![Hong Kong / 06 April 1995 / Hong Kong, High Court, In the Supreme Court of Hong Kong / Jiangxi Provincial Metal and Minerals Import and Export Corp [China] v. Sulanser Co Ltd / Miscellaneous Proceedings 887 of 1994](./images/case-law.png)
Hong Kong / 06 April 1995 / Hong Kong, High Court, In the Supreme Court of Hong Kong / Jiangxi Provincial Metal and Minerals Import and Export Corp [China] v. Sulanser Co Ltd / Miscellaneous Proceedings 887 of 1994
| 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. |
Attachment (1)
 Original Language Adobe Acrobat PDF |
