Hong Kong / 08 November 2010 / Hong Kong, Court of First Instance, In the High Court of the Hong Kong Special Administrative Region / Gao Haiyan and Xie Heping v. Keeneye Holdings Limited and New Purple Golden Resources Development Limited / HCCT 41/2010
Country | Hong Kong |
Court | Hong Kong, Court of First Instance, In the High Court of the Hong Kong Special Administrative Region |
Date | 08 November 2010 |
Parties | Gao Haiyan and Xie Heping v. Keeneye Holdings Limited and New Purple Golden Resources Development Limited |
Case number | HCCT 41/2010 |
Applicable NYC Provisions | V | V(2) |
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 applicants (Gao Haiyan and Xie Heping, two nationals of China) entered into a share transfer agreement with Keeneye Holdings Ltd (“Keeneye”, a company incorporated in Hong Kong), which provided for arbitration in China. A dispute arose between the parties and the applicants initiated an arbitration proceeding in China, which culminated to an award in their favour. The respondents challenged the award before a court at the seat – the Xian Intermediate People’s Court of Shaanxi – contending that the award was procured through actual or apparent bias: they pointed to a dinner meeting of one of the arbitrators and a person related to the respondents. According to the respondents, the person related to them was told to pay the arbitrator in order to secure a favourable result. The respondents, relying on Section 40E(3) of Hong Kong’s Arbitration Ordinance of 2000 (Cap. 341) (the “Ordinance”) (mirroring Article V(2) NYC), argued that the enforcement of the award would be contrary to the public policy of Hong Kong. The High Court granted the applicants’ ex parte order for enforcement of the award. The respondents challenged the High Court’s decision at the inter partes stage of the proceeding. The applicants counter-claimed that the respondents’ challenge should be dismissed without further trial. The Court of First Instance accepted the respondents’ argument, ordering a full trial of the issue. Saunders J, the single judge sitting in the Court, considered that in determining whether enforcement of an award would be contrary to public policy a court needs to “have regard to the basic notions of morality and justice in Hong Kong but also take into account the fact that different procedures apply at the seat of the arbitration”. According to the learned judge, the basic notions of morality and justice in Hong Kong would not permit ex parte communications between a member of an arbitral tribunal and a party to the arbitration, once the arbitration had been initiated. In the judge’s view, it was not clear on the facts whether this had taken place. Consequently, the judge considered that a full trial would be necessary to decide the issue. |
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