P v. D

HCCT 107/2025

[2025] HKCFI 5424

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 107 OF 2025

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BETWEEN

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DECISION
and
REASONS FOR DECISION

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1.  Introduction

1.1These proceedings were commenced by an originating summons (“OS”)  filed on 29 July 2025, by which the Plaintiff (“P”)  seeks an anti-suit injunction (“ASI”)  restraining further conduct of a set of proceedings (“Dongguan Proceedings”)  commenced by the Defendant (“D”)  in the Dongguan Intermediate People’s Court (“IPC”), on the basis that the subject matters litigated in the Mainland (ie the disputes arising out of or in connection with the Alleged Settlement Agreement (as defined below))  should be determined by arbitration.

1.2Thereafter, by a summons dated 11 August 2025 (“Summons”), P seeks an interim ASI pending the final resolution of the OS.

1.3The Summons first came before me on 22 August 2025 (“22/8/25 Hearing”). At that hearing, in D’s absence, I granted orders for substituted service of the OS and the Summons (“Substituted Service Order”)  and gave directions to bring the Summons to a substantive hearing on 10 October 2025.  A relatively tight evidential timetable was directed to cater for the then perceived urgency, namely it was envisaged that the IPC would conduct the substantive hearing of the Dongguan Proceedings on 23 October 2025.

1.4On 10 September 2025, D applied to set aside the Substituted Service Order or, in the alternative, for an extension of time to put in his evidence in opposition to the Summons.  At the hearing on 26 September 2025, I dismissed D’s application to set aside the Substituted Service Order but granted an extension of time for D to file his evidence in opposition (“26/9/25 Order”).

1.5These are (1)  my reasons for making the 26/9/25 Order and (2)  my decision on the Summons.

1.6At the hearing on 26 September 2025 and the substantive hearing of the Summons on 10 October 2025, P was represented by Mr Charles Manzoni SC (leading Mr Martin Ho)  and D by Mr William Wong SC (leading Mr Alex Yeung).

2.  Background

2.1The background facts are largely taken from Mr Manzoni’s Skeleton Submissions dated 6 October 2025.  I do not understand the matters set out in this section are disputed by D.

(i)  The commercial background

2.2P is an investment holding company owned by two investment funds and managed by A Capital Management LP (“A Capital”).

2.3D is the ultimate beneficial owner of B International (B)  Ltd (“B Parent”), a BVI entity, and the 60% majority shareholder of B International Science Industrial Parks Holdings Ltd (“B”, collectively with B Parent the “B Parties”).  D is also the Chairman of the Board and CEO of B.

2.4B, in turn, holds a group of companies (“B Group”)  engaged in the business of ███ ███ ███ ███ &███ ███ ███ ███ ███ ███.

2.5In around 2016 or 2017, A Capital identified B as a potential investment target.  At the time, B Parent held 92.5% of the shares in B.  Following several rounds of negotiations, P, B Parent and B (collectively the “Contracting Parties”)  entered into an investment agreement, whereby P would ultimately invest US$200 million in the B Group by subscription of shares in B, and P and B Parent would become 40% and 60% shareholders of B respectively.

2.6The investment agreement is embodied in a series of agreements (“Agreements”), which include:

(1)  The Share Subscription Agreement (“SSA”)  dated 7 August 2017;

(2)  The Shareholders’ Agreement (“SHA”)  dated 7 August 2017;

(3)  The Second Share Subscription Agreement (“2^nd SSA”)  dated 20 March 2018;

(4)  The Supplemental Agreement to Shareholders’ Agreement (“SSHA”)  dated 20 March 2018.

2.7The Contracting Parties’ contemplation was as follows:

(1)  P would inject fresh capital into the B Group.  A Capital would support the B Group in preparing B for a Qualified Initial Public Offering (“Qualified IPO”)  on certain designated stock exchanges by a longstop date of 31 December 2020;

(2)  Clause 10.2 of the SHA obliged P to advise and assist B to plan and execute a Qualified IPO;

(3)  If a Qualified IPO was successfully completed, P could exit its investment by selling its shares in B and achieve an investment return;

(4)  If a Qualified IPO was not achieved by 31 December 2020 (which could be extended by 12 months at the election of B Parent), P had the option of exiting the investment by selling its shares to B Parent (or to third parties if B Parent did not wish to purchase), or by transferring its shares to B Parent in return for the B Group procuring the transfer of certain property assets of the B Group and/or cash;

(5)  In the meantime, since P would only acquire a minority stake in B, the Contracting Parties agreed that specific protections would be provided in the Agreements to protect P’s interests, including that certain matters could not be undertaken without P’s prior consent, and the B Group’s financial information would be provided to P on a regular basis or upon reasonable request from P.

