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…)