SUPREME COURT OF SINGAPORE
27 September 2024
Case summary
Pertamina International Marketing & Distribution Pte Ltd v P-H-O-E-N-I-X Petroleum Philippines, Inc (also known as Phoenix Petroleum Philippines, Inc) and another [2024] SGHC(I) 27
SIC/OA 23/2023 (SIC/SUM 27/2024)
---------------------------------------------------------------------------------------------------------------------------
Decision of the Singapore International Commercial Court (delivered by Sir Henry Bernard Eder IJ):
Outcome: The SICC dismissed Udenna Corporation’s (“Udenna”) application to set aside the attempted service of originating process against it in the Philippines.
Background
1. SIC/SUM 27/2024 (“SUM 27”) is an application by the 2nd defendant, Udenna, for the following orders: (a) an order to set aside the attempted service of the originating process in SIC/OA 23/2023 (“OA 23”) on Udenna on 22 April 2024 by the Philippines’ Central Authority in accordance with the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “HSC”); and (b) a declaration that the originating process in OA 23 has not been served on Udenna by reason of non-compliance with the Singapore International Commercial Court Rules 2021 (“SICC Rules”).
2. OA 23 is the application by the claimant, Pertamina International Marketing & Distribution Pte Ltd (“PIMD”) to recognise and enforce the Final Award signed and dated 28 November 2023 in SIAC Arb No. 084 of 2022 whereby it was ordered that Udenna, as a third-party guarantor, was jointly and severally liable to PIMD together with the 1st defendant for the aggregate amounts of US$124,534,382.23 in respect of unpaid shipments and US$854,418.04 in respect of demurrage incurred in connection with the unpaid shipments, plus interest.
3. On 27 December 2023, PIMD filed a form labelled “Request for Service Abroad of Judicial or Extrajudicial Documents” with the Supreme Court of Singapore for transmission to the Office of the Court Administrator of the Supreme Court of the Philippines to serve the papers in OA 23 on Udenna in the Philippines (the “HSC Request”). The HSC Request identified an address at Stella Hizon Reyes Road (the “SHRR Address”) in a box on the form where an address for Udenna was required. In the following section, PIMD checked the entry that Udenna be served by way of “[p]ersonal service or service by sending a copy to the addressee's usual or last known place of business.”
4. On 11 January 2024, PIMD filed SIC/SOD 2/2024 to request that the documents be sent through the proper channels to the Philippines for service on Udenna. That request requested that the documents be served at the SHRR or “elsewhere in Philippines” and that it may be served through the government of Philippines.
5. On 22 April 2024, the Sheriff of the Philippines Supreme Court delivered the relevant papers to Mr Alex Rian Barcos not at the SHRR address but at a different address viz, Bays 5 & 6, 6th Floor, Bormaheco Building, JP. Laurel Ave. Bajada, Philippines (the “BB Address”).
6. On 23 April 2024, a certificate titled “Sheriff’s Return of Service of Judicial Documents to Udenna Corporation” was issued by Sheriff IV on behalf of the Honourable Executive Judge of the Regional Trial Court, Davao City in the Philippines confirming service of the relevant documents on Udenna on 22 April 2024 (the “Certificate”).
7. Notwithstanding the above, Udenna submits that such service was invalid because it was served at the wrong address, on the wrong person, on the wrong entity, through the wrong method and that it was contrary to the laws of the Philippines.
The court’s decision
8. A certificate of service was, at the very least, prima facie evidence of the facts stated therein: at [16].
9. The probative value of the Certificate in the requesting State, ie, Singapore in this case, remained subject to that State’s law. As a matter of Singapore law, the status of the Certificate appeared to be governed by O 5 r 12 of the SICC Rules which provides that “[a]n official certificate or letter by the agency or person who effected service in the foreign country stating that service has been effected on the party to be served in accordance with the law of the foreign country and the date of the service is evidence of those facts.”: at [18].
10. While the Singapore High Court had stated in ITC Global Holdings Pte Ltd (In liquidation) v ITC Ltd and others [2011] SGHC 150 that the official certificate from the foreign government or judicial authorities pursuant to O 11 r 3(5) of the Rules of Court 2014 (which is in pari materia with O 5 r 12 of the SICC Rules) would have been “conclusive evidence of the date of service and that service was in accordance with the law of the country in which service was effected”, the court disagreed that this was how O 5 r 12 should be read and refrained from going so far: at [19].
11. The position in other jurisdictions such as the US and England appeared to be that the issuance of a certificate of service was no more than prima facie evidence: at [20].
12. Accordingly, the court proceeded on the basis that that the Certificate is prima facie evidence of effective service of the relevant papers on Udenna and should be accepted by this Court absent contrary strong and convincing evidence: at [21].
13. The court rejected Udenna’s submission that the Certificate itself was “patently inaccurate”. The facts stated in the Certificate itself as to how it came about that the relevant documents came to be served at the BB Address rather than at the SHRR Address spoke for themselves and were not the subject of direct challenge: at [22].
14. Article 5 of the HSC permitted service not only by a method prescribed by the internal law of the State addressed to effect service for the service of documents in domestic actions upon persons within its territory but also “by a particular method requested by the applicant, unless such method is incompatible with the law of the State addressed”. Thus, in accordance with Art 5(b) of the HSC, the essential question was not whether the service effected by the Sheriff was a method prescribed by the law of the Philippines regarding domestic actions but whether the method requested by PIMD pursuant to the HSC was incompatible with the laws of the Philippines: at [28] and [29].
15. The court rejected the opinion of Udenna’s expert on Philippine law that service of foreign process through the HSC must still be in accordance with the methods specifically prescribed under the Philippine Rules of Court for the service of papers in domestic actions upon persons within the Philippines. This was contrary to Rule 14, Section 9 of the Philippine Rules of Court which expressly allows service to be made through methods consistent with international conventions such as the HSC. Furthermore, Udenna’s interpretation was rejected because it would render Rule 14, Section 9 redundant and also would mean that Arts 5(a) and 5(b) of the HSC provide for the same methods of service, rendering Art 5(b) superfluous: at [30] to [32].
16. The prima facie evidence contained in the Certificate itself and the further evidence relied upon by PIMD including the important direct findings by PIMD’s independent intelligence and investigations’ expert, J.S. Held Singapore Pte Ltd, pointed ineluctably to the conclusion that the BB Address was, at the very least, Udenna’s usual or last known place of business: at [36] and [40].
17. Accordingly, the service effected by the Sheriff as evidenced by the Certificate was in accordance with the request made by PIMD pursuant to Art 5(b) of the HSC for service to be effected at Udenna’s usual or last known place of business and which was not incompatible with the laws of the Philippines: at [42].
18. The Court accordingly dismissed SUM 27. It also ordered a declaration that the service of OA 23 effected by the Sheriff on 22 April 2024 as evidenced by the Certificate was valid and that this Court was therefore seised of jurisdiction upon such service to determine OA 23: at [43].
This summary is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s judgment.