Chen Chuang Xin v. Zhao Bin
Read the full judgment text of HCCT 59/2017 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 18 April 2018 before Hon Mimmie Chan J.
Arbitration — Enforcement of arbitration award — Application to set aside leave to enforce — Arbitration Ordinance Sections 84, 92, 93 and 95 — No arguable grounds for refusal of enforcement — Enforcement of Mainland award — Partial satisfaction of award — Application withdrawn in Mainland court — Court holds enforcement can proceed in Hong Kong to extent unsatisfied — Application dismissed with indemnity costs. The applicant sought enforcement in Hong Kong of an arbitration award involving Mainland proceedings. The respondent applied to set aside the enforcement order, relying on grounds under Section 95 of the Arbitration Ordinance. The court held that the Arbitration Ordinance sets exclusive grounds for refusal and that the first hearing can immediately dispose of unarguable applications. The respondent failed to show any ground to refuse enforcement. The court further noted that enforcement of Mainland awards is governed by Sections 84, 92, and 93 and partial satisfaction does not preclude enforcement of the unsatisfied part. The Mainland enforcement application was withdrawn with leave of the Mainland court; enforcement in Hong Kong was proper. The application to set aside was dismissed with costs on indemnity basis.
Legal issues: Enforcement and setting aside of arbitration awards
Outcome: Application to set aside the order granting leave to enforce the award dismissed with costs.
|
HCCT 59/2017 [2018] HKCFI 961 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTRUCTION AND ARBITRATION PROCEEDINGS NO 59 OF 2017 ______________
______________
__________________ D E C I S I O N __________________ 1.The Arbitration Ordinance sets out the exclusive and exhaustive grounds on which enforcement of an award can be refused. 2.The arbitration court has consistently held that the first hearing of a summons to set aside should not automatically be treated as the call-over hearing only. If, on the materials before the court, there are no arguable grounds for setting aside an order for enforcement of an award, the application can be disposed of immediately. This is in line with the aims and objectives of the Arbitration Ordinance and the public policy considerations of enforcing arbitration agreements and arbitration awards and ensuring Hong Kong’s observance of its obligations under the New York Convention. 3.In this case, neither the summons nor the affidavit in support establishes any ground to refuse enforcement of the award, on the grounds set out in Section 95 of the Ordinance. 4.Section 84 of the Ordinance applies to enforcement of Mainland awards by virtue of section 92. When leave is granted to enforce an award, judgment may be entered only in terms of the award, irrespective of whether the award has since been paid in part. 5.Section 93 of the Ordinance provides that if an application is made for enforcement on the Mainland, and the award has not been fully satisfied, the award is still enforceable to the extent that it has not been satisfied - subject, of course, to section 93. 6.The application made for enforcement on the Mainland has been withdrawn in this case, with leave of the Mainland court. Whether or not any charge on the property is released, so long as the award has not been fully satisfied, the award can be enforced in Hong Kong to the extent that it has not been satisfied. 7.On these grounds, the application to set aside the order granting leave to enforce the award is dismissed, with costs on an indemnity basis, in the usual way as ordered in the arbitration court.
Mr William M F Wong, SC, and Ms Stephanie Wong, instructed by S H Leung & Co, for the applicant Mr Man Hon-chiu, instructed by Peter Cheung & Co, for the respondent | |||||||||||||||||||