Enforcement Allowed Despite Pending Setting Aside Applications

In CKR v CKT [2021] SGHCT 4, the Singapore High Court considered whether leave to enforce three separate arbitration awards should be granted in circumstances where there were pending applications to set aside the same arbitral awards before the Singapore seat court.  The Court held that the existence of pending set aside application was not a reason to refuse leave to enforce, stating [@30-31[:

“30 Even though there are pending applications to set aside the Second Partial Award, the Final Award and the Additional Final Award, this is not a reason to refuse leave to enforce. A pending application to set aside an award is not even a ground to refuse recognition and enforcement of an award under section 19 of the IAA read with Article 36 of the Model Law. Even if it were a valid ground for refusing recognition and enforcement, this is not an issue to be determined at the first ex parte stage in deciding whether leave to enforce an award should be granted.

31 Accordingly, simply because there are pending setting aside applications is not a reason to refuse leave to enforce the arbitral awards. This conclusion is consistent with the principle of finality. In this regard, the fact that there are pending setting aside applications does not affect the final and binding nature of arbitral awards.”

Support for the decision was derived from Gary B. Born in International Commercial Arbitration (Kluwer Law International, 3rd Ed, 2020) (at [3613]), and the following cases:

  • PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v Astro Nusantara International BV and others and another appeal [2014] CKR v CKT [2021] SGHCR 1 SLR 372, where the Singapore Court of Appeal observed that Parliament’s intention in aligning the effect of interim awards with that of final awards under s 19B of the IAA was driven by its object of providing that all awards – interim and final – should reflect the principle of finality.
  • L v B [2016] 4 HKC 254, where the Hong Kong High Court held (at [12]–[13]) in the context of an application for security, that the fact that an award is being challenged in the supervisory court does not mean that the award has become not binding.

About Phillip Rompotis

Phillip practices as a barrister and arbitrator in Hong Kong. He has over 25 years’ litigation and arbitration experience in commercial disputes relating to construction & engineering, financial services, joint venture & shareholders agreements, technology, trusts, property and landlord & tenant. He is a Fellow of the Chartered Institute of Arbitrators, the Hong Kong Institute of Arbitrators, the Singapore Institute of Arbitrators, the Malaysian Institute of Arbitrators, and a member of various lists/panels of arbitrators.

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