A. Cross-border judgment enforcement matters for Cambodia

Given the heightened movement of individuals and capital across borders, there is an apparent necessity for, and advantages to, establishing an efficient mechanism for enforcing judgments issued in one country against assets in another. When judgments flow freely, duplicate suits can be avoided, logically lowering transaction costs and business costs. Litigants obtain greater access to justice if the winning party does not end up with a mere paper judgment unenforceable in the country where debtors’ assets are located.Footnote ²⁵

Since foreign judgments are considered unenforceable in Cambodia, creditors need to re-litigate the same dispute in Cambodian courts to enforce the debtors’ assets located in Cambodia. To this end, creditors need to go through new legal proceedings, prove and win their case again before Cambodian courts to obtain a local judgment, which can be subject to compulsory execution.Footnote ²⁶ Re-litigating such cases demands substantial resourcesFootnote ²⁷ and entails a lengthy process,Footnote ²⁸ potentially spanning several years if all three instances are exhausted. The situation is further exacerbated by the difficulty in predicting case outcomes before Cambodian courts.Footnote ²⁹ One may think that assets representing significant value are retained overseas, and therefore, enforcing foreign judgments against Cambodian assets is a marginal issue. However, this is not the case. Cambodian law firms frequently receive enquiries from clients seeking to enforce foreign judgments.Footnote ³⁰ The Cambodian government’s long-persisting incentivisation of foreign direct investment (FDI) induced the growth of multiple industries, which materialized in power plants, factories, resorts, and casinos scattered throughout Cambodia. These are often part of multinational groups. When these multinationals become indebted, creditors may need to look after their assets in more than one country, often including Cambodia. With increasing FDI, the number of disputes requiring the enforcement of foreign judgments and the value of assets in Cambodia that could satisfy a foreign judgment also increase. Considering Cambodia’s intent to attract further FDI and increase its stake in international commerce,Footnote ³¹ the enforceability of claims arising from such transactions, including those already adjudicated before a foreign court, should be an elemental consideration. While the quantification of the correlation between FDI inflow or the volume of international commerce and a liberal judgment enforcement regime exceeds the scope of this research, it is indisputable that challenges or uncertainties in the claim enforcement mechanism of a country, including the enforcement of foreign judgments, deter, rather than incentivize, trade and investment.

The enforceability of foreign commercial judgments matters even more for Cambodia in the context of Singapore, given the multiple ties between the two economies. Cambodia and Singapore are members of the Association of Southeast Asian Nations (ASEAN) Economic Community (AEC), formally launched in 2015. Member States are committed to achieving “dynamic”, “competitive”, and “highly integrated” regional economic cooperation. They also aspire to transform AEC into a single market with a free flow of goods, services, investments, skilled labour, and a freer movement of capital across the region.Footnote ³² The higher costs of contract enforcement due to the unenforceability of foreign judgments will be factored into the price of products and services, which works against the targeted “dynamic”, “competitive”, and “highly integrated” markets of AEC.Footnote ³³ In discussing the legal barriers to supply chain connectivity in the AEC, Hsu specifically highlights the negative impact of differences in legal requirements and procedures and uncertainty in laws governing the enforcement of foreign judgments in another Member State, which could lead to delays and added costs.Footnote ³⁴ The Regional Comprehensive Economic Partnership (RCEP), entered into force in 2022, to which Cambodia and Singapore are parties, further intensified ties between the two economies.Footnote ³⁵ The progressive phase-out of trade and investment barriers between the two economies positively impacts and may increase the volume of cross-border transactions between Singapore and Cambodia.Footnote ³⁶ Logically, the number of cross-border commercial disputes and judgments arising therefrom, which may necessitate overseas enforcement, will increase accordingly.

The enforceability of Singapore judgments would not only profit businesses and the economy but also help Cambodia conserve its judicial resources. Ho elucidates that it is a waste of judicial resources to litigate an action that has already been adjudicated, noting that this is one of the reasons that many countries have rules that limit or hinder re-litigation of the same cause of action.Footnote ³⁷ The conservation of judicial resources is an important consideration for Cambodia, especially in light of the pronounced efforts of the Ministry of Justice to overcome the huge backlog of cases amid a shortage of human resources in the judiciary.Footnote ³⁸

B. A snapshot of the Cambodian private international law

The Cambodian legal system and knowledge of laws are in the process of being rebuilt and acquired. In 2012, Menzel, a senior legal adviser to the Senate of the Kingdom of Cambodia and co-editor and co-author of Introduction to Cambodian Law, wrote, “[i]t seems that Cambodia currently still has no comprehensive framework in the field of private international law”.Footnote ³⁹ We would tone down this description. While there are several gaps in Cambodia’s private international law (e.g. direct jurisdictionFootnote ⁴⁰ and choice of lawFootnote ⁴¹), many important issues in this field (e.g. recognition and enforcement of foreign judgments, service of process abroad, and taking evidence abroad) are covered in the Cambodian CCP.Footnote ⁴²

