OE1 AND ANOTHER v. SC

OE1 AND ANOTHER v. SC

The court held that Article 33(1)(a) did not permit correction of non‑clerical substantive omissions but the tribunal was entitled under Article 33(3) to issue an additional award because OE's claims for a perpetual royalty‑free licence and injunctive relief were claims presented in the arbitration but omitted from the dispositive part; accordingly the Addendum was valid, the setting aside application failed, enforcement of the Award as amended was granted, and additional grounds raised later were waived and dismissed.

Citation
[2020] HKCFI 2065
Parties
Plaintiff in HCCT 48/2019; Defendant in HCCT 66/2019: SC; 1st Defendant in HCCT 48/2019; 1st Plaintiff in HCCT 66/2019: OE1; 2nd Defendant in HCCT 48/2019; 2nd Plaintiff in HCCT 66/2019: OE2
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
24 August 2020
Case Number
HCCT66/2019
Procedural Posture
Construction and Arbitration Proceedings / Decision on Applications to Set Aside and for Enforcement (judgment Dated 24 August 2020)
Outcome
Setting Aside Application dismissed; Enforcement Application allowed; opposition to Partial Enforcement dismissed
Legal Topics
Setting Aside Arbitral Award, Correction and Additional Award (article 33 Model Law), Functus Officio, Enforcement of Award Under Arbitration Ordinance, Jurisdiction Challenges, Injunctive Relief, Contractual Licence Remedies
Source Language
EN
Arbitration Contract Civil Procedure Intellectual Property Enforcement Public Policy Setting Aside Arbitral Award Correction and Additional Award (article 33 Model Law) +5 more

Case Brief

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Parties

SC

Plaintiff in HCCT 48/2019; Defendant in HCCT 66/2019

OE1

1st Defendant in HCCT 48/2019; 1st Plaintiff in HCCT 66/2019

OE2

2nd Defendant in HCCT 48/2019; 2nd Plaintiff in HCCT 66/2019

Procedural Posture

Construction and Arbitration Proceedings / Decision on Applications to Set Aside and for Enforcement (judgment Dated 24 August 2020)

Legal Issues

  1. 1 Whether the tribunal had power under Article 33(1)(a) to correct omissions in the award
  2. 2 Whether the tribunal could make an additional award under Article 33(3) for claims presented but omitted
  3. 3 Whether the tribunal was functus officio when issuing the Addendum

Ratio Decidendi

The court held that Article 33(1)(a) did not permit correction of non‑clerical substantive omissions but the tribunal was entitled under Article 33(3) to issue an additional award because OE's claims for a perpetual royalty‑free licence and injunctive relief were claims presented in the arbitration but omitted from the dispositive part; accordingly the Addendum was valid, the setting aside application failed, enforcement of the Award as amended was granted, and additional grounds raised later were waived and dismissed.

Court Disposition

Setting Aside Application dismissed; Enforcement Application allowed; opposition to Partial Enforcement dismissed

Orders

  • Setting Aside Application (HCCT 48/2019) dismissed with costs on indemnity basis to OE
  • Enforcement Application (leave to enforce Award as amended) granted with costs to OE