PRO-ARBITRATION DECISIONS IN HONG KONG IN 2015
Hong Kong courts have continued to demonstrate a pro-arbitration stance in 2015. We take a look at some of the recent cases including the first anti-suit injunction granted by the HK court to enjoin foreign proceedings and the first constitutional challenge of the Arbitration Ordinance.
Astro – the Hong Kong episode
In 2014, the Singapore Court of Appeal held in PT First Media TBK v Astro Nusantara International BV and others that, under Article 16(3) of the Model Law, a party that was dissatisfied with a SIAC tribunal ruling on a question of jurisdiction could withhold its challenge in the Singapore court until after further awards were rendered against it in the arbitration. In other words, a party could wait until the enforcement stage before raising its challenge on jurisdiction.
The Singaporean decision could be contrasted against the Hong Kong position. Back in late 2010, the Hong Kong courts granted orders giving leave to Astro to enforce the SIAC Awards in Hong Kong. The SIAC Awards were made against PT by the SIAC from May 2009 to August 2010. Despite the expiry of the time limit for it to do so, PT did not take any action to set aside the orders, but later when Astro obtained a garnishee order in Hong Kong against a loan due to PT from a third party, and upon PT obtaining a favourable decision in Singapore against the enforceability of a substantial part of the awards, PT applied to the Hong Kong Court of First Instance (CFI) to set aside the orders together with an application for extension of time to do so.
Jan-Mar 2016 issue
Norton Rose Fulbright