The French Protectorate between 1863 and 1953 laid down the path of Cambodia’s private laws, but such a path has been possibly erased completely.Footnote ⁴³ Cambodia experienced a radical break in its legal development during the Khmer Rouge, which seized power in 1975. In Pol Pot’s Democratic Kampuchea, laws were abolished, books were destroyed, and among the many targeted groups of the population, educated people, including lawyers, were forced to flee and, in many cases, executed.Footnote ⁴⁴ Vickery described these years as “without any legal system or even a pretence of legality”,Footnote ⁴⁵ which chimes with Menzel’s description that “the Khmer Rouge did not operate under any kind of ‘legal’ system … the Khmer Rouge simply abolished the law”.Footnote ⁴⁶ In 1979, Vietnamese troops overthrew Pol Pot’s regime. In the following decade, Vietnam exercised strong control over the People’s Republic of Kampuchea. Cambodia’s laws were influenced by and modelled after Vietnam’s socialist laws. These years can be described as a continuous civil war when codifying laws and legal education were not among the Cambodian government’s priorities. In 1991, the Paris Peace Agreements ended the war and paved the way for the modernization of the state and economy, after which more attention could be paid to the legal system. With the assistance of the United Nations Transitional Authority in Cambodia, elections were organized in 1992–1993, and a new constitution was adopted in 1993. It respects fundamental human rights, the rule of law, and the separation of powers, replacing the former centrally planned economy with a modern market economy.Footnote ⁴⁷ According to Dolores, in the early 1990s, there were only five private lawyers in Cambodia. She aptly states that the Cambodian legal system had to be rebuilt “from scratch”.Footnote ⁴⁸

A basic private law setup, including the most essential laws for FDI, was created after the Paris Peace Agreements. The Ministry of Justice relied heavily on technical assistance from various development agencies. Regarding the Cambodian CCP, legal assistance materialized through the Japan International Cooperation Agency (JICA). Japanese legal experts have considered the local circumstances of the host country, and accordingly, several parts of the Cambodian CCP differ from the Japanese model.Footnote ⁴⁹ However, the provisions providing exequatur proceedings and conditions for recognizing and enforcing foreign judgments do not differ from Japanese law.Footnote ⁵⁰ Japan has nevertheless moved on and, through published judicial decisions, has crystallized the interpretation of its laws. Such progress has yet to be witnessed in Cambodia. This article does not aim to compare the development levels of the Cambodian and Japanese legislative and judicial systems or to draw any conclusions from such a comparison. This would be extremely unfair, considering the different historical backgrounds of the two countries, with Japan modernizing its legal system during the Meiji era in the second part of the nineteenth centuryFootnote ⁵¹ and Cambodia commencing modernization only at the end of the twentieth century. The development of Japanese judicial decisions and doctrines demonstrates that even by relying on the same statutory provisions, one can provide a more efficient and certain legal environment to its citizens and foreign investors compared to others. Therefore, the path followed by Japan may be worthy of consideration by the Cambodian judiciary.Footnote ⁵² In fact, it is common among top Cambodian law firms to refer to Japanese judgments in their submissions in civil proceedings, and Cambodian courts deliver judgments based on those submissions.Footnote ⁵³ As Cambodian judges generally prefer to make their rulings and judgments very succinct and unpublished, it usually is difficult to tell from the reasoning of their decisions whether they have adopted Japanese jurisprudence. However, they are not allowed to ignore the parties’ submissions containing Japanese precedents. Moreover, the core official texts of the CCP and the Civil Code of Cambodia, which are read by virtually all trainee judges at the Royal Academy for Justice of Cambodia (and most Cambodian lawyers), were prepared by Cambodian and Japanese legal experts based on Japanese legal principles and jurisprudence.Footnote ⁵⁴

C. Limited access to legal information leading to legal uncertainty

Theoretically, foreign judgments can be recognized and enforced in Cambodia. Although Cambodia is not a party to the Hague Conventions, which ensure the circulation of foreign judgments in civil and commercial matters on a global scale,Footnote ⁵⁵ nor has it concluded bilateral agreements on the subject matter (except for the Cambodia–Vietnam Treaty), according to its national law, subject to certain threshold conditions foreign judgments can be recognized and enforced. Conditions for exequatur that a foreign judgment must meet to qualify for recognition and enforcement, namely, (1) finality, (2) indirect jurisdiction,Footnote ⁵⁶ (3) service of process, (4) public policy and good morals, and (5) guarantee of reciprocity, are set out in Article 199 of the Cambodian CCP.

The exequatur proceedings provided for by Article 352 of the Cambodian CCP are simple. The person holding a final and binding foreign judgment must file a “motion for execution judgment” with the Cambodian court, which has territorial jurisdiction over the judgment debtor or its assets. Without reviewing the merits of the foreign judgment, the Cambodian court issues a so-called “execution judgment” unless the judgment fails to meet either threshold condition outlined in Article 199 of the Cambodian CCP. If not appealed, a foreign judgment that has obtained an execution judgment qualifies as “title of execution”, implying that the foreign judgment is enforceable in Cambodia in the same manner as domestic judgments.Footnote ⁵⁷

However, the practice of enforcing foreign judgment remains largely unknown to a significant portion of the Cambodian legal community. This is despite the Cambodian CCP establishing conditions and procedures for recognizing and enforcing foreign judgments, which entered into force in 2007Footnote ⁵⁸ and has remained unchanged since. While the law is stable, it lacks interpretation. To date, only 104 judgments have been published as points of reference providing limited insight into how the law is interpreted. Moreover, none of these judgments addresses the recognition and enforcement of foreign judgments.Footnote ⁵⁹ Given that judicial decisions are largely unavailable, it is not surprising that Cambodian legal research struggles to flourish.Footnote ⁶⁰ Although legal professionals strive for information and a better understanding of the legal transplants they must work with, most contemplations of the law remain hypothetical without sufficient knowledge regarding how Cambodian courts interpret the laws.

