Hong Kong, High Court, In the Supreme Court of Hong Kong
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Hong Kong / 15 May 1997 / Hong Kong, High Court, In the Supreme Court of Hong Kong / Hebei Import & Export Corporation v. Polytek Engineering Company Limited / HCMP 2083/1996
Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 15 May 1997 Parties Hebei Import & Export Corporation v. Polytek Engineering Company Limited Case number HCMP 2083/1996 Applicable NYC Provisions V Source http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
reversed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4551&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 11 November 1996 Parties Zhanjiang City Qiming Industrial Corporation v. Fumei Ltd Case number 1995 MP No. 2765 Source http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Languages English Summary The plaintiff (“Zhanjiang”) and the defendant (“Fumei”) entered into a contract for the sale and delivery of steel rods to Zhanjiang in China, which provided for arbitration under the auspices of the China International Economic and Trade Arbitration Commission (“CIETAC”). Following a dispute as to the delivery of the goods, Zhanjiang initiated an arbitration against Fumei. The CIETAC tribunal was unable to decide the matter after the first round of submissions and asked the parties to file supplementary submissions within ten days after the tribunal’s order. After the filing of these supplementary submissions the tribunal rendered an award in favour of Zhanjiang. Almost two months after the award was rendered, the counsel for Fumei protested on the basis that it had not received Zhanjiang’s supplementary submission. Zhanjiang sought to enforce the award in Hong Kong, which Fumei resisted. According to Fumei, Zhangjiang’s supplementary submission contended that Fumei had not procured the necessary authorisation in purporting to import steel products in China, effectively entering into the contract in an ultra vires capacity. Fumei argued that the fact that it had not received this submission meant that it had not been given an opportunity to present its case as envisaged in Section 44(2)(c) Hong Kong Arbitration Ordinance 2000 (Cap. 341) (the “Ordinance”) (mirroring Article V(1)(b) NYC). The High Court stayed the enforcement of the award, holding that a full hearing was necessary in order to decide the accuracy of Fumei’s factual allegations that its counsel had not received the supplementary submission. Keith J considered that the Court’s power to refuse enforcement was limited to Section 44 of the Ordinance (mirroring Article V NYC), which placed the burden on the party resisting the award’s enforcement. The judge found that it could not be said that Fumei’s assertions were so incredible as to say that there was no chance of them being true. Keith J rejected Zhanjiang’s argument that there had not been a violation of due process because the CIETAC tribunal had received the supplementary submission for the purpose of deliberating and drafting the award. The learned judge held that even in a situation where a party does not have a right to present further submissions, it may file a submission nonetheless and leave it to the tribunal to decide whether it wants to take it into account. Keith J found that a party would be deprived of its opportunity to present its case if it were to not receive the other party’s submission. Finally, in an obiter statement, Keith J confirmed that a court will exercise its discretion to refuse enforcement of an award when it is shown that, had it not been for the violation, the dispute would have been decided otherwise. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1172&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 06 April 1995 Parties Jiangxi Provincial Metal and Minerals Import and Export Corp [China] v. Sulanser Co Ltd Case number Miscellaneous Proceedings 887 of 1994 Applicable NYC Provisions II | V | II(1) | V(1)(a) Source [1995] HKCFI 449; http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Languages English Summary The plaintiff (“Jiangxi”) entered into a contract for the sale and shipment of goods with the defendant (“Sulanser”), which provided for arbitration under the auspices of the China International Economic and Trade Arbitration Commission (“CIETAC”). Although the parties had rendered the terms of the contract in writing, they had not signed the contract. A dispute arose and Jiangxi sued Sulanser before the Wuhan Admiralty Court. Sulanser contested the Court’s jurisdiction, arguing that the parties had entered into an arbitration agreement. The Wuhan Admiralty Court declined jurisdiction, ruling that the dispute was covered by the arbitration clause. Jiangxi then initiated an arbitration under the rules of the CIETAC. Sulanser challenged the jurisdiction of the CIETAC on the basis that the parties had not signed their written agreement and, consequently, had not consented to arbitration. CIETAC, in an interim award, held that there had been an agreement between the parties and that, in any event, by its argument before the Chinese courts, Sulanser had agreed to arbitration. The CIETAC arbitral tribunal rendered a final award on damages in favour of Jiangxi, which the latter sought to enforce in Hong