EMPLOYER v. CONSULTANT

EMPLOYER v. CONSULTANT

Clause 44, by incorporating and referring to the HKIAC 1993 Domestic Arbitration Rules in the agreement made in 2002 between Hong Kong parties, provided by implication that the arbitration was intended to be domestic; therefore section 2 of Schedule 2 applies to the Agreement and the Court has power to order consolidation, which is appropriate given common questions of law and fact and efficiency considerations.

Citation
[2022] HKCFI 887
Parties
Employer: Employer Plaintiff; Consultant: Consultant 1st Defendant; Contractor: Contractor A 2nd Defendant; Contractor: Contractor B 3rd Defendant; Contractor: Contractor C 4th Defendant; Contractor: Contractor D 5th Defendant; Subcontractor: Subcontractor 6th Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 March 2022
Case Number
HCCT39/2021
Procedural Posture
Application to Consolidate Arbitrations Under the Arbitration Ordinance / Decision on Consolidation Application (interlocutory)
Outcome
Application granted
Legal Topics
Consolidation of Arbitrations, Domestic Arbitration, Transitional Application of Arbitration Regime, Incorporation of Arbitration Rules, Interpretation of Arbitration Agreements
Source Language
EN
Arbitration Construction Law Contract Law Civil Procedure Consolidation of Arbitrations Domestic Arbitration Transitional Application of Arbitration Regime Incorporation of Arbitration Rules +1 more

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Parties

Employer Plaintiff

Employer

Consultant 1st Defendant

Consultant

Contractor A 2nd Defendant

Contractor

Contractor B 3rd Defendant

Contractor

Contractor C 4th Defendant

Contractor

Contractor D 5th Defendant

Contractor

Subcontractor 6th Defendant

Subcontractor

Procedural Posture

Application to Consolidate Arbitrations Under the Arbitration Ordinance / Decision on Consolidation Application (interlocutory)

Legal Issues

  1. 1 Whether clause 44 of the consultancy agreement provided that the arbitration is a domestic arbitration for the purposes of section 100 of the Arbitration Ordinance
  2. 2 Whether such provision can be implied by incorporation of the HKIAC 1993 Domestic Arbitration Rules
  3. 3 Whether consolidation of the 1st Arbitration with the Consolidated Arbitration is appropriate

Ratio Decidendi

Clause 44, by incorporating and referring to the HKIAC 1993 Domestic Arbitration Rules in the agreement made in 2002 between Hong Kong parties, provided by implication that the arbitration was intended to be domestic; therefore section 2 of Schedule 2 applies to the Agreement and the Court has power to order consolidation, which is appropriate given common questions of law and fact and efficiency considerations.

Court Disposition

Application granted

Orders

  • Order that the 1st Arbitration under the Agreement be consolidated with the Consolidated Arbitration pursuant to section 2 of Schedule 2 of the Arbitration Ordinance Cap 609
  • Costs of the application to be paid by the Consultant to the Employer and to the Contractors; no costs sought by the Subcontractor