Teramura observes that legal information in Cambodia has a “private nature” and explains that “[i]n Cambodia, legal research is often understood as a synonym of networking”, which indicates that in practice, “lawyers are expected to communicate with contact persons – judges, court clerks, government officials and politicians – to obtain ‘allegedly’ reliable and updated legal information”.Footnote ⁶¹ The situation that Teramura described signals the need for more official information to be available to the Cambodian legal community.

Although the availability of information is modest, there are two important academic studies on enforcing foreign judgments in Cambodia, both of which are the output of large-scale academic research projects led by ChongFootnote ⁶² and Reyes,Footnote ⁶³ covering numerous Asian jurisdictions. Cambodian law experts for the two research projects were selected from among the most reputable members of the Cambodian legal community, comprising lawyers who had long been exposed to international commercial disputes. Therefore, one may expect that they had all the information regarding the recognition and enforcement of foreign commercial judgments. However, this does not seem to be the case. The study, which was released in 2017 (a decade after the Cambodian CCP came into force), includes the following:

The succinct Cambodia chapter of the other project, published in 2019, states, “to our knowledge Cambodia has yet to see a foreign judgment recognised and enforced in the local courts”.Footnote ⁶⁵ As of early 2024, we could still not identify reliable information confirming that any foreign judgment had ever been enforced or refused to be enforced by Cambodian courts.Footnote ⁶⁶ Although some may possess the knowledge we have been trying to obtain, the wider public, including domestic businesses, foreign investors, and their Cambodian lawyers, have no official information about Cambodian courts’ position on whether a Singapore judgment can be enforced.

A. A critical examination of reciprocity

In a general context, reciprocity denotes the relationship between two states when each of them gives the subjects of the other certain privileges on the condition that its subjects enjoy similar privileges in the latter state.Footnote ⁹⁵ While reciprocity is based on public international law, during the nineteenth century, it also appeared in laws related to cross-border litigation, such as laws on foreign legal assistance and enforcing foreign judgments,Footnote ⁹⁶ both falling under private international law. In the context of foreign judgments, reciprocity implies that state A will only enforce a judgment rendered by the courts of state B if state B also enforces judgments rendered by the courts of state A.

However, reciprocity is understood in various ways across countries,Footnote ⁹⁷ underscoring the need for a more detailed review. In analyzing reciprocity in Asian civil law jurisdictions, Guo identified various ways courts interpret it.Footnote ⁹⁸ One such understanding is treaty-based reciprocity, which necessitates the existence of a treaty between the state of origin and the requested state to establish reciprocity (e.g. Lao law).Footnote ⁹⁹ Another interpretation, frequently termed de facto reciprocity, requires a precedent where the country of origin has recognized and enforced judgments from the courts of the country addressed (e.g. former Chinese practice).Footnote ¹⁰⁰ Another approach, presumptive reciprocity, involves the court addressed presuming the existence of a reciprocal relationship between two countries unless evidence demonstrates that courts of the state of origin previously refused to recognize or enforce a judgment of the requested state (e.g. the Nanning Statement).Footnote ¹⁰¹ Lastly, a more liberal interpretation, often referred to as de lege reciprocity, where it is immaterial that the state of origin has yet to recognize and enforce a judgment of the court addressed as long as it is expected that it would do so, subject to certain requirements being fulfilled if a judgment of the requested state were before it (e.g. Japanese law).Footnote ¹⁰² Although reciprocity is not unfamiliar in Asian common-law countries, its significance is limited to recognition and enforcement under statutory schemes. In contrast with statutory schemes, at common law, reciprocity is not a requirement; courts do not consider reciprocity when enforcing foreign judgments at common law.Footnote ¹⁰³

Arguments favouring reciprocity in the context of foreign judgments relied on states’ sovereigntyFootnote ¹⁰⁴ and, to a lesser extent, its alleged capability to incentivize other countries to recognize and enforce foreign judgments.Footnote ¹⁰⁵

The idea behind the former argument is that all states are sovereign and equal. Sovereign A cannot force sovereign B to enforce judgments from sovereign A, and vice versa. However, nothing prevents sovereign B from giving effect to the judgments rendered in sovereign A. It depends on sovereign B’s sole discretion. Such decisions may or may not be conditional on reciprocal treatment (i.e. whether sovereign A reciprocates the recognition and enforcement of judgments rendered by the courts of sovereign B). For instance, at common law, reciprocity is not required to enforce foreign judgments,Footnote ¹⁰⁶ while reciprocity is a statutory prerequisite in Japan and Cambodia.Footnote ¹⁰⁷ Those who argue in favour of the necessity of reciprocity in judgment recognition based on sovereignty perceive that the enforcement of a foreign judgment negatively affects the sovereignty of the state; such an imbalanced situation can be addressed only when the other state also gives up the same portion of its sovereignty (i.e. it reciprocates the enforcement).

