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The Singapore Law Gazette

Rethinking PT First Media v Astro – Art 16(3), a Sui Generis Remedy?

This article shall analyse the Singapore Court of Appeal’s decision in PT First Media TBK v Astro Nusantara International and explores whether Art 16(3) of the Model Law was ever meant to fall within the “choice or remedies” philosophy. It further examines whether a party seeking to revive jurisdictional objections at the post-award stage to be precluded from doing so if it had previously failed to exercise its remedy under Art 16(3).

Introduction and the Decision in Astro

The success of international arbitration has often been attributed to the finality and certainty of awards rendered by tribunals. With the widespread acceptance of the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC),1New York Convention on the Recognition and Enforcement of Foreign Awards, Jun. 10, 1958, 330 U.N.T.S. 38 (“New York Convention”). parties have an easier avenue for recognition and enforcement across jurisdictions. To achieve a balance between these interests and the need to maintain fairness in the arbitral process, the general policy of minimal curial intervention is tempered by the limited avenues available for challenging an international arbitral award.

In Singapore, these avenues are contained within the International Arbitration Act (IAA),2Cap 143A, 2002 Rev Ed (“IAA”). which incorporates the UNCITRAL Model Law on International Commercial Arbitration (Model Law or ML).3UN Doc A/40/17, annex I; UN Doc A/61/17, annex I (21 June 1985; amended 7 July 2006) (“Model Law”). One such avenue is engaged when the tribunal makes a preliminary ruling on jurisdiction – Art 16(3) ML and section 10 IAA allow any party to, within 30 days of such ruling, apply to the Singapore High Court to review the tribunal’s decision (Art 16(3) remedy). Separately, Arts 34(2)(a)(iii) and 36(1)(a)(iii) ML allow parties to invoke jurisdictional grounds to set aside or resist the enforcement of arbitral awards respectively (collectively the post-award stages).

In PT First Media TBK v Astro Nusantara International BV (Astro),4(2014) 1 SLR 372 (“Astro CA”). the Singapore Court of Appeal (SGCA) held that a party which had failed to challenge a preliminary ruling by the tribunal on jurisdiction under Art 16(3) could nevertheless raise jurisdictional objections in resisting the enforcement of the resulting final award. In arriving at its decision, the Court was especially persuaded that the remedy provided under Art 16(3) formed part of the “choice of remedies”’ philosophy that was purportedly integral to the Model Law. In its view, the drafting history of the Model Law showed that there was a strict distinction between remedies that allowed parties to “attack” the award (active remedy) and remedies which operated as defences to its enforcement (passive remedy).

This article shall analyse the SGCA’s reasoning in Astro and questions whether Art 16(3) truly falls within the “choice of remedies” philosophy, or if it is sui generis. Ultimately, it finds that the travaux preparatories of the Model Law leans toward the latter. Accordingly, whether a failure to exercise the Art 16(3) remedy has a preclusive effect should be consistent with the purpose of its enactment (i.e. finality and certainty). In this article’s view, such a failure should have a preclusive effect on a party’s ability to raise jurisdictional arguments at the post-award stages.

Does Art 16(3) Fall Under the “Choice of Remedies”?

The General “Choice of Remedies” Philosophy

In Astro, the SGCA noted that while the primary purpose of the Model Law was to assist the enactment the NYC, it also aimed to uphold the “choice of remedies” philosophy. Under this philosophy, a party could choose to “attack” any award rendered by the tribunal or could passively resist the other party’s application to enforce the award. In arriving at this conclusion, the Court had recourse to two main sources:

  1. First, the Court was persuaded by Art V(1)(e) of the NYC and the comments made in the UK Supreme Court’s decision in Dallah Real Estate,5Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan (2011) 1 AC 763 at (26)-(29), (98), (103). both which suggested that a party was under no obligation to set aside an award at the seat before resisting enforcement in another jurisdiction; and
  2. Second, the Court found that the travaux preparatories of the Model Law (the travaux) supported the existence of such a choice of remedies. In particular, the Court had recourse to the Analytical Commentary on the Draft Text of a Model Law on International Commercial Arbitration6UN Doc. A/CN.9/264 (25 March 1985) (“Analytical Commentary”) at p. 71. (Analytical Commentary) and the reports of the Working Group,7Report of the Working Group on the Work of its Seventh Session, UN Doc. A/CN.9/246 (6-17 February 1984) at (154). both of which acknowledged that the party could generally choose to either set aside an award or resist enforcement.

