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Grounds publishedDecided 8 May 2017
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High Court

Josias Van Zyl and others v Kingdom of Lesotho

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[2017] SGHC 104Case no. Originating Summons No 95 of 2017

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  1. Kannan Ramesh J:

  2. Introduction

  3. [1] Must an order granting leave to enforce an arbitral award (a “leave order”) be served in accordance with s 14 of the State Immunity Act (Cap 313, 2014 Rev Ed) (“the Act”)? This was the central question in Registrar’s Appeal 91 of 2017 (“RA 91”), an appeal by Josias Van Zyl and the trustees of the Josias Van Zyl Family Trust and the Burmilla Trust against the decision of the Assistant Registrar (“the AR”) in ex parte Summons No 924 of 2017 (“SUM 924”) in Originating Summons No 95 of 2017 (“OS 95”). The AR, in a judgment reported at [2017] SGHCR 2 (“the AR’s GD”), refused the appellants leave to serve a leave order granted in OS 95 (“the Order”) on the Kingdom of Lesotho (“the Kingdom”) by means of substituted service on Rajah & Tann Singapore LLP (“Rajah & Tann”). His principal reason for doing so was that service had to be effected through the Ministry of Foreign Affairs, pursuant to and in accordance with s 14 of the Act.

  4. [2] Was the AR correct in concluding that s 14 of the Act applies to a leave order? Having carefully considered the submissions of the appellants and their authorities, I was of the view that the answer must be in the affirmative and therefore dismissed RA 91. The issue took the appellants and the court into uncharted waters as far as Singapore jurisprudence was concerned. The case for a written judgment was therefore compelling, prompting an invitation from the appellants for one. I acceded to their invitation.

  5. Facts

  6. The arbitration

  7. The proceedings in Singapore

  8. [4] The partial final award on jurisdiction and merits is the subject of proceedings in Originating Summons No 492 of 2016 (“OS 492”). Rajah & Tann represents the Kingdom in those proceedings. The Kingdom applied to set aside the partial final award on the basis, inter alia, that the tribunal did not have jurisdiction over the claims in the arbitration. I have heard oral arguments and have reserved judgment.

  9. The attempts at service

  10. [6] The appellants’ solicitors first wrote to Rajah & Tann on 27 January 2017 enclosing the Order. Rajah & Tann stated in a reply on 9 February 2017 that it had no instructions from the Kingdom to accept service of the Order.

  11. [7] The appellants’ solicitors then attempted to serve the Order on Webber Newdigate, by email and fax on 16 and 17 February 2017 respectively, and by post on 21 February 2017. Webber Newdigate had acted for the Kingdom in the arbitration and was authorised to act for the Kingdom in OS 492. Webber Newdigate rejected the appellants’ attempted service on the basis that it had no instructions to accept service of the Order and that in any event, such service did not comply with the procedure for effecting service on a sovereign State.

  12. [8] Frustrated, the appellants vainly through their solicitors then attempted to serve the Order on the Attorney-General of Lesotho by email and by courier to the Attorney-General’s Chambers in the Kingdom on 17 February 2017. This was clearly incorrect. Unsurprisingly, on 24 February 2017, Webber Newdigate, on the instructions of the Attorney-General of Lesotho, replied rejecting service of the Order on the basis that such service was invalid for non-compliance with s 14(1) of the Act.

  13. [9] On 1 March 2017, the appellants filed SUM 924 ex parte for permission to serve the Order through substituted means on Rajah & Tann in Singapore. The AR dismissed SUM 924 on 14 March 2017 and the appellants appealed his decision in RA 91.

  14. [10] On 9 March 2017, the Kingdom filed Summons No 1118 of 2017 (“SUM 1118”) for a declaration that, inter alia, the appellants’ purported service of the Order was invalid and ineffective. SUM 1118 was scheduled for hearing before me at the same time as RA 91, on 10 April 2017. Counsel for both parties accepted that if I were to dismiss RA 91, it would follow that SUM 1118 ought to be allowed. I therefore heard RA 91 first. I invited Rajah & Tann, who were before me for the purpose of SUM 1118, to participate in RA 91 and make it inter partes. However, they declined my invitation. As such, the appeal proceeded ex parte. I dismissed RA 91 on 24 April 2017 with detailed oral grounds.

