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Grounds publishedDecided 22 Oct 2012
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High Court

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

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[2012] SGHC 212Case no. 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)

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  1. Belinda Ang Saw Ean J:

  2. Introduction

  3. [1] 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”).

  4. [2] 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.

  5. [3] 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.

  6. [4] 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.

  7. [5] 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).

  8. [6] 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.

  9. Overview

  10. [7] 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.

  11. [8] 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.

  12. [9] 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.

  13. [10] 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. 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. 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.

  14. [11] 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.

  15. [12] 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”)?

  16. [13] 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 recognised in s 19B(1)) on the grounds reserved in s 19B(4).

  17. [14] Where a court is prepared to grant enforcement of an award under s 19, it will do so because it has recognised the award as final and binding. Section 19B(1) recognises the legal force and effect of a final and binding domestic international award without the need for any application to court by the successful party, and such recognition can occur independently of any enforcement proceedings. In this context, the concept of “recognition” is a stand-alone defensive process where the award is relied upon to defend any subsequent new or separate proceedings.

  18. [15] Section 19B(4) forms part of the defensive process which provides a losing party with the option of invoking the grounds found or incorporated in the IAA, subject to the time limits contained within the IAA, to challenge the recognition of a domestic international award in order to resist its enforcement. This defensive process acknowledges the fact that ss 19 and 19B do not operate in isolation: if an award is enforced under s 19, then it is necessarily also recognised because recognition is an indispensible part or condition of enforcement. From this perspective, to resist enforcement, a losing party must challenge a final and binding award under one or more of the grounds reserved in s 19B(4) and must do so within the time limits contained within the IAA. The discussion below will follow the various points outlined here.

  19. [16] Significantly, FM’s challenge to enforcement of the Singapore Awards stands or falls on the success of its challenge to the award on jurisdiction issued by the Tribunal on 7 May 2009 (“the 7 May 2009 Award”). It is Art 16, and not Art 34, that is the governing provision in relation to the 7 May 2009 Award. Article 16 prescribes the scope of and the protocol for a jurisdictional challenge in the early stages of arbitration. FM’s decision not to adopt the recourse in Art 16(3) and how that decision impacts the specific ground now raised by FM to resist recognition and enforcement of the award on jurisdiction will be discussed below (see Part B for discussion on SUM 4064 and SUM 4065).

  20. [17] Mr Joseph submits that FM’s right to raise an objection to the Tribunal’s jurisdiction has been lost as FM did not seek to challenge the 7 May 2009 Award on jurisdiction under Art 16. According to Mr Joseph, the 7 May 2009 Award is a final and binding award on jurisdiction which FM earlier opted not to challenge under Art 16(3). Instead, FM went ahead to defend the Plaintiffs’ claims in the Arbitration on the merits under a reservation of rights which, in the circumstances, was ineffective. Consequently, Mr Joseph submits, objection to jurisdiction cannot be raised as a ground to resist enforcement. As I see it, Mr Joseph has rightly highlighted in his submissions an important issue, which is whether FM’s general reservation of rights was effective under the IAA so to enable FM to raise lack of jurisdiction as a ground to resist the recognition and enforcement of the 7 May 2009 Award.

  21. [18] It is only if the Threshold Question (as defined at [12] above) is answered in FM’s favour (ie, in the affirmative) that the arguments pertaining to the Tribunal’s jurisdiction and the applicable standard of curial review arise for determination. The same would apply apropos the other issues and arguments raised by the parties, such as FM’s conduct and the argument based on waiver by estoppel.

  22. The background facts in summary

  23. [19] This dispute arises out of a failed joint venture between two groups of companies, the Astro group (“Astro”) and the Lippo group (“Lippo”), to provide direct-to-home (“DTH”) multi-channel digital satellite pay television (“Pay TV”), radio and interactive multimedia services in Indonesia (these services will hereafter be collectively referred to as “DTH services”). The Plaintiffs are part of Astro, while FM is part of Lippo.

  24. [20] P1 to P5 and P7 to P8 are directly or indirectly owned by P6, a company incorporated in England and Wales. A significant share in P6 was held by Usaha Tegas Sdn Bhd (“UT”), a Malaysia-incorporated investment holding company, which ran an established Pay TV service in Malaysia and was looking to expand its business into Indonesia through Astro. Indonesian law prohibits Astro from entering the Indonesian market as it is foreign-incorporated and foreign-registered. FM is an Indonesian company and was, at the material time, planning to launch its own DTH services.

  25. [21] UT approached Lippo in October 2004 proposing, inter alia, a joint venture agreement between Lippo and Astro to provide DTH services in Indonesia through D3, a wholly-owned subsidiary of FM (“the Joint Venture”). An agreement was reached in March 2005.

  26. The Subscription and Shareholders Agreement

  27. [22] On or about 11 March 2005, the Subscription and Shareholders Agreement (“the SSA”) for the Joint Venture was executed. D3 was the vehicle through which the Joint Venture would be implemented. P6 to P8 were not party to the SSA, but the SSA contemplated their involvement in the provision of the services envisaged under the Joint Venture, as evidenced by their participation in providing services, equipment and funding (referred to hereafter as “supporting services and funding” for short) to D3 (the Joint Venture vehicle) to carry out DTH services in anticipation of the closing of the SSA.

  28. [23] The SSA was subject to a number of conditions precedent which had to be fulfilled within three months before the parties would be bound to proceed with the transactions contemplated. One of the conditions precedent was the conclusion of service agreements between D3 and the Plaintiffs (“the Service Agreements”). As issues arose subsequent to the execution of the SSA, the parties agreed to a series of extensions, resulting in a new deadline of 14 July 2006 for the satisfaction of the conditions precedent. The closing date for the SSA was accordingly extended to 31 July 2006.

  29. [24] From about December 2005 or January 2006, in anticipation of the conclusion of the Service Agreements and the commencement of the Joint Venture, P6 to P8 began to provide supporting services and funding to D3 at FM’s request. D3 commenced commercial operations in February 2006. The Service Agreements were never concluded.

  30. [25] After many failed attempts at re-negotiation and hammering out their differences, it became clear to the parties by August 2007 that the Joint Venture would not close. The parties began to explore exit options. In the meantime, P6 to P8 continued to provide supporting services and funding to D3, albeit subject to warnings issued by Astro to the Defendants that it (Astro) would cut off such services and funding if the parties were not able to reach an agreement on the new proposals offered by Astro.