Kong. Sulanser argued that the award should not be enforced because the arbitration agreement had not been signed and no original arbitration agreement had been produced. It relied on Section 43 of the Hong Kong Arbitration Ordinance 2000 (Cap. 341) (the “Ordinance”) (mirroring Article IV NYC). In addition to that, Sulanser resisted enforcement on the basis of Section 44(2)(b) of the Ordinance (incorporating in part Article V(1)(a) NYC), arguing that the arbitration agreement was not valid under the law to which the parties subjected it or the law of the country where the award was made. The High Court rejected Sulanser’s argument for stay of enforcement, finding that there was a valid arbitration agreement. Leonard J noted that Article II NYC makes clear that the term “agreement in writing” includes an arbitration agreement which is contained in an exchange of letters or telegrams. The learned judge considered that the conditions of Article II NYC had been met since Sulanser, in its letter to the Chinese court, had expressly alleged that an arbitration agreement existed. Leonard J did not accept the defendant’s argument that for an arbitration agreement to arise from an exchange of letters, it must be an exchange between the parties to the agreement. With respect to Sulanser’s reliance on Section 44(2)(b) of the Ordinance (incorporating in part Article V(1)(a) NYC), Leonard J held that Sulanser was estopped from claiming that the agreement was invalid. According to the judge, estoppel arose due to the fact that both the Chinese court and the CIETAC arbitral tribunal had found that the arbitration agreement had been valid and Sulanser had then proceeded to defend on the merits. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=483&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 14 March 1995 Parties Wah Sin Electronics Industrial Company Limited Fujian v. Tan Lok trading as Wahton Company Case number HCMP 2843/1993 Applicable NYC Provisions V | IV Source http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4530&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 16 December 1994 Parties Nanjing Cereals, Oils and Foodstuffs Import and Export Corporation v. Luckmate Commodities Trading Ltd Case number HCMP 1167/1994 Source http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Languages English Summary The plaintiff (“Nanjing”) and the defendant (“Luckmate”) entered into a contract for the sale of fishmeal from Luckmate to Nanjing, which provided for the arbitration of disputes under the auspices of the China International Economic and Trade Arbitration Commission (“CIETAC”). Following Luckmate’s alleged failure to deliver the goods, Nanjing initiated an arbitral proceeding against it. An award was rendered in favour of Nanjing, which it sought to enforce in Hong Kong. Luckmate opposed the enforcement on the ground that it had been unable to present its case. Luckmate’s argument was that the tribunal had reached its decision on the quantum of damages that Luckmate was ordered to pay on the basis of the tribunal’s own independent research and not on the basis of the parties’ submissions. In making this argument, Luckmate relied on Section 44(2)(c) of Hong Kong’s Arbitration Ordinance 2000 (Cap. 341) (the “Ordinance”) (mirroring Article V(1)(b) NYC). The High Court refused to stay the enforcement of the award, holding that although the tribunal had determined the quantum based on its own research, Luckmate had been able to present its submissions on quantum before the tribunal and yet had failed to do so. Kaplan J considered that even if the defendant, Luckmate, had satisfied one of the grounds for non-enforcement under Section 44 of the Ordinance, this was a “classic case where a court should exercise its discretion to refuse to set aside an award, due to the failure of the Defendants to prosecute their own case properly by submitting their own evidence to the Tribunal". Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1159&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 16 December 1994 Parties York Airconditioning & Refrigeration Inc. v. Lam Kwai Hung trading as North Sea A/C Elect. Eng. Co. Case number HCA 8176/1993 Source [1995] 2 HKLR 256 | http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4529&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 11 November 1994 Parties Gay Constructions Pty Ltd and Spaceframe Buildings (North Asia) Ltd v. Caledonian Techmore (Building) Ltd and Hanison Construction Co Ltd (Third Party) Case number HCCL 23/1993 Source [1995] 2 HKLR 35 | http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4528&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 18 August 1994 Parties Astel-Peiniger Joint Venture v. Argos Engineering & Heavy Industries Co. Ltd. Case number HCCT 14/1994 Source [1995] 1 HKLR 300 | http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4527&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 13 July 1994 Parties China Nanhai Oil Joint Service Corporation Shenzhen Branch v. Gee Tai Holdings Co Ltd Case number 1992 No. MP 2411 Applicable NYC Provisions V | II Source [1995] 2 HKLR 215 | http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Languages English Summary The plaintiff (“China Nanhai”, a company incorporated in China) and