A New Ground for Refusing Enforcement? The Interplay Between Unless Orders and the New York Convention in Singapore

The recent decision of the Singapore Court of Appeal (“SGCA”) in Wuhu Ruyi Xinbo Investment Partnership (Ltd Partnership) v European Topsoho Sàrl [2025] SGCA 32 (“Xinbo”) deals with the crossroads between the New York Convention (“NYC”)’s pro-enforcement regime in international arbitration, and domestic law and procedure. In Xinbo, the SGCA was concerned with a breach of a court-issued “unless order” — an order which compels a party to do something within a specified timeframe, failing which serious consequences will follow. One of the issues was whether the unless order should be enforced in circumstances where its enforcement would result in the striking out of an application to enforce an international arbitral award. The application was ultimately struck out, upholding the consequences of the unless order.

In its judgment, the SGCA addressed the relationship between domestic procedural orders and the NYC. The SGCA held that unless orders are procedural orders within Article III of the NYC, which provides that “[e]ach Contracting State shall recognise arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon”. The SGCA therefore disagreed that enforcing the unless order would create a ground of refusal to enforce the award under Article V. This is consistent with a national court’s prerogative to enforce its domestic procedural rules as found in Article III of the NYC.

Facts

The dispute arose from Xinbo’s attempt to enforce a foreign arbitral award against European Topsoho S.àr.l. (“ETS”) in Singapore. In resisting enforcement, ETS alleged that the arbitration was a sham and obtained a document production order against Xinbo. Following Xinbo’s initial non-compliance, ETS applied for and was granted an unless order to secure Xinbo’s full compliance with the document production order, such that the enforcement order would be set aside and the enforcement application would be struck out unless Xinbo complied.

ETS disputed Xinbo’s compliance with the unless order, which was then enforced against Xinbo. The Singapore High Court (“SGHC”) dismissed Xinbo’s appeal to resist enforcement of the unless order. On appeal to the SGCA, Xinbo argued: (i) there had been no breach of the unless order; and (ii) even if there was, enforcing the unless order was a disproportionate sanction and inconsistent with Singapore’s obligations under the NYC.

On the issue of breach, the SGCA upheld the SGHC’s finding that Xinbo had breached the unless order. It noted three lapses: the inadequate explanation of its failure to produce the documents; the failure to disclose the disputed WeChat messages; and the failure to produce original documents for inspection.

The SGCA then considered whether the unless order should be enforced. As part of this analysis, it considered whether it should undertake a proportionality assessment in deciding whether the consequences of non-compliance with the unless order should take its course. The SGCA distinguished the proportionality assessment undertaken in the earlier Singapore case of Mitora Pte Ltd v Agritrade International (Pte) Ltd [2013] 3 SLR 1179 as there had been substantial compliance with the unless order in that case and the SGCA was simply exercising its residual discretion not to enforce the unless order. In contrast, given Xinbo’s intentional partial compliance (which was still a breach of the unless order), the SGCA held that Xinbo could not rely on proportionality to “avoid the consequences it has brought upon itself”.

Finally, Xinbo argued that treating non-compliance with an unless order as a bar to enforcement was tantamount to creating a new ground to refuse enforcement, contrary to the exhaustive list in Article V of the NYC. The SGCA rejected this on several bases: (i) the non-enforcement flowed from non-compliance with domestic procedural rules — in circumstances where Article III explicitly subjects enforcement to domestic procedural rules (including unless orders) — rather than Article V of the NYC; (ii) there was nothing unfair or unjust in enforcing an unless order because its consequences flowed directly from the award creditor’s own deliberate choices and actions; and (iii) the NYC’s enforcement regime should not attenuate the force of an unless order as this was simply a reframing of the proportionality analysis the SGCA had already rejected.