2.8Each of the Agreements is governed by Hong Kong law, and incorporated identical arbitration clauses in favour of HKIAC arbitration: Clause 11.7 of the SSA and 2^nd SSA, Clause 15.2 of the SHA (incorporated into the SSHA by clause 3.4 thereof).

(ii)  Disputes between the Contracting Parties

2.9P complains that, over the course of the investment period, the B Parties acted in breach of the Agreements.  On 6 October 2023, P commenced arbitration proceedings against the B Parties (“Arbitration Proceedings”). The tribunal comprises Mr Anthony Neoh SC (as presiding arbitrator), Mr Robert Tang SC and Sir William Blair (“Tribunal”).

2.10It is unnecessary to set out the details of the wide-ranging disputes which have arisen.  For present purposes, it is pertinent to only note that one of the issues in dispute in the Arbitration Proceedings concerns the Out of Group Assets Issue (defined below):

(1)  By Clause 4.1 of the SSA, it was agreed that the payments made by P under the SSA shall be used solely for the purpose and to the benefit of the business of industrial property development and operations in which the B Group was engaged, and should not be used for the benefit of certain “out of group” assets, which assets were not owned by B but indirectly owned by related companies of D;

(2)  Part 4 of Schedule 3 of the SSA set out the “out of group” assets, covering real properties known as the “E Assets” and the “F Assets” (“Out of Group Assets”);

(3)  In relation to the Out of Group Assets, the Contracting Parties agreed that:

(a)  All rights, interests etc with respect to the Out of Group Assets belonged to B; and the value of the Out of Group Assets was taken into account when the Contractual Parties agreed the subscription price (Clause 6.1 of the SSA);

(b)  The B Parent should take all necessary actions to transfer the legal and beneficial ownership of the Out of Group Assets to B or its wholly owned subsidiary before 31 December 2021, failing which the B Parent would cause an amount equal to the valuation of the Out of Group Assets to be remitted to B. The valuation was to be mutually agreed and could not be less than the minimum net consideration plus an internal rate of return (Clause 6.2 of the SSA);

(c)  Notwithstanding the above, and significantly, the B Parties retained the right to sell the Out of Group Assets to bona fide third parties for not less than a total minimum net consideration of RMB 1.268 billion (ie RMB 755 million for the E Assets and RMB 513 million for the F Assets). The minimum net consideration would increase by 12% per annum from the closing date of SSA until the relevant sale was completed (“Minimum Net Consideration”), and the same would promptly be transferred to and retained by B (Clause 6.3 of the SSA).

2.11On 23 September 2020, the B Parties informed P of the completion of the sale of the E Assets in September 2020.

2.12Disputes subsequently ensued on the proper calculation of the Minimum Net Consideration due to B (“Out of Group Assets Issue”).

2.13At around the same time, various other disputes and issues arose between the Contracting Parties.  In around September 2022, Mr C (“C”), acting for P, and D entered into discussions on the possible terms and consideration of P’s potential exit from B and the Out of Group Assets Issue.  On 11 October 2022, D met C at the Peninsula Hotel in Shanghai (the “11/10/22 Meeting”). The parties disagree on whether the Alleged Settlement Agreement was reached at the 11/10/22 Meeting:

(1)  It is P’s case that no concluded agreement was reached, and importantly, any negotiations were conducted between P and the B Parties;

(2)  Conversely, in the Arbitration Proceedings, it is the B Parties’ case that the Alleged Settlement Agreement was a binding agreement reached between P and B Parent;

(3)  In the present proceedings, it is D’s case that the Alleged Settlement Agreement was a binding agreement only between P and D (as confirmed by Mr Wong at the hearing).  

3.  The Arbitration Proceedings

(i)  The pleaded issues

3.1One of the claims advanced by P (as claimant)  in the Arbitration Proceedings is that the B Parties have failed to remit the consideration (which is at least the Minimum Net Consideration)  for the sale of the E Assets.  There is also a claim that they have failed to provide financial information in respect of the Out of Group Assets.  Orders for specific performance are asked for, including an order directing the B Parties to provide to P financial information regarding the Out of Group Assets.