  15. Decision below

  16. [11] The AR found that s 14 of the Act applied to service of the Order. Section 14 of the Act states:

  17. [12] The AR offered five reasons in support of his decision:

  18. (a) First, the phrase “writ or other document” was capacious and capable of including documents other than originating processes, such as a leave order (the AR’s GD at [14]).

  19. (b) Second, a leave order was required to be served under O 69A r 6(2), and that service had the effect of instituting proceedings in relation to the enforcement of the award against the party served (the AR’s GD at [15]). In this regard the AR relied principally on Norsk Hydro ASA v State Property Fund of Ukraine and others [2002] EWHC 2120 (Comm) (“Norsk Hydro”), which was approved in PCL and others v Y Regional Government of X [2015] EWHC 68 (Comm) (“PCL”), both being decisions of the English High Court.

  20. (c) Third, the reference to an entry of “appearance” in ss 14(2) and 14(3) of the Act did not necessarily mean that s 14 as a whole only applied to documents in response to which an appearance must be entered (the AR’s GD at [18]). The AR referred to s 2(2)(b) of the Act, which he regarded as including an application to set aside a leave order.

  21. (d) Fourth, as a matter of principle, there should be no reason to exclude enforcement proceedings from the procedural requirements of service under s 14 of the Act (the AR’s GD at [19]).

  22. (e) Fifth, while it might be true that the Kingdom had eclipsed the need for notice and time to respond by first commencing OS 492 of 2016, this was procedurally distinct from OS 95 (the AR’s GD at [24]).

  23. Analysis

  24. [13] It was the second of the AR’s reasons which had the most significance to RA 91, ie, whether a leave order is a “writ or other document required to be served for instituting proceedings against a State” within the meaning of s 14(1) of the Act. This was ultimately a question of construction of the statutory provision, making it useful if not necessary to explore the parentage of the Act. But statutory construction aside, it seemed instinctively incorrect that service of a leave order on a sovereign State could be effected in some other manner than that provided in s 14(1) of the Act. The inherent difficulties with adopting any other mode seemed to make the point obvious. It raised the question what could possibly be the manner in which service of a leave order would be effected as a general rule, bearing in mind that we were here not speaking of a lay party but a sovereign State. A sovereign State does not have a place of abode or registered place of business. I address this in detail later in these grounds.

  25. [14] Section 14 of the Act is in pari materia with s 12 of the UK State Immunity Act 1978 (“the UK Act”), on which it was modelled (see Singapore Parliamentary Debates, Official Report (7 September 1979) vol 39 at col 409 (Mr E W Barker, then Minister for Law and Science and Technology)). The position in the UK, as shown by the authorities, is that an order granting permission to enforce an arbitral award (“a permission order”) must comply with the procedure in s 12 of the UK Act. The appellants accepted, correctly in my view, that the position in the UK was correct based on the statutory and procedural framework there. The question was whether the same construction applies in Singapore. Notwithstanding the common parentage and statutory framework of the Act and the UK Act, the appellants submitted that significant differences in the procedural rules dictated a different conclusion in Singapore from that in the UK (see [27] below). First, it will be helpful to consider the reasoning employed in the UK authorities for guidance on the correct interpretation of the Act.

  26. UK authorities

  27. Norsk Hydro

  28. [15] In Norsk Hydro, the question was whether a permission order in the UK was subject to s 12(2) of the UK Act in terms of the time limited for the sovereign State to react to the order. In that case, Norsk Hydro ASA obtained an arbitral award against the Republic of Ukraine. It sought and obtained permission to enforce the award in the UK and served the permission order on the Republic of Ukraine through diplomatic channels. The order stated that the award would become enforceable in 21 days. At the expiration of this period, Norsk Hydro ASA applied for and obtained a third party debt order to enforce the award. The Republic of Ukraine applied to set aside the third party debt order, arguing that it was entitled, under s 12(2) of the UK Act, to a period of two months and 21 days to challenge the order before the award could be enforced. Rule 62.18(9) of the UK Civil Procedure Rules (“the CPR”) states that where an order giving permission to enforce an award under the UK Arbitration Act 1996 was to be served outside jurisdiction, the award must not be enforced until after the end of such period as the court might set. As Norsk Hydro ASA obtained the third party debt order before the two months and 21 days had expired (which would be the period under s 12 of the UK Act if it applied), it was argued that the third party debt order was premature and should be set aside.