The rationale for this argument has been criticized in private international law scholarship from multiple perspectives. Ho analyzed governments’ potential policy considerations underlying the enforcement of foreign judgments, arguing that it is not incompatible with its sovereignty when a state chooses to enforce a foreign judgment according to the processes, forms, and criteria it has set out for itself. The emphasis is on the state’s own choice.Footnote ¹⁰⁸ Along these lines, it can also be said that a state’s decision to allow for the recognition and enforcement of foreign judgments is an expression of sovereign power; hence, not a detriment thereof. Meanwhile, Childs points out that reciprocity makes sense only if governments are considered to have a valid interest in private disputes and provides the reminder that public and private international laws were created as distinct categories because such governmental intervention in private disputes, either in the name of national interest or international relations, was once deemed inappropriate.Footnote ¹⁰⁹ This aligns with the view of Nishioka and Nishitani, who question the appropriateness of giving weight to the sovereignty of states in private law relations, where parties are the most affected while having no means to influence states to recognize judgments reciprocally.Footnote ¹¹⁰

Reciprocity has also been said to promote the recognition and enforcement of foreign judgments.Footnote ¹¹¹ However, over time, this has not been proven. According to Elbalti, during the long history of reciprocity, it has rarely been proven to be effective. Essentially, the requirement of reciprocal treatment has rarely induced changes in states’ policies regarding the enforceability of foreign judgments. Elbalti adds that even in rare cases where reciprocity attained its objective, it was not due to its intrinsic qualities, if any.Footnote ¹¹² Nishioka and Nishitani argue that reciprocity may even have a reverse effect (i.e. instead of promoting it, it hinders the portability of judgments).Footnote ¹¹³ Guo expresses similar concerns and explains that reciprocity may lead to a mutual standoff in which none of the countries is willing to take the first step in recognizing and enforcing a judgment from the other country. This may lead to a vicious cycle in which none of them enforces judgments from the other country.Footnote ¹¹⁴ Childs notes that the aforementioned counterargument has been disproved by game theorists, who say that countries seeking to cooperate do not have to take the first step and it suffices if they signal their willingness to cooperate over time.Footnote ¹¹⁵ Essentially, reciprocity will not end in a mutual standoff in cases where states A and B are willing to cooperate, and state A gives a sign to state B indicating that state A is ready to enforce judgments rendered in state B, and vice versa.

The heaviest criticism of reciprocity is not along the lines of sovereignty or its naively expected quality to incentivize the enforceability of foreign judgments but rather on its unfairness towards the parties and its negative impact on preserving private parties’ rights. It is unfair and unsound towards the parties if states enforce their legitimate rights conditionally upon a factor over which the parties have no influence.Footnote ¹¹⁶ Elbalti stresses the negative impact of reciprocity on parties’ preservation of rights.Footnote ¹¹⁷ While reciprocity is unfair in the relationship between the state and the individual, Childs indicates that reciprocity does nothing to ensure fairness in the relationship between parties to a particular dispute. Reciprocity does nothing to filter out judgments based on fraud; it does not protect parties from the abuse of repeated litigation or prevent enforcement of foreign judgments decided under unjust foreign laws. Meanwhile, reciprocity may render a valid judgment completely useless (e.g. unenforceable in the country where the debtor’s assets are located).Footnote ¹¹⁸ Lenhoff considers that reciprocity only misleads the forum by diverting its attention from the real issue of whether the judgment shows that the litigant had become the victim of severe injustice.Footnote ¹¹⁹

Considering its disadvantages, scholars have suggested reconsidering the necessity of reciprocity as a prerequisite for the recognition and enforcement of foreign judgments, and many have gone so far as to propose its abolition.Footnote ¹²⁰ States have considered and reacted to such criticism, and, in the end, as Elbalti concludes, many jurisdictions have eliminated reciprocity from their judgment recognition requirements. However, even in states where reciprocity is still required, it is often sufficient to show that the state of origin is likely to recognize the requested state’s judgments to establish reciprocity. In other jurisdictions, reciprocity is either presumed or simply never applied.Footnote ¹²¹

In Weller’s works, private international law, including the issue of the enforcement of foreign judgments, is considered a matter of “trust management”, which entails the task of policymakers and legislators in determining the appropriate balance between trusting foreign states’ administration of justice (i.e. leaving foreign courts to decide the case) and withholding residual controls, such as implementing grounds of refusal (e.g. public policy).Footnote ¹²² According to Weller, trust in private international law today is rights-driven instead of a sovereignty-oriented approach. Emphasis on people’s right to access justice has grown over time. Weller states:

Cambodia, whose Constitution provides that “[t]he Judiciary shall guarantee and uphold impartiality and protect the rights and freedoms of the citizens”,Footnote ¹²⁴ and is a member of “people-oriented” and “people-centred” ASEAN,Footnote ¹²⁵ may also consider and avail itself of Weller’s position and orient itself towards a rights-driven approach to issues of private international law.

