CNX v CNY: Enforcement of Foreign Arbitral Award Against Foreign State under International Arbitration Act
In CNX v CNY, the High Court of Singapore addressed the time frame a foreign state has to challenge an order enforcing a foreign arbitral award. CNX, a company from Ruritania, sought to enforce an arbitral award against CNY, the sovereign state of Oceania. The court, presided over by Justice S Mohan, ruled that s 14(2) of the State Immunity Act applies, granting CNY additional time to challenge the enforcement order. The court allowed CNY's application for an extension of time in part and dismissed CNX's cross-application for security.
1. Case Overview
1.1 Court
General Division of the High Court1.2 Outcome
The defendant's application for an extension of time to set aside the Leave Order was allowed in part, and the plaintiff’s application for security to be furnished by the defendant was dismissed.
1.3 Case Type
Civil
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
Singapore court considers the time a foreign state has to challenge an order enforcing a foreign arbitral award under the State Immunity Act.
1.7 Decision Date
2. Parties and Outcomes
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| S Mohan | Judge of the High Court | Yes |
4. Counsels
4. Facts
- CNX commenced arbitration against CNY for alleged breaches of a bilateral investment treaty.
- The arbitral tribunal ordered CNY to pay CNX over US$90 million.
- CNX applied for leave to enforce the Final Award in Singapore.
- The Leave Order was served on CNY’s foreign ministry on 2021-10-20.
- CNY sought a declaration that it had an additional two months to apply to set aside the Leave Order.
- CNX cross-applied for security to be furnished by CNY as a condition for granting any extension of time.
5. Formal Citations
- CNX v CNY, Originating Summons No 900 of 2021 (Summons Nos 5125 and 5275 of 2021), [2022] SGHC 53
6. Timeline
| Date | Event |
|---|---|
| Plaintiff commenced arbitration proceedings against the defendant. | |
| Arbitral tribunal issued its final award, ordering the defendant to pay the plaintiff a sum in excess of US$90 million. | |
| Plaintiff applied ex parte for leave to enforce the Final Award against the defendant. | |
| Assistant registrar granted leave to enforce the Final Award. | |
| Plaintiff filed a request for the Leave Order to be served on the defendant through consular channels. | |
| Leave Order was served on the defendant’s foreign ministry in Oceania by the High Commission of Singapore. | |
| Defendant instructed Drew & Napier LLC to act as its local counsel. | |
| Defendant took out SUM 5125, seeking more time to apply to set aside the Leave Order. | |
| Plaintiff took out SUM 5275, an application for security to be furnished by the defendant. | |
| Court heard both SUM 5125 and SUM 5275 and delivered brief oral grounds of its decision. | |
| Grounds of decision issued. |
7. Legal Issues
- Enforcement of Foreign Arbitral Award
- Outcome: The court held that s 14(2) of the State Immunity Act applies to a leave order granted under s 29 of the International Arbitration Act which is served on a foreign State.
- Category: Substantive
- Time for Foreign State to Apply to Set Aside Leave Order
- Outcome: The court held that the foreign state has two months and 21 days from the date of service of the Leave Order to apply to set it aside.
- Category: Procedural
8. Remedies Sought
- Enforcement of Arbitral Award
- Extension of Time to Set Aside Leave Order
- Security for the Final Award plus accrued interest
9. Cause of Actions
- Breach of Bilateral Investment Treaty
10. Practice Areas
- Arbitration
- Commercial Litigation
11. Industries
- No industries specified
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Josias Van Zyl and others v Kingdom of Lesotho | High Court | Yes | [2017] 4 SLR 849 | Singapore | Cited for the analysis of s 14(1) of the State Immunity Act regarding service of a leave order. |
| Norsk Hydro ASA v State Property Fund of Ukraine and others | English High Court | Yes | [2002] All ER (D) 269 (Oct) | England and Wales | Cited for the interpretation of s 12(2) of the UK State Immunity Act, which is in pari materia with s 14(2) of the Singapore State Immunity Act, in the context of proceedings to enforce an arbitration award. |
| AIC Limited v The Federal Government of Nigeria | English High Court | Yes | [2003] EWHC 1357 (QB) | England and Wales | Cited for the conflicting view that an application to set aside the registration of a foreign judgment was not a “corresponding” procedure to an entry of appearance. |
| Gold Reserve Inc v Bolivarian Republic of Venezuela | Not Available | Yes | [2016] 1 WLR 2829 | England and Wales | Cited for the comments on AIC Limited v The Federal Government of Nigeria and the applicability of s 12(2) of the UK State Immunity Act. |
