SKY MOUNT INVESTMENT LIMITED v. EAST WEST-UMI INSURANCE LTD

SKY MOUNT INVESTMENT LIMITED v. EAST WEST-UMI INSURANCE LTD

The court held that the defendant's letter of 8 September 1993 amounted to a written notice requesting the plaintiff to agree to the appointment of an arbitrator and therefore, under s.31 and authority in Nea Agrex, the arbitration was commenced within 12 months of the insurer's disclaimer on 17 November 1992. Alternatively, even if that finding were wrong, the court would refuse to extend time under s.29 because of a substantial unexplained delay (application filed 11 months after expiry), lack of material to justify the discretion and culpable delay despite absence of proven prejudice to the defendant.

Citation
SKY MOUNT INVESTMENT LIMITED v. EAST WEST-UMI INSURANCE LTD
Parties
Plaintiff (intending Claimant): Sky Mount Investment Limited; Defendant (intending Respondent): East West-Umi Insurance Ltd
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
14 December 1994
Case Number
HCMP2897/1994
Procedural Posture
High Court Miscellaneous Proceedings Under the Arbitration Ordinance (cap.341) / In Chambers Judgment on Whether Arbitration Was Commenced Within Time and on Application for Extension Under S.29
Outcome
Application allowed in part: declaration that arbitration was commenced within time; alternatively extension of time refused; no order as to costs of the application
Legal Topics
Centrocon Clause, Commencement of Arbitration, Time Bar, Extension of Time Under S.29, Section 31 Arbitration Ordinance, Stay of Proceedings, Costs
Source Language
EN
Arbitration Insurance Law Civil Procedure Limitation Law Centrocon Clause Commencement of Arbitration Time Bar Extension of Time Under S.29 +3 more

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Parties

Sky Mount Investment Limited

Plaintiff (intending Claimant)

East West-Umi Insurance Ltd

Defendant (intending Respondent)

Procedural Posture

High Court Miscellaneous Proceedings Under the Arbitration Ordinance (cap.341) / In Chambers Judgment on Whether Arbitration Was Commenced Within Time and on Application for Extension Under S.29

Legal Issues

  1. 1 Whether the dispute was referred to arbitration within 12 months of the insurer's disclaimer (s.31, Arbitration Ordinance)
  2. 2 If not, whether the court should exercise its discretion to extend time under s.29 of the Arbitration Ordinance

Ratio Decidendi

The court held that the defendant's letter of 8 September 1993 amounted to a written notice requesting the plaintiff to agree to the appointment of an arbitrator and therefore, under s.31 and authority in Nea Agrex, the arbitration was commenced within 12 months of the insurer's disclaimer on 17 November 1992. Alternatively, even if that finding were wrong, the court would refuse to extend time under s.29 because of a substantial unexplained delay (application filed 11 months after expiry), lack of material to justify the discretion and culpable delay despite absence of proven prejudice to the defendant.

Court Disposition

Application allowed in part: declaration that arbitration was commenced within time; alternatively extension of time refused; no order as to costs of the application

Orders

  • Declaration that the dispute was referred to arbitration within 12 months from 17 November 1992
  • If the court's primary finding were wrong, application to extend time under s.29 is refused