B. Guarantee of reciprocity in Cambodian law

According to Article 199(d) of the Cambodian CCP, a final and binding judgment of a foreign court is effective only if there is a guarantee of reciprocity between Cambodia and the state of origin.

Cambodian law experts concur that the guarantee of reciprocity is a threshold requirement that is difficult to establish.Footnote ¹²⁶ Bun goes so far as to suggest that “[t]he fourth threshold requirement, a guarantee of reciprocity, is to date the most difficult of the four requirements to meet”.Footnote ¹²⁷ Likewise, the Asian Business Law Institute, which analysed the obstacles of the free flow of foreign judgments in ASEAN, pointed out that one of “[t]he main hurdle[s] is that Cambodia … ha[s] rigid standards of reciprocity”.Footnote ¹²⁸

Regarding whether a guarantee of reciprocity could be established by means other than a treaty, the opinions of Cambodian law experts differ. Larkin and Yun opine that:

Unlike Larkin and Yun, Bun does not exclude the possibility of establishing reciprocal relationships by means other than a treaty. Bun says, “[w]ithout the threshold requirement of a guarantee of reciprocity, such as is found in the [Cambodia–Vietnam Treaty], Cambodian courts will not recognise and enforce a foreign judgment in Cambodia”. He nevertheless acknowledges that “[a] guarantee of reciprocity does not expressly need to be found in a treaty”. However, Bun is “not aware of any mechanism used by a foreign country other than a treaty that may be deemed to give Cambodia such a guarantee of reciprocity”.Footnote ¹³⁰ Based on these expert views, the interpretation of the guarantee of reciprocity is a central issue regarding the enforceability of foreign judgments in Cambodia. Therefore, it is imperative to clarify its meaning further.

Although the commentary note on the Cambodian CCP has a one-sentence definition on Article 199(d), it does not explain what guarantee would satisfy Cambodian courts. According to the commentary note, reciprocity “is an international principle that allows two states to reciprocally respect each other for the purpose of protecting their national interests and the private interest of their citizens”.Footnote ¹³¹ There are at least two points worth considering in this brief explanation. First, reciprocity allows two states to respect each other. If one state showing respect to the other matters, then the question arises whether international comity expresses such respect more clearly.Footnote ¹³² Furthermore, the honesty of respect appears questionable if it is contingent upon mutual respect from the other state. According to this definition, reciprocity allows a state to protect its interests. The legitimate grounds for this are narrow. The question is how Cambodia’s legitimate interests could be violated by recognizing and enforcing judgments which bind private parties in a commercial dispute. Likewise, it is difficult to explain how it would harm Cambodian citizens’ interests if they could have access to the courts of another country (e.g. the SICC) and then enforce the judgment that can be used in Cambodia, especially in circumstances where the quality of judicial services in the other country’s courts is high (e.g. in Singapore). Or why did such alleged harm no longer matter if the other country recognized and enforced Cambodian judgments? We have no valid responses to these questions. It is submitted that Cambodian citizens’ interest can be protected by other, more efficient means, such as it is already protected by the other conditions set out in Article 199 of the Cambodian CCP (i.e. indirect jurisdiction, service of process, public policy, and good morals). We also submit that the filter of substantive public policy and good morals of Cambodia set out in the Cambodian CCP, Article 199(c), are sufficient to defend the Cambodian state’s legitimate interests, if any, in commercial disputes between private parties.

While the commentary notes of the Cambodian CCP are silent on how reciprocity should be understood, the Nanning Statement of the 2nd China–ASEAN Justice Forum on 8 June 2017 (Nanning Statement) includes Cambodia’s consent to presume reciprocity, at least regarding judgments rendered by the courts of a large number of Asian countries, which were also parties to the Nanning Statement. In this case, top judicial officials of the Supreme Courts of Asian countries, including Hon. Mr. You Ottara, Vice-President of the Supreme Court of the Kingdom of Cambodia, and Hon. Mr. Steven Chong, Justice, Judge of Appeal of the Supreme Court of the Republic of Singapore, acknowledged that (1) regional cross-border transactions and investments require judicial safeguards based on appropriate mutual recognition and enforcement of judicial judgments among countries in the region. (2) They agreed that the Supreme Courts of participating countries would maintain good faith in interpreting domestic laws, (3) they would try to avoid unnecessary parallel proceedings, and (4) they would consider facilitating the appropriate mutual recognition and enforcement of civil or commercial judgments among different jurisdictions. (5) Essentially, they also consented to the fact that in cases where there is no treaty between the two states, the participating states, subject to their domestic laws, may presume the existence of reciprocity when a judgment rendered in a civil or commercial matter made in another participating country is sought to be enforced before their domestic courts.Footnote ¹³³

