Followers of this blog would know that we have written a fair bit on the Astro-Lippo dispute which resulted in 5 SIAC awards rendered in favour of the Astro group against the Lippo group. This includes an overview of the dispute, what the dispute tells us about the strengths and weakness of cross-border enforcement in arbitration, as well as the decision of the Singapore High Court upholding the arbitration awards rendered in favour of the Astro group.
The Singapore Straits Times has just reported the latest in the on-going saga. Astro has obtained an interim antisuit injunction against First Media and AcrossAsia (First Media’s controlling shareholder, both of whom are part of the Lippo Group and respondents to the SIAC arbitration). According to the Straits Times, the antisuit injunction was taken out “to prevent First Media and AcrossAsia from taking steps in Indonesia that could potentially undermine proceedings in Hong Kong“.
Readers might recall that on 15 March 2012, Astro obtained a garnishee order from the Hong Kong High Court against AcrossAsia for a sum of US$44 million. This sum represented monies that were due from AcrossAsia to First Media under a facility agreement. The decision of the Hong Kong High Court in respect of the garnishee order was upheld by the Hong Kong Court of Appeal on 10 August 2012.
However, the Hong Kong Court of Appeal went further to order that the sum to be garnished was to be paid into court due to certain exceptional circumstances i.e. “the history of the proceedings taken out by Astro in Singapore and Hong Kong to enforce the awards, the delay of First Media in taking action in Singapore and Hong Kong to resist the enforcement, the apparent connection between First Media and [AcrossAsia], the very substantial credit facility extended to [AcrossAsia] by First Media not long after First Media [had] applied to set aside the Singapore Judgment, the allegation of Astro that the facility agreement [had been] an attempt to thwart the enforcement of the awards, and the legitimate concern of Astro of[AcrossAsia]’s ability to pay the debt in the event the garnishee order is made absolute” (see paragraph  and ).
Nevertheless, despite the orders made, even by 17 September 2012, parties were still unable to agree on a timetable for AcrossAsia to make payment into court, see Astro Nusantara International B.V. and Others v. PT Ayunda Prima Mitra and Others  HKCFI 2070. In fact, during the interim, AcrossAsia had been served with an order dated 12 September 2012 issued by BANI (Indonesian National Board of Arbitrations) requiring them to make payment of the garnisheed sum to First Media directly and not to any other party i.e. it could not pay the monies to Astro. Lippo (AcrossAsia) submitted that this constituted a material change of circumstances which warranted an application on its part to discharge the court’s order to pay the sums into court (see paragraph ).
Naturally, Astro took issue with that and “submit that the court should scrutinize the conduct of [AcrossAsia] and not grant any further indulgence to [AcrossAsia] in relation to the payment into court. According to [Astro’s counsel], [AcrossAsia] ha[d] refused to inform Astro about the progress of the arbitration proceedings in Indonesia until the serving of the Arbitration Order last Friday. [Astro’s counsel] seem[ed] to suggest that the whole arbitration proceedings [had been] orchestrated for the purpose of frustrating the payment into court order made by [the court] earlier” (see paragraph ).
The Straits Times also reports that on 15 January 2013, “the commercial court granted a temporary suspension order allowing [AcrossAsia] to delay paying the US$44 million to First Media“. This appears to be a reference to the Indonesian commercial court.
The hearing for the continuation of the anti-suit injunction will be heard this Friday, 1 February 2013. We will keep our readers updated of any future developments as we receive them.