Singapore International Commercial Court

1 SIC/SUM 27/2024 ("SUM 27") is an application by the 2nd defendant, Udenna Corporation ("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 ("Final Award") whereby it was ordered that Udenna, as a third-party guarantor, was jointly and severally liable to PIMD together with the 1st defendant, P-H-O-E-N-I-X Petroleum Philippines, Inc (also known as Phoenix Petroleum Philippines, Inc) ("Phoenix"), 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 OA 23 was commenced on a without notice basis on 12 December 2023 and subsequently granted substantively in terms vide SIC/ORC 69/2023 on 18 December 2023 . Udenna did not apply to set aside the Final Award within the relevant three-month period under the International Arbitration Act 1994 (2020 Rev Ed).

4 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 - as Philippines' designated Central Authority under the HSC - 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:

5 Article 5 of the HSC (to which both Singapore and the Philippines have acceded as parties) provides in material part:

6 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 Address or "elsewhere in Philippines" and that it may be served through the government of the Philippines.

7 On 22 April 2024, the Sheriff of the Philippines Supreme Court delivered the relevant papers to Mr Alex Rian Barcos ("Mr 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").

8 On 23 April 2024, a certificate dated the same day bearing the title "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"). It stated in material part as follows:

9 It is important to note that PIMD was not itself involved in this actual physical process of service. It is fair to say that it was made pursuant to the original request by PIMD in accordance with the HSC, but it was effected at the request of the Singapore Court through the usual diplomatic channels by the Sheriff acting independently on behalf of the Regional Trial Court.

10 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.

11 In support of that submission, Udenna relies, in particular, upon the evidence of Mr Leandro E. Abarquez ("Mr Abarquez"), Udenna's Corporate Secretary, to the effect that Udenna does not have an office at the BB Address and that Mr Barcos is not an employee or representative of Udenna. Rather, Udenna submits that the BB Address and Mr Barcos " belong " to a separate third-party entity, PNX-U denna Insurance Brokers Inc ("PNX-Udenna"). In addition, Udenna relies upon the evidence of its expert on Philippine law, Attorney Carlos M Villaruz ("Attorney Villaruz").

12 As PIMD emphasises, there is no doubt that Udenna did in fact receive the relevant papers on or shortly after 22 April 2024 at the BB Address. There is no suggestion that Udenna independently became aware of the service on 22 April 2024, much less any assertion by Udenna that it did not become aware of the relevant documents on or shortly after 22 April 2024. If Udenna does not have an office at the BB Address and Mr Barcos is not an employee or representative of Udenna, it is perhaps somewhat surprising that Udenna had somehow or other received the documents. Certainly, there is no satisfactory explanation as to how this came about. For these reasons, it was PIMD's submission that the present application is no more than a dilatory tactic by Udenna to try to delay the enforcement of the Final Award.

13 I do not propose to set out in detail the parties' respective submissions in relation to this present application. For present purposes, it is sufficient to say that, in my judgment, this application to set aside the service of the relevant papers in OA 23 and for a declaration that the service of these papers on Udenna was invalid should be dismissed for the following reasons.

14 The statements contained in the Certificate (see above at [8]) constitute evidence of the following facts:

(a) The Sheriff had gone to the SHRR Address but could not locate Udenna.

(b) He then went to the BB Address where he had located Udenna.

(c) He had served the documents on Udenna through Mr Barcos who signed and willingly acknowledged receipt of the same on behalf of Udenna.

(d) Service was effected in conformity with the law of the Philippines and this is why the Certificate which includes the Sherriff's narrative was signed off on behalf of the Executive Judge.

15 What then is the legal or evidential significance of the Certificate and the facts stated therein? Although Art 6 of the HSC deals with the issuance of a certificate of service, there is nothing in the HSC itself which stipulates the status or effect of such certificate.

16 As Attorney Villaruz accepts, a certificate of service is, at the very least, prima facie evidence of the facts stated therein .

17 Under the HSC, receipt of the Certificate constitutes "authoritative confirmation" that service was effected on Udenna in accordance with Philippines law: see Practical Handbook on the Operation of the Service Convention (Christophe Bernasconi gen ed) (HCCH, 4th Edn, 2016) at para 216. This was also confirmed by the Special Commission on the practical operation of the HSC's Conclusions & Recommendations issued in July 2024 following a meeting from 2 to 5 July 2024 attended by 260 delegates, including delegates from the Philippines and Singapore:

18 As seen from the Special Commission's observations above, the probative value of the Certificate in the requesting State, ie , Singapore in this case, remains subject to that State's law. As a matter of Singapore law, the status of the Certificate appears to be governed by O 5 r 12 of the SICC Rules:

19 In passing, I note that in ITC Global Holdings Pte Ltd (In liquidation) v ITC Ltd and others [2011] SGHC 150, the Singapore High Court stated 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." It may well be correct that the certificate in that case might have been treated as "conclusive evidence". However, that is not how I read what is stated in O 5 r 12 and, as a general statement, I would not myself go that far.

