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FACV No. 6 of 2008
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 6 OF 2008 (Civil)
(ON APPEAL FROM CACV No. 121 of 2003)
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IN THE MATTER OF THE ARBITRATION ORDINANCE (CAP. 341) |
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and
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IN THE MATTER OF AN ARBITRATION AWARD DATED 18 DECEMBER 2000 MADE IN AN ARBITRATION |
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Between:
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KARAHA BODAS COMPANY LLC |
Plaintiff
(Respondent ) |
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- and - |
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PERUSAHAAN PERTAMBANGAN MINYAK DAN GAS
BUMI NEGARA (otherwise known as PERTAMINA) |
Defendant
(Appellant) |
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Court: Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Lord Woolf NPJ
Date of Judgment: 6 February 2009
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JUDGMENT ON COSTS
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Mr Justice Ribeiro PJ:
1. This is the Court's ruling on costs.
2. On 5 December 2008,[1] the Court dismissed Pertamina's appeal and made an order nisi that Pertamina should pay KBC’s costs of and occasioned by this appeal.
3. KBC subsequently lodged written submissions seeking an order for indemnity costs. It argues that this is a case with special and unusual features justifying such an order, relying on two grounds. First, KBC points out that it was only some six years after the Award that Pertamina introduced its allegation of fraud which the Court has found to be without any sound evidential basis. Secondly, KBC submits that the Court should make such an award to discourage such unmeritorious court challenges to arbitration awards, pointing to the determined efforts Pertamina has made in various jurisdictions to resist enforcement of the award.
4. As to the first point, the factual reasons for not raising fraud earlier have been explained by Pertamina and were not subject to challenge as such, the argument focusing on the Ladd v Marshall principles. There is therefore no basis for suggesting any impropriety in the lateness of the allegation. Pertamina plainly misjudged the evidential foundations for making the fraud allegation, but we do not consider that a sufficient basis for departing from the usual party-and-party rule in the present case.
5. Turning to the second matter, as Pertamina points out, this is not a case where the court process has been abused with a view to delaying enforcement of the award. Pertamina had discharged the award in full before the hearing in the Court of Appeal below. We do not consider the need to encourage prompt settlement of arbitration awards a basis for departing from the usual rule in this case.
6. We accordingly direct that the order nisi for Pertamina to pay the costs of and occasioned by the appeal on a party-and-party basis be made absolute.
| (Andrew Li) |
(Kemal Bokhary) |
(Patrick Chan) |
| Chief Justice |
Permanent Judge |
Permanent Judge |
| (R A V Ribeiro) |
(Lord Woolf) |
| Permanent Judge |
Non-Permanent Judge |
Written submissions by Mr Benjamin Yu SC and Mr Law Man Chung (instructed by Messrs Richards Butler) for the appellant
Written submissions by Messrs Clyde & Co for the respondent
[1] FACV 6/2008, Li CJ, Bokhary, Chan and Ribeiro PJJ and Lord Woolf NPJ.
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