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Singapore High Court on principles governing stays of execution
Practical Law Legal Update 5-502-9755 (Approx. 2 pages)
Singapore High Court on principles governing stays of execution
| Law stated as at 04 Aug 2010 • Singapore |
Nicholas Peacock (Partner) and Chris Ross (Senior Associate), Herbert Smith LLP
A recent decision of the Singapore High Court makes clear that special circumstances are required before a stay of execution of an arbitral award pending appeal will be granted.
In Strandore Invest A/S and others v Soh Kim Wat [2010] SGHC 174, the applicants filed proceedings to enforce an arbitration award made by the Danish Institute of Arbitrators against the respondent. The court granted leave to enforce the award. The respondent applied for a stay of execution pending appeal of that decision.
Referring to Lian Soon Construction Pte Ltd v Guan Qian Realty Pte Ltd [1999] SLR(R) 1053, the court set out a number of principles governing when a stay of execution pending appeal will be granted:
- While the court has the power to grant a stay, this is entirely at the discretion of the court, and the discretion must be exercised judicially, that is, in accordance with well-established principles.
- The first principle is that, as a general proposition, the court does not deprive a successful litigant of the fruits of his litigation and lock up funds to which he is, on the face of it, entitled, pending an appeal.
- Where a party exercises his right of appeal, the court ought to see that the appeal, if successful, is not nugatory. Thus, a stay will be granted if it can be shown that if damages and costs are paid by the appellant there is no reasonable probability of getting them back if the appeal succeeds.
- Following on from the principles above, an appellant must show special circumstances before the court will grant a stay.
On the facts, the stay was not granted. The court emphasised that the likelihood of success is not by itself a sufficient factor determining whether a stay should be granted and that it is neither possible nor desirable to give a catalogue of circumstances that qualify as "special circumstances". In each case, the court must examine the facts in accordance with the principles set out above.