In the Court’s view, these sources led to the conclusion that the “choice of remedies” philosophy was at “the heart of” the Model Law’s design.8Astro CA, supra n 4, at (65). Thus, notwithstanding that the relevant provisions of the Model Law (i.e. Arts 35-36) were expressly excluded from the IAA, the Court found that the philosophy was nevertheless engaged.

While this paper agrees with most of the SGCA’s analysis, it questions the boundaries of the “choice of remedies”’ philosophy. Astro suggests that the sphere of active remedies in the Model Law is not limited to setting-aside applications, but also governs other remedies (e.g. Art 16(3)).9See below at (10)-(11). Respectfully, such a position is not supported by the travaux of the Model Law. The comments relied on in both the Analytical Commentary and Dallah were made in the context of assessing the relationship between the remedies at the setting-aside and enforcement proceedings. In this article’s view, the only conclusion that can be drawn from these sources is that the “choice of remedies” philosophy ensures that a party’s failure to challenge an award by setting-aside proceedings does not prejudice its right to resist enforcement under the Model Law.

This conclusion is further supported by the positions taken by other jurisdictions like Hong Kong, which have similarly only discussed the “choice of remedies” in comparing the right of a party to set-aside an award against its right to resist enforcement.10Paklito Investment Limited v Klockner East Asia Limited (1993) 2 HKLR 39 at p. 49; PT First Media TBK v Astro Nusantara International BV & Ors (2018) 3 HKC 458, at p. 479-481. Contrary to this position, the SGCA in Astro seemingly took the view that every remedy which required the party to take initiative in applying for curial intervention would constitute an active remedy.11Kexian Ng, “Choice of Remedies under the UNCITRAL Model Law: PT First Media v Astro and beyond” (2014) 7 Journal of East Asia and International Law Vol. 1 256, at p. 263. However, this article finds that the line between an active and passive remedy should not be solely based on which party fired the first shot by seeking curial review. Even in the purportedly “passive” remedy of resisting enforcement, the defendant bears the burden of proving that one of the exceptions under Art V of the New York Convention applies.12New York Convention, supra n 1, Art V(I); UNCITRAL Secretariat Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 2016), at p. 128-129 at (13). Whether or not a losing party exercises an active or passive remedy, it retains the legal burden to plead its case. Accordingly, understanding the scope of the “choice of remedies” philosophy as covering all of the remedies under the Model Law is untenable since it is neither based on the travaux of the Model Law nor sound in reason.

Instead, this article suggests that the better way of understanding the “choice of remedies” philosophy is that it merely gives a party the choice of applying to set-aside an award or to resist its enforcement. That does not quite mean that each remedy that requires a party to initiate curial review would necessarily constitute an active remedy. Instead, this article finds that the “choice of remedies” philosophy should only be engaged if the particular remedy in question was meant to be modelled after a party’s right to set aside an award or its right to resist enforcement. In the case of Art 16(3), the relevance of the philosophy should thus turn on whether it was modelled after a setting-aside application or sui generis.

Art 16(3) – a Sui Generis Remedy?

In this regard, given its assumption that Art 16(3) automatically constituted an active remedy, the SGCA in Astro thus framed the enquiry as whether Art 16(3) constituted an “exception” to the general choice of law philosophy that was integral to the Model Law.13Astro CA, supra n 4, at (111). This may not be the most appropriate way of framing the issue, given that Art 16(3) does not immediately engage the ‘choice of remedies’ philosophy.14See above at (7)-(9). In this writer’s view, the more appropriate question was whether the philosophy is nevertheless engaged because Art 16(3) was modelled after a setting-aside application under Art 34(2)(a)(ii).

