Now Mr Wang will proceed to explain what this matter is all about.ST May 10, 2006
Law Ministry rejects Canadian firm's charges of 'biased judiciary'
By K.C. Vijayan
THE Law Ministry has roundly rejected allegations about a 'biased Singapore judiciary', which has come under intense scrutiny in a case in Canada.
The Canadian company making the allegations has already lost a court battle on its home ground in Canada, it pointed out.
Ontario-based EnerNorth Industries, an oil and gas company, is arguing that it never got a fair trial in Singapore after it was ordered to pay US$2.79 million (S$4.39 million) by the courts here to its former Singapore-based partner, Oakwell Engineering.
But Oakwell won in Canada too, pointed out a Law Ministry spokesman.
Justice Gerald Day of the Ontario Superior Court of Justice ruled in its favour when it applied to have the award enforced in Canada last August.
But EnerNorth appealed.
It asked the Ontario Court of Appeal to decide if legal decisions made in Singapore are fair and impartial enough to meet Canadian standards of justice.
The appeals court reserved judgment after hearing the case last month.
Oakwell is a Singapore corporation that supplies engineering works and products in the marine industry while EnerNorth is an Ontario corporation engaged in shipbuilding, engineering, construction and power generation around the world.
In June 1997, the two firms agreed to jointly finance, construct and operate two mobile power plants to generate electricity in the state of Andhra Pradesh, India.
But 14 months later the project soured and EnerNorth bought out Oakwell's stake in exchange for US$2.79 million, royalty payments, and shares in EnerNorth.
EnerNorth did not stick to the deal and in August 2002, Oakwell sued for US$2.79 million in Singapore. The case was heard by the late Justice Lai Kew Chai. EnerNorth brought a counterclaim against Oakwell for US$175 million but its claim was dismissed and it was ordered to pay the money demanded by Oakwell.
EnerNorth's appeal in Singapore was dismissed by a three-man court headed by former Chief Justice Yong Pung How in April 2004.
EnerNorth's allegations in Canada have been dismissed by Oakwell's lawyers.
'This is not a political case. It is a commercial matter. It was heard before the courts of a country built on foreign investment, with an impeccable reputation for fairness to foreign firms like EnerNorth,' said Oakwell's lawyers.
In Singapore, EnerNorth was represented by lawyers from Drew & Napier and Oakwell by Mr Philip Jeyaretnam.
Contacted yesterday, a Law Ministry spokesman said: 'These allegations have been roundly rejected by the Ontario Superior Court of Justice.'
She noted the court had 'refused to lend any credence to EnerNorth's spurious allegation of a biased Singapore judiciary'.
Judge Day had said he was satisfied 'that there is no reason to doubt the impartiality of the judges who heard the case in Singapore'.
'Singapore prides itself on having an independent and impartial judiciary,' said the Law Ministry spokesman.
She added that the Political and Economic Risk Consultancy in Hong Kong has 'consistently rated the Singapore judicial system as one of the best in the region, and emphasised that Singapore has one of the most fair and transparent legal systems in the world'.
Let's say X is a Singapore company. X sues a foreign company Y in the courts of Singapore. The judge hears the case, the lawyers fight it out for 20 days in court, and at the end of it, the judge says, "Okay, X wins. I order Y to pay X $1 million dollars."
Y might refuse to pay. If Y had assets in Singapore, the Singapore court will then order those assets to be seized. However, if Y has no assets in Singapore, then the Singapore court can't do much. X, in order to get his money, would have to go to Y's country (because that's where Y has assets).
X goes to Y's country, and goes to the court there, and tells the judge: "Look, I won a court case against Y in Singapore. Y owes me $1 million. Please make Y pay me."
What usually happens is that the judge in Y's country would look at the Singapore court's judgment (for $1 million) and then say: "Ok, I see that this matter has already been heard and decided by the Singapore judge. Therefore I order Y to pay X $1 million. Oh, and if Y still doesn't pay, you can seize Y's assets in this country."
The judge in Y's country will not bother to re-examine the whole case again. In other words, X and Y do not need to go through another 20 days of fighting in court, and explaining to the judge what the whole case was about. The judge in Y's country will simply assume that the Singapore judge made the correct decision.
This is what lawyers refer to as "the reciprocal enforcement of foreign judgments". Courts in most countries respect the decisions made by courts in most other countries.
Once in a while, however, a hiccup occurs.
For example, if you won a court case against ABC in a country like Iraq, Cuba or North Korea, you might not be able to get the judge in another country to help enforce your judgment against ABC.
That's because the courts of a country like Iraq, Cuba or North Korea might be regarded as not quite reliable, not quite fair and not quite trustworthy - therefore there is a concern that ABC might not have been treated fairly.
What's happening in the EnerNorth case?
Well, the Singapore company has gone to the Canadian court, but EnerNorth, the Canadian company, is telling the Canadian judge, "Hey, please disregard the Singapore court judgment, because the Singapore judiciary is just not trustworthy."
In other words, the defence is that the Singapore judiciary is something like the courts of North Korea, Iraq etc.
To me, the most interesting feature is that EnerNorth is NOT arguing that the Singapore court had acted unfairly in handling the case. In fact, EnerNorth agrees that the Singapore court DID act fairly in hearing that particular case.
Instead, EnerNorth's argument is basically that the entire Singapore judiciary is so fundamentally corrupt and rotten and unreliable that the Canadian court should just ignore ANY judgment from a Singapore court in ANY case.
And why is the Singapore judiciary said to be so rotten?
Click here for the full legal arguments. For a more succinct summary, click here.
It includes allegations such as how Singapore's judges are beholden to the executive; how the executive uses the Singapore courts to sue opposition MPs for defamation to make them bankrupt and disqualify them from Parliament etc etc.
You get the idea.
The matter is now under consideration by an appellate court in Canada. The fact that they reserved judgment means that this isn't an "open-&-shut" case. "Reserving judgment" basically means that the appellate court thinks that hmmmmm, there are some serious, real issues to consider here.
The potential implications are quite enormous.
If the Canadian court decides that the judgments of the Singapore courts should not be respected, then this may well open the floodgates. The same kind of arguments could be raised again and again, in the courts of other countries - where the plaintiff has already successfully sued the defendant in Singapore and is trying to enforce the judgment in the defendant's home country.
Ironically, it was Singapore law firm Drew & Napier which represented EnerNorth in Singapore. Drew & Napier is well-known to be the "PAP law firm" with several lawyer who are/were PAP-MPs, such as Davinder Singh, Indranee Rajah, Ong Kian Min, Sin Boon Ann and Hri Kumar.
Drew & Napier represented EnerNorth in the litigation proceedings in Singapore, and in the usual course of events, would usually be involved in the Canadian legal action (note - I don't know this for a fact).
The Drew lawyers would not be able to actually appear in the Canadian court, but in the normal course of things, one would expect them to be involved in liaising with EnerNorth's Canadian lawyers and discussing court strategy etc (again, note that I'm assuming this - it would be consistent with the usual legal practice, but may not actually have happened in this particular case).
The other irony, of course, is that Oakwell's lawyer in Singapore was Philip Jeyaretnam. Philip is the son of ex-Opposition MP JB Jeyaretnam, who was the unfortunate victim of several many PAP defamation suits. We would expect that Philip is now working closely with Oakwell's lawyers in Canada, to try to win the case there. In a way, that makes Philip the defender in Canada, of the Singapore judiciary.