| General Dynamics United Kingdom Ltd v State of Libya | UK Supreme Court | Yes | [2021] 3 WLR 231 | United Kingdom | Cited for the doubts expressed regarding the correctness of AIC and the declination to express a concluded view on whether an application to set aside a leave order is a corresponding procedure to an entry of appearance under s 12(2) of the UK State Immunity Act. |
| Tan Cheng Bock v Attorney-General | Not Available | Yes | [2017] 2 SLR 850 | Singapore | Cited for the principle that a statute must be interpreted purposively, having regard to the text of the provision as well as the context of the provision within the written law as a whole. |
| Carona Holdings Pte Ltd and others v Go Go Delicacy Pte Ltd | Court of Appeal | Yes | [2008] 4 SLR(R) 460 | Singapore | Cited for the definition of a “step in the proceedings” as one that evinces a party’s “unequivocal submission” to the jurisdiction of the courts. |
| General Dynamics United Kingdom Ltd v State of Libya | English Court of Appeal | Yes | [2019] 1 WLR 6137 | England and Wales | Cited for the endorsement of Burnton J’s decision in AIC, which was later reversed by the UK Supreme Court. |
| Firebird Global Master Fund II Ltd v Republic of Nauru and another | High Court of Australia | Yes | [2015] 326 ALR 396 | Australia | Cited for the observations that the rules on service are facultative and that the court has a discretion to fix a longer time period for setting aside a registration order where it is expedient to do so. |
| Bloomberry Resorts and Hotels Inc and another v Global Gaming Philippines LLC and another | Not Available | Yes | [2021] 3 SLR 725 | Singapore | Cited for the factors that a court should consider when deciding whether to exercise its powers under O 3 r 4(1) of the Rules of Court. |
| Continental Transfert Technique Ltd v The Federal Government of Nigeria | Not Available | Yes | [2010] EWHC 780 (Comm) | England and Wales | Cited as an authority where proceedings were taken or pending before the seat court to challenge the award. |
| Wellmix Organics (International) Pte Ltd v Lau Yu Man | Not Available | Yes | [2006] 2 SLR(R) 117 | Singapore | Cited for the principle that the court will generally not invoke its inherent powers where there is an existing rule already covering the situation at hand, save in the most exceptional circumstances. |
| Wee Soon Kim Anthony v Law Society of Singapore | Not Available | Yes | [2001] 2 SLR(R) 821 | Singapore | Cited for the principle that the “essential touchstone” for the court’s exercise of its discretionary inherent powers is really one of “need”. |
| Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs, Government of Pakistan | Not Available | Yes | [2009] 1 All ER (Comm) 505 | England and Wales | Cited for the computation of time to set aside a leave order, taking into account the timeline provided for in s 12(2) of the UK SIA. |
| Sun Jin Engineering Pte Ltd v Hwang Jae Woo | Not Available | Yes | [2011] 2 SLR 196 | Singapore | Cited for the factors the court takes into consideration in deciding whether to grant an extension of time. |
| AD v AE | Not Available | Yes | [2004] 2 SLR(R) 505 | Singapore | Cited for the factors the court takes into consideration in deciding whether to grant an extension of time. |
| Falmac Ltd v Cheng Ji Lai Charlie and another matter | Not Available | Yes | [2014] 4 SLR 202 | Singapore | Cited for the factors the court takes into consideration in deciding whether to grant an extension of time. |
13. Applicable Rules
| Rule Name |
|---|
| Rules of Court (2014 Rev Ed) O 69A r 6 |
| Rules of Court (2014 Rev Ed) O 69A r 6(4) |
| Rules of Court (2014 Rev Ed) O 69A r 6(5) |
| Rules of Court (2014 Rev Ed) O 3 r 4(1) |
| Rules of Court O 12 r 4(b) |
| Rules of Court O 29 r 10 |
| Rules of Court O 29 r 11 |
| Rules of Court O 29 r 12 |
| Rules of Court O 92 r 4 |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| International Arbitration Act (Cap 143A, 2002 Rev Ed) | Singapore |
| International Arbitration Act (Cap 143A, 2002 Rev Ed) s 29 | Singapore |
| International Arbitration Act s 31(5) | Singapore |
| State Immunity Act (Cap 313, 2014 Rev Ed) | Singapore |
| State Immunity Act (Cap 313, 2014 Rev Ed) s 14(1) | Singapore |
| State Immunity Act (Cap 313, 2014 Rev Ed) s 14(2) | Singapore |
| State Immunity Act s 2(2)(b) | Singapore |
| State Immunity Act s 14(6) | Singapore |
| Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) | Singapore |
| Supreme Court of Judicature Act s 18(2) | Singapore |
| Foreign States Immunities Act 1985 | Australia |
15. Key Terms and Keywords
15.1 Key Terms
- Foreign Arbitral Award
- State Immunity Act
- Leave Order
- Enforcement Proceedings
- Bilateral Investment Treaty
- Extension of Time
- Security
- Corresponding Procedures
- Entry of Appearance
15.2 Keywords
- Arbitration
- Enforcement
- Foreign Award
- State Immunity
- Singapore
- International Arbitration Act
- State Immunity Act
- Extension of Time
17. Areas of Law
16. Subjects
- Arbitration
- Civil Procedure
- International Law
- State Immunity