Nevertheless, the SGCA in Astro referred to the Analytical Commentary, the Analytical Compilation of Comments by Governments and International Organisations on the Draft Text of a Model Law15UN Doc. A/CN.9/263, (19 March 1985) (“Analytical Compilation”). (Analytical Compilation) and the Summary Records for meetings on the UNCITRAL Model Law16Yearbook of the United Nations Commission on International Trade Law, vol XVI (1985) (“Summary Records”). (Summary Records) and came to the conclusion that Art 16(3) “was not intended to be a one-shot remedy” and that nothing suggested that it was an exception to the “choice of remedies” philosophy. However, a deeper analysis of these sources seems to yield, in this article’s view, a different conclusion.

First, both the Analytical Commentary and the Analytical Compilation were published when the prevailing draft version of Art 16(3) did not allow for immediate court control, but rather only allowed for jurisdictional objections to be brought during setting-aside proceedings (draft Art 16(3)). Both sources are therefore unhelpful in determining whether the present Art 16(3) is intended to be sui generis. For example, the Analytical Commentary does state that a party’s failure to set-aside an award on a jurisdictional basis would not preclude it raising the same arguments at the enforcement stage.17Analytical Commentary, supra n 6, at p. 40. However, this is simply consistent with the understanding of the “choice or remedies” philosophy as merely giving the parties the option to choose between setting-aside an award or resisting its enforcement. It says nothing about whether the present Art 16(3) was meant to be a one-shot remedy. The same can be said for the Analytical Compilation, wherein Norway raised concerns over parties being able to raise jurisdictional objections when resisting the enforcement of an award if it was unable to set-aside the award.18Analytical Compilation, supra n 15, at p. 30. Both sources were not dealing with the present Art 16(3) and therefore are of limited assistance.

The Summary Records are slightly more problematic. Like the Analytical Commentary and Compilation, the record of the 315th meeting was created when the draft Art 16(3) was being discussed.19Summary Records, supra n 16, Record of the 315th Meeting. Thus, the comments made by Sir Mustill and Mr Holtzmann (both of whom the SGCA referenced) are unhelpful in assessing the present Art 16(3). When the notion of immediate court control (found in the present Art 16(3)) was proposed at the 316th meeting, both the Chairman and Sir Mustill noted that the proposed Art 16(3) was to be modelled after a proposal made by the Austrian delegation.20Summary Records, supra n 16, Record of the 316th Meeting. The Austrian representative, in explaining his proposal, remarked that if the tribunal issued a preliminary ruling on jurisdiction, the system governing the proposed Art 16(3) would mirror Art 13(3) ML (the provision governing challenging the appointment of arbitrators), not Art 34(2) (which governs setting aside).21Ibid. In the article’s view, this unequivocally shows that the present Art 16(3) was intended to be conceptually different from a setting-aside application.

In sum, the alleged “choice of remedies” was only between setting-aside and resisting enforcement.22See above at (7)-(9). In the light of the analysis of the travaux above, the present Art 16(3) was never meant to be modelled after setting-aside proceedings, but was instead intended to be sui generis.23See also Ghibradze, “Preclusion of Remedies under Article 16(3) of the UNCITRAL Model Law” 27 Pace Intl Law Review 345 (2015) at p. 384-385; Pavic, “(In)Appropriate Compromise: Article 16(3) of the Model Law and its Progeny” in Michael et al, International Arbitration and International Commercial Law: Synergy, Convergence and Evolution (Kluwer Law International, 2011) at p. 396. Whether a failure to exercise the Art 16(3) remedy has a preclusive effect on the ability to resist enforcement of the resulting award on jurisdictional grounds should turn on the initial purpose of enacting Art 16(3).