Commentary: New York Convention and Domestic Procedural Rules

The SGCA’s analysis of the NYC centred on the interaction between Articles III and V. The interpretation of Article III has led to divergent approaches under English jurisprudence. This is seen in the decisions of Diag Human SE v Czech Republic [2013] EWHC 3190 (Comm) (“Diag Human”) and Gater Assets Ltd v Nak Naftogaz Ukrainiy [2007] EWCA Civ 988. (“Gater”), both of which were considered by the SGCA. In Gater, Rix LJ observed that Article III required that enforcement be accorded “under the conditions laid down in the following Articles”, such that no conditions can be imposed unless it is found within the NYC’s Articles. Hence, Rix LJ suggested in obiter that refusing enforcement due to an award creditor’s failure to provide security for costs would amount to setting aside an enforcement order “on a ground not expressly within the [NYC]”.

However, Burton J in Diag Human doubted Rix LJ’s approach and took a broader interpretation of Article III, specifically that “conditions” refer to domestic rules of procedure. This echoed Buxton LJ’s dicta in his dissent in Gater, that enforcement under the NYC must be in accordance with national rules of procedure, and where an award creditor refuses to respect these national rules of procedure, they will be debarred from enforcement.

Against this backdrop, the SGCA held that the enforcement of an unless order due to non-compliance fell within the provisions for domestic procedural compliance under Article III of the NYC, and was not invoked as a substantive ground for refusal of enforcement under Article V of the NYC. Thus, notwithstanding the pro-enforcement aim of the NYC, national courts still retain the prerogative to ensure compliance with their own domestic procedural rules.

While the SGCA did not expressly define what constitute rules of procedure under Article III, Burton J in Diag Human had listed several domestic procedural orders and conditions that can be imposed in relation to Article III: orders for disclosure; time limits for evidence; unless orders; and dismissal for non-compliance with orders. On his reasoning, these rules of procedure would not offend Article V of the NYC since they flow from the imposition of procedural rules under Article III of the NYC.

Interestingly, however, the SGCA's reasoning appears to suggest that not every type of domestic procedural rule can automatically override the NYC's enforcement framework. In the course of distinguishing Gater, the SGCA distinguished between security for costs orders and unless orders. The former are imposed without reference to the award creditor’s conduct, whereas the latter flow from an award creditor’s own deliberate choice. In these circumstances, enforcing an unless order would not be unfair or unjust.

Therefore, it appears that Singapore courts — in deciding whether to enforce a procedural rule in circumstances where it would result in denying enforcement of an arbitral award — might assess the fairness or justness of upholding the procedural rule. This may be based on (for instance) whether non-compliance with that procedural rule flows directly from the award creditor’s own deliberate conduct.

The SGCA’s approach to Article III and V also has broader implications for international arbitration. Due to the differing interpretations of Articles III and V across national courts (as explained above), there could be a divergence in enforcement outcomes across contracting parties of the NYC. For instance, national courts which adopt a general position aligned with Rix LJ in Gater would afford an award creditor greater insulation from domestic procedural sanctions.

The SGCA’s decision serves as a signal to award creditors that the NYC will not serve as a shield against domestic sanctions in Singapore. Seeking to invoke the jurisdiction of a national court to enforce one’s award entails submission to its procedural rules. Award creditors cannot therefore seek the benefits of enforcement while avoiding domestic procedural obligations.

Conclusion

Xinbo underscores the Singapore courts’ commitment to balancing international obligations with domestic procedural rules in the context of international arbitration. By situating unless orders within the provision in Article III for compliance with domestic procedural rules, rather than Article V of the NYC, the SGCA preserved the authority of domestic courts to impose and enforce procedural orders without violating their international obligations under the NYC. Thus, Xinbo recognises that notwithstanding the pro-enforcement goals of the NYC, it must co-exist with domestic procedural rules.

More broadly, the diverging interpretations of Article III as exemplified by the Diag Human and Gater approaches, potentially give rise to forum-dependent considerations for award creditors seeking enforcement. Award creditors must recognise that invoking a national court’s jurisdiction requires compliance with domestic procedural obligations. How non-compliance is ultimately dealt with is a matter within each state’s own prerogative. Xinbo represents one such approach, where the SGCA has grounded non-compliance of a procedural order within Article III of the NYC, and this reasoning may well prove persuasive to courts in other jurisdictions facing this same tension.