20 Although not directly relevant, I should mention that my attention was drawn to the fact, according to PIMD, that the position in other jurisdictions appears to be that the issuance of a certificate of service is no more than prima facie evidence: see, for example, in the US Myrtle v. Graham , Civil Action No. 10-1677, 2011 WL 446397, at *1 (E.D. La. Feb. 3, 2011) and Platypus Wear, Inc. v. Bad Boy Eur. Ltd. , Case No. 16-cv-02751- BAS-DHB, 2018 WL 3706876, at *4 (S.D. Cal. Aug. 2, 2018) ; and, in England, Punjab National Bank (International) Limited v Vishal Cruises (Private) Ltd [2020] EWHC 1962 (Comm) at [106] , although in that case, it was stated that the issuance of a certificate would give rise to a "very strong presumption and very possibly an irrebuttable presumption" of service.

21 In light of the above, I proceed on the basis 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.

22 In summary, it is Udenna's case that the Certificate itself is "patently inaccurate". I do not accept that submission. 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 speak for themselves and are not the subject of direct challenge. Equally, it cannot be said that the confirmation on the face of the Certificate signed by the Sheriff on behalf of the Regional Trial Court that the relevant documents were "DULY SERVED" is patently inaccurate.

23 Notwithstanding the authorship and terms of the Certificate, the main thrust of Udenna's submission is that the service effected by the Sheriff as evidenced by the Certificate was contrary to the laws of the Philippines, the topic to which I now turn.

24 Based on the evidence of Attorney Villaruz, Udenna submitted, in summary, as follows:

(a) For the service of a summons, this may only be served upon a defendant's president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel wherever they may be found, or in their absence or unavailability, on their secretaries. If such service cannot be made upon any of the foregoing persons, it shall be made upon the person who customarily receives the correspondence for the defendant at its principal office. This list of methods of service is exclusive.

(b) For the service of an order, judgment, or other court process other than a summons, personal service may only be effected by delivery of a copy on the party, its counsel, or an authorized representative as designated in pertinent pleadings or motions, or by leaving it in the defendant's office with its clerk, or with a person having charge thereof. If no person is found in the defendant's office, or its office is not known, or it has no office, then service may be effected by leaving a copy of the court process, between the hours of eight in the morning and six in the evening, at the party's or counsel's residence, if known, with a person of sufficient age and discretion residing therein.

(c) Given that OA 23 was not served at Udenna's principal office or upon Udenna's representatives, the attempted service did not comply with the abovementioned service requirements under Philippine law.

(d) On the basis that OA 23 is a summons (which is the position taken by PIMD's Philippine law expert):

(i) Mr Barcos is not one of the corporate officers of Udenna on which service may be effected ( i e , Udenna's president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel, or the secretary of any of these corporate officers).

(ii) The Certificate did not record any attempt to serve OA 23 on any of the abovementioned corporate officers of Udenna, which had to be demonstrated before service could be made upon the person who customarily receives the correspondence for Udenna at its principal office.

(iii) In any event, Mr Barcos was not a person who customarily received correspondence for Udenna. He was also not served OA 23 at Udenna's principal office at the SHHR Address, but at the BB Address, which was not the address of any of Udenna's offices.

(e) In the alternative, if OA 23 is an order, judgment, or other court process other than a summons:

(i) Mr Barcos is not a person on whom service may be effected as a party to the case, Udenna's counsel, Udenna's authorized representative, Udenna's clerk, or a person having charge thereof.

(ii) The Certificate does not contain any suggestion that no person was found at Udenna's office at the SHRR Address, or that Udenna's office is not known, or that Udenna has no office.

(iii) In addition, according to Attorney Villaruz, Mr Barcos is not a "person of sufficient age and discretion" residing at Udenna's or Udenna's counsel residence, as he was located and served at the BB Address.

25 Thus, Udenna submitted that the attempted service did not comply with the mandatory methods of service set out in the Philippine Rules of Court and was thus contrary to the laws of the Philippines. In other words, Udenna's submission is premised on the assumption that service must be specifically provided for under Philippine law. As I explain below, this is an erroneous assumption unsupported by the schema of Art 5 of the HSC.

