C v. D

FAMV No. 474 of 2022

[2022] HKCFA 25

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 474 OF 2022 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 387 OF 2021)

_______________________

_______________________

Appeal Committee: Mr Justice Ribeiro PJ, Mr Justice Fok PJ and Mr Justice Lam PJ

Date of Hearing and Determination: 12 December 2022

___________________________________

DETERMINATION

___________________________________

Mr Justice Ribeiro PJ:

1.The applicant seeks leave to appeal in respect of the following question:

“Is an arbitral tribunal’s determination on whether a pre-arbitration condition precedent in an arbitration agreement that the parties thereto should first attempt to resolve their dispute by a specified mechanism has been fulfilled subject to recourse to the Court under Articles 34(2)(a)(iii) of the UNCITRAL Model Law (as incorporated into Hong Kong law under sections 81(1)(2)(a)(iii) of the Arbitration Ordinance (Cap. 609))?”

2.We are satisfied that this is a question of general importance and since this is the first case in which it has fallen to be considered by a Hong Kong court, we grant leave to appeal confined thereto.

3.The appeal will be listed for hearing on 27 April 2023.

Mr Benjamin Yu SC, Ms Bonnie Y K Cheng and Mr Brian Lee, instructed by Baker & McKenzie, for the Plaintiff (Applicant)

Mr Simon Chapman, Solicitor Advocate, instructed by Herbert Smith Freehills, for the Defendant (Respondent)