  29. [16] Norsk Hydro ASA made two arguments that were relevant to the present proceedings. First, it submitted that s 12(2) of the UK Act (equivalent to s 14(2) of Singapore’s SIA) was concerned with the court’s “adjudicative jurisdiction” and not its “enforcement jurisdiction”. This was a reference to Alcom Ltd v Republic of Colombia [1984] 1 AC 580 (“Alcom Ltd”), in which Lord Diplock stated at p 600:

  30. [17] Gross J rejected this argument at [25]. In his view, CPR 62.18 allowed an applicant seeking enforcement of an award to proceed by way of either an arbitration claim form or an application for a permission order. Norsk Hydro ASA’s argument could succeed only if either s 12(2) of the UK Act applied only to arbitration claim forms and not to a permission order (which the Republic of Ukraine did not contend for), or s 12(2) did not apply to enforcement procedures at all. The former could not be correct as a matter of logic. The latter hypothesis could not be correct as well as s 12(2) was not confined to “adjudicative jurisdiction” but appeared under the heading “Procedure”; accepting Norsk Hydro ASA’s submission would require reading words into s 12(2).

  31. [18] Second, Norsk Hydro ASA submitted that the two-month period in s 12(2) was appropriate in the case of service of claims on States, but inappropriate for enforcement of an award, since an affected State ought to already be aware of the matter giving rise to the award. The State did not require time to react to proceedings which it was well aware were likely or afoot. Gross J’s response at [25(4)] was that:

  32. [19] Finally, Gross J clarified that “time for entering an appearance” in s 12(2) of the UK Act applied to the time period to be set by the court for a defendant to seek to set aside an order for enforcement under CPR 62.18(9). He thought this was apparent from “the wording of s 12(2) standing alone but read in context” (at [25(4)]). Moreover, s 22(2) of the UK Act (identical to s 2(2)(b) of Singapore’s SIA) was also capable of supporting this construction, though Gross J suspected that s 22(2) was “primarily designed for other purposes” (at [25(5)]). As counsel for the appellants noted, Gross J did not examine the specific wording of s 12(1), ie, whether an order giving leave to enforce an award was a “writ or other document required to be served for instituting proceedings against a State”. However, this must be implied in his conclusion that s 12(2) applied to the permission order, which presupposed that the permission order was a document falling within the scope of s 12(1). The wording of s 12(1) was considered more closely in PCL, which approved Norsk Hydro.

  33. PCL

  34. [20] In PCL, the claimants obtained a peremptory arbitral order for payment against the defendant government. The arbitral order was dated 17 October 2014 and required payment within 30 days. The claimants obtained the tribunal’s permission to apply to the court pursuant to s 42 of the UK Arbitration Act 1996 for enforcement of the arbitral order. This application was to be made by means of an arbitration claim form. On 18 November 2014 and 18 December 2014, the claimants obtained without notice court orders permitting them to serve 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. The defendant applied to set aside the court orders for non-compliance with s 12 of the UK Act. One of the claimants’ arguments was that s 12(1) did not apply because the claimants were not “instituting proceedings”. An application for enforcement of the arbitral order was, in substance, an application to the court in support of existing arbitration proceedings, not fresh proceedings instituted against anyone.

  35. [21] Hamblen J observed that CPR 62.2 defined an “arbitration claim” as “any application to the court under the [UK Arbitration Act 1996]”. CPR 62.3(1), which was headed “Starting the claim”, stated that “an arbitration claim must be started by the issue of an arbitration claim form in accordance with the Part 8 Procedure” [emphasis added]. CPR Part 8 governs the use of claim forms (the originating process). Hamblen J thus found at [25] that the claimants had “started” their claim, ie, an application for a permission order, by issuing the arbitration claim form in accordance with the requirements of CPR 62.2 and 3. In Hamblen J’s view, the claimants were thereby “instituting proceedings” within the meaning of s 12(1). He stated at [28]:

  36. [22] Hamblen J also referred at [38] to Norsk Hydro as authority to the effect that s 12 applies to enforcement proceedings. He also said that while s 12(1) would not apply to “interlocutory applications in existing court proceedings”, the claimants’ application for enforcement did involve the “initiation” of “separate proceedings involving the invocation of the court’s procedures and powers” (at [35]). It involved bringing the defendant before the court for the first time in order to participate in court proceedings brought for the purpose of obtaining a court order (at [40]).