The Nanning Statement uses “may presume”, not “shall presume”. Therefore, the participating Supreme Courts’ determination to presume reciprocity is not binding. Nonetheless, in the context of Cambodian private international law, the Nanning Statement is significant as it remains the only publicly available document indicating the Cambodian courts’ stance on reciprocity.Footnote ¹³⁴ Since there is no explicit legal barrier preventing Cambodian courts from aligning with the spirit of the Nanning Statement and establishing reciprocity on a presumptive basis, the Nanning Statement could potentially be transformative.Footnote ¹³⁵ Moreover, based on the findings of game theorists,Footnote ¹³⁶ the Supreme Court of the Republic of Singapore can be said to have “signalled” to the Vice-President of the Supreme Court of the Kingdom of Cambodia that he was “willing to cooperate” in the field of mutual recognition and enforcement of judgments rendered by their respective courts. By adhering to the Nanning Statement, the Vice-President of the Supreme Court of the Kingdom of Cambodia sent the same signal to his Singaporean counterpart. This suggests that the Cambodian judiciary agrees with interpreting the prerequisite reciprocity in a rather flexible way (i.e. presumptive reciprocity). In practice, however, we have yet to observe what weight can be given to the Vice-President of the Supreme Court of the Kingdom of Cambodia’s consent to the Nanning Statement.

From the perspective of the enforceability of Singapore judgments in Cambodia, the Nanning Statement is positive; however, we argue that the main point is that under common law, a Cambodian money judgment could be enforced in Singapore. Therefore, it is unnecessary to presume the existence of something already granted, as discussed in Section C.

C. Guaranteed reciprocity by the laws of Singapore

In Singapore, foreign money judgments are enforceable under statutory schemes and common law. Statutory regimes apply to judgments emanating from a limited number of countries.Footnote ¹³⁷ If neither statutory scheme applies to a country (e.g. Cambodia), at common law, judgments from these countries (e.g. Cambodian judgments) can still be recognized and enforced.

In Singapore at common law, the substantive requirements for a foreign judgment to be recognized are as follows: (1) the foreign judgment must be final and conclusive; (2) it must be from a court which had indirect jurisdiction as determined by Singapore’s private international law rules; and (3) no defences to recognition must be applicable. To enforce a foreign judgment, in addition to the aforementioned requirements for recognition, (4) the foreign judgment must be for a fixed or ascertainable sum of money.Footnote ¹³⁸ Finality under Singapore’s law involves two aspects. First, a foreign judgment must be final and conclusive and cannot be varied, reopened, or set aside by the court that delivered it. Second, finality must be assessed by asking whether the foreign court regards the judgment as final and conclusive.Footnote ¹³⁹ A foreign court issuing the judgment that is sought to be recognized must have had indirect jurisdiction under Singapore law. According to Singapore’s private international law, a foreign court may assume jurisdiction based on the presence or residence of the defendant and submission to the jurisdiction. Submissions can occur either by choice of court agreement or the conduct of the defendant in a foreign jurisdiction. Filing a counterclaim, defence, or claim for set-off is generally taken as evidence of submission to a foreign court’s jurisdiction.Footnote ¹⁴⁰ The final requirement for recognizing a foreign judgment in Singapore is that no defences can be raised against such recognition or enforcement. The defences that exist at common law are as follows: (1) enforcement of a foreign judgment would amount to enforcement of a foreign penal, revenue, or other public law; (2) foreign judgment was obtained by fraud; (3) recognition or enforcement of foreign judgment would be contrary to Singapore’s public policy; (4) the foreign judgment was obtained in a breach of natural justice; (5) the foreign judgment conflicts with an earlier Singapore or foreign judgment entitled to recognition in Singapore.Footnote ¹⁴¹ Where a foreign judgment is sought to be enforced in Singapore, it must be for a fixed or ascertainable sum of money. If there is a monetary component to the foreign judgment, it can be enforced; it is immaterial as to whether the foreign judgment contains other non-monetary relief.Footnote ¹⁴²

At common law, reciprocity is not a prerequisite for recognizing and enforcing foreign judgments.Footnote ¹⁴³ Instead, recognition and enforcement at common law rely on the “obligation theory”, under which, when a judgment is issued by a court of competent jurisdiction over the parties, such judgment creates an obligation on the parties, and courts of other countries ought to recognize and enforce it. Traditionally, Singapore courts, when enforcing a foreign judgment, hold the parties to their obligation.Footnote ¹⁴⁴ While a recent statement from the Singaporean Court of Appeal leans towards “transnational comity” and “reciprocal respect among courts of independent jurisdictions” as a conceptual justification for enforcing foreign judgments, it has not gone so far as to explicitly impose reciprocity as an additional threshold condition for enforcing foreign judgment debts.Footnote ¹⁴⁵ Even if case law evolves to make reciprocity a mandatory requirement at Singapore common law, the prospects, as found by Chong and Yip, suggest that a liberal concept of reciprocity would be adopted.Footnote ¹⁴⁶

The application of the common law rules for a money judgment rendered by the courts of Cambodia in a commercial matter practically means that the prevailing party in the Cambodian judgment needs to file fresh action with the courts of Singapore to enforce the monetary rights arising from the Cambodian judgment.Footnote ¹⁴⁷ The Singapore judge will not review the merits of the case,Footnote ¹⁴⁸ but its compliance with basic substantive requirements for a foreign judgment (i.e. finality and conclusiveness, indirect jurisdiction, lack of defence, and fixed or ascertainable sum of money).Footnote ¹⁴⁹ The potential grounds for refusal are narrow and justified by the defence of fundamental procedural rights or public policy.