the defendant (“Gee Tai”, a company incorporated in Hong Kong) entered into a contract which provided for arbitration under the auspices of the China International Economic and Trade Arbitration Commission (“CIETAC”). At the time the contract was concluded, the CIETAC Rules provided that “the Arbitration Commission is located in Beijing”. A dispute arose between the parties and China Nanhai applied to the Shezhen branch of the CIETAC to initiate an arbitration proceeding. Gee Tai defaulted in appointing an arbitrator and the CIETAC appointed an arbitrator for it. Counsel for Gee Tai argued that the Shezhen branch did not have jurisdiction to hear the dispute because according to the CIETAC Rules at the time of the parties’ agreement the Arbitration Commission was located in Beijing alone. Gee Tai put this objection to the Shezhen branch, which overruled it. From that point onwards both the plaintiff and the defendant in the original proceeding took part in the arbitration without making any “without prejudice” claims. An award was rendered against Gee Tai, which China Nanhai sought to enforce in Hong Kong. Gee Tai resisted the award’s enforcement arguing that the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties. In making that argument, Gee Tai relied on Section 44(2)(e) of Hong Kong’s Arbitration Ordinance (Cap. 341) (the “Ordinance”) (mirroring Article V(1)(d) NYC). The High Court refused to stay the enforcement of the arbitral award, finding that although the Shezhen branch did not have jurisdiction over the dispute on the basis of the parties’ contract, Gee Tai had participated in the arbitration without reserving its rights and without continuing to contest the Shezhen branch’s jurisdiction. Kaplan J found that Gee Tai was therefore estopped from challenging the branch’s jurisdiction at the enforcement stage. The judge remarked that the principle of estoppel applied to Article II NYC and, consequently, the judge saw no reason as to why it should not apply to other articles of the NYC. Finally, the judge held as obiter that even if the lack of jurisdiction had constituted a ground for the refusal of the enforcement, he would still have exercised his discretion so as to enforce the award. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=947&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 19 October 1993 Parties Anhui Provincial Chemicals Import & Export Corporation v. Hua Qing (Hong Kong) Development Limited Case number HCMP 1748/1993 Source http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4525&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 06 October 1993 Parties Safond Shipping Sdn Bhd v. East Asia Sawmill Corp. Case number HCMP 2635/1993 Applicable NYC Provisions V(1) | V | V(1)(d) Source http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4524&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 04 August 1993 Parties China Xinxing Corporation v. Mid-Point Development Limited Case number HCMP 110/1993 Source http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4523&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 05 May 1993 Parties Lucky-Goldstar International (H.K.) Limited v. Ng Moo Kee Engineering Limited Case number HCA 94/1993 Applicable NYC Provisions II | II(3) Source http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4522&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 17 February 1993 Parties William Company v. Chu Kong Agency Co., Ltd. and Guangzhou Ocean Shipping Company Case number HCCL 155/1991 Source [1995] 2 HKLR 139 | http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4521&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 21 January 1993 Parties Zhan Jiang E & T Dev Area Service Head Co. v. An Hau Company Limited Case number HCA 10781/1993 Source http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4526&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 15 January 1993 Parties Paklito Investment Limited v. Klockner East Asia Limited Case number 1991 No. MP 2219 Source [1993] HKLR 39 | http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Languages English Summary The plaintiff (“Paklito”) and the defendant (“Klockner”) entered into a contract for the sale and shipment of steel, which provided for arbitration in China under the auspices of the China International Economic and Trade Arbitration Commission (“CIETAC”). Paklito initiated an arbitral proceeding against Klockner, alleging that the goods were defective because they were rusty upon delivery. The tribunal appointed its own experts, who concurred with Paklito’s allegation, in a report which was received by Klockner’s counsel on 8 November 1990. On 15 November 1990 the tribunal rendered its award in favour of Paklito. In the meantime, on 12 November 1990, Klockner had written to the CIETAC stating that it intended to challenge the experts’ finding and that it desired to cross-examine the experts. The letter was received by the CIETAC on 20 November 1990. On 8 January 1991 Klockner wrote to the CIETAC outlining its expectation to adduce further evidence at an oral hearing. The CIETAC did not respond. Paklito sought to enforce the award in Hong Kong. Klockner resisted the enforcement of the award on the grounds that it had been unable to present its case and that