Read the full judgment text of HCCT 46/2015 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 21 September 2016 before Hon Mimmie Chan J.
Construction and Arbitration Proceedings — Arbitration Ordinance (Cap 341) and Model Law — Validity of service of notice of arbitration — Alleged forged authorization for service on agent — Natural justice and due process — Whether respondent deprived of proper notice and opportunity to present case due to incarceration — Setting aside arbitral award — Time bar under Article 34(3) Model Law — Discretion to extend time granted — Limitation Order — Arbitration conducted in absence of party detained in Mainland China, no valid service at addresses relied upon by claimant — Party unable to participate or be represented — Enforcement of award contrary to public policy for breach of natural justice — Court holds that parties’ contractual notice provisions and Model Law deeming provisions can be rebutted by evidence of non-receipt — Burden on tribunal and parties to act in good faith during arbitration — Forged agency authorization invalid to confer service authority — Application to set aside award not out of time due to delayed receipt and exceptional circumstances of incarceration — Court exercises discretion to allow application, sets aside award, and grants Limitation Order excluding arbitration period from limitation calculations — Costs awarded to Sun Tian Gang with certificate for two counsel.
Legal issues: Validity of service of notice of arbitration · Whether Sun was unable to present his case in the arbitration · Whether enforcement of the award would be contrary to public policy · Whether Sun’s application to set aside the award was time barred · Whether the court has jurisdiction to make an order excluding time for limitation purposes
Outcome: The arbitral award is set aside. Leave is granted to Sun Tian Gang to apply to set aside the award notwithstanding the lapse of time. The Limitation Order is granted excluding the arbitration period from the limitation calculation. Costs ordered to be paid by the defendant to the plaintiff with certificate for two counsel.
Cites 1 case