Based on the above, we conclude that a Cambodian money judgment rendered in a commercial matter is enforceable in Singapore at common law.Footnote ¹⁵⁰ Therefore, the enforcement of a Singapore money judgment rendered in a commercial matter in Cambodia would be (or may have already been) reciprocated by Singapore (i.e. via Singapore’s common law).Footnote ¹⁵¹

Regarding the enforceability of Singapore judgments in Cambodia, the only question remains whether Cambodia’s domestic law requires a treaty to establish reciprocity or whether the internal laws of the foreign state (e.g. common law as applied in Singapore) would suffice to meet this threshold. In our view, the term guarantee of reciprocity does not hinder Cambodian courts from interpreting it so that the internal laws of the state of origin can guarantee reciprocity. Several arguments can support this interpretation. First, the liberal approach expressed in Article VII of the Nanning Statement towards recognizing and enforcing foreign judgments and the participating Supreme Courts’ consent to interpret their domestic laws in a pro-recognition manner supports this.Footnote ¹⁵² Second, if the lawmaker wanted to narrow the interpretation of the guarantee of reciprocity to treaties, it would have used the word treaty instead of guarantee of reciprocity. For instance, among its conditions of exequatur, the laws of Laos explicitly require the existence of a treaty between Laos and the foreign country at issue.Footnote ¹⁵³ Third, the Japanese law, which also requires reciprocity to be guaranteed, shows that such a guarantee can be established through internal laws of the foreign country from which the judgment originates. The Japanese example is presented in Section D.

D. Guarantee of reciprocity in Japanese law

The conditions for recognizing foreign judgments and exequatur proceedings, allowing for their enforcement in Cambodian and Japanese laws, are essentially identical. Importantly, both countries require that reciprocal treatment be guaranteed. It is only a technical issue of codification, but not a matter of substance, that in Japan, the laws providing for the rules of civil court procedure and compulsory execution can be found in two separate acts, whereas in Cambodia, CCP covers both subjects.Footnote ¹⁵⁴ In Japan, the rules providing the conditions for exequatur can be found in Article 118 of the Code of Civil Procedure (Act No. 109 of 1996) (Japanese CCP), whereas the exequatur proceeding is set out in Article 24 of the Civil Execution Act (Act No. 4 of 1979) (Japanese CEA). The provisions of the Japanese and Cambodian laws governing the conditions of the exequatur and exequatur proceedings are compared in Tables 1 and 2, respectively.

Table 1. Conditions for recognizing and enforcing foreign judgments under Japanese and Cambodian laws.

Sources: JICAFootnote ¹⁶⁰ and Japanese Law TranslationFootnote ¹⁶¹

Table 2. Exequatur proceedings for foreign judgments under Japanese and Cambodian laws.

Sources: JICAFootnote ¹⁶³ and Japanese Law TranslationFootnote ¹⁶⁴

It is also common ground for the two countries that neither Cambodia nor Japan are parties to the Hague Conventions that embody a guarantee of reciprocity on a multilateral treaty basis.Footnote ¹⁵⁵ Furthermore, except for the Cambodia–Vietnam Treaty, neither Cambodia nor Japan entered into bilateral treaties on mutual legal assistance encompassing the subject of recognition and enforcement of the judgments rendered by their respective courts.Footnote ¹⁵⁶ Lastly, a further similarity between Japan and Cambodia is that neither has concluded a Memorandum of Guidance with the Supreme Court of Singapore stating the exequatur conditions and proceedings of the signatory courts.Footnote ¹⁵⁷

Nishioka and Nishitani describe how the criterion of guarantee of reciprocity has crystallized through two landmark decisions of the highest judicial authority in Japan.Footnote ¹⁵⁸ In the Supreme Court of Judicature judgment issued in 1933,Footnote ¹⁵⁹ an exequatur was petitioned in the Japanese courts for a judgment rendered by a California State court. The defendants moved to dismiss the claim for lack of reciprocity but were unsuccessful. The Supreme Court of Judicature reasoned that the reciprocity requirement was fulfilled, insofar as the state of origin recognized Japanese judgments under an international treaty or domestic law, without reopening the same on the merits, under “identical or more lenient conditions” than those provided by Japanese law. The reciprocity was established between Japan and California using these criteria. While leading authors and lower court decisions first supported the standard set by the Supreme Court of Judicature in 1933, criticism gradually increased. It was primarily maintained that the reciprocity requirement should be abolished as it would unduly hamper the recognition and enforcement of foreign judgments, causing a risk of re-litigation or conflicting judgments. It was argued that the requirements for recognizing and enforcing foreign judgments largely differ throughout various jurisdictions, so the relevant foreign and Japanese laws can hardly have identical conditions. It is problematic to establish which provided more lenient conditions. Instead, it should be sufficient that the requirements for recognition under Japanese and foreign laws are essentially equivalent. A lower court later followed this more flexible interpretation of reciprocity, which was eventually adopted by the Supreme Court of Japan in 1983.Footnote ¹⁶² It held that reciprocity exists:

