Friendship Shipping and Trading S.A. v. I.V.L. Dhunseri Polyester Company S. A. E.
Read the full judgment text of HCCT 66/2024 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 19 November 2024 before Deputy High Court Judge R. Ismail S.C. in Chambers.
Anti-suit injunction — Arbitration agreement — Bills of lading and incorporation of charterparty terms — Single voyage charterparties — Standard of proof for arbitration clause existence — Appropriate jurisdiction under Arbitration Ordinance s.45 and High Court Ordinance s.21L — Applicable standard is prima facie case — Analysis of incorporation and identification of charterparty terms — Delay and conduct by claimant in pursuing Hong Kong arbitration and foreign proceedings — Equitable considerations including delay, comity, and clean hands — Rejection of anti-suit injunction due to inadmissible evidence and advanced stage of foreign proceedings — Directions for costs are ordered. The Defendant, an Egyptian company, brought proceedings in Egypt for damaged cargo carried from China on the Plaintiff’s vessel. The Plaintiff issued notices alleging breach of a Hong Kong arbitration clause in the bills of lading. The Court found the Plaintiff failed to file admissible sworn evidence supporting its application and declined to grant the injunction due to Plaintiff’s delay, incomplete disclosure, and procedural conduct, combined with significant progress in the Egyptian litigation, which militated against the exercise of equitable jurisdiction. The threshold for establishing the arbitration agreement was held to be a prima facie case under s.45 of the Arbitration Ordinance. The Court declined relief having regard to the advanced foreign proceedings and Plaintiff's conduct, dismissing the Plaintiff's origins summons. Written submissions on costs were directed.
Legal issues: Applicable standard of proof for existence of arbitration agreement in ASI application · Existence of Hong Kong arbitration agreement between parties · Appropriateness of granting an anti-suit injunction (ASI)
Outcome: The originating summons is dismissed; anti-suit injunction is refused.
Cited by 1 case · Cites 7 cases
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HCCT 66/2024 [2024] HKCFI 3180 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTRUCTION AND ARBITRATION PROCEEDINGS NO. 66 OF 2024 __________________
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_______________ J U D G M E N T _______________ A. Introduction 1.This is the substantive hearing of P’s application by Originating Summons filed on 13 June 2024 (the “OS”) for an anti-suit injunction (“ASI”) against D to restrain civil proceedings brought by D on 21 June 2023 in Egypt against P and/or P’s bareboat-chartered vessel the True Friendship (the “Vessel”) (the “Egyptian Action”). 2.D is a company conducting business in Egypt. D is the purchaser of cargo which was shipped from China to Egypt on the Vessel effectively owned by P. The cargo was damaged. On 21 June 2023, D commenced the Egyptian Action against P and others. On 10 August 2023, P served a notice of arbitration in Hong Kong on D, which D rejected. No further steps were taken in the Hong Kong arbitration until June 2024 when P sought to appoint arbitrators. Significant hearings and filings have occurred in the Egyptian Action, including final submissions made on jurisdiction and the merits, and the Egyptian Court has reserved judgment to 28 November 2024. 3.P contends on this OS that the Egyptian Action is brought in breach of Hong Kong arbitration agreements forming part of contracts of carriage evidenced by two bills of lading issued on 17 April 2023 (the “Bills”). D disputes that there is any Hong Kong arbitration agreement in the Bills, and asserts that even if P could establish (to the required standard) the applicability of an Hong Kong arbitration clause, the circumstances of this case do not justify an exercise of the Court’s discretion to make and ASI. 4.D has raised a preliminary issue, namely, that P has not filed admissible evidence in support of its OS, and accordingly the OS should be dismissed. B. Admissibility of P’s evidence Material Facts 5.I turn to look at the way the OS has come before me for substantive hearing.
