T v. A AND ANOTHER

T v. A AND ANOTHER

The court determined that the Subrogation Form, viewed under PRC law as the proper law of that document, effected an assignment of T's rights to A while expressly preserving an assistance/permission clause enabling proceedings in T's name where required; under English/Hong Kong law an equitable assignee pursuing assigned rights against the obligor normally must join the assignor or use the assignor's name where joinder is required; on that basis A had authority to commence the Hong Kong-seated arbitration in T's name and the Arbitral Tribunal has jurisdiction over T, therefore the originating summons was dismissed.

Citation
[2018] HKCFI 1756
Parties
Applicant: T; 1st Respondent: A; 2nd Respondent: V
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 July 2018
Case Number
HCCT57/2017
Procedural Posture
Construction and Arbitration Proceedings / Originating Summons (jurisdiction) Judgment of Court of First Instance
Outcome
Originating Summons dismissed; Arbitral Tribunal has jurisdiction over T
Legal Topics
Subrogation, Assignment, Arbitral Jurisdiction, Choice of Law, Equitable Assignment, Joinder of Parties
Source Language
EN
Arbitration Law Insurance Law Maritime Law Contract Law Conflict of Laws Subrogation Assignment Arbitral Jurisdiction +3 more

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Parties

T

Applicant

A

1st Respondent

V

2nd Respondent

Procedural Posture

Construction and Arbitration Proceedings / Originating Summons (jurisdiction) Judgment of Court of First Instance

Legal Issues

  1. 1 Whether the on-going arbitration was commenced with T's authority or consent
  2. 2 Whether A as subrogated insurer had authority to commence the arbitration in T's name
  3. 3 Proper law of the Subrogation Form

Ratio Decidendi

The court determined that the Subrogation Form, viewed under PRC law as the proper law of that document, effected an assignment of T's rights to A while expressly preserving an assistance/permission clause enabling proceedings in T's name where required; under English/Hong Kong law an equitable assignee pursuing assigned rights against the obligor normally must join the assignor or use the assignor's name where joinder is required; on that basis A had authority to commence the Hong Kong-seated arbitration in T's name and the Arbitral Tribunal has jurisdiction over T, therefore the originating summons was dismissed.

Court Disposition

Originating Summons dismissed; Arbitral Tribunal has jurisdiction over T

Orders

  • Dismissal of Originating Summons dated 12 October 2017
  • T to pay the costs of A and V of this action, to be taxed if not agreed