Read the full judgment text of HCCT 62/2020 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 24 May 2021 before Hon Mimmie Chan J.
Arbitration — Enforcement of Mainland arbitral award — Arbitration Ordinance (Cap 609) ss.84(1), 84(2) — Public policy — Scope of arbitration agreement — Specific performance — Marketing costs — Alternative relief — Costs and fees — Severability — New arbitration — Distributorship agreement. The applicant G obtained an order to enforce a CIETACaward dated 3 July 2020 against respondent S, ordering specific performance of a 2018 Cooperation Agreement, payment of marketing costs, supply of samples or equivalent payment, and arbitration costs. After the award, S purported to terminate the 2018 Agreement on new grounds and G commenced new arbitration claims for damages on the Mainland. S applied to set aside the enforcement order contending enforcement of the Specific Performance Order was contrary to public policy and that parts of the award fell outside the arbitration scope. The Court rejected the public policy argument, holding that new termination grounds do not invalidate the award and that impossibility of performance is not a ground for setting aside. The Court confirmed that it may enforce severable parts of an award excluding objectionable parts and accepted that the marketing costs and alternative relief fell within the arbitration agreement scope as the 2018 Agreement superseded the 2017 Agreement. The concurrent new arbitration claims on Mainland do not preclude enforcement in Hong Kong. The application to set aside the enforcement order was dismissed except that G no longer sought to enforce specific performance but may enforce other parts of the award. Costs were awarded on an indemnity basis with certificate for one counsel.
Legal issues: Enforcement of Specific Performance Order and public policy · Enforcement of severable parts of award excluding Specific Performance Order · Scope of arbitration agreement regarding marketing costs and alternative relief · Whether enforcement of Award parts inconsistent with new arbitration claims
Outcome: Dismissal of application to set aside enforcement order except enforcement no longer sought for Specific Performance Order; leave granted to enforce Marketing Costs Order, Alternative Relief Order and Costs and Fees Order
Cited by 4 cases · Cites 4 cases