Read the full judgment text of CACV 113/2019, CACV 122/2019 on BabelCite. This Court of Appeal judgment was delivered on 18 September 2020 before Kwan VP, Cheung JA, Barma JA.
Arbitration – leave to appeal to Court of Final Appeal – arbitration between construction joint venture and sub-contractor concerning Hong Kong to Guangzhou Express Rail Link – interpretation of contractual Measurement Rules M12A to M12G for diaphragm wall panel excavation – measurement and payment of 'Toe in to Rock' (TITR) – Arbitration Ordinance, Cap 609, Schedule 2 – section 5(1) and section 6(4)(c)(ii) – threshold for leave to CFA being 'great general or public importance' – whether questions of contractual construction of MRs for Contract 823B satisfy the threshold – whether construction of contract is question of law or mixed question of law and fact – standard of review of arbitrator's decision – degree of deference to arbitrator's expertise – whether Hong Kong position is unclear and requires CFA clarification – relevance of Canadian and US authorities based on different legislation – whether CA Judgment on Ground 2 contradicts standard engineering and construction practice – whether decision relates to determination of actual founding levels or measurement of TITR for payment – whether two possible constructions are required before resort to business common sense – whether court can take holistic view of relevant circumstances – exercise of residual 'or otherwise' discretion – exceptional circumstances – whether monetary significance or importance of Hong Kong as arbitration seat amounts to exceptional circumstances – allegations regarding CA Judgment treatment of RQD, 'unworkable' construction analysis, additional factual contentions, and category 1(c) rock findings – dismissal of notice of motion – costs ordered to follow the event – costs assessed at $531,102.20.
Legal issues: Whether questions in paragraph 1(1) of the notice of motion are of great general or public importance · Whether questions in paragraph 1(2) and (3) regarding standard of review for contractual construction require CFA clarification · Whether the CA Judgment on Ground 2 contradicts standard engineering practice · Whether the question in paragraph 1(5) regarding business common sense requires CFA clarification · Whether leave should be granted on the residual 'or otherwise' limb
Outcome: Leave to appeal to the Court of Final Appeal refused; notice of motion dismissed.
Cited by 14 cases · Cites 9 cases