the award was rendered in violation of due process, with the consequence that its enforcement would be contrary to public policy. In making those two arguments, Klockner relied on Sections 44(2)(c) and 44(3) of Hong Kong’s Arbitration Ordinance 2000 (Cap. 341) (the “Ordinance”) (mirroring Articles V(1)(b) and V(2) NYC). The High Court stayed the enforcement of the award on the ground that Klockner had not been afforded an opportunity to present its case. Kaplan J held that the CIETAC’s refusal to allow Klockner an opportunity to challenge the expert evidence and cross-examine the expert constituted a serious procedural irregularity, which prevented Klockner from presenting its case. In reaching this conclusion, the judge remarked that even though the parties had chosen an applicable law and practice which differs from that of Hong Kong, there was a minimum requirement of fairness and procedural propriety which an enforcing court would uphold. Kaplan J rejected Paklito’s counter-arguments. With respect to Paklito’s argument that both sides had been given equal opportunity to present their case as both Paklito and Klockner had been prevented from commenting on the expert’s evidence, Kaplan J held that parties need not only be provided with an equal opportunity to present their case but it must also be shown that the opportunity is fair. The judge considered that, because the expert assessment had favoured Paklito, it was immaterial that Paklito was also not given an opportunity to comment on it. The judge also rejected the second of Paklito’s counter-arguments, namely, that the award should be enforced because Klockner had not taken any steps to challenge the award in China. Kaplan J considered that there is nothing in Section 44 of the Ordinance or in the NYC which provides that a party wishing to oppose the recognition and enforcement of an award in one jurisdiction must first apply to have the award set aside in the jurisdiction where it was made. He considered that the fact that Klockner had not challenged the award in China should not be relevant to the exercise of his discretion. Finally, the judge deemed that Klockner’s argument that enforcement would constitute a violation of public policy was irrelevant. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1163&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 05 January 1993 Parties Qinhuangdao Tongda Enterprise Development Company v. Million Basic Company Limited Case number 1992, No. MP 1150 Source [1993] HKCU 0605; http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Languages English Summary The plaintiff (“Qinhuangdao”) entered into two contracts with the defendant (“Million”), one for the processing, and the other for the sale, of latex gloves, the latter providing for arbitration under the auspices of the China International Economic and Trade Arbitration Commission (“CIETAC”). A dispute arose and Million commenced an arbitration proceeding against Qinhuangdao. The tribunal held that it would not admit any evidence after 31 July 1991. Million delivered a submission on 26 August 1991, on the basis of expert evidence which it alleged it had presented in a meeting with the tribunal’s Chief Arbitrator. The only other person attending the meeting, according to Million, had been Million’s counsel. Million alleged that it was during that meeting that the Chief Arbitrator instructed it to prepare a detailed submission on the basis of new evidence, which Million did on 26 August 1991. The existence of such a meeting was challenged by Qinhuangdao and the CIETAC itself. On 26 August 1991 the tribunal handed down its award, dismissing Million’s claim. Qinhuangdao sought to enforce the award in Hong Kong but Million argued that enforcement would be contrary to the public policy of Hong Kong, as the award was based on a forged contract. Further, Million argued that it had not been afforded an opportunity to plead its case as its submission filed on 26 August 1991 had not been considered. In making these arguments, Million relied on Sections 44(3) and (2)(c) of Hong Kong’s Arbitration Ordinance 2000 (Cap. 341) (the “Ordinance”) (mirroring Articles V(2) and V(1)(b) NYC, respectively). The High Court refused to stay the enforcement of the award, concluding that Million had had ample opportunity to plead its case before the tribunal. Kaplan J held that additional evidence presented after the date set as an end of the proceedings would only be admitted in exceptional circumstances, which was not the case here. Considering the facts of the case, the judge found it “very doubtful” that the Chief Arbitrator would have agreed to the submission of such evidence or, even if he had agreed, allowed the award to be rendered before the party had the time to make the submission allegedly asked of it. The judge held that there was no substance to the point that the contract had been a forgery. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1164&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 24 September 1992 Parties Guangdong Agriculture Co Ltd v. Conagra International (Far East) Ltd Case number HCA003032/1992 Applicable NYC Provisions II | II(3) Source [1993] HKCU 0578 | http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Languages English Summary The plaintiff (“Guangdong”) entered into a contract with the defendant (“Conagra”) for the sale of urea, which provided for arbitration in Hong Kong. A dispute arose as to the quantity of goods delivered by Conagra and Guangdong initiated a claim against Conagra before the courts of Hong Kong. Conagra applied for a stay of the judicial proceeding in favour of arbitration, to which Guangdong responded by arguing that the arbitration agreement was “null and void, inoperative or incapable of being performed”. Guangdong relied on Article 8(1) of the Model Law of the United Nations Commission on International Trade Law (“UNCITRAL Model Law”). Guangdong argued that there was no dispute between the parties as Conagra had not advanced a defence or justification for its failure to provide the contractually stipulated amounts of urea. Consequently, Guangdong asserted, there was no ground for staying the proceeding. The High Court stayed the judicial proceeding, holding that the matter should be referred to arbitration. Barnett J remarked that Article 8(1) UNCITRAL Model Law is identical in wording to Article II(3) NYC. He held that in the circumstances, even though Conagra had not made clear how it would dispute the shortfall in its provision of urea, a dispute existed because Conagra had not admitted its liability. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=951&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 12 August 1992 Parties J. J. Agro Industries (P) Ltd. v. Texuna International Ltd. Case number HCMP000751/1992 Applicable NYC Provisions V | V(1)(c) Source http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Languages English Summary Two Indian companies, the plaintiff (“Agro”) and the defendant (“Texuna”), entered into a contract for the sale of goods which provided for arbitration. Agro had paid a deposit to Texuna, as required by the contract, but Texuna had failed to deliver the goods and Agro initiated an arbitral proceeding. Texuna argued that Agro had abducted a key witness of Texuna and had forced him to retract a favourable affidavit he had given for Texuna, as well as to present a false affidavit. This carried particular weight, according to Texuna, because this witness’ testimony was relevant to whether Agro had mitigated its losses, something which Texuna contended Agro had failed to do. An award was rendered in favour of Agro on both the delivery of goods and the return of the deposit. Agro sought to enforce in Hong Kong the part of the award concerning the return of the deposit. Texuna resisted the award’s enforcement relying on the alleged abduction of its key witness. In making this argument, Texuna relied on Section 44(3) of Hong Kong’s Arbitration Ordinance 2000 (Cap. 341) (the “Ordinance”) (mirroring Article V(2) NYC). The High Court refused to grant a stay of the enforcement of the part of the award concerning the return of the deposit, holding that the argument concerning the abduction of the witness did not relate to the issue of the return of the deposit, as the witness had offered no contrary testimony on point. According to the judge, an award could be enforced in part both under common law and the NYC: the judge reasoned that if an argument rendered the enforcement of part of an award contrary to public policy, this did not taint the entire award. In the judge’s view, the fact that Section 44(4) of the Ordinance did not refer to the possibility of enforcing an award only in part was not indicative of the lack of a court’s power to enforce only part of an award. The judge noted that Section 44(4) of the Ordinance reflects the part of Article V(1)(c) NYC concerning the enforcement of “matters submitted to arbitration [that] can be separated from those not so submitted”. Kaplan J, in an obiter remark, also noted that Section 44(3) (mirroring Article V(2) NYC) replicated a ground set out in the NYC. Further, the judge held that if Texuna had been able to establish its allegation on the facts, this would have satisfied Section 44(3), which could have resulted to a possible stay of the award’s enforcement. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=964&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 02 June 1992 Parties Zhejiang Province Garment Import and Export Co [China] v. Siemssen and Co (Hong Kong) Trading Ltd [HK] Case number 1992 No. MP144 Source http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Languages English Summary Pursuant to Section 44 of the Arbitration Ordinance (which directly incorporates Article V NYC), Plaintiff brought an action to enforce an arbitral award rendered on July 12, 1991 by the China International Economic & Trade Arbitration Commission. Defendants challenged enforcement on the grounds that: (1) Plaintiff was not a party to the arbitration agreement; (2) the Award was not yet binding on the parties because Plantiff had not satisfied a condition precedent; and (3) the Award was contrary to Hong Kong’s public policy because it required Defendants to refund monies Plaintiff had paid in customs duties. First, the court pointed out that Defendants bore the burden of establishing their contention that Plaintiff was not a party to the arbitration agreement, and that they had failed to do so. Instead, Plaintiff had produced documents showing that it had simply changed its name since the contract with Defendants was signed. The court noted that it saw no reason to disregard Plaintiff’s representation; it also pointed out that the arbitral tribunal must have been satisfied that Plaintiff had merely changed its name or it would have investigated the issue. Second, the court found that the award became binding on the parties when it was published. Finally, the court held that an award requiring a party to reimburse customs taxes was not equivalent to an order to “recover foreign tax”, as Defendants contended. The court ultimately opted to give the parties more time to settle the matter. It indicated, however, that if the parties could not reach an amicable agreement, it would issue an order enforcing the arbitral award. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=485&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 02 March 1992 Parties China State Construction Engineering Corporation and Guangdong Branch v. Madiford Limited Case number HCA 6563/1991 Source http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4518&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 02 March 1992 Parties Shenzhen Nan Da Industrial and Trade United Co Ltd v. FM International Ltd [HK] Case number 1991 No. MP 1249 Source [1992] 1 HKC 328 (H.C.), http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Languages English Summary Plaintiffs sought enforcement of an arbitral award rendered on January 8, 1991 by the China International Economic & Trade Arbitration Commission. Defendant resisted enforcement on the grounds that: (1) the award was a domestic award because the parties had never agreed to arbitrate in China; and (2) the arbitral tribunal had updated its rules between the signing of the contract containing the arbitration clause and the date of arbitration. The court rejected Defendant’s arguments. First, it noted that as part of its merits-analysis, the arbitral tribunal had addressed and decided the issue defendant raised—whether certain contracts containing a Chinese arbitration clause took precedence over other contracts containing a Hong Kong arbitration clause. The court noted that Defendant was simply attempting to appeal the tribunal’s decision that the Chinese contracts should prevail. Second, the court found that “the fact that the arbitral institution chosen by the parties has improved its rules between contract and arbitration is not sufficient to justify refusing enforcement.” Noting that neither of Defendant’s objections fell into the categories specified in Article V NYC (as reflected in the Hong Kong Arbitration Ordinance), the court granted enforcement. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=496&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 29 October 1991 Parties Fung Sang Trading Ltd v. Kai Sun Sea Products & Food Co Ltd Case number HCMP002674/1991 Source [1991] 2 HKC 526; [1992] HKCU 0380 | http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Languages English Summary The plaintiff (“Fung Sang”, a company incorporated in Hong Kong) alleged that it had entered into a contract with the defendant (“Kai Sun”, a company incorporated in Hong Kong) for the sale of goods which the seller was to ship to China. The contract allegedly provided for arbitration in Hong Kong. Following a dispute between the parties, Fung Sang initiated an arbitral proceeding and appointed its arbitrator, arguing that the tribunal should be comprised of three arbitrators, as envisaged by the United Nations Commission on International Trade Law’s Model Law (“UNCITRAL Model Law”). Following Kai Sun’s failure to appoint an arbitrator, Fung Sang applied to the High Court of Hong Kong to appoint an arbitrator for Kai Sun. Kai Sun resisted the application arguing that (i) the arbitration was domestic and, consequently, the UNCITRAL Model Law did not apply, with the further consequence that there was no default position of a three-member arbitral tribunal; and, (ii) the person signing the contract on behalf of Kai Sun had not had the authority to bind it, with the consequence that there had been no arbitration agreement entered into by the parties. The High Court refused to stay the appointment of an arbitrator, finding that (i) the arbitration was an international arbitration because the contract provided for the delivery of goods to China, which was a substantial element of the contract; and, (ii) the doctrine of separability of the arbitration clause, enshrined in Article 16 UNCITRAL Model Law, demanded that the question of ultra vires be decided by an arbitral tribunal. Kaplan J considered the NYC to be inapplicable. Nonetheless, the judge opined that, under both the NYC and the UNCITRAL Model Law, the recognition and enforcement of an award would be refused in “very limited circumstances”, one of which being the ground that “the agreement is not valid under the law to which the parties have subjected it”. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=948&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 23 August 1991 Parties Guangdong New Technology Import & Export Corp Jiangmen Branch [China] v. Chiu Shing T/A BC Property & Trading Co [HK] Case number Miscellaneous proceedings No 1625 of 1991 Applicable NYC Provisions V | IV | V(1)(d) | V(1)(b) | IV(1) Source [1991] 2 HKC 459 (HC)