Art 16(3) – Finality at the Apex of Considerations

While the SGCA in Astro did examine the purpose behind Art 16(3), it did so in the context of whether Art 16(3) was meant to be an exception to the “choice of remedies” philosophy. As discussed above, Art 16(3) was never intended to fall within this philosophy, but was instead meant to be sui generis.24See above at (10)-(14). Nevertheless, the Court’s analysis remains relevant insofar as it explored the “apex” of the considerations behind Art 16(3).

In this regard, while the Court recognised that Art 16(3) was motivated by considerations of efficiency and certainty, it decided that these concerns were not paramount. Instead, the Court found that Art 16(3) gave the tribunal “untrammelled discretion” to either determine the jurisdictional issues as preliminary matters (thereby engaging the Art 16(3) remedy) or together with the substantive merits of the dispute.25Astro CA, supra n 4, at (117). In the Court’s view, if certainty had indeed been paramount, “one might have expected that all jurisdictional objections must be decided preliminarily and subject to instant and exclusive control”.26Ibid.

With respect, while the discretion afforded to the tribunal admittedly does not guarantee equal levels certainty as the alternative suggested by the court, certainty was nevertheless a paramount consideration behind Art 16(3). The discretion afforded to the tribunal was intended to be a compromise between the need to “prevent undue waste of time and money in conducting an unnecessary arbitration”27AQZ v ARA (2015) 2 SLR 972 (“AQZ”) at (65). and the need to prevent deploying jurisdictional challenges to delay proceedings.28Report of the United Nations Commission on International Trade Law on the Work of its Eighteenth Session (UN Doc. A/40/17, 3–21 June 1985), at (157)–(158). However, even the drafters of the Model Law noted in the Analytical Commentary that tribunals generally rule on jurisdiction as a separate and antecedent decision, and depart from this position only when the question of jurisdiction was intertwined with a substantive issue.29Analytical Commentary, supra n 6, at p. 40. The tribunal’s discretion was not meant to undermine considerations of certainty, but rather to empower tribunals with the flexibility to “assess whether there was a greater risk of dilatory tactics or a possibility of time and costs being wasted by carrying out an unnecessary arbitration”.30AQZ, supra n 27, at (68); See also Ilias Bantekas et al, UNCITRAL Model Law on International Commercial Arbitration: A Commentary, (C.U.P. 2020) at p. 306. The importance of certainty is also evident in the Singapore Ministry of Law’s proposed amendment of section 10 IAA to allow for parties to, by mutual agreement, require the tribunal to decide on jurisdictional issues at the preliminary award stage.31Ministry of Law, “Public Consultation on Proposed Amendments to the International Arbitration Act (“IAA”)” (26 June 2019) available at https://www.mlaw.gov.sg/news/press-releases/public-consultation-on-proposed-amendments-to-the-international-arbitration-act (accessed 12 May 2020), Clause 4, (6)-(7). Such an amendment would further restrict the tribunal’s discretion, emphasising the value of certainty over jurisdictional disputes at an earlier stage of the arbitral process. Understood this way, Art 16(3) was indeed intended to be “certainty-centric”.

Consequently, to best give effect to the purpose of Art 16(3), a party which fails to exercise this remedy should be precluded from raising jurisdictional objections at the post-award stages. To allow a party to waste time and resources by retaining a right to challenge the jurisdiction of the tribunal at the post-award stages despite having the option to do so earlier, would be inconsistent with the purpose of Art 16(3) and “borders on abuse of process”.32Monichinio, “The Problem with Rakna: The Scope of the Preclusive Effect of Article 16(3) of the Model Law” (2019) 31 SAcLJ 349 at (40). As Born notes, “it would contradict these purposes to allow a party to reserve jurisdictional challenges to the award on the merits”.33Born, International Commercial Arbitration (Wolters Kluwer, 2nd Edition, 2014) (“Born”) at p. 1107.

