Astro/First Media: Leave to appeal granted in Hong Kong enforcement proceedings

In the long-running Astro v First Media dispute, the Court of Final Appeal of Hong Kong (CFA) has granted First Media leave to appeal against the Court of Appeal’s decision refusing an extension of time to apply to set aside orders for the enforcement of awards against it. Astro Nusantara International BV and others v PT First Media TBK [2017] HKCFA 50 (Court of Final Appeal of Hong Kong)

The awards that are the subject of the enforcement proceedings were made in Astro’s favour in a Singapore-seated UNCITRAL arbitration. First Media successfully resisted enforcement of the awards in Singapore, on the ground that they were made without jurisdiction. However, having belatedly decided to resist enforcement in Hong Kong, it was refused an extension of time to do so (see our previous post).

The CFA granted to leave to appeal on the following questions of law, on the ground that they are questions of general or public importance:

  • What is the proper test for determining whether an extension of time should be granted for the purposes of an application to resist enforcement of an arbitral award under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention)?
  • In determining whether to extend time for the purposes of an application to resist enforcement of an arbitral award under the New York Convention, is the fact that the award has not been set aside by the courts of the seat of arbitration a relevant factor?

In addition, the CFA granted leave to appeal on the ground that the circumstances are exceptional, in that the judgments below entitle Astro to enforce awards in the amount of over USD130 million, even though (according to First Media) it is accepted in the Hong Kong courts that the awards were rendered without jurisdiction and Astro would not suffer prejudice if an extension of time were granted.

The appeal is to be heard on 12 and 13 March 2018.

(This post was originally published by Practical Law on 23 August 2017. Reproduced with permission.)

 

Kathryn Sanger
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