  31. [26] A dispute subsequently arose over the provision of the supporting services and funding. P1 and P2 claimed that their affiliates were not obliged to and would not continue to provide such services and funding to D3. The Defendants alleged the contrary, arguing that P6 to P8 were obliged to continue the provision of supporting services and funding under an oral joint venture, the terms of which had been agreed upon before the SSA was executed. In August 2008, the Plaintiffs invoiced D3 for supporting services and funding which they had provided and demanded repayment of the cash advanced. The Defendants refused to pay and D1 instead commenced proceedings on 14 August 2008 against, inter alia, P6 to P8 in the Indonesian courts (“the Indonesian Proceedings”), alleging torts arising from the management and funding of D3. The Indonesian Proceedings proceeded on the basis that there was an oral joint venture agreement preceding the SSA.

  32. The Arbitration

  33. [27] The Plaintiffs took the position that the Indonesian Proceedings were in breach of clause 17 of the SSA, which required any disputes in connection with or in relation to the Joint Venture to be referred to arbitration. Accordingly, the Plaintiffs commenced the Arbitration on 6 October 2008 with Singapore as the seat of arbitration and in accordance with the SIAC Rules 2007. The Plaintiffs sought:

  34. (a) an order that P6 to P8 be joined as parties to the Arbitration;

  35. (b) declarations that there was no continuing binding joint venture and that the Plaintiffs were not obliged to continue to provide supporting services and funding to D3;

  36. (c) final injunctive relief to restrain the Indonesian Proceedings, and final injunctive relief to restrain FM from funding (directly or indirectly) the prosecution of the Indonesian Proceedings and to restrain D1 from continuing those proceedings;

  37. (d) costs for the Indonesian Proceedings and an indemnity against future costs for those proceedings;

  38. (e) restitutionary relief approximating US$250 million in value in respect of the supporting services and funding provided; and

  39. (f) interest and costs.

  40. [28] The Tribunal eventually constituted comprised Sir Gordon Langley (the Plaintiffs’ nominee), Mr Stewart Boyd QC (the Defendants’ nominee) and Sir Simon Tuckey (the chairman). The Plaintiffs were referred to as “the Claimants” and the Defendants as “the Respondents” in the Arbitration.

  41. The 7 May 2009 Award on jurisdiction

  42. [29] The Defendants’ first line of defence was that P6 to P8 were not party to the SSA and the Tribunal did not have jurisdiction to join them to the Arbitration. The Tribunal, after a four-day oral hearing, issued the 7 May 2009 Award finding otherwise. It found that the real issue was with the funding of the Service Agreements which were envisioned by the SSA. In construing clause 17 of the SSA, the Tribunal found that the Defendants’ interpretation could not be sustained on an objective reading. They stated at [62] of the 7 May 2009 Award:

  43. [30] Once subject matter jurisdiction was established, the Tribunal found that the joinder of P6 to P8 was a matter of its powers under Rule 24(b) of the SIAC Rules 2007. The Tribunal considered that Rule 24(b) did give it the power to join P6 to P8 with their express consent and that such joinder was both desirable and necessary in the interests of justice (see [108] of the 7 May 2009 Award).

  44. [31] It gave further orders that D1 was to: (a) discontinue the Indonesian Proceedings against, inter alia, P6 to P8; (b) take no further steps in the Indonesian Proceedings other than to discontinue them; and (c) be prohibited from bringing any further proceedings against P6 to P8 in relation to the Joint Venture.

  45. The other four of the Singapore Awards made by the Tribunal

  46. [33] The Singapore Awards consisted of the 7 May 2009 Award and four other final awards made by the Tribunal, namely:

  47. (a) an award dated 3 October 2009 (“the 3 October 2009 Award”) declaring that: (i) the SSA was the only effective joint venture contract between the parties; (ii) there was no closing of the SSA; (iii) there was no continuing binding joint venture on the terms of the SSA; and (iv) accordingly, the Plaintiffs and their affiliates were not obliged to continue to provide supporting services and funding to D3;

  48. (b) an award dated 5 February 2010 formalising an order for costs made pursuant to the 3 October 2009 Award;

  49. (c) an award dated 16 February 2010 (“the 16 February 2010 Award”) determining the main substantive issues in the Arbitration after a ten-day hearing and granting: (i) the restitutionary reliefs claimed by the Plaintiffs; (ii) a permanent injunction against the Defendants in relation to disputes within the scope of clause 17 of the SSA; and (iii) an order that FM was ordered to discontinue the Indonesian Proceedings and indemnify the Plaintiffs for further costs and expenses incurred in those proceedings; and

  50. (d) an award dated 3 August 2010 granting the Plaintiffs interest on the restitutionary reliefs obtained in the 16 February 2010 Award and the costs of the Arbitration.

  51. [34] After the issuance of the 7 May 2009 Award, the Plaintiffs obtained judgment in terms of that award in England on 27 July 2009. On 30 July 2010, the Plaintiffs obtained registration of the 7 May 2009 Award in Malaysia. After all five of the Singapore Awards were issued, the Plaintiffs obtained judgment in terms of those awards in Hong Kong on 9 December 2010. The Plaintiffs obtained leave to enforce the Singapore Awards in Singapore on 5 August 2010 and 3 September 2010. SUM 4064 and SUM 4065 deal with the Plaintiffs’ applications on 5 August 2010 and 3 September 2010 for the enforcement of the Singapore Awards. The execution proceedings in Hong Kong have been stayed pending the outcome of SUM 4064 and SUM 4065.

  52. The Registrar’s Appeals: RA 278 and RA 279

  53. Events leading to RA 278 and RA 279

  54. [35] I have already mentioned that the Enforcement Orders were obtained pursuant to the Plaintiffs’ ex parte applications for leave to enforce the Singapore Awards under O 69A r 6(1) of the ROC. The Enforcement Orders were purportedly served on FM on 14 January 2011 at its registered office in Jakarta, Indonesia. Believing that FM had been properly served with the Enforcement Orders, after expiry of the period to set aside the Enforcement Orders, the Plaintiffs entered the 2011 Judgments against FM on 24 March 2011.

  55. [36] FM applied by way of Summons No 1911 of 2011 and Summons No 1912 of 2011 to set aside the 2011 Judgments and for leave to apply to set aside the Enforcement Orders for improper service. FM stated in its supporting affidavit that it came to know of the 2011 Judgments from a letter dated 4 April 2011 from the Plaintiffs’ lawyers, WongPartnership LLP (“WongPartnership”). On 22 August 2011, the Assistant Registrar made an order setting aside the 2011 Judgments and granted FM leave to apply to set aside the Enforcement Orders within 21 days from the date of the decision. The Plaintiffs disagreed with the decision and duly filed RA 278 and RA 279.