The complete preclusive effect of Art 16(3) is also supported by international practice. Preliminary, it has been recognized that a failure to raise some arguments before a supervisory court can affect a party’s ability to raise them at the enforcement stage (albeit on the basis of waiver and estoppel).34Hebei Import & Export Corp v Polytek Engineering Co Ltd (1999) 2 HKC 205 at p. 230. Moreover, in cases involving Art 16(3), decisions from the courts in Australia,35 teleMates (previously Better Telecom) Pty Ltd v Standard SoftTel Solutions Pvt Ltd (2011) NSWSC 1365 at (53). Germany36Bundesgerichtshof, Germany, III ZB 83/02, 27 March 2003, available at http://www.dis-arb.de/en/47/datenbanken/rspr/bgh-case-no-iii-zb-83-02-date-2003-03-27-id212 (accessed 12 May 2020). and Canada37Compagnie Nationale Air France v Libyan Arab Airlines (2000) R.J.Q. 717; ARL Regional Print Ltd. and Rene Laporte v George Ghanotakis and Jean M. Won (2004) CanLII 23270. have held that parties are generally precluded from raising jurisdictional objections at later stages after they fail to exercise an available Art 16(3) remedy.38Born, supra n 33, at p. 3487.

Ultimately, the reason for Astro’s finding that Art 16(3) did not preclude a party’s ability to resist enforcement on jurisdictional grounds, was, it is submitted, based on the “choice of remedies” philosophy. This is evident from the court’s obiter comments that such a preclusive effect would only apply to a party at a setting-aside proceeding under Art 34(2)(a)(iii) of the Model Law.

Further, the comments in Astro were also cited with approval by the SGCA in Rakna Arakshaka39Rakna Arakshaka Lanka Ltd v Avant Garde Maritime Services (Pte) Ltd (2019) 4 SLR 995 (“Rakna”). to justify that a failure to exercise an Art 16(3) remedy would only have a preclusive effect on active remedies and not passive ones.40Rakna, id, at (68)-(76). Note however, that Rakna concerned a non-participant and was therefore not particularly concerned with the decision in Astro. The need to preserve the ‘choice of remedies’ philosophy has also been at the core of attacks launched by commentators against the imposition of a preclusive effect on enforcement proceedings.41Poon, “The Tension Between Principle and Policy: Calibrating the Right of Non-Participating Respondents to Challenge Awards” Kluwer Arbitration Blog (13 November 2018); Pereira, “Deferred Challenges to Jurisdiction Under the Model Law” Journal of International Arbitration (2018) 719., Iris Ng et al, “Five Recurring Problems In International Arbitration: The Relationship Between Courts And Arbitral Tribunals”, 8 Indian Journal of Arbitration Law Issue II (2020), at p. 30; Tan, “No Reservations, Hong Kong: A ‘Choice of Remedies’ If the Tribunal Makes a Preliminary Ruling on Its Jurisdiction (New York University Law Blog, 24 February 2016).

However, such a line of reasoning would only be valid if the “choice of remedies” philosophy was intended to encompass sui generis remedies like Art 16(3). As discussed above, a deeper analysis of the travaux of the Model Law shows that this was not the case.42See above at (10)-(14). Instead, the purpose and policy of Art 16(3) reveals a preference for precluding a party from relying on jurisdictional objections at post-award stages.

Practical Ramifications

The decision in Astro is helpful for parties which have been faced with an unfavourable preliminary ruling on jurisdiction, as they can choose not to engage their Art 16(3) remedy immediately. Instead, they can preserve their resources by waiting to see the result of arbitral proceedings and can nevertheless raise jurisdictional objections while resisting the enforcement of an unfavourable award in Singapore. On the flipside, parties should not rest easy simply because they have received a favourable yet uncontested jurisdictional ruling, since they can be faced with jurisdictional objections at the tail-end of the dispute (i.e. at enforcement proceedings).