3.2The B Parties’ pleaded defence to P’s claim regarding the Out of Assets Issue may be summarized as follows:

(1)  The B Parties do not dispute the sale of the E Assets in September 2020, nor the fact that they did not pay the Minimum Net Consideration to B;

(2)  The B Parties do not dispute the fact that they failed to produce relevant evidence and documents necessary for the calculation of the outstanding Minimum Net Consideration. Their case is that they were constrained against doing so by “various confidentiality obligations”;

(3)  The B Parties assert that by reason of the Alleged Settlement Agreement, P had already waived its rights in respect of the Out of Group Assets.

3.3Specifically in relation to the Alleged Settlement Agreement, the B Parties’ position is pleaded to be as follows in their Amended Statement of Defence and Counterclaim (“AD&C”):

“[121] On 11 October 2022, at a meeting between Peter Mok [D] and Mr C[C], the 2^nd Respondent [B Parent] and the Claimant [P] entered into the Settlement Agreement, governed by PRC law.

[122] The Settlement Agreement, binding on the 2^nd Respondent and the Claimant, provides inter alia:

(a)  Mr C was fully authorised by the Claimant to resolve the parties’ differences to ensure the Claimant’s smooth exit from the 1^st Respondent.

(b)  As per the 2^nd Respondent’s request, the Out of Group Assets are fully entrusted to Peter Mok for independent management, thereby ensuring that any future investor will not be associated with these assets.

[123] On 27 November 2022 [R-38], Mr C emailed Peter Mok confirming that, following internal discussions:

(a)  As regards the Out of Group Assets, the waiver of rights by the 2^nd Respondent and the Claimant was deemed sufficient.

(b)  The Settlement Agreement would be implemented via a supplemental agreement between the Claimant and the Respondents.

[124] On 30 November 2022 [R-38], Mr C emailed Peter Mok to reiterate the confirmation of his email of 27 November 2022 concerning the treatment of the Out of Group Assets, attaching a letter of commitment.

[125] On 6 December 2022 [R-39], Peter Mok emailed Mr C[C]to reiterate acceptance of the treatment of the Out of Group Assets and the implementation of the Settlement Agreement.

[126] Between December 2022 and February 2023, the Claimant and the Respondents’ lawyers worked on multiple drafts of the supplemental agreement [R-40].

[127] While the Settlement Agreement awaits full implementation to facilitate the Claimant’s exit from the 1^st Respondent, the treatment of the Out of Group Assets requires no further action. Following the Settlement Agreement, the Claimant no longer retains rights under Clauses 6.3 and 6.4 of the SSA and Clause 10.2(e)  of the SHA.

[128] The interpretation of the Settlement Agreement is beyond the jurisdiction of this Tribunal. The issues regarding the E Assets have further been settled under the Settlement Agreement. Consequently, it is denied that the Tribunal has jurisdiction over the specific issues regarding the E Assets as pleaded in the Amended Statement of Claim.” (emphasis added)

3.4It is plain from the underlined parts that the B Parties’ case advanced in the Arbitration Proceedings is as follows: (1)  D attended the meeting as a representative of B Parent, (2)  the Alleged Settlement Agreement (if binding)  was an agreement between P and B Parent and (3)  the supplemental agreement envisaged (when executed)  would be one between the Contracting Parties.

3.5It is pertinent to note that, as a matter of record in the Arbitration Proceedings, D remained in control of the B Parties and was “presumably giving instructions” to the lawyers acting for the B Parties in the Arbitration Proceedings[1].

3.6Although AD&C §128 asserts that the interpretation of the Alleged Settlement Agreement is beyond the jurisdiction of the Tribunal, the B Parties applied for leave from the Tribunal to adduce expert evidence on whether the Alleged Agreement was valid and binding as a matter of PRC law.  The Tribunal acceded to that application by its Procedural Order No 5 dated 17 December 2024.

3.7The evidentiary hearing is scheduled to commence on 18 May 2026 with 14 days reserved.