  56. The parties’ competing arguments

  57. [37] According to FM, it was never served with the Enforcement Orders. FM argued that under Indonesian law, the Enforcement Orders had to be served by either the Bailiff of the South Jakarta District Court or someone duly authorised to do so by the Chairman of the Council of the South Jakarta District Court, and certainly not by Indonesian lawyers appointed by WongPartnership. Besides, using Indonesian lawyers to effect service, the Plaintiffs’ Indonesian lawyers had attempted service on a security guard, Mr Amiruloh, at the fifth floor offices of FM at Citra Graha (“the Building”), but had later taken back the documents. In any event, FM submitted that no documents were left at its registered office, which it claimed was on the fourth floor of the Building.

  58. [38] The Plaintiffs disagreed, arguing that under Indonesian law, service of the Enforcement Orders could be effected by Indonesian lawyers, and that their Indonesian lawyers, Lubris, Santosa & Maulana Law Offices (“LSM Law Offices”), had attempted to serve the Enforcement Orders and the certified translations thereof on FM at its registered office in Jakarta, Indonesia. The associate from LSM Law Offices who served the Enforcement Orders and the other relevant documents was Mr Hariadi. When Mr Hariadi arrived at FM’s registered office on the fourth floor of the Building on 14 January 2011, he was told to proceed to the fifth floor of the Building because FM’s mail room was located on that floor. At the fifth floor, Mr Hariadi left a sealed envelope containing the Enforcement Orders and some other documents, and obtained a signed receipt from Mr Amiruloh. The Plaintiffs submitted that this was sufficient to constitute service. As the documents relating to the Enforcement Orders were voluminous, Mr Hariadi made a second trip to FM’s offices one and a half hours later to deliver another box containing exhibits to affidavits as well as the Bahasa Indonesian translations of all the documents. This time around, Mr Hariadi said that Mr Amiruloh not only refused to accept the new box of documents, but also asked him to take back the sealed envelope delivered earlier. Mr Hariadi said that he then explained to Mr Amiruloh the importance of the documents to FM as they concerned court proceedings in Singapore. According to Mr Hariadi, after Mr Amiruloh consulted somebody in FM’s offices, he was told to take away both the box and the envelope. He had no choice but to comply as he saw that Mr Amiruloh was determined not to let him leave anything behind.

  59. [39] The Plaintiffs argued that even if service of the Enforcement Orders was found to be improper, this was an appropriate case for the court to exercise its discretion to cure the irregularity (see ITC Global Holdings Pte Ltd (In liquidation) v ITC Ltd and others [2011] SGHC 150 (“ITC Global Holdings”) at [49]–[50]) as FM was apprised of the enforcement proceedings.

  60. The issues for determination in RA 278 and RA 279

  61. [40] The issues for determination in RA 278 and RA 279 are as follows:

  62. (a) whether the service of the Enforcement Orders in Indonesia was in accordance with Indonesian law;

  63. (b) whether the service of the Enforcement Orders by Mr Hariadi was valid service; and

  64. (c) if the service by Mr Hariadi was not valid service, whether the irregularities of such service could be cured under the ROC.

  65. Discussion and decision

  66. (a) Whether the service in Indonesia was in accordance with Indonesian law

  67. [41] Both the Plaintiffs and FM produced conflicting expert opinions on how and by whom the Enforcement Orders were to be served on FM under Indonesian law. The Plaintiffs’ expert, Mr Prahasto Wahju Pamungkas (“Mr Prahasto”), opined that service on FM of the Enforcement Orders by a lawyer from an Indonesian law firm by leaving copies of the same at FM’s registered address in Indonesia was valid and effective under Indonesian law. In contrast, FM’s expert, Mr M Arief Purwadi (“Mr Purwadi”), opined that service of the Enforcement Orders must be done by the Bailiff of the South Jakarta District Court or by someone duly authorised in writing to do so by a Stipulation of the Chairman of the Council of the South Jakarta District Court.

  68. [42] In addition, the experts on both sides turned to various courts in Indonesia for confirmation on the proper mode of service. On 16 June 2011, Mr Purwadi’s law firm wrote to the South Jakarta District Court and received a reply on 21 June 2011 from the Chief Judge. Mr Purwadi then sought to rely on that opinion in support of his legal opinion. Mr Prahasto then followed with a letter dated 4 July 2011 to the High Court of Jakarta. In a letter dated 8 July 2011, the High Court of Jakarta replied. Mr Prahasto relied on the Jakarta’s High Court’s opinion to support his legal opinion. This series of correspondence finally culminated with Mr Purwadi writing to the Supreme Court of Indonesia. The reply from the Supreme Court of Indonesia came by a letter dated 26 September 2011, which was after the Assistant Registrar’s decision on 22 August 2011. Mr Purwadi argued that the Indonesian Supreme Court’s letter supported his legal opinion.

  69. [43] I begin with the relevance and evidential value of the letters from the various Indonesian courts. The experts appeared to have abrogated their role as experts on Indonesian law to the individuals who wrote those letters. If an expert witness on foreign law is to give evidence of his opinion, his evidence must be the opinion which he holds, and certainly not the opinion of another person (see Jeffrey Pinsler SC, Evidence and the Litigation Process (LexisNexis, 3rd Ed, 2010) at para 8.33). In the context of the present case, the expert must provide his own opinion on the proper mode of serving a foreign court order in Indonesia on an Indonesian company under Indonesian law based on his education, training and experience, and must also attempt to explain the basis of his interpretation of Indonesian law to this court in order to fulfil his duty to assist the court (see O 40A r 2 of the ROC).

  70. [44] The function of an expert on foreign law was succinctly summarised by the Court of Appeal in Pacific Recreation Pte Ltd v SY Technology Inc [2008] 2 SLR(R) 491 (“Pacific Recreation”) at [76] (endorsing the summary by Evans LJ in MCC Proceeds Inc v Bishopsgate Investment Trust plc [1999] CLC 417 (“MCC Proceeds”) at [23]) as follows:

  71. [45] As foreign law is an issue of fact, the expert’s role is “to assist the court in making a finding as to what the foreign court’s ruling would be if the issue was to arise for decision there” (see Pacific Recreation at [76]). In context, this means that apart from placing the relevant sources of foreign law before the court, the expert must provide his opinion on the effect of the law (see Pacific Recreation at [78]). The expert’s role is to “predict” what the foreign court would decide (see MCC Proceeds at [24]).