Nevertheless, the “choice of remedies” philosophy is likely to rear its head before the courts again. While the decision in Astro is certainly a welcome first stab at the beast, this paper finds that the court’s analysis of the relationship between Art 16(3) and the “choice of remedies” requires re-examination. Particularly, it has explored the boundaries of this philosophy, and posits that it was only ever meant to govern the relationship between a party’s ability to set-aside an award and its ability to resist its enforcement. Given this paper’s finding that Art 16(3) is sui generis, the “choice of remedies” philosophy is thus inapplicable, and there remains little reason for refusing to extend the preclusive effect of Art 16(3) to enforcement proceedings. Such preclusion would ensure that jurisdictional disputes are resolved expediently.

Finally, it bodes mentioning that Astro has been celebrated for strengthening Singapore’s general pro-arbitration stance.43Jolley, “Astro v. Lippo: Singapore Court of Appeal Confirms Passive Remedies to Enforcement Available for Domestic International Awards” (Kluwer Arbitration Blog, 29 November 2013); Poon, “Choice of Remedies and A Tale of Two Cities: PT First Media v Astro” (7 August 2014) Lloyd’s Maritime and Commercial Law Quarterly 338, at p. 340-343; Kumar et al, “Giving the Award Debtor a ‘Choice of Remedies’ in Domestic International Arbitrations: Should India go the Singapore Way” (2014) 3 Vol. 2 Indian Journal of Arbitration Law 6. However, as Astro itself noted, the Model Law was enacted with an overarching view to “achieve certainty and finality in the seat of arbitration”.44Astro CA, supra n 4, at (130). It is submitted that the extension of the preclusive effect of Art 16(3) to enforcement proceedings would not only create more certainty by ensuring that jurisdictional matters are resolved early, but would align the treatment of Singapore-seated international arbitration disputes regardless of whether the Court is dealing with setting-aside or enforcement proceedings. Thus, such a preclusive effect would be more consistent with the overarching policy of the Model Law.