Legal Principles 6.RHC O.28 r.1A requires that an OS be supported by affidavit / affirmation evidence (which I will refer to collectively as an affidavit). 7.O.41 rr.1-3 set out the formal requirements of an affidavit. 8.O.41 r.4 provides that an affidavit may, with the leave of the Court, be filed or used in evidence notwithstanding any irregularity in the form thereof. In the context, in my view, r.4 is concerned with waiving irregularities of form of the type identified in rr. 1-3. 9.O. 41 r. 5 provides in respect of the contents of an affidavit:
10.O.41 r.9 provides that every affidavit used in a cause or matter must be filed with the Registry; and states what indorsements are required for filing. 11.O. 41 r.10 provides for the use of an original affidavit despite its not having been filed; or the use of an office copy of an affidavit after it has been filed. 12.Mr Kwok referred me to those rules with the submission that none of them are apposite to the present facts. Mr Alder has not submitted that there is any provision in the rules which would enable me to admit office copies of affidavits which have not been filed with the Registry. In oral submissions, Mr Alder expressly disavowed reliance on O.41 r.5(2) which had been raised in his skeleton argument (and in my view, he did so correctly, given the final nature of this hearing on the OS and the fact that Mr Tsui does not depose to any belief in the relevant matters). 13.I have been directed to authority concerning the substantive significance of compliance with the rules on sworn affidavit evidence. In The Ka Wah Bank Ltd v Low Chung Song(unrep.) HCA 4191/1987, 23 June 1988, an affirmation was taken in Taiwan before a Hong Kong solicitor instead of a notary. DHCJ Cruden stated at p. 13:
14.I also have regard to the decision to similar effect of Recorder McCoy SC in Top Flying Investment Ltd v Open Mission Assets Ltd [2006] 4 HKLRD 83 at paras. 30-31. 15.A fortiori, where the “affidavits” have not been sworn before anyone at all, the documents are not merely “irregular”. Further, the filing of an affidavit is a substantive step: having made the affidavit, another positive step is made when filing it as the document upon which the party seeks to rely and which the party asks the court to accept as factually correct. A failure to file an affidavit is material. Where the affidavit is said to have been sworn but it has not been filed with the Registry, I consider that the document is not merely “irregular”. Analysis 16.On the basis of the rules and these persuasive authorities, it does not seem to me to be a case where I have the discretion to treat the lack of due execution and filing of the evidence as a matter which can be cured. I do not understand Mr Alder to have advanced any jurisdictional basis to found such a discretion; he simply requested that I receive the evidence de bene esse. I do not see how that course is open to me where the evidence is, on the rules, inadmissible. 17.In any event, even if I had a discretion to treat the unfiled evidence as admissible, I would not do so for the following reasons.
18.No application was made to me to adjourn the hearing of the OS. 19.In the circumstances, P’s OS is, as at the date of the substantive hearing, not supported by admissible evidence. I therefore dismiss the OS. C. Consideration of the substantive arguments 20.In case I am found to be wrong in dismissing the OS on the grounds of the inadmissibility of P’s evidence, I will set out my findings on the parties’ arguments having considered the evidence de bene esse. As indicated earlier, I do not consider it appropriate to determine the substantive issues by looking at only the admissible parts of the evidence, as D’s evidence is premised on being responsive to P’s inadmissible evidence and therefore does not exhibit all relevant documents, and self-evidently does not present the whole picture. 21.The issues are:
Issue 1: Applicable standard of proof as to existence of arbitration agreement for ASI 22.At the hearing, Mr Alder on behalf of P advanced the OS pursuant to s.45 of the Arbitration Ordinance (Cap. 609) (the “AO”) and/or s.21L of High Court Ordinance (Cap. 4) (the “HCO”). D submits that s.45 AO is inapplicable and that only s.21L is relevant. 23.S. 45(2) of the AO provides:
24.S.35 of the AO incorporates Article 17 of the Model Law which states:
25.I have been referred to the obiter dicta of G Lam J (as he then was) in Ever Judger Hldg Co Ltd v Kroman Celik Sanayii Anonim Sirketi[2015] 2 HKLRD 866 at paras.29-35 where jurisdiction was not in issue; and to the subsequent decision of M. Chan J in GM1 v KC[2020] 1 HKLRD 132 at paras 12-14, determined after hearing full argument and considering the reservations of G Lam J. 26.I note that G Lam J was concerned as to (1) whether the ASI sought was an interlocutory injunction pending the hearing of the OS for final relief under s.21L rather than an interim measure under s.45(2) AO pending the issuance of an award in the HK arbitration (although both counsel assumed the latter); (2) the anomaly that an order under s.21L would be appealable whereas an order under s.45(2) of the AO would not; (3) how an ASI would fall within the meaning of an interim measure under s.35 of the AO as it was not clear to him how foreign proceedings would cause harm to or prejudice the arbitral process itself. I set that out because Mr Kwok argued primarily that s.45 AO was not applicable because the OS seeks final relief rather than interim relief. 27.M Chan J observed in GM1 that “interim measure” as defined by Article 17 of the Model Law concerned temporary measures a party is ordered to take at any time prior to the issuance of an arbitration award. She had regard to the context of the AO which was to facilitate fair and speedy dispute resolutions by arbitration, and the basic principle of the AO that parties should be free to agree on the method of dispute resolution. She considered that an injunction to enforce the positive promise of a party to arbitrate disputes and the negative right not to be vexed by foreign proceedings could be viewed as an interim order which (1) maintains the status quo of parties which have already commenced their arbitration, and (2) restrains a party from commencing or continuing proceedings instituted in breach of an arbitration agreement, where the continuation of such proceedings must inevitably prejudice the arbitral process, the tribunal’s conduct of the arbitration and the orders to be made by the tribunal in the process. 28.Mr Kwok sought to distinguish GM1 on the basis that the decision was whether to grant an interim ASI pending the filing of evidence and the full hearing of the originating summons seeking a final ASI. However, M Chan J clearly decided that s.45 AO gave the Court jurisdiction to order an ASI at any time up until the issuance of the arbitration award (para. 12). 29.I therefore agree that the Court has jurisdiction under both s.45 of the AO and s.21L of the HCO to order an ASI. The question is whether that makes any relevant difference to the outcome of the application. 30.Mr Kwok on behalf of D submits that the difference is relevant for two reasons (and Mr Alder on behalf of P did not disagree):
31.P relied on GM1 para. 22 and a very recent decision of the Singapore Court of Appeal in Asiana Airlines Inc v Gate Gourmet Korea Co Ltd [2024] SGCA(I) 8 at paras.92-95 to submit that it only needed to establish a prima facie case of a binding arbitration clause, and full argument on the issue could be left to the arbitral tribunal. 32.D argued on the basis of English and Hong Kong authority that P must establish a high degree of probability that there was an arbitration agreement that governed the relevant dispute. 33.The English Court of Appeal decision in Ecobank Transnational Inc v Tanoh[2016] 1 WLR 2231 comprehensively reviewed the Court’s approach to an ASI application. At paras. 89-91, Christopher Clarke LJ (with whom the rest of the Court agreed) held that an applicant for an ASI had to show a high degree of probability that there was an arbitration agreement that governed the dispute in question. The rationale for the high probability test is that if an ASI is granted it is likely to be final because, in practice, it will end the foreign proceedings for at least sufficient time to enable the arbitration to take place. 34.D sought to rely on Liaoyang Shunfeng Iron and Steel Co Ltd v Yeung Tsz Wang (CACV 234/2011, 14 June 2012) where Bharwaney J adopted a test of “high degree of probability” of the applicant establishing his case, and Hartmann JA adopted a test of “strong or convincing prima facie case”. Bharwaney J was persuaded by counsel that these higher standards must be met in every case seeking an ASI whether based on an exclusive jurisdiction clause or unconscionable conduct. That is because a breach of an exclusive jurisdiction clause is a species of wrongful conduct; and more importantly, the effect of an ASI is likely to be final. P is right to point out that Liaoyang was itself an unconscionable conduct case rather than an application based on a contractual clause. However, in light of Bharwaney J’s explanation for stating the test to be the same for both, I see no reason to distinguish Liaoyang on that basis. P’s better point is that Liaoyang was not concerned with a s.45 AO or equivalent application. 35.D also relied on the following passage from Commercial Injunctions, Gee, 7th ed. to the effect that the high degree of probability test applies:
36.However:
37.As long as the Court is exercising its discretion under s.21L to grant an injunction where it appears to the court to be just or convenient to do so, I see that the rationale of applying the higher standard to applications likely to lead to a final conclusion pertains. However, where the Court is asked to order interim relief under the AO in order to facilitate the arbitral tribunal to determine both its own competence and process, and to make decisions as it sees fit, then that rationale falls away, as the Court serves as a filter for the arbitral tribunal. 38.I do note that P did not elect which jurisdiction it was relying upon, and sought relief under both, to which end it sought leave to serve the OS out of the jurisdiction. I heard no submissions as to the relevance of no election. Notwithstanding s.21L of the HCO is of general application and theoretically available to P, this is a case where P has initiated arbitration so s.45 of the AO appears to me to be the most appropriate jurisdiction. 39.For present purposes, I consider that P must satisfy the Court of a prima facie case of an arbitration agreement. Issue 2: Does P satisfy the prima facie threshold as to the existence of a Hong Kong arbitration agreement? 40.Mr Alder agreed Mr Kwok’s chronology. I will consider the material facts relating to the formation of the contracts chronologically. 41.P and D have had no previous dealings. 42.On 20 March 2023, D purchased a quantity of purified terephthalic acid (“PTA”) from one of its suppliers, Jiangyin Golden Bridge Chemical Co Ltd (“Jiangyin”) at US$770 per metric tonne. Jiangyin and the PTA purchased were in China, so the PTA had to be shipped to D in Egypt. 43.On 30 March 2023, P time chartered the Vessel to Sinoway for a duration of 60 days. (the “Time Charter”) 44.On 5 April 2023, D entered into a voyage charterparty with ISS Global Forwarding India Pvt Ltd (“ISS Global”) to ship the PTA purchased from Jiangyin (“1st VCP”). 45.This was followed by 3 sub-voyage-charters for D’s cargo:
46.The 1st-4th VCPs specified the “Talbot” as vessel, but there is no dispute that the Vessel was substituted instead. 47.On 17 April 2023, the Bills were issued in China on behalf of the master of the Vessel. It is these Bills which P states incorporate the arbitration agreements by reference. The Bills are as follows:
48.P has exhibited the partial Bills (i.e. 1 page only) along with a sample copy of “Conditions of Carriage”. Condition (1) of the sample copy is “All terms and conditions, liberties and exceptions of the Charter Party, dated as overleaf, including the Law and Arbitration Clause, are herewith incorporated.” 49.Sabra 1 para 49 on behalf of P states: “The [Bills] are on the CONGENBILL ’94 form. The reverse side of the [Bills] have not been provided to [P]. However, the standard terms on the reverse of that form state:” and he sets out Condition (1) from the sample copy as I have set out above. 50.Mangalore para 18 on behalf of D simply observes that P has not provided the Court with evidence of the actual overleaf page of the Bills or what they state. 51.Neither party has given evidence of how the Bills have been presented by them in the Egyptian Action which has both the jurisdictional challenge and the substantive dispute before it. 52.D has taken the approach on this application of putting P to proof and has not descended into evidence of whether D has the actual reverse of the Bills or has any knowledge of the contents of the reverse. Mr Alder submits that D has not suggested that any terms other than the standard were adopted. That is true. Further, Mr Kwok has submitted that even if Condition (1) were applicable, this does not advance matters because it seeks to incorporate terms of the “Charter-Party, as dated overleaf”, so it is circular and brings one back to identification of the charterparty referred to on the main part of the Bills. I agree. 53.The real issue is which charterparty is to be used with the Bills. The only reference to a dated charterparty on the main part of the Bills is in the “freight payable” box. 54.The parties are agreed that where the relevant charterparty has not been identified on a bill of lading, it is for the Court to determine which charter-party is incorporated by considering which as a matter of commercial sense contains terms that are apposite/applicable to the bill of lading at hand (and, conversely, which contains terms that are inapposite/inapplicable) eg. The San Nicholas [1976] 1 Lloyd’s Rep 8 at 11, 12. I have been shown authority that the incorporated document might not even strictly speaking be a charterparty, as long as it is clear which written terms were agreed by the parties: Welex AG v Rosa Maritime Ltd [2003] 2 Lloyd’s Rep 509. 