NIPPON KOKAN KOJI KABUSHIKI KAISHA v. KENON ENGINEERING LTD

NIPPON KOKAN KOJI KABUSHIKI KAISHA v. KENON ENGINEERING LTD

Clause 21.1 is ambiguous and, construed in context, is a mediation clause and not an arbitration clause; there is no valid arbitration agreement obliging Kenon to refer the disputes to arbitration; therefore the court will not stay the proceedings to arbitration and grants Kenon's declaration; NK3's stay applications are dismissed.

Citation
NIPPON KOKAN KOJI KABUSHIKI KAISHA v. KENON ENGINEERING LTD
Parties
Plaintiff (hca3492, Hcct21); Defendant (hca3973): Kenon Engineering Limited; Defendant (hca3492, Hcct21); Plaintiff (hca3973): Nippon Kokan Koji Kabushiki Kaisha (aka Nippon Kokan Koji Corporation)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
2 July 2003
Case Number
HCA3973/2002
Procedural Posture
Commercial Contract Dispute (applications Re Arbitration/mediation) / Hearing on Applications; Judgment Delivered (applications Heard Together)
Outcome
Kenon's originating summons in HCCT No.21 of 2003 granted (declaration that Clause 21.1 is not an arbitration clause and no valid arbitration agreement); NK3's stay applications dismissed.
Legal Topics
Arbitration Agreement Validity, Mediation Vs Arbitration, Stay to Arbitration, Jurisdiction of Arbitrator, UNCITRAL Model Law Interpretation, Construction of Dispute Resolution Clauses
Source Language
EN
Arbitration Law Contract Law Civil Procedure Arbitration Agreement Validity Mediation Vs Arbitration Stay to Arbitration Jurisdiction of Arbitrator UNCITRAL Model Law Interpretation +1 more

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Parties

Kenon Engineering Limited

Plaintiff (hca3492, Hcct21); Defendant (hca3973)

Nippon Kokan Koji Kabushiki Kaisha (aka Nippon Kokan Koji Corporation)

Defendant (hca3492, Hcct21); Plaintiff (hca3973)

Procedural Posture

Commercial Contract Dispute (applications Re Arbitration/mediation) / Hearing on Applications; Judgment Delivered (applications Heard Together)

Legal Issues

  1. 1 Whether Clause 21.1 of the Sub-Contract is an arbitration clause
  2. 2 Whether a valid arbitration agreement exists between the parties
  3. 3 Whether Clause 21.1 is superseded by Clause 5.5 of the 2nd Supplemental Agreement

Ratio Decidendi

Clause 21.1 is ambiguous and, construed in context, is a mediation clause and not an arbitration clause; there is no valid arbitration agreement obliging Kenon to refer the disputes to arbitration; therefore the court will not stay the proceedings to arbitration and grants Kenon's declaration; NK3's stay applications are dismissed.

Court Disposition

Kenon's originating summons in HCCT No.21 of 2003 granted (declaration that Clause 21.1 is not an arbitration clause and no valid arbitration agreement); NK3's stay applications dismissed.

Orders

  • Declaration that Clause 21.1 is not an arbitration clause and there is no valid arbitration agreement between the parties
  • Kenon's Originating Summons in HCCT No.21 of 2003 granted with costs (to be taxed if not agreed)