  37. [23] Hamblen J considered his view to be consonant with the principle underlying the time limits in s 12, which exist “clearly to ensure that the foreign State has adequate time and opportunity to respond to the conduct of proceedings in the English court of whatever nature which affect its interests”, citing Hazel Fox and Philippa Webb, The Law of State Immunity (Oxford University Press, 3rd Ed, 2013) at p 231.

  38. [24] It ought to be noted that there is a difference between the wording of Part 62 of the UK CPR and O 69A of our Rules of Court, which does not use the words “start” or “starting” (see [21] above). Instead, O 69A rr 3(2) and 3(3) state:

  39. [25] Nevertheless, I did not think that this difference in wording was significant. Hamblen J’s conclusion was not premised solely on the wording of the CPR, but also on the nature and substance of the claimants’ application (see [40] of his judgment). He considered the enforcement proceedings to have been newly “instituted” by the claimants’ application, even though they arose out of ongoing arbitral proceedings. He regarded them as distinct proceedings. In my view, the same principle applied here. The appellants instituted enforcement proceedings, which are distinct. Service of a leave order is required under O 69A r 6(2), and service is the event which triggers the running of time from which the State may apply to set aside the Order under O 69A r 6(4). The originating summons seeking the order itself is not served, being an application made ex parte under O 69A r 6(1). Its sole purpose is to secure a leave order, ie, leave to enforce the award, not to institute enforcement proceedings. It is the leave order which must be served for the purpose of instituting the enforcement proceedings within the jurisdiction, giving the State an opportunity to participate in and/or oppose those proceedings.

  40. [26] It should also be remembered that the correct comparison is not between a leave order in Singapore and an arbitration claim form in the UK, but between a leave order in Singapore and a permission order in the UK. The arbitration claim form in CPR 62.18(1) is simply the means by which the creditor applies for permission, similar to the purpose served by the originating summons under O 69A r 6. Like the arbitration claim form for a permission order, the originating summons is an ex parte application. Service of the arbitration claim form is therefore not required (see Gold Reserve Inc v Bolivarian Republic of Venezuela [2016] 1 WLR 2829 (“Gold Reserve”) at [55]–[57]). It can hardly then be said that the originating summons is a “document required to be served for instituting proceedings”. On the other hand, the leave order, like a permission order, must be served to initiate enforcement proceedings against the State. Hence reliance on the terminology of “starting” the claim, which applies to an arbitration claim form and not a permission order, can only take us so far. It was the permission order which was found, correctly in my view, to constitute a “document required to be served for instituting proceedings against a State” in Norsk Hydro and Gold Reserve. Similarly, a leave order in Singapore fulfils the same role as a permission order in the UK and is no less required to be served for the institution of enforcement proceedings. The procedural rules in the UK and Singapore in this regard are not different in any meaningful manner.

  41. The omission of O 11 r 7

  42. [27] The appellants argued that these authorities were irrelevant to Singapore because of the difference between the UK CPR and our Rules of Court. They submitted that the UK position could not be transposed to the Singapore context because of crucial differences between CPR 62.18 and our O 69A r 6, which both deal with the enforcement of arbitral awards. This seemed to be an incorrect argument as we were concerned with construction of s 14(1) of the Act, which is primary legislation. It seemed fundamentally flawed to attempt to ascertain the width of the provision with reference to subsidiary legislation (ie, the Rules of Court). In any event, I did not believe that the differences advanced the appellants’ cause.

  43. [28] The two statutory instruments provide for an application for permission or leave to enforce the award to be made ex parte. CPR 62.18(1) provides for such an application to be made by means of an arbitration claim form, while O 69A r 3 provides for it to be made by a summons (where an action is pending) or originating summons (in any other case). It will be helpful to juxtapose the UK procedure and the Singapore procedure. I will first describe the former followed by the latter.