55.It is common ground that the head charter to which P as the effective ship owner is party is the Time Charter, and that that is not appropriate to be incorporated into the Bills relating to single voyages. 56.Neiher P nor D gave factual evidence as to which charterparty is most appropriate to be incorporated but rather stated their positions and treated the issue as a question of law. 57.Mr Alder submits that D was not a party to the Bills, and the Court should look for clauses that the owner would want to include in the Bills germane to the carriage of goods. He submits that the most appropriate charterparty to be incorporated is the 4th VCP. Clearly, P was party to the Time Charter and none of the VCPs. Mr Alder submitted that despite the Bills referring to the relevant charterparty in the context of freight, freight provisions were not the most important terms of the Bills, and P would not be interested in freight charges because P would earn hire under the Time Charter not freight. He submitted that, in any event, all the voyage charterparties provided for payment of freight. 58.Mr Kwok on behalf of D makes the following points:
59.Mr Kwok took the Court to the evidence and showed that indeed only the 1st VCP, and none of the others, provided the amount to be paid for freight. 60.In reply, Mr Alder stated that this was an unexplained oddity, but as a matter of commercial sense, each of the voyage charterparties would charge different amounts for freight with the highest price being paid by D to the final sub-charterer with freight charges being cheaper the further you go up the chain towards the top voyage charterparty. I see that that sounds plausible, but it is not a matter addressed in P’s evidence. 61.It seems to me that the key terms of the contract for the carriage of goods include the identification of the cargo, places of loading and discharge, instructions as to manner of carriage, and payment for carriage. 62.P was the disponent owner of the Vessel but not the direct charterer in respect of the voyage for D’s cargo. Sinoway, the time charterer, would be primarily interested in the terms for the specific voyage. D was the notify party on the Bills rather than the direct consignee/receiver, but subject to financial arrangements with the consignee, was envisaged to be the ultimate holder of the Bills, and also directly interested in the terms for the specific voyage. There was no direct charterparty between Sinoway and D, however. Which of the charterparties is most appropriate to be incorporated in the Bills? Is it the one to which Sinoway is party (4th VCP) or the one to which D is party (1st VCP)? I consider these the most likely candidates rather than either of the intermediate VCPs to which neither was party. 63.Clearly on its face, the 4th VCP contains no amount payable in respect of freight. However, as a matter of common sense, there must be an amount payable under that contract, although it is not contained in the 4th VCP itself. I am not able to decide between the two VCPs on the basis of whether or not the freight amount is stated on the face of the contract. 64.By the time the Bills were issued, all of the VCPs were in place. I would be inclined to consider that the first VCP in time would set out the key terms required by the ultimate recipient (identified as the notify party), and that the other VCPs were put in place to facilitate the required voyage charter terms. 65.On that basis, if I had to decide the point, I would consider the 1st VCP to be the most appropriate to be incorporated. However, I do not need to come to a final conclusion. As stated above, the threshold to be satisfied by P is whether there is a prima facie case that the relevant VCP is the 4th VCP. I find that this low threshold is satisfied, although I would not be satisfied that there is a high probability of that being correct. It should be apparent that I consider that a tribunal or court which had to determine the matter of incorporation would have to consider all of the VCPs and certainly the 1st VCP. 66.D raised arguments as to the proper construction of Clause 15 of the 4th CP relied upon by P which states “Abtri if any in Hong Kong and English law to apply.”