  72. [46] In the present case, both sides referred the question of law at issue directly to the foreign court for its opinion. The legal points sought to be established by the letters from the various Indonesian courts and their effects are at best ambiguous. In my view, both experts wasted their time and effort in soliciting the letters from the various Indonesian courts. Procuring such letters from the Indonesian courts was as egregious as obtaining an ex parte declaration from an Indonesian court that service of the Enforcement Orders under Indonesian law was regular or irregular, as the case may be. It is important to remember that matters relating to the service of the Enforcement Orders in Indonesia are procedural. Therefore, validity of service is a matter for the Singapore court as the lex fori (see Pacific Assets Management Ltd and others v Chen Lip Keong [2006] 1 SLR(R) 658 at [14]). In the circumstances, the letters from the various Indonesian courts are irrelevant.

  73. [47] I now turn to the opinions of Mr Purwadi and Mr Prahasto. As between the two experts, I prefer the evidence of Mr Prahasto for the following reasons.

  74. [48] It was noticeable from Mr Purwadi’s curriculum vitae that his expertise was not in the area of Indonesian civil procedure. Mr Purwadi was admitted to the Indonesian Bar in 2007. His area of practice revolved around corporate work, and he had no actual experience in civil litigation and procedure.

  75. [49] Curiously, Mr Purwadi relied on two academics whose legal opinions had been sought by FM to clarify and support Mr Purwadi’s opinion on the question of Indonesian law at issue. One legal opinion was from Prof Dr Tan Kamello and the other was from Mr H Mohammad Fajrul Falaakh. This move did nothing for FM’s case, and served only to undermine Mr Purwadi’s standing and credentials as an expert on the question of Indonesian law at issue.

  76. [50] In contrast, Mr Prahasto not only had significant experience litigating matters before the courts in Indonesia, but is also currently a member of a team of ten experts preparing the “Academic Draft of the Codified and Unified Code of Civil Procedures”, which is meant to replace the current procedural code governing Indonesian court proceedings. It was thus obvious that Mr Prahasto was far more qualified than Mr Purwadi to assist this court as to the proper mode of serving the Enforcement Orders on FM in Indonesia.

  77. [51] Mr Purwadi’s opinion was first contained in a letter of opinion dated 19 May 2011, which he later confirmed as correct in his first affidavit. A closer look at the letter of 19 May 2011 shows that Mr Purwadi and his co-author were expressing a legal opinion and conclusion on WongPartnership’s purported service of the Enforcement Orders on FM under cover of WongPartnership’s two letters dated 7 January 2011 and 15 February 2011. Mr Purwadi concluded that service of, inter alia, the Enforcement Orders on FM “under WongPartnership’s letters dated January 7, 2011 and February 15, 2011 is invalid, illegal and is in contravention of the laws and regulations applicable in the jurisdiction of the Republic of Indonesia”. Strictly speaking, the legal opinion was not on the question of whether service of the Enforcement Orders by Indonesian lawyers was a method of service authorised by Indonesian law. Besides, the opinion consisted mainly of bald assertions, with little or no discussion of the reasoning underpinning the conclusions set out therein. Indeed, Mr Purwadi appeared quite content to rely on the opinions of the District Court of South Jakarta and other academics without attempting an analysis of the issue himself. I am reminded of the Court of Appeal’s observations in Pacific Recreation (at [85]) that “the expert cannot merely present his conclusion on what the foreign law is without also presenting the underlying evidence and the analytical process by which he reached his conclusion”.

  78. [52] As alluded to earlier, FM obtained the legal opinion of two academics and they were commented upon by Mr Purwadi in his second affidavit to the effect that those legal opinions confirmed the opinion contained in his letter of 19 May 2011. The short point to this is that FM’s expert evidence was given by the two academics and not their actual expert, Mr Purwadi.

  79. [53] In contrast, Mr Prahasto undertook a detailed and careful explanation and gave reasons not only of how the Indonesian Civil Procedure Code operated, but also of the possible application of international conventions, before concluding that there was no requirement that foreign court documents like the Enforcement Orders must only be served by a bailiff of an Indonesian court. Mr Prahasto in his opinion not only addressed squarely Mr Purwadi’s opposing opinion, but also provided an analysis as to why he thought that opinion was wrong. Mr Purwadi, on the other hand, merely asserted, without more, that Mr Prahasto’s opinion was “erroneous”. In particular, I was persuaded by Mr Prahasto’s explanation as to why Arts 388 and 390 of the Herziene Indonesisch Reglement (S.1848-16)(Indonesia)(“the HIR”), which provide that service of documents must be done by the Bailiff of the South Jakarta District Court, is limited to documents issued by Indonesian courts. Given the parochial references in the HIR to service “on the village head” or the “head of the Chinese people”, it seemed unlikely that the HIR was intended to apply to foreign court documents. In the light of the above, I accept Mr Prahasto’s evidence that under Indonesian law, service of foreign court documents may be effected by a lawyer from an Indonesian firm leaving copies of the same at the registered address of the party sought to be served.

  80. (b) Whether the service by Mr Hariadi was valid service

  81. [54] I now have to consider whether, as a matter of fact, the attempted service by Mr Hariadi on FM on 14 January 2011 constituted valid service. Mr Hariadi said that he went to FM’s registered address on the fourth floor of the Building, but was told to go to the fifth floor, where mail for FM was to be delivered. I agree with Mr Joseph that Mr Kronenburg’s argument that Mr Hariadi went to the wrong floor was not impressive.

  82. [55] The fact that Mr Amiruloh signed a receipt to acknowledge receiving the sealed envelope addressed to FM and the fact that the sealed envelope was left at Mr Amiruloh’s station for some time (ie, one and a half hours) are not determinative of whether the Enforcement Orders were properly served on FM. Instead, what is critical is the fact that Mr Hariadi subsequently took away unopened the sealed envelope addressed to FM. This went to the heart of whether Mr Hariadi’s service of the Enforcement Orders was valid service. This issue turns on the absence of notice of the terms of the Enforcement Orders and, in particular, the absence of notice that FM, as the “debtor” for the purposes of O 69A r 6(1) of the ROC, had 21 days to apply to the Singapore court to set aside the Enforcement Orders (see O 69A r 6(4) of the ROC). The effect of O 69A r 6(4) is required to be stated on the copy of the order served on the debtor (see O 69A r 6(5)).

