Read the full judgment text of HCCT 64/2023, HCCT 84/2023 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 13 June 2024 before Hon Mimmie Chan J in Chambers.
Arbitration — Arbitration Ordinance (Cap. 609) — Sections 5 and 6 of Schedule 2 — Section 100 transitional provisions — Domestic vs international arbitration — Application of Schedule to arbitration agreements made before commencement of Ordinance — Whether arbitration agreement provides for domestic arbitration — Right to appeal on questions of law — Principle of legality — Fundamental rights restricted by clear statutory provisions. The disputes arise from the enforcement and appealability of a Partial Final Award made in arbitration commenced before the Ordinance came into effect. The core issue is whether the arbitration agreement, entered before 1 June 2011, 'provides that arbitration under the agreement is a domestic arbitration' so as to enable leave to appeal under the Schedule. The Court held that without express or implied provision in the agreement, the Schedule and rights therein do not apply, following authoritative decisions including A v D and Employer v Consultant. Arguments invoking fundamental rights and the principle of legality to expand appeal rights under section 100(a) were rejected, emphasizing the clear legislative intent to establish a unitary arbitration regime limiting court intervention and appeals unless expressly opted in. The Court dismissed the setting aside and leave to appeal applications and granted leave to enforce the Award, ordering costs against the unsuccessful party.
Legal issues: Whether the arbitration agreement provides for domestic arbitration under section 100 of the Arbitration Ordinance · Whether fundamental rights to access to courts restrict the application of section 100(a)
Outcome: Application to set aside the Award and for leave to appeal dismissed; leave granted to enforce the Award.
Cites 5 cases