  44. [29] Under the UK CPR, the arbitration claim form need not be served although the court may specify parties to the arbitration on whom the arbitration claim form must be served and they must acknowledge service. The enforcement proceedings will then “continue as if they were an arbitration claim” (CPR 62.18(3)). If the application for permission to enforce is granted, the permission order must be served on the defendant by delivering a copy to him personally or sending a copy to him at his usual or last known place of residence or business (CPR 62.18(7)). The permission order may be served out of jurisdiction without permission and “in accordance with [CPR] 6.40 to 6.46 as if the order were an arbitration claim form” (CPR 62.18(8)(b)) [emphasis added]. Of these, CPR 6.44 deals with “service of claim form or other document on a State”, and provides that a party wishing to serve a claim form or other document on a State must request service to be arranged by the Foreign and Commonwealth Office. CPR 6.44 is very similar to O 11 r 7, which prescribes a mode of service of originating process on a State mirroring that stipulated in s 14(1) of the Act. Following service out of jurisdiction, the defendant may apply to set aside the permission order within such period as the court may set, and the award cannot be enforced until after the end of that period (CPR 62.18(9)).

  45. [30] The position is strikingly similar but not identical under our Rules of Court. If an application for leave to enforce is successful, the leave order must be served on the debtor by delivering a copy to him personally, sending a copy to him at his usual or last known place of abode or business or in such other manner as the Court may direct (O 69A r 6(2)). It may be served out of jurisdiction without leave, and “Order 11, Rules 3, 4 and 6 shall apply in relation to such an order” (O 69A r 6(3)). Notably and strangely, there is no reference to O 11 r 7 in O 69A r 6(3). Following service out of jurisdiction, the debtor may apply to set aside the permission order within such period as the court may set, and the award cannot be enforced until after the end of that period (O 69A r 6(4), which is identical in all material respects to CPR 62.18(9)).

  46. [31] Counsel for the appellants highlighted two main differences between the Singapore and UK position:

  47. (a) First, CPR 62.18(7) permits service of the permission order to be effected by either of only two ways: personal service or service at the debtor’s last known or usual place of abode or business. However, O 69A r 6(2) additionally permits a third way, ie, “such other manner as the court may direct”.

  48. (b) Second, and more significantly, CPR 62.18(8) stipulates that service of the leave order out of jurisdiction must comply with CPR 6.44, which is the equivalent of O 11 r 7 of our Rules of Court. However, as noted earlier, O 69A r 6(3) does not state that such service must comply with O 11 r 7. It only states that the leave order must be served in accordance with O 11 rr 3, 4 and 6, which have no relevance to service on a State.

  49. [32] Counsel for the appellants strongly emphasised the second distinction. He argued that the omission of O 11 r 7 must mean that the Singapore position is that a leave order does not have to comply with the procedure stipulated therein (which as pointed out earlier is essentially the same as the procedure in s 14 of the Act), unlike a permission order in the UK. In this regard, it was pointed out that O 11 r 7 is limited to originating processes, which by definition covers only writs and originating summonses, and cannot therefore be regarded as applicable to a leave order. While the appellants’ argument was intuitively appealing, I did not think it was correct.

  50. Construction of s 14 of the Act

  51. [33] First, as I noted earlier, the appellants’ approach of looking to the Rules of Court to determine the scope of s 14 of the Act is incorrect. The Rules of Court are subsidiary legislation enacted by the Rules Committee and ought not to constrict the meaning of the Act, which is primary legislation enacted by Parliament. Just because O 11 r 7 is confined to originating processes does not mean that s 14 of the Act, which does not use that language, is similarly confined. How can a gap in procedural legislation rules be used to argue that Parliament did not intend the Act to apply to leave orders? Conceptually the case for restricting Parliament’s intent that way is very weak. The argument is fundamentally flawed. Section 14 of the Act must be construed on its own terms and in accordance with Parliament’s intention, and not with reference to O 11 r 7. In any event, the attempt to use O 69A and r 6(3) in particular to tease out the meaning of s 14(1) would be misguided as O 69A was only inserted in 1995 by the Rules of the Supreme Court (Amendment) Rules 1995 (GN No S 39/95), whereas the Act was enacted much earlier in 1979. O 69A can therefore have little if anything to say about the environment in which the Act came into force and the parliamentary intention behind its wording. Rather, the anterior question was whether s 14 was intended to govern the procedure for the service of leave orders on foreign States. That was a matter of construction of s 14. It was only if s 14 was found not to apply that the question would then arise whether the Rules of Court prescribe some other procedure for service.