  83. [56] Mr Joseph argues that FM would have had notice of the Enforcement Orders and that FM, at the very least, would have known that the shortest possible time available to apply to court was 14 days under O 69A r 6(4). He relies on notice to FM’s lawyers, Drew & Napier LLC (“D&N”), who were involved throughout the whole of the Arbitration. The last of the Tribunal’s awards issued on 3 August 2010 was received on 6 August 2010, and was sent to both D&N and WongPartnership. In the ordinary course of things, on 17 September 2010, WongPartnership wrote to D&N to ask whether it had instructions to accept service of the Enforcement Orders on behalf of D1 and FM. D&N replied on 6 October 2010 stating that it had no instructions to accept service of the Enforcement Orders. The Plaintiffs then proceeded to attempt to effect service on FM in Indonesia.

  84. [57] Mr Joseph submits that there was no indication that D&N did not inform FM about WongPartnership’s letter. Since September 2010, FM knew about the Enforcement Orders but did not instruct D&N to accept service. Mr Joseph’s further point is that since FM controls D1, FM would have had notice of the Enforcement Orders sent by courier to D1, which had the same business address as FM, on 15 February 2011, and that there was documented evidence to prove that D1 received the same on 17 February 2011.

  85. [58] I have already emphasised that the purpose of service of the Enforcement Orders is to give notice to FM of not only the orders themselves, but also of FM’s right to apply to the Singapore court to set aside the orders within 21 days of the date of service. The Enforcement Orders were not sent under cover of WongPartnership’s letter of 17 September 2010 to D&N; neither did WongPartnership set out the terms of the Enforcement Orders in its letter.

  86. [59] Relying on the receipt signed by Mr Amiruloh, WongPartnership assumed that the sealed envelope delivered by Mr Hariadi to Mr Amiruloh was served on and retained by FM. There is no indication that WongPartnership was earlier aware that Mr Hariadi had been asked to take away the sealed envelope and the box of documents. This information came out in Mr Hariadi’s second affidavit. Mr Joseph argues that FM should not be allowed to rely on its refusal to accept service to its advantage. With respect, Mr Joseph’s argument misses the point. Typically, if a party evades or refuses service, the court, on the application of the other party, would order substituted service (see generally Jeffrey Pinsler SC, Singapore Court Practice (LexisNexis, 2009) at para 62/5/2). This course of action was available to the Plaintiffs when their efforts to serve the Enforcement Orders on FM outside the jurisdiction were rebuffed or thwarted by FM.

  87. [60] In the circumstances, I agree with the Assistant Registrar that there was no proper service of the Enforcement Orders on FM. The sealed envelope containing the Enforcement Orders was taken away unopened. There was no suggestion that any of FM’s employees, or even Mr Amiruloh, opened the envelope. Under the circumstances, the receipt signed by Mr Amiruloh was not in itself evidence of service.

  88. (c) Whether the irregularities in service could be cured

  89. [61] In ITC Global Holdings, which involved service of a writ in India to join the directors of the defendant company to proceedings against the defendant company, it was not disputed that under Indian law, a natural person must be served either personally or by an agent properly empowered to accept service on behalf of the defendant. The plaintiff thus had to show that the defendant company, on whom it had effected service in India, was in fact an agent of the directors and was authorised to receive service on their behalf. As no evidence was produced to show this, service on the directors was found to be prima facie irregular. The court, however, applying the English case of Golden Ocean Assurance Ltd and World Mariner Shipping SA v Christopher Julian Martin and others [1990] 2 Lloyd’s Rep 215, eventually decided to exercise its discretion to cure the irregularity. In coming to its decision, the court found the following factors material:

  90. (a) the directors were apprised of the proceedings (see ITC Global Holdings at [50]);

  91. (b) the plaintiff had properly done all that it could to effect service (see ITC Global Holdings at [49]); and

  92. (c) to fail to cure the irregularities would cause undue prejudice to the plaintiff by denying it of its right to a hearing (see ITC Global Holdings at [50]).

  93. [62] As mentioned earlier, ITC Global Holdings involved the service of a writ to join the directors of the defendant company to a suit involving the company. Thus, unless the irregularity was cured, most of the prejudice would fall on the plaintiff as it would be denied its right to a hearing.

  94. [63] The facts of the present case are different and ITC Global Holdings is distinguishable. For the reasons stated above (at [54]–[60]), there was effectively no service of the Enforcement Orders. This is not an appropriate case to exercise the court’s discretion.

  95. [64] However, I agree with the Assistant Registrar that now that FM is aware of the Enforcement Orders and the terms thereof, and has come to ask, inter alia, for leave to set aside the Enforcement Orders, there is no need for the Plaintiffs to effect service of the Enforcement Awards again in Indonesia, but FM will be given an opportunity to make its argument as to why the Singapore Awards should not be enforced. I therefore affirm the Assistant Registrar’s order granting, amongst other things, leave to FM to apply to set aside the Enforcement Orders within 21 days of his decision, namely, by 4.00pm on 12 September 2011.

  96. Result

  97. [65] For the reasons stated, RA 278 and RA 279 are dismissed.

  98. The Summonses: SUM 4064 and SUM 4065

  99. [66] In the summonses before me, FM seeks to challenge the enforcement of the Singapore Awards. Of the five awards which make up the Singapore Awards, the 7 May 2009 Award, is the most important since the other four awards made by the Tribunal (see [33] above) were premised on that award giving the Tribunal jurisdiction to make the Singapore Awards. FM’s position is that the Singapore Awards should not be enforced in relation to the “restitution claims” described in the 16 February 2010 Award, whereby FM and the rest of the Defendants were found liable to pay P6 to P8 the sum of approximately US$250 million. In the main, FM’s application rests on an argument of lack of jurisdiction. If FM succeeds in showing that the Tribunal had no jurisdiction (let alone the power) to join P6 to P8 to the Arbitration in the first place, all the other four awards made by the Tribunal would also be rendered otiose. While FM is challenging all five of the Singapore Awards in SUM 4064 and SUM 4065, Mr Landau’s arguments were really focused on the 7 May 2009 Award.

  100. Outline of this judgment

  101. [67] The Threshold Question is whether there is a statutory basis for FM to invoke lack of jurisdiction as a ground to resist enforcement of the Singapore Awards (see [12] above). In answering the Threshold Question, it is important to keep in mind the distinction between an award on jurisdiction and an award which deals with the issue of jurisdiction at the same time as it deals with the merits. In this case, the Tribunal issued an award on jurisdiction (ie, the 7 May 2009 Award), and FM decided not to challenge that award in the manner prescribed by Art 16(3) of the Model Law. FM instead proceeded to defend the merits of the Arbitration, albeit under protest, and even lodged a counterclaim against the Plaintiffs (see [32] above). FM also did not take steps to set aside any of the four awards which the Tribunal made on the merits of the Plaintiffs’ claims (eg, the 16 February 2010 Award). The prescribed time periods under the IAA to set aside those awards (as well as the 7 May 2009 Award) have long expired.

