G v. N

G v. N

Where an award denies relief because of illegality the supervisory court must assess whether enforcing the award would now conflict with Hong Kong public policy as currently understood (Patel/Monat); errors by a tribunal in characterising public policy may justify suspension and remission under Article 34(4) rather than immediate setting aside; however contractual limits on remedies (clause 6.10(e)) are matters of construction and not jurisdictional if not timely pleaded, so that ground for setting aside was dismissed.

Citation
[2023] HKCFI 3366
Parties
Applicant/plaintiff: G; Respondent/defendant: N
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 December 2023
Case Number
HCCT28/2023
Procedural Posture
Construction and Arbitration Proceedings (enforcement and Setting Aside of Arbitral Awards) / Application to Set Aside Arbitral Awards Under Article 34/section 81; Proceedings Suspended and Remitted to Arbitrator Under Article 34(4); Interim Injunction Application Ongoing
Outcome
Application to set aside suspended and remitted to the arbitrator for 3 months under Article 34(4)/section 81; setting aside ground based on clause 6.10(e) dismissed; interim preservation order continued; costs orders made
Legal Topics
Setting Aside, Remission to Arbitrator, Enforcement, Interim Preservation Order, Proprietary Restitution, Unclean Hands, Jurisdiction Vs Admissibility, Scope of Arbitration Clause
Source Language
EN
Arbitration Public Policy Illegality Company Law Contract Law Enforcement of Awards Setting Aside Remission to Arbitrator +6 more

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Parties

G

Applicant/plaintiff

N

Respondent/defendant

Procedural Posture

Construction and Arbitration Proceedings (enforcement and Setting Aside of Arbitral Awards) / Application to Set Aside Arbitral Awards Under Article 34/section 81; Proceedings Suspended and Remitted to Arbitrator Under Article 34(4); Interim Injunction Application Ongoing

Legal Issues

  1. 1 Whether an arbitral award denying relief on grounds of illegality can be set aside as contrary to Hong Kong public policy given developments in law (Patel/Monat)
  2. 2 Whether the tribunal's assessment of public policy is reviewable by the court under Article 34/section 81
  3. 3 Whether clause 6.10(e) limiting award of consequential/special/punitive damages goes to tribunal jurisdiction or merely to admissibility/remedies

Ratio Decidendi

Where an award denies relief because of illegality the supervisory court must assess whether enforcing the award would now conflict with Hong Kong public policy as currently understood (Patel/Monat); errors by a tribunal in characterising public policy may justify suspension and remission under Article 34(4) rather than immediate setting aside; however contractual limits on remedies (clause 6.10(e)) are matters of construction and not jurisdictional if not timely pleaded, so that ground for setting aside was dismissed.

Court Disposition

Application to set aside suspended and remitted to the arbitrator for 3 months under Article 34(4)/section 81; setting aside ground based on clause 6.10(e) dismissed; interim preservation order continued; costs orders made

Orders

  • Proceedings under the Originating Summonss suspended for 3 months and remitted to the arbitrator under Article 34(4) of the Model Law (section 81 of the Ordinance); parties liberty to apply to vary the period
  • Application to set aside awards on ground that clause 6.10(e) deprived the tribunal of jurisdiction dismissed