67.Despite these arguments, I consider there is a prima facie case that Clause 15 is an agreement to arbitrate in Hong Kong. Issue 3: Should an ASI be ordered in the circumstances? 68.Both parties directed me to the decision of G. Lam J. (as he then was) in Ever Judger for the applicable principles when considering whether to order an ASI.
69.Where an applicant has established the breach of an arbitration agreement to the necessary standard, the court must consider any delay in seeking the ASI and the stage reached in the foreign proceedings. 70.The relevance of delay in applying for an ASI and comity were considered in Sea Powerful II Special Maritime Enterprises (ENE) v Bank of China Ltd[2016] HKLRD 1032 (per A. Chan J.) and by the Court of Appeal- see Sea Powerful II Special Maritime Enterprises (ENE) v Bank of China Ltd [2016] 3 HKLRD 352. 71.The Court of Appeal adopted the reasoning of the English Court of Appeal in Ecobank. I elicit the following principles:
72.I turn to look at the procedural chronology in this case, which is not in issue. 73.The Vessel arrived at Adabiya, Egypt on 12 June 2023 and berthed the next day. On 14 June 2023, the cargo inspectors issued a letter of protest to the Vessel’s Master in respect of the staining of D’s cargo. 74.On 21 June 2023, D filed a petition with the Egyptian Court for an order to arrest the Vessel as security for its damaged PTA cargo. The petition was against the owners, preparers and operators of the Vessel (the “Counterparties”). This included P as disponent owner. 75.On 22 June 2023, the Egyptian Court granted an arrest order over the Vessel, which was served on the Vessel on 24 June 2023. 76.On 25 June 2023, D issued the Egyptian Writ of Summons against the Counterparties. 77.On 26 June 2023, El Swefy & Partners (P’s Egyptian lawyers) filed a petition/grievance against the arrest order. (Thus, 26 June 2023 was the latest date on which P became aware of the Egyptian legal proceedings). 78.On 10 August 2023, Tsui & Co (P’s Hong Kong solicitors) served a Notice of Arbitration on D, asking D to agree to the appointment of 3 arbitrators, “within 7 days . . . failing which our client will, without further notice to you, make an application to the Hong Kong International Arbitration Centre [i.e. the HKIAC]”. On 17 August 2023, D’s Egyptian lawyers responded, rejecting P’s Notice of Arbitration. Despite its 7-day deadline, D did not approach the HKIAC to appoint arbitrators (or do anything else in Hong Kong for that matter) until 12 June 2024 – almost 10 months later. 79.Back in Egypt, P arranged alternative security for D’s cargo claim, in place of the arrest of the Vessel, which was consequently released. 80.On 23 November 2023, P applied to have the Egyptian Writ of Summons and petition/grievance against the arrest order be heard together. The Egyptian Court granted this on 7 December 2023. 81.Separately, P brought London arbitration against Sinoway under the Time Charter, and obtained an order that Sinoway provide counter-security. 82.On 29 February 2024, the Egyptian Court appointed an external maritime transport expert (the “Expert”), to examine the case and assist the Egyptian Court. Both P and D submitted documents and submissions to the Expert, who also conducted an inspection of D’s cargo in the presence of the parties’ representatives and others (such as insurers’ representatives). 83.On 9 May 2024, the Expert issued his report (the “Expert Report”). The Expert found in favour of D’s claim that 2,250 bags of PTA with a value of US$2,079,000 had been damaged through micro-silica contamination, and that the Counterparties were responsible for this. 84.On 12 June 2024, P applied to the HKIAC to decide on the number of arbitrators and their appointment. 85.On 13 June 2024, P issued its OS in these proceedings. 86.On 18 June 2024, P filed Tsui 1 seeking ex parte leave to issue and serve out a concurrent OS on D. This affidavit referred the Court to the 3rd and 4th VCPs (but not the 1st and 2nd VCPs) and stated the Bills to incorporate a HK arbitration clause (without referring to the existence of the Singapore arbitration clause in the 1st VCP). Ex parte leave was granted on 28 June 2024. 87.P did not seek an interim ASI. Nor did P file evidence in support of its OS when the OS was issued. The first call-over hearing into the OS was vacated by consent with directions for the filing of evidence. 88.As to evidence on the OS (as discussed above):
