Hong Kong / 12 August 1992 / Hong Kong, High Court, In the Supreme Court of Hong Kong / J. J. Agro Industries (P) Ltd. v. Texuna International Ltd. / HCMP000751/1992
| 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. |
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Attachment (1)
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