Astro Nusantara International BV and others v PT Ayunda Prima Mitra and others

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 22 October 2012
• Neutral Citation: [2012] SGHC 212
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 807 of 2010 (Registrar’s Appeal No 278 of 2011 and Summons No 4065 of 2011) and Originating Summons No 913 of 2010 (Registrar’s Appeal No 279 of 2011 and Summons No 4064 of 2011)
• Year: 2012
• Published date: 29 October 2012
• Hearing Date: 24 July 2012,23 July 2012,25 July 2012,28 August 2012
• Plaintiff Counsel: David Joseph QC (instructed), Chou Sean Yu, Lim Wei Lee, Melvin Lum, Chan Xiao Wei and Daniel Tan (WongPartnership LLP)
• Defendant Counsel: Toby Landau QC (instructed), Edmund Kronenburg and Lye Huixian (Braddell Brothers LLP)
• Citation: [2012] SGHC 212

Belinda Ang Saw Ean J: Introduction

By two ex parte Orders of Court dated 5 August 2010 and 3 September 2010 (“the Enforcement Orders”), the plaintiffs in the present originating summonses (“the Plaintiffs”) were granted leave pursuant to s 19 of the International Arbitration Act (Cap 143A, 2002 Rev Ed) (“the IAA”) to enforce five domestic international awards in Singapore (collectively referred to as “the Singapore Awards”). By the term “domestic international awards”, I refer to international commercial arbitral awards made in the same territory as the forum in which recognition and enforcement is sought, eg, in the context of Singapore, these are arbitral awards rendered under the IAA and the Arbitration Rules of the Singapore International Arbitration Centre 2007 (“the SIAC Rules 2007”), with Singapore as the seat of arbitration. The Plaintiffs are Astro Nusantara International BV (“P1”), Astro Nusantara Holdings BV (“P2”), Astro Multimedia Corporation NV (“P3”), Astro Multimedia NV (“P4”), Astro Overseas Limited (formerly known as AAAN (Bermuda) Limited) (“P5”), Astro All Asia Networks PLC (“P6”), Measat Broadcast Network Systems Sdn Bhd (“P7”) and All Asia Multimedia Networks FZ-LLC (“P8”). On 24 March 2011, the Plaintiffs obtained two judgments in terms of the Singapore Awards (“the 2011 Judgments”) against all three defendants (collectively referred to as “the Defendants”), PT Ayunda Prima Mitra (“D1”), PT First Media TBK (formerly known as PT Broadband Multimedia TBK) (“FM”) and PT Direct Vision (“D3”).

There are four applications before this court. The Plaintiffs filed two applications, and the other two were filed by FM. Notably, D1 and D3 are not involved in these applications. As such, the 2011 Judgments remain valid, binding and conclusive in terms of their existence and legal effect against D1 and D3.

By Registrar’s Appeal No 278 of 2011 (“RA 278”) filed in Originating Summons No 807 of 2010 (“OS 807”) and Registrar’s Appeal No 279 of 2011 (“RA 279”) filed in Originating Summons No 913 of 2010 (“OS 913”), the Plaintiffs are seeking to reverse the decision of the assistant registrar (“the Assistant Registrar”) which set aside the 2011 Judgments against FM and granted leave to FM to apply to court to set aside the Enforcement Orders within 21 days from the date of the decision. FM duly filed Summons No 4064 of 2011 (“SUM 4064”) in OS 913 and Summons No 4065 of 2011 (“SUM 4065”) in OS 807 on 12 September 2011.

The four applications (viz, RA 278, RA 279, SUM 4064 and SUM 4065) were heard over three days from 23 to 25 July 2012. SUM 4064 and SUM 4065 were heard first. This was to accommodate the request and views of local counsel, previously made known to SAR Yeong Zee Kin on 17 July 2012, that Mr David Joseph QC (“Mr Joseph”) and Mr Toby Landau QC (“Mr Landau”) would be in Singapore to argue SUM 4064 and SUM 4065, leaving local counsel to argue RA 278 and RA 279. SUM 4064 and SUM 4065 were argued by Mr Landau on behalf of FM and by Mr Joseph on behalf of the Plaintiffs. As things eventually turned out, RA 278 and RA 279 were argued by Mr Joseph (instead of local counsel) on behalf of the Plaintiffs and by Mr Edmund Kronenburg (“Mr Kronenburg”) on behalf of FM.

From the brief summary of the nature of the four applications, it is logical that this judgment deals with RA 278 and RA 279 (which relate to setting aside the 2011 Judgments) first before considering SUM 4064 and SUM 4065 (which relate to setting aside the Enforcement Orders).

On 13 August 2012, the parties were invited to submit further on two questions in the light of additional material in the UNCITRAL 2012 Digest of Case Law on the Model Law on International Commercial Arbitration (United Nations, 2012) (“the UNCITRAL 2012 Digest”) that had not been addressed by the parties. The two questions which relate to SUM 4064 and SUM 4065 (see [135] below), are on the implication of the “no appeal” provision in Art 16(3) of the UNCITRAL Model Law on International Commercial Arbitration (see schedule 1 of the IAA) (“the Model Law”). The Plaintiffs and FM tendered their respective further submissions on 28 August 2012.