89.Back in Egypt:
90.I note that P was aware of D’s issue of the Egyptian Action by 26 June 2023; P issued a notice of arbitration in Hong Kong on 10 August 2023 but, following D’s rejection of that notice, P took no further steps relating to the arbitration until June 2024. It has therefore been a year since P became aware of the alleged breach of arbitration agreement. I do not look at the time period alone, but have regard to how much work has been done and progress made in the Egyptian Action. There have been at least 17 hearings, and the parties have filed everything they wish to file upon the merits of the case, and are awaiting a decision which might be final judgment on the merits. Of significance is the fact that the Expert issued a report against D in May. I feel constrained to conclude from the circumstances that, for 10 months, P has effectively ignored the alleged arbitration agreement and has participated in the Egyptian Action. In the absence of any other plausible explanation of the chronology, it appears that once it became apparent that things were going against P in the Egyptian Action following the Expert Report, P decided to try to have a second bite of the cherry in the Hong Kong arbitration. 91.Mr Alder on behalf of P argued that D has itself to blame for the wasted resources with respect to the Egyptian Action as it could and should have participated in the Hong Kong arbitration instead. However, as stated in Ecobank, applied by the Court of Appeal in Sea Powerful, that is not a complete answer. Indeed, that is a potential argument in any case where an applicant seeks an ASI to restrain breach of an arbitration agreement. If it were a complete answer, that would render any consideration of delay in applying for the ASI otiose. It is clear that D responded promptly to P’s notice of arbitration in August 2023 to deny the existence of a Hong Kong arbitration agreement, and P did not push the point. D has maintained a consistent position. I see no basis for attribution of significant fault to D for any wasted resources in the Egyptian Action in these circumstances. 92.As the Court’s jurisdiction is equitable, I also have regard to P’s conduct in its application to this Court. It is undisputed that when P sought ex parte leave to serve the OS out of the jurisdiction, it had copies of all four VCPs as they had been disclosed in the Egyptian Action, but P only informed this Court about 2 of the VCPs. I have already addressed above my view as to the significance of the 1st VCP to the issue of whether there is a valid Hong Kong arbitration agreement between the parties. 93.On the basis of both delay and comity (having regard to the resources expended by the parties and the Egyptian Court), and also having regard to P’s lack of clean hands in dealing with this Court, I decline to grant the ASI sought. D. Order to be made 94.The OS is dismissed. 95.I direct the parties to provide written submissions on costs. I direct that D file its written submissions within 2 working days; P to file its submissions in response within 2 working days thereafter; and D to file any written submissions in reply within 2 working days thereafter. 96.I further direct, insofar as necessary, that D’s solicitors file an affidavit forthwith to exhibit the document(s) provided to the Court during the hearing as described at para. 17(5)(2)2 above.
Mr Edward Alder, instructed by Tsui & Co. for the Plaintiff Mr Eugene Kwok & Mr Lavesh Kirpalani, instructed by Baker & McKenzie for the Defendant |
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