As reported by Elbalti,Footnote ¹⁶⁶ in a decision rendered in 1998, the Supreme Court of Japan confirmed the position expressed in 1983 reiterating that:

The latter judgment is of interest to this article given that the foreign money judgment that the judgment creditor sought to enforce in Japan was rendered by Hong Kong courts. In Hong Kong, as in Singapore, the principles of English common law apply for the recognition and enforcement of foreign judgments. In the same judgment, the Supreme Court of Japan pointed out that:

Importantly, in the same case, the Supreme Court of Japan also found that:

Along these lines, Elbalti elucidates that to establish reciprocity between Japan and a foreign country, three conditions should be met: (1) Japanese judgments of a same kind, (2) are likely to be recognized in the rendering court, and (3) under requirements that do not substantially differ from those accepted in Japan.Footnote ¹⁷⁰

The courts determine what requirements for judgment recognition and enforcement in the foreign country are not substantially different from those accepted in Japan on a case-by-case basis because any clear-cut rule for the determination has yet to be established.Footnote ¹⁷¹ As Elbalti indicated, “the simple fact that the rendering state adopts conditions that are not admitted in Japan or that the recognition requirements are stricter than those admitted in Japan does not necessarily lead to denying reciprocity with that state”,Footnote ¹⁷² so that the threshold for the Japanese courts to establish a substantial difference is high. In fact, in addition to Hong Kong, courts in Japan have recognized and enforced commercial money judgments from the following common law jurisdictions: the USA (California, Washington DC, New York, and Hawaii), England, Australia (Queensland), and Singapore.Footnote ¹⁷³ In enforcing the Singaporean judgment, the Tokyo District Court compared Singapore’s conditions for judgment recognition and enforcement with those of Japan as follows:

The comment on the alleged reciprocity requirement under the common law of Singapore may indicate the Japanese courts’ flexibility in applying the “not substantially different” test.Footnote ¹⁷⁵ It is important to consider that the District Court confirmed the substantial equivalence between the recognition requirements under Singapore’s common law and those under the Japanese CCP. The District Court’s decision was appealed to the Tokyo High Court, and a further appeal was filed but dismissed by the Supreme Court of Japan.Footnote ¹⁷⁶ Although the decisions by the higher courts have not been published in any case report,Footnote ¹⁷⁷ accessible material does not suggest that the parties have further disputed the guarantee of reciprocity between Singapore and Japan.

It is reported that the Japanese courts have denied reciprocity in the recognition and enforcement of foreign judgments from Belgium and China,Footnote ¹⁷⁸ both of which are civil law countries. In a decision rendered in 1960, the Tokyo District Court refused to enforce a monetary judgment issued by the Brussels Commercial Court, holding that the enforcement requirements under Belgian law were substantially different from those under Japanese law because only the former comprised the principle of révision au fond (review of merits).Footnote ¹⁷⁹ However, this principle was later removed from Belgian law,Footnote ¹⁸⁰ so that reciprocity between Belgium and Japan is now highly likely to be confirmed by the courts in Japan.Footnote ¹⁸¹ In 2015, the Tokyo High Court rejected the enforcement of a Chinese judgment on the compensation for defamatory publications. It justified the rejection by stating in principle that Japanese CCP Article 118 is substantially different from the recognition requirements in the Chinese Code of Civil Procedure that consist of examining “the non-contradiction to the basic principles of laws or the national sovereignty, security, and social and public interests [of China], after examining according to international treaties or based on the principle of reciprocity”.Footnote ¹⁸² The High Court acknowledged that the requirement of “the non-contradiction to the basic principles of laws or the national sovereignty, security, and social and public interests [of China]” is virtually equivalent to the public policy ground under the Japanese CCP, Article 118.Footnote ¹⁸³ However, the court held that the uncertainty of the principle of reciprocity under Chinese law prevented it from affirming that China’s conditions for the recognition and enforcement of foreign judgments are essentially similar to those prescribed in the Japanese CCP.Footnote ¹⁸⁴ According to some Japanese commentators, this decision is allegedly undue and even unconstitutional under Japanese (private international) law.Footnote ¹⁸⁵ In any event, the Tokyo High Court’s decision is exceptional and Japanese courts rarely acquire allegations of satisfaction with the substantially equivalent test.

Based on the above, it is clear that, in Japan, a mutual guarantee (or, specifically, a guarantee of reciprocity) can be established by means other than a treaty, for example, by examining the relevant laws of the foreign country. Considering the corresponding English common law-based quasi-exequatur mechanisms in the laws of Hong Kong and Singapore, it is clear that what applies to a Hong Kong judgment should also apply to a Singapore judgment. Japanese case law approves this. The Tokyo District Court confirmed these findings in 2006. Bound by the prerequisite guarantee of reciprocity but without a relevant treaty between Japan and Singapore, the Court recognized and enforced a judgment from Singapore.