  102. [68] Mr Landau has framed the Threshold Question as whether FM can resist recognition and enforcement of the Singapore Awards in circumstances where no application to set aside those awards was ever made under the IAA. In my view, this simplified characterisation misses the point. The IAA does not preclude FM from defending itself against the Plaintiffs’ attempt to recognise and enforce the Singapore Awards. The IAA (and Part A of this judgment) proceeds on the basis that FM can challenge the recognition and enforcement of the Singapore Awards, but it must do so under one or more of the grounds found or incorporated in the IAA and subject to the time limits contained within the IAA (see s 19B(4) of the IAA). Part A of this judgment discusses, amongst other matters, the interplay between s 19 and s 19B of the IAA, and how they interact with Art 34 of the Model Law.

  103. [69] Part B of this judgment will discuss the specific ground raised by Mr Landau to resist enforcement of the Singapore Awards. FM wants to invoke lack of jurisdiction at the enforcement stage as a reason why the court should refuse to enforce the 7 May 2009 Award. Is lack of jurisdiction a ground that is still available for FM to invoke to resist enforcement, given that FM earlier decided not to pursue the recourse prescribed in Art 16(3) of the Model Law to challenge the 7 May 2009 Award? What is the consequence of FM’s decision not to challenge that award? It was argued that a losing party may decide not to apply to set aside an award on jurisdiction whilst still retaining its right to resist recognition and enforcement of that award in the country in which it was made. Therefore, instead of actively applying to set aside an award (whether under Art 16 or Art 34), a losing party may choose to remain passive, refuse to implement the award and wait for the winning party to attempt to enforce the award. When enforcement is sought, the losing party can then move to resist recognition and enforcement. FM argues that it has taken the passive course of action (as just described), having earlier reserved and retained the right to invoke lack of jurisdiction as a ground to resist enforcement of the 7 May 2009 Award. Part B of this judgment discusses this issue in the context of the Model Law regime (as found or incorporated in the IAA) to see if FM has the right to resist recognition and enforcement of the 7 May 2009 Award on the ground of lack of jurisdiction despite having earlier chosen not to take steps to set aside that award (as well as the rest of the Singapore Awards).

  104. Part A

  105. Discussion on the recognition and enforcement of domestic international awards

  106. [70] Recognition and enforcement of arbitral awards are concerned with giving effect to such awards. There is a difference between “recognition” per se and “recognition and enforcement”. An award may be recognised without being enforced, but a court cannot enforce an award which it does not recognise.

  107. [71] Challenging the enforcement of a domestic international award is more properly analysed as challenging the recognition of such an award. The pro-arbitration stance taken by the IAA privileges party autonomy and the finality of awards, and espouses limited curial intervention. This is in line with numerous other civil jurisdictions and jurisdictions which have adopted the Model Law (referred to hereafter as either “Model Law jurisdictions” or “Model Law countries”), and favours the summary enforcement of a domestic international award which has been recognised. It is not surprising that the court of the country in which the seat of the arbitration is located is more willing to enforce such an award. In this context, a court grants enforcement because it has recognised the domestic international award as final and binding. Notably, Mr Landau accepts that recognition and enforcement go hand in hand. Nigel Blackaby et al, Redfern and Hunter on International Arbitration (Oxford University Press, 2009 ) explains the combination of these two concepts (recognition and enforcement) as follows (at para 11.23):

  108. [72] There are three situations where a challenge to a domestic international award may be brought at the enforcement stage before this court where the seat of arbitration is Singapore, namely:

  109. (a) where there has been an application to set aside a domestic international award and the application has been finally disposed of (in this situation, there will be no grounds for refusing to enforce the award as the application to set it aside has been conclusively dismissed);

  110. (b) where the time limit for setting aside under Art 34 of the Model Law has not expired and there has been no application for setting aside (in this situation, if a timely application for enforcement is brought, the domestic international award, in a proper case, may be set aside under Art 34); and

  111. (c) where the time limit for setting aside under Art 34 of the Model Law has expired and an application for setting aside has not been brought and is now time-barred.

  112. [73] In my view, the question in all three of these scenarios is the same: should the domestic international award be set aside or should it be recognised and enforced as a Singapore judgment under s 19 of the IAA? The only difference between the first two situations and the third is that in the third situation, the grounds under Art 34 of the Model Law are no longer available to the party which brings its challenge to the award out of time. The relevant question in the present case is simple: are there any remaining grounds found or incorporated in the IAA for Mr Landau to challenge the recognition and enforcement of the Singapore Awards? For the reasons set out in this judgment, I find that there are no remaining grounds for this court to refuse recognition and enforcement of the Singapore Awards.

  113. [74] The IAA has made provision for domestic international awards, viz, where such an award has not been set aside under any of the grounds for setting aside, it is recognised as final and binding, and is not subject to any further grounds for refusal of enforcement. The legal basis for a refusal of enforcement is not, stricto sensu, that grounds have been found for refusing enforcement, but that there is no award to speak of (ie, the award in question has not been recognised and has instead been set aside).

  114. [75] Section 19 read with s 19B of the IAA renders an arbitral award final and binding, and enforceable with the leave of the court, subject to the grounds within the IAA and the Model Law for setting aside the award or refusing recognition and enforcement of it. Section 19 reads as follows:

  115. [76] Section 19B(1) clarifies the effect of a domestic international award, and reads as follows:

  116. [77] The words “final and binding” belong to the paradigm of recognition. A party seeking recognition may, for example, want to rely on the legal force and effect of a final and binding arbitral award for the purposes of a defence or a set-off in subsequent court proceedings. At other times, recognition constitutes an indispensible part of or a condition for enforcement. In this second situation, enforcement (which is dependent on recognition) comes immediately subsequent to recognition and is effected on an award which has already become final and binding. As I have alluded to at [15] and [70] above, enforcement and recognition can go hand in hand. This is neither a new concept, nor is it exclusive to domestic international awards. The same concept applies to foreign awards. For instance, s 27(2) of the IAA, which clarifies the meaning of “enforcement” of foreign awards, includes recognition in the definition of “enforcement”. Section 27(2) reads as follows:

  117. [78] In my view, any challenge to enforcement must also come as a challenge to the recognition of an domestic international award, that is to say, a challenge to an otherwise final and binding domestic international award recognised pursuant to s 19B(1) of the IAA. Section 19B(4), which qualifies when such an award may be recognised as final and binding, reads as follows:

  118. [79] This means that the final and binding effect of a domestic international award is qualified by the ability to set it aside on the grounds prescribed in Art 34 of the Model Law and s 24 of the IAA. Should such grounds exist, this court may refuse to recognise the award in question as final and binding and set it aside instead; enforcement would then be moot.