  52. [34] It seems clear that the Act, like the UK Act, covers enforcement proceedings. The Preamble to the Act describes it broadly as “[a]n Act to make provision with respect to proceedings in Singapore by or against other States, and for purposes connected therewith”. At first blush, there is no reason why this should not encapsulate enforcement proceedings. In Alcom Ltd at p 600, Lord Diplock observed of the UK Act:

  53. [35] In AIC Limited v The Federal Government of Nigeria [2003] EWHC 1357 (QB) (“AIC Limited”), Stanley Burnton J observed that the terms “adjudicative jurisdiction” and “enforcement jurisdiction” were merely “convenient shorthand references” (at [17]). He added that s 1 of the UK Act (equivalent to s 3 of the Act) did not refer to adjudicative or enforcement jurisdiction but related to the “entirety of the jurisdiction of the court”, and Lord Diplock in Alcom Ltd did not suggest that s 1 was concerned only with adjudicative jurisdiction. In Norsk Hydro, Gross J firmly rejected (at [25(4)]) the notion that s 12 of the UK Act was confined to “adjudicative” proceedings.

  54. [36] There is no reason that the Act, and particularly s 14(1), should not similarly cover both what Lord Diplock termed “adjudicative” and “enforcement” proceedings. Section 14 exists for the primary purpose of stipulating the mode of service of proceedings against a State and a minimum period regarded as sufficient for the State to react to those proceedings. It also removes any doubt as to when service is effected so that the reaction time can be accurately computed, the importance of which was pointed out in para 63 of the Explanatory Report to the European Convention on State Immunity 1972 (Basle, 16.V.1972) (“the European Convention”), on which the UK Act was modelled:

  55. [37] Accordingly, there can be no substantive basis for distinguishing between “adjudicative” and “enforcement” proceedings for the purposes of s 14(1) of the Act.

  56. [38] The UK Act was modelled on the European Convention. However, there was a significant divergence when the UK implemented the European Convention. Article 16 of the European Convention, on which s 12 of the UK Act was based, appears to have contemplated originating processes only. The commentary on Article 16 in the Explanatory Report to the European Convention noted (at para 58) the difficulties that occur in connection with “the service of writs in proceedings against States” [emphasis added]. Article 16 referred to entry of appearance and judgments given in default of appearance, and the European Convention did not contain any provision extending those terms to “corresponding” procedures. Notably this was addressed by s 22(2) of the UK Act, which is in pari materia with s 2(2)(b) of the Act. Pertinently, the commentary on Article 12 in the Explanatory Report to the European Convention stated unequivocally (at para 51) that “proceedings concerned with the enforcement of arbitral awards are outside the scope of the Convention and governed by domestic law and any international convention which may be applicable”.

  57. [40] The restriction upon Clause 10(1) (“arbitration in the United Kingdom, or according to United Kingdom law”) was deleted in the House of Commons (see NML Capital Ltd v Republic of Argentina [2011] 2 AC 495 at [90]), resulting in what is now s 9(1) of the UK Act. In light of this deliberate divergence from the position taken in the European Convention, the insertion of s 22(2) of the UK Act seemed to me quite intentional and, as the AR suggested, arguably justified a “capacious” reading of s 14 of the UK Act. It would appear that s 22(2) of the UK Act was calibrated to cover inter alia the introduction of enforcement proceedings for arbitral awards in the UK Act. Indeed The Supreme Court Practice 1997 vol 2 (Richard Scott V-C gen ed) (Sweet & Maxwell, 1996) states at para 4671 that the European Convention was “not incorporated in the statute and it is doubtful whether it would be at all helpful or proper to refer to [it] in aid of the interpretation of the [UK SIA]”. It must be remembered that when enacting the Act, Parliament incorporated s 2(2), which is in pari materia with s 22(2) of the UK Act.

  58. [41] Next was the question of whether a leave order constitutes a “document required to be served for instituting” enforcement proceedings. As the AR rightly observed, s 14(1) of the Act does not refer to “originating process”, but to a “writ or other document required to be served for instituting proceedings”. In the words of Hamblen J, the wording of s 14(1) is “general and unqualified” and “not limited to proceedings seeking judgment” (PCL at [30]).

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