Enforcement of awards under the New York Convention: choice of remedies and the significance of time limits

© Michael Coghlan

It is a truism that, although the ultimate purpose of an arbitration is the rendering of an award which definitively determines the disputes that were referred by the parties to arbitration, in practice, the making of the final award may well not be the end of the road. This truism is graphically illustrated by the events following an arbitration conducted around ten years ago under the auspices of the Singapore International Arbitration Centre (SIAC); the dispute had arisen out of a failed joint venture between two groups of companies, a Malaysian media group (Astro), and various companies, including First Media (FM), which were part of an Indonesian conglomerate known as Lippo. During the arbitration, in which the Astro companies were the claimants, the tribunal made a number of awards; in 2010, the arbitration culminated in a final award of US$250 million in the claimants’ favour. Since then, the Astro companies have been trying to enforce the awards through the courts against FM (and others), most notably in Singapore and Hong Kong. Following decisions by the Singapore Court of Appeal (PT First Media TBK v Astro Nusantara International BV [2013] SGCA 57) and, more recently, by Hong Kong’s Court of Final Appeal (Astro Nusantara International BV v PT Ayunda Prima Mitra [2018] HKCFA 12), those attempts now appear to have failed.

In terms of the substance, the case seems, at first glance, to be a relatively simple one. The problems were, to a large extent, procedural and those problems were exacerbated by the fact that the courts of two jurisdictions were required to address the same – or very similar – questions. In total, there were five judicial decisions – two in Singapore – High Court (SGHC) and Court of Appeal (SGCA) – and three in Hong Kong – Court of First Instance (HKCFI), Court of Appeal (HKCA) and Court of Final Appeal (HKCFA). In both jurisdictions, Astro’s application to enforce the awards succeeded at first instance; it was only at the highest level in each jurisdiction that FM prevailed. This blog is divided into six substantive sections; after a brief consideration of the arbitration (I), the most significant features of each of the five court decisions are analysed (II-VI). Some of the lessons that can be learned from the whole saga are summarised in the Conclusion.  (more…)

Do arbitral errors on the law governing the merits of a dispute referred to arbitration justify setting aside or non-enforcement of the award?

By Prof Jonathan Hill, Professor of Law (University of Bristol Law School).

© Pedro Ribeiro Simões

Assume that contracting parties (C and R) agree that their contract is governed by English law and that any dispute arising in connection with the contract should be referred to arbitration. A dispute arises which C refers to arbitration. An arbitral tribunal is appointed and, in due course, the tribunal renders an award ordering R to pay damages for breach of contract. R seeks either to have the award set aside (by the courts at the seat of arbitration under the lex arbitri) or to resist enforcement of the award (in another country under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (‘NYC’)) on the basis either that the tribunal applied French law to the dispute, instead of English law, or that the tribunal decided the dispute ex aequo et bono (ie, by the application of an equitable standard), rather than through the application of legal rules and principles. In such circumstances, does R have a legitimate ground for having the award set aside or for resisting enforcement?

If the seat of arbitration is in a country which has implemented the UNCITRAL Model Law on International Commercial Arbitration (‘Model Law’ or ‘ML’), such as Singapore, Hong Kong, New Zealand, Australia or Canada, this question should receive the same answer whether the context is setting aside or enforcement under the NYC: this is because the grounds for setting aside under article 34 ML are almost identical to the grounds on which recognition and enforcement may be refused under article V NYC. This blog post discusses this issue in depth. (more…)

‘Bare’ arbitration clauses under the UNCITRAL Model Law on International Commercial Arbitration

By Prof Jonathan Hill, Professor of Law (University of Bristol Law School).

As every student of international commercial arbitration ought to know, an arbitration agreement should not only impose on the parties a binding obligation to refer a certain dispute (or certain types of dispute) to arbitration but also, as a minimum, indicate the place (or seat) of arbitration and provide a mechanism for the appointment of the arbitral tribunal. Unfortunately, the drafting of arbitration clauses in commercial contracts often leaves much to be desired; in a case involving a badly-drafted arbitration clause, disputing parties who are unable to resolve their disputes by negotiation may find themselves getting bogged down in one or more of the procedural problems to which pathological arbitration clauses frequently give rise.

Particular difficulties may be posed by so-called ‘bare’ clauses – that is, clauses which merely provide for submission of disputes to arbitration without specifying the place of the arbitration, the number of arbitrators or the method for establishing the arbitral tribunal. If, once a dispute has arisen, the parties are unable to agree on the appointment of an arbitral tribunal, the claimant may encounter practical difficulties in activating the arbitration machinery and getting the arbitral tribunal established. (more…)