  119. [80] For a foreign award coming under Part III of the IAA, the binding effect of such an award is qualified by s 31 of the IAA, which reproduces the grounds for refusal of enforcement in Art V of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards concluded in New York on 10 June 1958 (“the New York Convention”). Articles 35 and 36 of the Model Law are excluded from the IAA by s 3 of the IAA, and are thus not grounds for qualifying the binding effect of either a foreign or a domestic international award.

  120. [81] Lest it be thought that the idea of a domestic international award being susceptible only to setting aside and refusal of recognition but not to refusal of enforcement is new, I hasten to mention that this is also the position in numerous civil law and Model Law jurisdictions. For example, the German Zivilprozessordnung (Tenth Book on the Code of Civil Procedure) (Germany) (“the ZPO”) provides for different enforcement regimes for domestic international awards (see s 1060 of the ZPO) and foreign awards (see ss 1061–1065 of the ZPO). Section 1060 of the ZPO and Art 34 of the Model Law provide exhaustively for the enforcement of domestic international awards. Section 1060 of the ZPO reads as follows:

  121. [82] Refusal of recognition and enforcement cannot be divorced from setting aside – a domestic international award is either recognised and not set aside, or it is not recognised and is set aside. Contrary to Mr Landau’s argument, there is no “double control”. Jean-François Poudret and Sébastien Besson, Comparative Law of International Arbitration (Sweet & Maxwell, 2nd Ed, 2007) (“Poudret and Besson”) describes the German position as follows (at para 864):

  122. [83] Germany is not alone in taking this stance. In Quebec, a refusal to recognise and enforce a domestic international award (homologation) is equivalent to a setting aside (annulment) of an award. The correct legal basis for a refusal to enforce is therefore that there is no award to enforce, ie, the award has been set aside. Articles 947, 947.1 and 947.2 of Book VII of the Code de Procédure Civile, LRQ, c C-25 (Quebec) (“the CPC”) read as follows:

  123. [84] I find it curious that while Mr Landau admits that the UK is out of line with the rest of the Model Law countries, most of his authorities, including Dallah Real Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan [2011] 1 AC 763 (which is irrelevant to the analysis in the present case), still emanate from the UK. The Model Law is not a creature typical of the statutes emanating from common law jurisdictions; it more properly resembles civil law drafting. Commenting on the drafting process of the IAA with reference to the Model Law, Charles Lim, who was involved in the drafting of the IAA, wrote in his article “The Developmental Life Cycle of International Arbitration Legislation – Singapore IAA Case Study” (2011) 7 AIAJ 1 (at pp 6–7):

  124. [85] I find that any sensible discussion of the Model Law must draw from arbitration law in civil law jurisdictions. Harmonisation of the Model Law draws heavily from these jurisdictions. The treatment of domestic international awards by the IAA as susceptible to a refusal of recognition and setting aside is in good company. There are examples of civil law jurisdictions that have either abandoned Art 36 of the Model Law in relation to domestic international awards (eg, Germany), or included Art 36 in a modified form or with a modified application (eg, Quebec). Such exclusion and adaptation is permissible under the Model Law regime itself (see [106]–[110] below). Contrary to what Mr Landau has argued, the applicability of Art 36 to both foreign and domestic international awards simply does not exist in all Model Law jurisdictions. I find that the appropriate jurisdictions which I should examine are those which, like Singapore via the IAA, treat domestic international awards separately from foreign awards and either exclude or modify the application of Art 36 of the Model Law.

  125. [86] A challenge on jurisdictional grounds may be revived where enforcement is being sought in a court other than the court of the seat of arbitration. Where enforcement is sought in countries which are party to the New York Convention, a losing party may still go to court to resist enforcement on the grounds set out in Art V of that Convention. Even in this situation, the enforcement court may not permit the party to revive a jurisdictional objection at the enforcement stage because of its conduct and failure to or decision not to raise the jurisdictional objection before the curial court (see generally Aloe Vera of America, Inc v Asianic Food (S) Pte Ltd and another [2006] 3 SLR(R) 174 at [56] and Hebei Import & Export Corp v Polytek Engineering Co Ltd [1999] 1 HKLRD 665 at 689). As discussed, the position is different only where the court is the court stipulated in Art 6 of the Model Law (in this case, the High Court in Singapore) and it is a Singapore domestic international award which is sought to be recognised and enforced in Singapore under the IAA.

  126. [87] Mr Landau argues that the IAA gives statutory effect to Art V of the New York Convention via s 31 of the IAA, which applies to foreign awards, but there are no corresponding express provisions for recognition or enforcement (and for refusing recognition or enforcement) of domestic international awards. At this point, I note, however, that Mr Landau falls short of saying that there is a lacuna as a lacuna would leave him with no grounds for FM’s challenge to the Singapore Awards. Instead, relying on s 4 of the IAA, Mr Landau has embarked on, inter alia, a lengthy discourse on the drafting history of the Model Law to support his expansive interpretation of s 19, which rests on the argument that there should be no distinction between domestic international awards and foreign awards as the drafters of Art 36 of the Model Law intended a unified treatment of domestic international awards and foreign awards. Mr Landau also submits that s 19 must be read consistently with Art 36, or, if not Art 36, then with Art 34, both of which contain grounds for FM to challenge recognition and enforcement of the Singapore Awards at the enforcement stage by relying upon lack of jurisdiction. Finally, in respect of the prescribed time period set out in Art 34(3) of the Model Law for recourse against an arbitral award, Mr Landau’s answer is simply that the time limit applies to an application to set aside an award, and as FM is applying not to set aside but to resist enforcement of the Singapore Awards, FM is not faced with any time limit issue.

