Hong Kong Case Law: Decisions & Judgments

Topic

Model law article 8

Legal area

Court

3 May 2012

LIN MING AND ANOTHER v. CHEN SHU QUAN AND OTHERS

Citation

LIN MING AND ANOTHER v. CHEN SHU QUAN AND OTHERS
Court

Court of First Instance
Case number

HCMP552/2012

The court upheld the Deputy Judge's decision that the conditions for a mandatory stay under s.20 Cap.609/Model Law Art 8 were satisfied and that an injunction would be self-defeating; the Deputy Judge correctly exercised his discretion in finding the injustice to the defendants from an injunction outweighed any injustice to the plaintiff and that the plaintiff had created the concurrent proceedings; consequently the proposed appeal lacked a reasonable prospect of success and leave to appeal was refused.
23 Apr 2003

PACIFIC CROWN ENGINEERING LTD v. HYUNDAI ENGINEERING & CONSTRUCTION CO LTD

Citation

PACIFIC CROWN ENGINEERING LTD v. HYUNDAI ENGINEERING & CONSTRUCTION CO LTD
Court

Court of First Instance
Case number

HCCT83/2002

The court must apply a prima facie or plainly arguable test to determine whether an arbitration agreement exists; the onus is on the party seeking the stay to demonstrate a prima facie case that the parties were bound by an arbitration clause; where that threshold is met the court must grant a stay and leave the final determination to the arbitrator. In this case the defendant met the threshold and the stay was granted.
25 Nov 1999

HIP HING CONSTRUCTION CO. LTD. v. HOLYROOD LTD.

Citation

HIP HING CONSTRUCTION CO. LTD. v. HOLYROOD LTD.
Court

Court of First Instance
Case number

HCA16242/1999

Because the contract contained a valid arbitration clause and the defendant made no unequivocal admission as to liability or quantum, a dispute existed within the meaning of Model Law Art 8(1); referral to the architect was not a condition precedent to arbitration; therefore the court was obliged to stay proceedings and refer the matters to arbitration.
25 Nov 1999

HIP HING CONSTRUCTION CO. LTD. v. HOLYROOD LTD.

Citation

HIP HING CONSTRUCTION CO. LTD. v. HOLYROOD LTD.
Court

Court of First Instance
Case number

HCA15907/1999

Because the Defendant expressly disputed liability and quantum and the arbitration clause was valid and covered the matters in dispute, the court was required to stay both actions and refer them to arbitration under Article 8(1)/s.6; referral to the Architect was not a condition precedent and the Plaintiff bore the burden of proving any unequivocal admission that would oust the right to arbitration.
28 Sept 1999

CHUNG SIU HONG CELMENT AND OTHERS v. PRIMEQUINE CORPORATION LTD. AND OTHERS

Citation

CHUNG SIU HONG CELMENT AND OTHERS v. PRIMEQUINE CORPORATION LTD. AND OTHERS
Court

Court of First Instance
Case number

HCA10332/1999

The arbitration clause was capable of performance despite reference to a defunct or misnamed appointing body because the parties' common intention was to have the head of the New Zealand authority responsible for thoroughbred racing recommend an independent lawyer; disputes arising from the interpretation and operation of the agreements (including claims ancillary to dissolution and accounts) fall within the clause and must be referred to arbitration under Article 8 of the Model Law.
7 May 1999

SUN FOOK KONG (CIVIL) LTD. v. WELLEAD CONSTRUCTION & ENGINEERING CO. LTD. AND ANOTHER

Citation

SUN FOOK KONG (CIVIL) LTD. v. WELLEAD CONSTRUCTION & ENGINEERING CO. LTD. AND ANOTHER
Court

Court of First Instance
Case number

HCA3592/1999

Because SFK satisfied Article 8 by timely requesting referral and there was a prima facie arbitration agreement for both subcontracts (first signed, second evidenced in writing by proposals), the court had no discretion and was obligated to refer Wellead's counterclaim and claim to arbitration; the ultimate existence and scope of the arbitration agreement for the second subcontract is for the arbitrator to determine.
3 Dec 1998

COMTEC COMPONENTS LTD. v. INTERQUIP LTD.

Citation

COMTEC COMPONENTS LTD. v. INTERQUIP LTD.
Court

Court of First Instance
Case number

HCA5749/1998

The court must refer the parties to arbitration and stay the court proceedings under Article 8 because a valid arbitration agreement exists and the HKIAC's prior refusal to appoint does not render the agreement incapable of performance; parties can agree an arbitrator, the HKIAC can be asked to reconsider under the amended law, and the court has residuary jurisdiction to appoint an arbitrator to give effect to the parties' intention to arbitrate.
25 Nov 1998

SHELL HONG KONG LTD. v. ESA CONSULTING ENGINEERS LTD. AND ANOTHER

Citation

SHELL HONG KONG LTD. v. ESA CONSULTING ENGINEERS LTD. AND ANOTHER
Court

Court of First Instance
Case number

HCCT47/1997

The amended Arbitration Ordinance applies to the agreement; however the third defendant failed to satisfy the court that the plaintiff's action was in a matter subject to an arbitration agreement because the third defendant's own case denied any arbitration agreement with the plaintiff. A stay under Article 8/s6(1) requires that pre-condition to be met; absent it the court will dismiss the stay application.
16 Dec 1994

YORK AIRCONDITIONING & REFRIGERATION INC. v. LAM KWAI HUNG trading as NORTH SEA A/C ELECT. ENG. CO.

Citation

YORK AIRCONDITIONING & REFRIGERATION INC. v. LAM KWAI HUNG trading as NORTH SEA A/C ELECT. ENG. CO.
Court

Court of First Instance
Case number

HCA8176/1993

Although the underlying contract's proper law was PRC law, the bill of exchange was an autonomous negotiable instrument governed by Hong Kong law; therefore the CIETAC arbitration clause in the sales contract did not cover the claim on the bill and a stay under Article 8 of the Model Law was refused.
21 Jan 1994

ZHAN JIANG E & T DEV AREA SERVICE HEAD CO. v. AN HAU COMPANY LIMITED

Citation

ZHAN JIANG E & T DEV AREA SERVICE HEAD CO. v. AN HAU COMPANY LIMITED
Court

Court of First Instance
Case number

HCA10781/1993

The stay was granted because Article 8 mandates referral in the absence of an unequivocal admission; the 25 May 1993 letter was a settlement offer and not an unequivocal admission of liability or of the quantum claimed, and because quantum remained in dispute it must be determined by the arbitral tribunal in China.