S Co v. B Co

S Co v. B Co

The court held that the tribunal had jurisdiction over both the Balance Payment Claim and the S III Contract Claim because those disputes arose in the course of performance of the Cooperation Agreement and were properly referable under the Arbitration Clause; the tribunal's jurisdictional ruling was made in an award on the merits and therefore the correct challenge route was under Article 34; judicial review is de novo but confined to true questions of jurisdiction and should avoid merits review; S Co waived procedural objections by participation; accordingly both Article 16 and Article 34 applications were dismissed and costs awarded to B Co on an indemnity basis with certificates for...

Citation
S Co v. B Co
Parties
Plaintiff (respondent in the Arbitration): S Co; Defendant (claimant in the Arbitration): B Co
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
24 July 2014
Case Number
HCCT12/2013
Procedural Posture
Construction and Arbitration Proceedings / Decision (setting Aside Applications)
Outcome
Both the Article 16(3) and Article 34 applications dismissed
Legal Topics
Setting Aside Arbitral Award, Jurisdiction (competence Competence), Model Law Articles 16 and 34, Waiver and Estoppel, Costs
Source Language
EN
Arbitration Contract Civil Procedure International Arbitration Public Policy Setting Aside Arbitral Award Jurisdiction (competence Competence) Model Law Articles 16 and 34 +2 more

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Parties

S Co

Plaintiff (respondent in the Arbitration)

B Co

Defendant (claimant in the Arbitration)

Procedural Posture

Construction and Arbitration Proceedings / Decision (setting Aside Applications)

Legal Issues

  1. 1 Whether the arbitral tribunal had jurisdiction over the Balance Payment Claim and the S III Contract Claim
  2. 2 Whether the award deals with disputes outside the submission to arbitration or beyond the tribunal's scope
  3. 3 Whether S Co was unable to present its case

Ratio Decidendi

The court held that the tribunal had jurisdiction over both the Balance Payment Claim and the S III Contract Claim because those disputes arose in the course of performance of the Cooperation Agreement and were properly referable under the Arbitration Clause; the tribunal's jurisdictional ruling was made in an award on the merits and therefore the correct challenge route was under Article 34; judicial review is de novo but confined to true questions of jurisdiction and should avoid merits review; S Co waived procedural objections by participation; accordingly both Article 16 and Article 34 applications were dismissed and costs awarded to B Co on an indemnity basis with certificates for...

Court Disposition

Both the Article 16(3) and Article 34 applications dismissed

Orders

  • Article 16 originating summons dismissed with costs to B Co on an indemnity basis with certificate for two counsel
  • Article 34 originating summons dismissed with costs to B Co on an indemnity basis with certificate for two counsel