26 Where the foreign court itself certifies that the relevant documents have been duly served (as is the position, in effect, in the present case), it seems to me difficult, if not impossible, to say that such service was contrary to or incompatible with the laws of that foreign state. Be that as it may, in my judgment, the evidence of PIMD's expert on Philippines law, Ms Patricia-Ann T. Prodigalidad ("Ms Prodigalidad"), provides a short cogent answer to the opinions expressed by Attorney Villaruz and Udenna's submissions as summarised above.

27 In essence, it was her evidence that service through the modes permitted by international conventions is expressly allowed under Rule 14, Section 9 of the Philippines Rules of Court which provides in material part: "Service may be made through methods which are consistent with established international conventions to which Philippines is a party". According to Ms Prodigiladad, this provision was specifically introduced to the Philippines Rules of Court in anticipation of the Philippines' accession to the HSC and makes clear that service in accordance with established international conventions is compatible with Philippine law.

28 Article 5 of the HSC permits 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": see Arts 5( a ) for the former, and 5( b ) of the HSC for the latter. Here, PIMD expressly requested that service be effected on Udenna's "usual or last known address." (see above at [4]).

29 Thus, in accordance with Art 5( b ) of the HSC, the essential question is 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. This is a fine but important distinction.

30 Notwithstanding, Attorney Villaruz expressed the opinion 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. His opinion was based on A.O. No. 251-2020 of the Supreme Court of the Philippines which states that extraterritorial service of judicial documents in the Philippines from other state parties must be in accordance with the Philippine Rules of Court.

31 However, this does not, in my view, assist Udenna. As explained by Ms Prodigalidad, Rule 14, Section 9 of the Philippine Rules of Court expressly allows service to be made through methods consistent with international conventions such as the HSC: "Service may be made through methods which are consistent with established international conventions to which Philippines is a party". As such, the Philippine Rules of Court itself do not limit service to the methods specifically prescribed under the Philippines Rules of Court for service in domestic actions.

32 Attorney Villaruz's contrary opinion that Rule 14, Section 9 of the Philippine Rules of Court should be read to require service to be in accordance with the HSC and that this in turn requires service to be in accordance with the Philippine Rules of Court for service of domestic process is, with great respect, circular and cannot be correct for, at least, two reasons proffered by PIMD. First, it renders Rule 14, Section 9 redundant. To avoid this, the provision must be read as increasing rather than limiting the available methods of service under the Philippine Rules of Court to account for the accession of the Philippines to the HSC. Second, it would mean that Arts 5( a ) and 5( b ) of the HSC provide for the same methods of service, i e , service consistent with the internal law of the State addressed for the service of documents in domestic actions. If that were correct, Art 5( b ) of the HSC would be superfluous.

33 For these reasons, I accept the evidence of Ms Prodigalidad that the relevant inquiry in assessing the validity of service effected by the Sheriff as evidenced by the Certificate would be to ask whether the method requested by PIMD pursuant to the HSC is incompatible with the laws of the Philippines. Given that the Philippine Rules of Court allows service to be made through methods consistent with international conventions such as the HSC, the question then is whether the relevant papers were served in accordance with the method requested by PIMD ( ie , at its usual or last known place of business) pursuant to Art 5( b ) of the HSC. As for the question of compatibility of such service with Philippine law, Attorney Villaruz does not dispute Ms Prodigalidad's evidence that service at the last known or usual place of business is not prohibited under Philippine law.

34 As such, I turn below to the question of whether service was made, as a matter of fact, at Udenna's usual or last known place of business in accordance with the method requested by PIMD.

35 In summary, Udenna maintained that it has a presence at the SHRR Address by pointing to a number of documents including Udenna's Amended Articles of Incorporation and Udenna's General Information Sheet both of which, it is fair to say, give Udenna's address at the SHRR Address. In addition, Udenna relied on other evidence in support of its case including: (a) assertions by Mr Abarquez that Udenna's principal office is at the SHRR Address and that the security guards at SHRR "generally do not refuse to receive documents addressed to Udenna"; (b) the fact that PIMD had previously sent court documents filed in Philippine court proceedings to Udenna at this address by registered post (not by hand); (c) contracts of lease dated 20 March 2002 and 27 September 2006, under which Udenna is stated to be the lessee at the SHRR Address (although it is important to note that these lease agreements both contain clauses which permit Udenna to sub-lease the premises to its affiliates and subsidiaries); (d) other documents to show that the BB Address is the registered address of a separate company, PNX-Udenna; and (e) the fact that Mr Barcos (who signed off on service of the OA 23 papers) is an employee of PNX-Udenna, not Udenna and is not authorised to receive documents on behalf of Udenna.