SUN FOOK KONG (CIVIL) LTD. v. WELLEAD CONSTRUCTION & ENGINEERING CO. LTD. AND ANOTHER

SUN FOOK KONG (CIVIL) LTD. v. WELLEAD CONSTRUCTION & ENGINEERING CO. LTD. AND ANOTHER

Because SFK satisfied Article 8 by timely requesting referral and there was a prima facie arbitration agreement for both subcontracts (first signed, second evidenced in writing by proposals), the court had no discretion and was obligated to refer Wellead's counterclaim and claim to arbitration; the ultimate existence and scope of the arbitration agreement for the second subcontract is for the arbitrator to determine.

Citation
SUN FOOK KONG (CIVIL) LTD. v. WELLEAD CONSTRUCTION & ENGINEERING CO. LTD. AND ANOTHER
Parties
Plaintiff / First Defendant (in Second Action): SUN FOOK KONG (CIVIL) LIMITED; First Defendant / Plaintiff (in Second Action): WELLEAD CONSTRUCTION & ENGINEERING CO. LTD.; Second Defendant: KWAN WAH CHOI
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
7 May 1999
Case Number
HCA3592/1999
Procedural Posture
Application to Refer Disputes to Arbitration / Interlocutory Judgment on Summons to Refer to Arbitration (chambers)
Outcome
Wellead's counterclaim in action 2852/99 and its claim in action 3592/99 are referred to arbitration; order nisi that Wellead pay SFK's costs.
Legal Topics
Referral to Arbitration, Arbitration Agreement in Writing, Model Law Article 8, Arbitration Ordinance S.2 AC
Source Language
EN
Arbitration Contract Civil Procedure Referral to Arbitration Arbitration Agreement in Writing Model Law Article 8 Arbitration Ordinance S.2 AC

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Parties

SUN FOOK KONG (CIVIL) LIMITED

Plaintiff / First Defendant (in Second Action)

WELLEAD CONSTRUCTION & ENGINEERING CO. LTD.

First Defendant / Plaintiff (in Second Action)

KWAN WAH CHOI

Second Defendant

Procedural Posture

Application to Refer Disputes to Arbitration / Interlocutory Judgment on Summons to Refer to Arbitration (chambers)

Legal Issues

  1. 1 Whether SFK made a timely request to refer disputes to arbitration under Article 8 of the Model Law
  2. 2 Whether the sub-contracts (first signed, second via correspondence) contain binding arbitration agreements in writing
  3. 3 Whether the court has discretion to refuse referral under Article 8

Ratio Decidendi

Because SFK satisfied Article 8 by timely requesting referral and there was a prima facie arbitration agreement for both subcontracts (first signed, second evidenced in writing by proposals), the court had no discretion and was obligated to refer Wellead's counterclaim and claim to arbitration; the ultimate existence and scope of the arbitration agreement for the second subcontract is for the arbitrator to determine.

Court Disposition

Wellead's counterclaim in action 2852/99 and its claim in action 3592/99 are referred to arbitration; order nisi that Wellead pay SFK's costs.

Orders

  • Refer Wellead's counterclaim in action No. 2852/99 to arbitration.
  • Refer Wellead's claim in action No. 3592/99 to arbitration.