Languages English Summary Pursuant to Section 44 of the Arbitration Ordinance (which implements Article V NYC), Plaintiff, Guangdong New Technology Import & export Corp. Jiangmen Branch (“Guangdong”), brought an action to enforce an arbitral award rendered in China. Defendant, Chiu Shing T/A BC Property & Trading Co. (Chiu Shing”), challenged enforcement on the grounds that: (1) Guangdong had not produced a “duly authenticated original award”; (2) Guangdong had not produced a “duly certified copy” of the original arbitration agreement; (3) it (Chiu Shing) received late notice of the arbitral proceedings; and (4) the composition of the arbitral tribunal was not in accordance with the parties agreement. The court found that the original award, accompanied by an affidavit affirming its authenticity was sufficient to meet the requirement set forth in the NYC and the domestic implementing legislation. The court also found that copies of a document containing an arbitration clause — which had been incorporated by reference into the parties’ contract—sufficiently depicted the “original arbitration agreement” required for enforcement of an arbitral award. In response to Chiu Shing’s contention that it received late notice of the arbitiral proceedings, the court pointed out that despite such late notice, Chiu Shing did have an opportunity to present its case to the arbitral tribunal. Finally, the court rejected Chiu Shing’s argument that the tribunal was improperly constituted because the parties had intended the “Foreign Trade Arbitration Commission of the China Council for the Promotion of International Trade” to resolve their dispute and the dispute was handled by the “China International Economic and Trade Arbitration Commission” instead—the court pointed out that the tribunal had clearly indicated in the award that it had recently changed its name from the former to the latter. For these reasons, the court granted leave for the award to be enforced in the same manner as a judgment of the court. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=486&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 31 July 1991 Parties Ryoden Engineering Company Limited and Ryoden (Holdings) Limited v. Paul Y. Construction Company Limited Case number HCCT 2/1991 Source http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4517&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, High Court, In the Supreme Court of Hong Kong Date 28 November 1990 Parties Tiong Huat Rubber Factory (Sdn) Bhd v. Wah-Chang International (China) Company Ltd and Wah-Chang International (Hong Kong) Corporation Ltd Case number HCMP002462/1990 Source http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Languages English Summary The plaintiff (“Tiong Huat”, a company incorporated in Malaysia) and the first defendant (“Wah-Chang China”, a company incorporated in Hong Kong) entered into three contracts for the sale ammonia latex by Tiong Huatt to Wah-Chang China. One of the contracts contained a clause providing that “all disputes as to quality or condition of rubber […] shall be settled by Arbitration.” Separately to those three contracts, Tiong Huat entered into two contracts with the second defendant (“Wah-Chang Hong Kong”, a company incorporated in Hong Kong). Tiong Huat initiated arbitration proceedings against both defendants, alleging that they had failed to open the letters of credit necessary for payment under the contracts. Neither defendant participated in the arbitral proceeding. A number of awards were rendered in Malaysia, all in favour of Tiong Huat, which it sought to enforce in Hong Kong. The defendants resisted enforcement, arguing that the arbitration clause was inapplicable as it only applied to disputes concerning the “quality or condition of rubber”, whereas the present dispute, the defendants contended, was a dispute regarding payment and thus should not have been referred to arbitration. In making this argument, the defendants relied on Section 44(2)(b) of Hong Kong’s Arbitration Ordinance 2000 (Cap. 341) (the “Ordinance”) (incorporating in modified language Article V(1)(a) NYC) and Section 44(2)(d) (mirroring Article V(1)(c) NYC). The High Court refused to stay the enforcement of the awards, finding that the dispute between the parties fell within the scope of the arbitration agreement. In reaching its conclusion, it applied principles of contractual construction established in English cases, even though the contract was not expressed to be governed by English law. The Court noted that it was not relevant to its conclusion that the defendants’ counsel had only raised these points at the enforcement stage, not having argued them before. Further, the Court considered that Section 44 of the Ordinance reflected Article V NYC and, therefore, Section 44 of the Ordinance also created a presumption of enforcement. Finally, the Court also raised the United Kingdom’s reciprocity reservation, i.e. that the United Kingdom will apply the NYC only to awards rendered in another State Party to the NYC. Malaysia was such a Party and, consequently, the NYC applied. reversed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1167&opac_view=6 Attachment (1)
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