1) of the SIA just as a permission order fell within the scope of section 12(1) of the UK Act.8
11. Turning back to the SIA, Ramesh J held that enforcement proceedings were covered by the SIA given its wide ambit.9 The preamble of the SIA provides that the SIA is “[a]n Act to make provision with respect to proceedings in Singapore by or against other States, and for purposes connected therewith”. This observation dovetailed with the UK authorities.10
12. The Defendant’s argument that section 14(1) of the SIA was limited to “adjudicative” proceedings was rejected. Ramesh J was of the view that there was no substantive basis for drawing a distinction between “adjudicative” and “enforcement” proceedings for the purposes of section 14(1).11
13. His Honour also determined that the wording of section 14(1) of the SIA is “general and unqualified” and “not limited to proceedings seeking judgment”.12 These interpretations were underscored by the purpose of section 14. Section 14 (and the consequential 2-month response time provided therein) grants respondent States the time and opportunity to respond.13 This position acknowledges the reality that States may have assets which are scattered across many jurisdictions; the requirement in section 14 thereby serves to notify the respondent State of the precise jurisdiction in which enforcement proceedings have been commenced and to give the respondent State time to respond.14
14. As the parties do not serve the originating process by which the leave to enforce is sought, the order granting leave is generally the first intimation to the respondent State that such relief is being sought, especially if the award is a foreign award.15 That underscores the point that the distinction in section 14 is not the form or title of the document, but its effect. If the document institutes new proceedings, of which the State is not aware, the State should be notified through the official channel stipulated in section 14.16
15. Ramesh J held that the Plaintiffs could not rely on the Defendant’s factual knowledge (if any) of the enforcement proceedings to excuse their defective service. Whether the Defendant in fact knew of the Plaintiffs’ intention to enforce the award was immaterial. The Plaintiffs were required as a matter of law to adhere to section 14 of the SIA.17 It was a procedural safeguard which conferred rights upon the Defendant.
Conclusion
16. The Plaintiffs had argued that both Order 11 Rule 7 of the Rules of Court and section 14 of the SIA applied only to originating processes. After considering in detail the provisions of Order 11 and its interaction with Order 69A of the Rules of Court, as well as the special issues that service on a foreign State would raise, and the legislative history of the provisions, His Honour concluded that the omission of Order 11 Rule 7 from Order 69A Rule 6(3) was simply an oversight.18 It could not have been intended that service of process on a foreign State (Order 11 Rule 7) would be excluded from the operation of Order 69A Rule 6(3); that was simply a mistake.
17. Whilst the particular issue of service under section 14 of the SIA is now clearly addressed, the decision is also an exemplary illustration of the application of the principles of statutory interpretation and His Honour’s careful analysis bears close study.
1Josias Van Zyl v Kingdom of Lesotho [2017] SGHC 104 at [1]
2 [2]
3 [13]
4 [14]
5 [17]
6 [21]-[22]
7 [24]-[26]
8 [26]
9 [34]
10 [34]-[36]
11 [34]-[37]
12 [41]-[43]
13 [45]
14 [45]
15 [43]
16 [44]
17 [47]
18 [58]