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.
Arbitration Ordinance (Cap. 609) — Schedule 2 applicability — Domestic arbitration definition — Pre-commencement arbitration agreements — Section 100 provisions — Leave to appeal on questions of law — Principle of legality — Right of access to courts — Arbitration award enforcement. The plaintiff, Sun Tian Gang, applied to set aside and seek leave to appeal an arbitration award pursuant to sections 5 and 6 of Schedule 2 to the Arbitration Ordinance (Cap. 609) concerning an arbitration agreement entered before the Ordinance’s commencement. The defendant, Hong Kong & China Gas (Jilin) Limited, applied for leave to enforce the award. The key legal issue was whether the arbitration agreement 'provided' that the arbitration was domestic under section 100(a) of the Ordinance, thereby triggering the Schedule’s application and the right to appeal. The Court held that the arbitration clause lacked any express or implied provision that arbitration was domestic. The legislative intent of the Ordinance removed the distinction between domestic and international arbitrations unless the Schedule is explicitly adopted by the parties. The Court rejected arguments that the principle of legality or fundamental rights limited section 100's scope. The right of appeal under the Ordinance is excluded unless the Schedule applies. Consequently, there was no leave to appeal, no basis to set aside the award, and leave to enforce was granted. Costs were ordered on an indemnity basis against the plaintiff.
Legal issues: Applicability of Schedule 2 of Arbitration Ordinance to pre-commencement arbitration agreements · Right to access courts and principle of legality in construing section 100(a)
Outcome: Application for leave to appeal dismissed; setting aside application not pursued and dismissed; leave granted to enforce arbitration award.
Cites 5 cases