GAO HAIYAN AND ANOTHER v. KEENEYE HOLDINGS LTD AND ANOTHER

GAO HAIYAN AND ANOTHER v. KEENEYE HOLDINGS LTD AND ANOTHER

The Court set aside the ex parte enforcement order and refused enforcement because the minimalist account of the Shangri‑la mediation created a real risk of apparent bias under the Porter test; the Respondents did not waive the complaint by continuing the arbitration; the Xian Intermediate Court's dismissal did not...

Source-derived case information.

Citation
GAO HAIYAN AND ANOTHER v. KEENEYE HOLDINGS LTD AND ANOTHER
Parties
1st Applicant: Gao Haiyan; 2nd Applicant: Xie Heping; 1st Respondent: Keeneye Holdings Limited; 2nd Respondent: New Purple Golden Resources Development Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
12 April 2011
Case Number
HCCT41/2010
Procedural Posture
Construction & Arbitration Proceedings / Application to Set Aside Enforcement Order (challenge to Saunders J Ex Parte Enforcement Order)
Outcome
Order of Saunders J (2 August 2010) giving leave to enforce the Xian arbitration Award as a judgment of this Court is set aside; enforcement refused on public policy grounds due to real risk of apparent bias.
Legal Topics
Enforcement of Foreign (mainland) Arbitration Award, Apparent Bias, Med Arb, Waiver, Estoppel, Setting Aside Arbitration Award
Source Language
en
Arbitration Civil Procedure Public Policy Conflict of Laws Enforcement of Foreign (mainland) Arbitration Award Apparent Bias Med Arb Waiver +2 more

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Parties

Gao Haiyan

1st Applicant

Xie Heping

2nd Applicant

Keeneye Holdings Limited

1st Respondent

New Purple Golden Resources Development Limited

2nd Respondent

Procedural Posture

Construction & Arbitration Proceedings / Application to Set Aside Enforcement Order (challenge to Saunders J Ex Parte Enforcement Order)

Legal Issues

  1. 1 Whether enforcement of a Mainland arbitration award is contrary to Hong Kong public policy due to bias or apparent bias of the tribunal
  2. 2 Whether the Shangri‑la dinner amounted to med-arb and gave rise to a real risk of apparent bias (Porter test)
  3. 3 Whether the Respondents waived the right to complain by continuing the arbitration

Ratio Decidendi

The Court set aside the ex parte enforcement order and refused enforcement because the minimalist account of the Shangri‑la mediation created a real risk of apparent bias under the Porter test; the Respondents did not waive the complaint by continuing the arbitration; the Xian Intermediate Court's dismissal did not estop the Respondents from raising Hong Kong public policy objections; public policy against enforcing awards tainted by apparent bias overrides finality.

Court Disposition

Order of Saunders J (2 August 2010) giving leave to enforce the Xian arbitration Award as a judgment of this Court is set aside; enforcement refused on public policy grounds due to real risk of apparent bias.

Orders

  • Order setting aside Saunders J ex parte Order of 2 August 2010
  • Order Nisi that the Applicants pay the Respondents costs of the application to set aside (costs to be taxed unless agreed)