  127. [88] I am unconvinced by Mr Landau’s submissions. I have explained, and it is clear for the reasons stated above, that there is no merit in Mr Landau’s argument that there is no express provision in the IAA that contains permitted grounds to resist recognition and enforcement of domestic international awards. Section 19B of the IAA, read with Art 34 of the Model Law, requires FM to take positive steps to set aside the Singapore Awards on one of the specified grounds. The distinction which Mr Landau makes on time bar between enforcement and setting aside in the context of a domestic international award is patently fanciful. The only argument left to Mr Landau is that there should be no distinction between domestic international awards and foreign awards. This argument, too, is a non-starter under the IAA. Mr Landau’s arguments rest on Art 36 of the Model Law being part of the Singapore legal regime. This is of no help to FM as Art 36 does not have the force of law in Singapore. Singapore’s decision not to include Art 36 and to treat domestic international awards in the manner outlined above is consistent with a legitimate pro-arbitration stance. That FM would prefer the Singapore legal regime to be in pari material with Art 36 of the Model Law is not a valid argument against the position which Singapore has decided to take.

  128. [89] Mr Landau’s other submission that FM is approaching this court in its enforcement and not its curial capacity, and that this is not an application to set aside the Singapore Awards is wholly misconceived. It is an argument that seeks to make a distinction when none exists, and serves only to obfuscate matters. As explained above, the permitted grounds to resist recognition and enforcement are limited in the case of a domestic international award where the award is being enforced in the same country in which it is made. Section 19B of the IAA recognises that for all practical purposes, judicial intervention in respect of domestic international awards is undertaken at the curial stage and s 19B thus makes no distinction between a court sitting in its curial capacity and in its enforcement capacity.

  129. [90] In context, intervention at the curial stage seeks to curtail a re-escalation of conflict by the losing party’s attempts to open a final and binding domestic international award to repeated and possibly indefinite challenge post-award. Finality of the arbitral process is an important principle of international commercial arbitration. Judge of Appeal V K Rajah, on behalf of the Court of Appeal in Tjong Very Sumito and others v Antig Investments Pte Ltd [2009] 4 SLR(R) 732, opined (at [29]):

  130. [91] I should add, for completeness, that I am unconvinced by Mr Landau’s submission that the interpretation of s 19B of the IAA is determined by the circumstances in which it was enacted. Mr Landau argues that s 19B was only put into the IAA to statutorily reverse the position under Tang Boon Jek Jeffrey v Tan Poh Leng Stanley [2001] 2 SLR(R) 273 (“Stanley Tan (CA)”). Stanley Tan (CA) extended the notion of functus officio under Art 32 of the Model Law to include a power for a tribunal to reconsider and reverse its decision (at [38]). Mr Landau argues that s 19B deals with the narrow point of functus officio and is irrelevant to the grounds for refusing to recognise and enforce a domestic international award.

  131. [92] This submission is not borne out by a reading of s 19B of the IAA. Only s 19B(2) of the IAA relates to functus officio, and, thus, it is only s 19B(2) which addresses the Stanley Tan (CA) situation. Section 19B of the IAA taken as a whole is broader, and sub-section (2) cannot be used to read down to limit the rest of s 19B. Section 19B of the IAA is primarily about the effect of an award, and not the functus status of a tribunal. If Mr Landau is right and s 19B of the IAA had merely been included to reverse the decision in Stanley Tan (CA), then s 19B would have clarified the powers of a tribunal, and not the effect of an award.

  132. [93] In my view, s 19B of the IAA is relevant to the question of whether a domestic international award may be revisited after timelines for an application to set it aside have expired. If the award is final and binding and there are no further exceptions to this result, then it may not be challenged. The only way for FM to challenge the Singapore Awards is to claim that they are not final and binding, and are instead subject to grounds for setting aside and refusal of recognition.

  133. The grounds for refusal of recognition and setting aside

  134. Grounds under Art 34 of the Model Law

  135. [94] The grounds under Art 34 of the Model Law are not available to FM for setting aside and refusing recognition of the Singapore Awards as FM is time-barred. Mr Landau submits that the grounds in Art 34 are available to FM notwithstanding that the prescribed time limits have expired. However, he has given this court no legally valid reason why Art 34(3), which establishes a time bar of three months for the bringing of a challenge, should be divorced from Art 34(2), wherein the grounds for setting aside are found. I agree with Mr Joseph that Art 34(1) is important. It provides for one means of recourse which is available during a period (as specified in para (3)) and for limited reasons (as specified in para (2)).

  136. [95] I find that there is no legal basis for separating the grounds for setting aside from the time limit imposed upon a setting-aside application. It is clear from the way in which Art 34 is structured that recourse to a court under this Art is subject to both paras (2) and (3) thereof.

  137. [96] I draw support from the UNCITRAL Analytical Commentary on Draft Text of Model Law on International Commercial Arbitration, Report of the Secretary General, UN Doc, A/CN 9/264, 25 March 1985 (“UNCITRAL Commentary A/CN 9/264”) on Art 34 of the Model Law, where it is stated (at para 1):

  138. [97] It is clear that Art 34 is meant not only to limit the grounds for setting aside an award, but also to ensure that any challenge is brought promptly within the period specified. ABC v XYZ Co Ltd [2003] 3 SLR(R) 546 illustrates the strictness of the prescribed three-month time limit. In that case, the question was whether new grounds could be added after the expiry of the prescribed three-month period. Judith Prakash J held (at [9]):

  139. [98] Above all, there is simply no “hook”, as Mr Joseph puts it, for the inclusion of the grounds under Art 34 of the Model Law to resist enforcement of a domestic international award where the prescribed time limit has lapsed. There are no exceptions to the time bar contained within Art 34, and there is no basis for Mr Landau’s argument that since the grounds in Art 34 were drafted to mirror in almost every respect the provisions of Art 36, the meaning of Art 34 has been modified by the inclusion of Art 36 to render the time limit moot at the enforcement stage.

  140. Grounds under Art 36 of the Model Law

  141. [99] The grounds under Art 36 of the Model Law cannot be imported into the IAA for the simple reason that s 19B(4) of the IAA only provides for challenges “in accordance with the provisions of this Act and the Model Law” [emphasis added].

  142. [100] Section 3(1) of the IAA is clear: it states that “the Model Law, with the exception of Chapter VIII thereof, shall have the force of law in Singapore” [emphasis added]. I am unable to read s 3(1) of the IAA as anything other than an exclusion of the Art 36 grounds for refusing recognition and enforcement. There is a corresponding explanatory note to the same effect in the First Schedule to the IAA vis-à-vis Chapter VIII of the Model Law on Recognition and Enforcement of Awards. The note states: “Chapter VIII does not have the force of law in Singapore by virtue of section 3(1)”.

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