CNX v CNY 2022 SGHC 53 - 14 March 2022
[Arbitration - Enforcement - Foreign award - Order granting leave to enforce foreign award]
[Civil Procedure - Service - Service of leave order on foreign State - Time for foreign State to apply to set aside leave order - Section 14(2) State Immunity Act]
1 Where an award creditor is granted leave under s 29 of the International Arbitration Act (Cap 143A, 2002 Rev Ed) ("IAA") to enforce an arbitral award in Singapore against a foreign State, how much time does the foreign State have, following service of the leave order on it, to take the steps necessary to challenge the order?
2 Specifically, s 14(2) of the State Immunity Act (Cap 313, 2014 Rev Ed) ("SIA") provides that any "time for entering an appearance (whether prescribed by Rules of Court or otherwise) shall begin to run 2 months after the date on which the writ or document is so received". Does s 14(2) of the SIA apply to a leave order granted under s 29 of the IAA which is served on a foreign State, and if it does apply, how much time does the foreign State have? These were some of the interesting issues that I had to consider in HC/SUM 5125/2021 ("SUM 5125"). SUM 5125 was an application by the defendant State, for, inter alia, a declaration that it had an additional two months to apply to set aside an ex parte order granting the plaintiff leave to enforce a foreign arbitral award against the defendant; alternatively, it sought a corresponding extension of time to do so.
3 HC/SUM 5275/2021 ("SUM 5275") was a cross-application by the plaintiff for security to be furnished by the defendant State as a condition for granting any extension of time.
4 Based on counsel's research and submissions, it appears that this is the first time our courts have been squarely confronted with the issues I highlighted at - above.The only other reported case in which s 14 of the SIA arose for consideration is the decision of Justice Kannan Ramesh in Josias Van Zyl and others v Kingdom of Lesotho  4 SLR 849 ("Josias Van Zyl"). However, as I will elaborate below, Ramesh J's comments on s 14(2) were obiter, as the ratio decidendi of Josias Van Zyl concerned s 14(1) of the SIA and the question of whether a leave order must be served in accordance with that provision. As such, and whilst there has been no appeal against my decision, given the dearth of direct local authority on the issues that arose before me, I consider it appropriate to provide my full grounds of decision.
5 The plaintiff, CNX, is a company incorporated in Ruritania, while CNY, the defendant, is the sovereign state of Oceania. A dispute arose between the parties relating to the defendant’s alleged breaches of a bilateral investment treaty between Ruritania and Oceania (the “BIT”). In September 2013, the plaintiff commenced arbitration proceedings against the defendant (the “Arbitration”) pursuant to an arbitration clause in the BIT. The Arbitration was seated in Danubia. In May 2020, the arbitral tribunal issued its final award, ordering the defendant to pay to the plaintiff a sum in excess of US$90 million (exclusive of interest, costs and disbursements) (the “Final Award”). It is not disputed that the time for any challenge to the Final Award to be mounted in the seat court has expired and there are no proceedings instituted by the defendant or pending before the seat courts in Danubia seeking to challenge the Final Award.