Hong Kong Case Law: Decisions & Judgments

Topic

Validity of arbitration agreement

Legal area

Court

23 Aug 2023

G v. P

Citation

[2023] HKCFI 2173
Court

Court of First Instance
Case number

HCCT110/2022

The Supplemental Agreement constituted a valid arbitration agreement because the lender's option to arbitrate, once exercised, bound the borrower; however the Award showed notice was given to a different email address than that specified in the Supplemental Agreement and there was no evidence the respondent had confirmed or used that alternative address, so the Notice of Arbitration was not properly served, the respondent lacked a reasonable opportunity to present his case, and the Enforcement Order was set aside under section 86(1)(c)(i) and (ii).
30 Jun 2023

KAMLING INTERNATIONA LTD v. FIRST RESOURCES (HK) DEVELOPMENT LTD

Citation

[2023] HKCFI 1713
Court

Court of First Instance
Case number

HCA281/2022

The court found there was a valid agreement to arbitrate and that the Defendant had shown a prima facie case that the arbitration agreement was subsisting and not inoperative; the parties ultimately agreed to refer the dispute to the Chengdu Arbitration Commission (CAC) and had been capable of reaching a supplemental agreement earlier, so the action was stayed to arbitration on the agreed terms; costs of the stay application up to 20 June 2023 were ordered against the Plaintiff on an indemnity basis due to the Plaintiff's unreasonable conduct.
30 Dec 2021

GD v. HY

Citation

[2021] HKCFI 3900
Court

Court of First Instance
Case number

HCCT76/2021

Clause 15 of the Loan Agreement required any amendment or variation to be in writing signed by the Parties as defined (GD, HY, SD, AEHL and HYL). The 5th Extension Letter, containing the arbitration clause, was not signed by all defined Parties and therefore did not validly vary the dispute resolution clause; consequently there was no valid arbitration agreement between GD and HY and the Enforcement Order based on the Emergency Award was set aside.
19 Oct 2020

CAPITAL WEALTH HOLDINGS LTD AND OTHERS v. 南通嘉禾科技投资开发有限公司

Citation

[2020] HKCFI 3025
Court

Court of First Instance
Case number

HCCT66/2020

An interim anti-suit injunction was appropriate and granted because there was a strongly arguable case that a valid arbitration agreement exists to be governed by Hong Kong law with HKIAC as seat, the plaintiffs had commenced arbitration and the arbitral tribunal should decide its own jurisdiction, the PRC proceedings (No. 89 and the WFOE Proceedings) concerned matters arguably covered by the arbitration clause and threatened to frustrate arbitration and enforcement, and substituted service on the defendant's Hong Kong lawyers was necessary and proportionate given urgency and notice requireme…
18 Oct 2018

Z v. Y

Citation

[2018] HKCFI 2342
Court

Court of First Instance
Case number

HCMP1771/2017

Recognition and enforcement of the Award was refused under section 95(3)(b) because the arbitral tribunal failed to give adequate reasons and to properly consider a central allegation that the underlying HD and MD contracts were sham and illegal under PRC law; that failure to address a material issue deprived the parties of reasonable expectations of due process and made enforcement contrary to Hong Kong public policy. Other grounds (capacity, duress, absence of arbitration agreement, notice) were considered and rejected on the evidence, but the inadequate reasoning on illegality was decisive.
12 Oct 2016

ARJOWIGGINS HKK2 LTD v. X CO

Citation

ARJOWIGGINS HKK2 LTD v. X CO
Court

Court of First Instance
Case number

HCCT53/2015

HKIAC was identifiable from the HKIAC Rules and the parties' subsequent adoption of Amended Terms of Appointment constituted a valid supplemental agreement under PRC law, the Respondent waived objections by participating and failing to promptly object, the Tribunal properly exercised jurisdiction over the Claimant's separate contractual claims under the JV Contract, and any alleged defect in the appointment of arbitrators did not amount to a denial of due process warranting setting aside the Award; accordingly the application to set aside the Order and Award is dismissed.
24 Dec 2014

廣東長虹電子有限公司 v. INSPUR ELECTRONICS (HK) LTD

Citation

廣東長虹電子有限公司 v. INSPUR ELECTRONICS (HK) LTD
Court

Court of First Instance
Case number

HCCT43/2013

IEL failed to prove the arbitration agreement or underlying contracts were invalid; the conduct and documentary evidence (use of IEL's name, receipt of US$720,000 into IEL's bank account, issuance of packing lists and the Termination Agreement acknowledging the Contracts) established consent/adoption so the arbitration clause was valid and a certified copy of clause 16 of Contract No 4300020410 satisfied s94; accordingly enforcement was not contrary to public policy and the application to set aside was dismissed.
24 Jan 2014

ASTRO NUSANTARA INTERNATIONAL B V AND OTHERS v. PT AYUNDA PRIMA MITRA AND OTHERS

Citation

ASTRO NUSANTARA INTERNATIONAL B V AND OTHERS v. PT AYUNDA PRIMA MITRA AND OTHERS
Court

Court of First Instance
Case number

HCCT45/2010

Because the Singapore Court of Appeal refused enforcement of the SIAC awards on the basis that no valid arbitration agreement existed and the Tribunal lacked power to join Astro, that intervening decision materially undermines the basis for the Hong Kong judgment debt; consequently it was just to stay execution of the Garnishee Order Absolute under O 45 r 11 RHC pending determination of the related challenges, and to refuse Astro's out-of-time application to vary the costs order nisi and to refuse variation to indemnity costs; costs of the stay to be in the cause and the variation application…
7 May 2004

NIPPON KOKAN KOJI KABUSHIKI KAISHA v. KENON ENGINEERING LTD

Citation

NIPPON KOKAN KOJI KABUSHIKI KAISHA v. KENON ENGINEERING LTD
Court

Court of Appeal
Case number

CACV215/2003

Clause 21.1 of the subcontract was not an arbitration agreement but a mediation clause; it was not arguable that it constituted an arbitration agreement in context and, in any event, was superseded by clause 5.5 of the 2nd supplemental agreement dealing with settlement of the final account; where the question is a pure issue of construction and the arbitration point is not arguable the court may determine the matter rather than refer it to the arbitrator; the trial judge did not err in refusing to stay the proceedings.
2 Jul 2003

KENON ENGINEERING LTD v. NIPPON KOKAN KOJI KABUSHIKI KAISHA

Citation

KENON ENGINEERING LTD v. NIPPON KOKAN KOJI KABUSHIKI KAISHA
Court

Court of First Instance
Case number

HCA3492/2002

Clause 21.1 is ambiguous and expressly refers to a "mediation procedure"; given the parties' trade experience and the express reference to mediation the clause cannot be construed as an arbitration agreement obliging Kenon to refer disputes to arbitration. The court has jurisdiction to determine existence of an arbitration agreement for the purposes of Article 8 and it is impracticable to refer the question back to the arbitrator in the circumstances; accordingly there is no valid arbitration agreement and NK3's stay applications fail while Kenon's declaratory relief is granted.