Read the full judgment text of HCCT 71/2018 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 10 December 2019 before Hon Mimmie Chan J.
Construction Arbitration — Arbitration Agreement — Scope of Parties — Affiliates — Anti-Suit Injunction — Breach of Arbitration Clause — Parallel Foreign Proceedings — Section 45 Arbitration Ordinance — Commercial Arbitration Jurisdiction — Vexatious Proceedings — Unconscionability. The dispute arose under a Master Agreement between SPA and Elan in which Elan was appointed as authorized retailer in Mainland China. SPA’s affiliates Shanghai, HK, and GA were shown to be parties to the MA through the affiliates’ definition, thus bound by the arbitration clause. Elan commenced arbitration in Hong Kong but also initiated parallel proceedings in Shandong against SPA and affiliates claiming tortious infringement relating to product rebranding, causing duplicative litigation and risk of inconsistent rulings. The Court found Elan’s Shandong Proceedings to be in breach of the MA arbitration clause and vexatious. It exercised its jurisdiction under section 21L and its inherent jurisdiction to grant declaratory relief and a permanent anti-suit injunction restraining Elan from pursuing the foreign proceedings, rejecting the argument that relief should be left to the Tribunal under section 45(4) Arbitration Ordinance. The Court ordered costs to Plaintiffs on an indemnity basis with two counsel certification.
Legal issues: Parties to the MA and arbitration agreement scope · Breach of arbitration agreement by Elan · Whether the court should grant anti-suit injunction rather than leave the matter to the tribunal under s.45(4) Arbitration Ordinance · Whether Elan's Shandong Proceedings are vexatious and oppressive
Outcome: Declaration granted that Elan breached the arbitration agreement by instituting Shandong Proceedings against SPA and its affiliates; permanent injunction granted restraining pursuit of Shandong Proceedings and related appeals; interim measures granted pending arbitration determination; costs awarded to Plaintiffs on indemnity basis with certificate for 2 counsel.
Cited by 6 cases · Cites 2 cases