Overview

The principal issue in RA 278 and RA 279 is whether the Enforcement Orders were served on FM in accordance with Indonesian law. If RA 278 and RA 279 are allowed, the arguments in SUM 4064 and SUM 4065 will be moot.

However, if RA 278 and RA 279 are dismissed, the focus will then be on the Enforcement Orders, which, being made ex parte, are in principle capable of being set aside. On what grounds can the Enforcement Orders be set aside? FM’s main ground of challenge in SUM 4064 and SUM 4065 concerns the proper construction of the IAA in relation to the Singapore Awards.

The debate centres on whether it is open to FM to invoke lack of jurisdiction as a ground to resist enforcement when FM did not make any prior applications to challenge the Singapore Awards under Art 16 or Art 34 of the Model Law. As at the date of the Enforcement Orders, the timelines prescribed in Art 16 and Art 34 had long expired. Mr Landau made clear that FM was not seeking to set aside the Singapore Awards. Instead, it was simply defending itself against the Singapore Awards by requesting refusal of enforcement in relation to restitutionary claims amounting to approximately US$250 million.

FM’s want of jurisdiction argument seeks to re-open the ruling of the arbitral tribunal (“the Tribunal”) joining P6 to P8 to the arbitration between the parties (viz, SIAC Arbitration No 62 of 2008 (referred to hereafter as “the Arbitration”)). FM argues that the joinder was improper because there was no agreement to arbitrate between FM and P6 to P8, and the Tribunal accordingly had no jurisdiction to join P6 to P8 as parties to the Arbitration. Mr Landau relies on the underlying principles, policy considerations and drafting history of the Model Law to conclude that as a matter of statutory construction, s 19 of the IAA “imports” Art 36 of the Model Law, such that FM can invoke lack of jurisdiction as a ground for refusal of enforcement under Art 36(1)(a)(i). Alternatively, if s 19 of the IAA does not “import” Art 36, then, as a matter of construction, s 19 “imports” Art 34 since the prescribed reasons for setting aside under Art 34 are similar to those for refusing enforcement under Art 36. Mr Landau’s line of argument resonates with English arbitration law’s notion that passive remedies exist after an arbitral award has been made and are available to the losing party to defend enforcement proceedings. Specifically, Mr Landau argues that a post-award challenge at the enforcement stage is permissible as a matter of principle even if a party took no positive step to set aside the award (whether under Art 16 or Art 34). Support for this argument is drawn from the drafting history of the Model Law, where the possibility of a party raising defences both at the setting-aside stage (ie, under Art 34) and at the recognition and enforcement stage (ie, under Art 36) was specifically contemplated, debated and finally concluded on the note that a party should be able to choose between the two remedies in Art 34 and Art 36 respectively.¹ In the light of this choice between active remedies and passive remedies, Mr Landau accepts that in the latter case, recognition and enforcement go hand in hand. His submissions on post-award defences to enforcement proceed on the premise that: (a) there should be no distinction between a domestic international award and a foreign award in international commercial arbitration because the Model Law de-emphasises the relevance of the place or seat of arbitration; and (b) the applicable timelines in Art 34(3) of the Model Law and O 69A r 2(4) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the ROC”), which have long expired on the facts of the present case, should not apply to a party who seeks to resist recognition and enforcement.² The underlying rationale is that a party is free to decide whether to set aside the award in the country where that award was made or, alternatively, wait until the winning party applies for enforcement in the country where that award was made and then raise its jurisdictional objection as a defence in such proceedings.

Mr Joseph contests all these points. Notably, Mr Joseph asserts that as a matter of construction, Mr Landau’s argument that s 19 of the IAA “imports” either Art 36 or Art 34 of the Model Law cannot get off the ground. Firstly, Art 36 has no force of law in Singapore. Secondly, there is no “hook” in the statutory provisions for the inclusion of the grounds under Art 34 of the Model Law to challenge a domestic international award where the prescribed time limits have lapsed. Furthermore, if a losing party like FM has not availed itself of either Art 16 or Art 34, these Arts, which provide for curial review of an arbitral award, cannot be deployed at the enforcement stage for FM to invoke lack of jurisdiction as a ground for refusing enforcement because FM is out of time to seek recourse. Accordingly, Mr Joseph submits that there is no basis or justification upon which recognition and enforcement of the Singapore Awards can be refused at any stage after the time limits for setting aside those awards have expired.

FM’s jurisdictional challenge to the Singapore Awards engages an important threshold question, viz: is there a statutory basis for FM to invoke lack of jurisdiction as a ground to resist or refuse enforcement of the Singapore Awards (“the Threshold Question”)?

Sections 19 and 19B of the IAA come under Part II of the IAA, which covers domestic international awards, as opposed to foreign awards in international commercial arbitration, which fall under Part III of the IAA. FM can challenge the enforcement of the Singapore Awards, but it must do so by challenging the final and binding effect of the Singapore Awards (which effect is...