Read the full judgment text of HCCT 33/2023 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 7 March 2024 before Hon Mimmie Chan J in Chambers.
Arbitration — Setting aside arbitral award — Failure to deal with issue — Condition Precedent Defence and Tax Defence — Whether tribunal failed to consider issues raised by losing party— Pleadings and submissions — Agreed List of Issues — Arbitral procedure — Section 81 Arbitration Ordinance (Cap. 609)— The Plaintiffs challenged an arbitral award upholding Defendant’s exercise of an exit right under a Share Subscription and Purchase Agreement. Plaintiffs argued the tribunal failed to consider (i) the Condition Precedent Defence, that repurchase obligation was conditional on lease renewal authorization, and (ii) the Tax Defence, that tax liabilities should be deducted from Exit Price. The Court found the Condition Precedent Defence was not a live or key issue put to the tribunal as it was omitted from the Agreed List of Issues and not pursued in opening or closing submissions or hearing, consistent with arbitration’s adversarial nature requiring parties to identify key issues. Similarly, the Tax Defence was not pursued in submissions or hearing; the tribunal’s request for Exit Price calculation was answered without tax deductions, indicating abandonment of the issue. The Court dismissed the application to set aside the award and ordered costs against Plaintiffs on an indemnity basis.
Legal issues: Failure to deal with the Condition Precedent Defence · Failure to deal with the Tax Defence
Outcome: Dismissal of Plaintiffs’ application to set aside the arbitral Award
Cited by 2 cases · Cites 3 cases