Endnotes

1New York Convention on the Recognition and Enforcement of Foreign Awards, Jun. 10, 1958, 330 U.N.T.S. 38 (“New York Convention”).
2Cap 143A, 2002 Rev Ed (“IAA”).
3UN Doc A/40/17, annex I; UN Doc A/61/17, annex I (21 June 1985; amended 7 July 2006) (“Model Law”).
4(2014) 1 SLR 372 (“Astro CA”).
5Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan (2011) 1 AC 763 at (26)-(29), (98), (103).
6UN Doc. A/CN.9/264 (25 March 1985) (“Analytical Commentary”) at p. 71.
7Report of the Working Group on the Work of its Seventh Session, UN Doc. A/CN.9/246 (6-17 February 1984) at (154).
8Astro CA, supra n 4, at (65).
9See below at (10)-(11).
10Paklito Investment Limited v Klockner East Asia Limited (1993) 2 HKLR 39 at p. 49; PT First Media TBK v Astro Nusantara International BV & Ors (2018) 3 HKC 458, at p. 479-481.
11Kexian Ng, “Choice of Remedies under the UNCITRAL Model Law: PT First Media v Astro and beyond” (2014) 7 Journal of East Asia and International Law Vol. 1 256, at p. 263.
12New York Convention, supra n 1, Art V(I); UNCITRAL Secretariat Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 2016), at p. 128-129 at (13).
13Astro CA, supra n 4, at (111).
14See above at (7)-(9).
15UN Doc. A/CN.9/263, (19 March 1985) (“Analytical Compilation”).
16Yearbook of the United Nations Commission on International Trade Law, vol XVI (1985) (“Summary Records”).
17Analytical Commentary, supra n 6, at p. 40.
18Analytical Compilation, supra n 15, at p. 30.
19Summary Records, supra n 16, Record of the 315th Meeting.
20Summary Records, supra n 16, Record of the 316th Meeting.
21Ibid.
22See above at (7)-(9).
23See also Ghibradze, “Preclusion of Remedies under Article 16(3) of the UNCITRAL Model Law” 27 Pace Intl Law Review 345 (2015) at p. 384-385; Pavic, “(In)Appropriate Compromise: Article 16(3) of the Model Law and its Progeny” in Michael et al, International Arbitration and International Commercial Law: Synergy, Convergence and Evolution (Kluwer Law International, 2011) at p. 396.
24See above at (10)-(14).
25Astro CA, supra n 4, at (117).
26Ibid.
27AQZ v ARA (2015) 2 SLR 972 (“AQZ”) at (65).
28Report of the United Nations Commission on International Trade Law on the Work of its Eighteenth Session (UN Doc. A/40/17, 3–21 June 1985), at (157)–(158).
29Analytical Commentary, supra n 6, at p. 40.
30AQZ, supra n 27, at (68); See also Ilias Bantekas et al, UNCITRAL Model Law on International Commercial Arbitration: A Commentary, (C.U.P. 2020) at p. 306.
31Ministry of Law, “Public Consultation on Proposed Amendments to the International Arbitration Act (“IAA”)” (26 June 2019) available at https://www.mlaw.gov.sg/news/press-releases/public-consultation-on-proposed-amendments-to-the-international-arbitration-act (accessed 12 May 2020), Clause 4, (6)-(7).
32Monichinio, “The Problem with Rakna: The Scope of the Preclusive Effect of Article 16(3) of the Model Law” (2019) 31 SAcLJ 349 at (40).
33Born, International Commercial Arbitration (Wolters Kluwer, 2nd Edition, 2014) (“Born”) at p. 1107.
34Hebei Import & Export Corp v Polytek Engineering Co Ltd (1999) 2 HKC 205 at p. 230.
35 teleMates (previously Better Telecom) Pty Ltd v Standard SoftTel Solutions Pvt Ltd (2011) NSWSC 1365 at (53).
36Bundesgerichtshof, Germany, III ZB 83/02, 27 March 2003, available at http://www.dis-arb.de/en/47/datenbanken/rspr/bgh-case-no-iii-zb-83-02-date-2003-03-27-id212 (accessed 12 May 2020).
37Compagnie Nationale Air France v Libyan Arab Airlines (2000) R.J.Q. 717; ARL Regional Print Ltd. and Rene Laporte v George Ghanotakis and Jean M. Won (2004) CanLII 23270.
38Born, supra n 33, at p. 3487.
39Rakna Arakshaka Lanka Ltd v Avant Garde Maritime Services (Pte) Ltd (2019) 4 SLR 995 (“Rakna”).
40Rakna, id, at (68)-(76). Note however, that Rakna concerned a non-participant and was therefore not particularly concerned with the decision in Astro.
41Poon, “The Tension Between Principle and Policy: Calibrating the Right of Non-Participating Respondents to Challenge Awards” Kluwer Arbitration Blog (13 November 2018); Pereira, “Deferred Challenges to Jurisdiction Under the Model Law” Journal of International Arbitration (2018) 719., Iris Ng et al, “Five Recurring Problems In International Arbitration: The Relationship Between Courts And Arbitral Tribunals”, 8 Indian Journal of Arbitration Law Issue II (2020), at p. 30; Tan, “No Reservations, Hong Kong: A ‘Choice of Remedies’ If the Tribunal Makes a Preliminary Ruling on Its Jurisdiction (New York University Law Blog, 24 February 2016).
42See above at (10)-(14).
43Jolley, “Astro v. Lippo: Singapore Court of Appeal Confirms Passive Remedies to Enforcement Available for Domestic International Awards” (Kluwer Arbitration Blog, 29 November 2013); Poon, “Choice of Remedies and A Tale of Two Cities: PT First Media v Astro” (7 August 2014) Lloyd’s Maritime and Commercial Law Quarterly 338, at p. 340-343; Kumar et al, “Giving the Award Debtor a ‘Choice of Remedies’ in Domestic International Arbitrations: Should India go the Singapore Way” (2014) 3 Vol. 2 Indian Journal of Arbitration Law 6.
44Astro CA, supra n 4, at (130).

School of Law
Singapore Management University
E-mail: [email protected]