In the latest development in the Astro v Lippo dispute, First Media (part of the Lippo Group and an unsuccessful defendant in Singapore-seated arbitration) has been granted leave to appeal the decision of the Hong Kong Court of First Instance of earlier this year which dismissed First Media's application for an extension of time to set-aside Astro's Hong Kong enforcement proceedings.
Those who have been following the Astro v Lippo dispute will recall that in February this year Chow J dismissed First Media's application for an extension of time to set aside a Hong Kong enforcement Order in relation to five Arbitral Awards in Astro's favour. The decision was notable because it had the effect that the Awards would be enforced in Hong Kong notwithstanding that they had recently been set-aside in the seat of the arbitration in Singapore. Further details on the Hong Kong extension of time decision and the Singapore set aside decision are outlined in our earlier blog posts, which are available here and here.
On 8 December 2015, Chow J granted leave to First Media to appeal against the Hong Kong extension of time decision. At the same time, Chow J also granted a stay of execution of a Garnishee Order pending the appeal. An application by Astro that leave to appeal should be conditional upon payment of funds into Court was dismissed. In reaching these conclusions, Chow J noted that:
- Although he had reached the view that First Media's extension of time application should be dismissed, he accepted that contrary views were "reasonably arguable" and recognized that his earlier decision was "exceptional";
- The proper scope of the "good faith" principle for the purpose of enforcement of a foreign arbitral award is an issue of general or public importance (and therefore worthy of consideration by the Court of Appeal);
- Although "good reasons" are required to justify a stay of execution pending appeal, a stay of execution of the Garnishee Order was appropriate, particularly given Astro was a company resident outside the jurisdiction with no assets in Hong Kong;
- English authorities on the "unusual and perhaps rare" circumstances when leave to appeal should be conditional upon payment into Court provide useful guidance on the exercise of the equivalent jurisdiction in Hong Kong.
The full text of the judgment is available here.
The case provides useful insights into the procedures for transitioning from the first instance to the appellate phase of recognition and enforcement proceedings in Hong Kong.
It is also notable that the Hong Kong Court of Appeal will now have the opportunity to consider and clarify the issues canvassed by Chow J's judgment of February 2015, including the proper scope of the "good faith" principle.