(ii)  The commencement of the Dongguan Proceedings and the B Parties’ attempt to adjourn the Arbitration Proceedings

3.8In April 2025, D commenced the Dongguan Proceedings.  On 19 May 2025, P’s solicitors received a packet of documents from D’s PRC legal representatives alerting it to the existence of the Dongguan Proceedings. Those documents included D’s application to amend the writ (“PRC Writ”)  in the Dongguan Proceedings. The amended PRC Writ was served on P subsequently on 18 July 2025.

3.9Mr Wong describes the nature of the D’s claims made in the Dongguan Proceedings in his skeleton argument to be as follows:

(1)  D commenced the Dongguan Proceedings seeking declarations that (a)  the Alleged Settlement Agreement is valid and binding between P and D and (b)  D holds the sole right to dispose of the Out of Group Assets and retain the sale proceeds;

(2)  The B Parties are named as interested third parties (not defendants)  in the Dongguan Proceedings;

(3)  D’s claims in the Dongguan Proceedings concern his personal property right under PRC law and do not concern the B Parties’ contractual obligations under the SSA.

3.10The position adopted by D on the Alleged Settlement Agreement in the Dongguan Proceedings is as follows[2]:

“On 11 October 2022, [D] and [C] met and negotiated face-to-face at the Peninsula Hotel in Shanghai regarding the disposal of the [Out of Group Assets Issue] and finally signed a written document (hereinafter the Settlement Agreement”).  Clause 6 of the Settlement Agreement stipulates that “Mr Mok demands that the E and F Parks be given to [D] with full rights, and any future investor will have nothing to do with these two parks”.

…

Although [D] has close relationships with [the B Parties], each party is an independent legal entity.  The parties to the Settlement Agreement are [P] and [D]….  The Settlement Agreement is independent of [the Agreements]…. Since the Settlement Agreement’s main connecting factors are all in Mainland China, Mainland China is therefore the jurisdiction with the closest connection to the Settlement Agreement, and the provisions of the Settlement Agreement shall be governed by PRC law.

Clause 6 of the Settlement Agreement stating “[D] demands that the [Out of Group Assets] be given to [D] with full rights, and any future investor will have nothing to do with these two parks” constitutes an independent, legal and valid agreement that is legally binding on both [D] and [P].” (emphasis added)

3.11At the 2^nd CMC of the Arbitration Proceedings which took place on 1 July 2025, the B Parties applied to the Tribunal to adjourn the evidential hearing scheduled to commence in May 2026, pending the final resolution of the Dongguan Proceedings.  In applying for the adjournment, one of the points made by the B Parties was that the Dongguan Proceedings would result in a binding judgment that would create an issue estoppel/res judicata as against P.

3.12By Procedural Order No 11 dated 14 July 2025, the Tribunal rejected the adjournment application (“PO 11”).  As recorded at PO 11 §21, some of the points made by P in opposing the adjournment application were as follows:

“Point 2: The Tribunal should bear in mind that in this Arbitration it is alleged that the Settlement Agreement was concluded between the Parties to this Arbitration, whereas in the Dongguan Court Case, the Settlement Agreement is sought to confer a personal right upon Mr. Mok. Thus, there are different issues between this Arbitration and the Dongguan Court Case.

"Point 3: It would be an abuse of the integrity of the process of this Arbitration to leave the determination of the validity of the Settlement Agreement to the PRC Courts for the sole reason that the PRC Courts represent the ultimate authority in the determination of what the PRC [law] should be. That is tantamount to saying that the Tribunal should abdicate its function to the PRC Courts. The Tribunal’s responsibility is to determine issues squarely pleaded and placed before it. It has been pleaded by the Respondents that the PRC law governs the Settlement Agreement and that has to be adjudicated by the Tribunal pursuant to the Arbitration Agreement.” (emphasis added)

3.13The Tribunal rejected the adjournment application on the following broad bases (PO 11 §§27-32):

(1)  Article 13 of the HKIAC Administered Arbitration Rules enjoined the Tribunal to adopt suitable procedures for the conduct of the arbitration in order to avoid unnecessary delay or expense, provided that such procedures ensure equal treatment of the parties and afford the parties a reasonable opportunity to present their case;

(2)  The Tribunal had received no evidence as to how long the Dongguan Proceedings would go on before a final judgment could be made available.  Given the Tribunal’s remit to proceed without unnecessary delay, unless there was overriding justification, an unknown amount of delay would be sufficient to make the Tribunal reluctant to adjourn the evidential hearing;

(3)  If a final judgment of the Dongguan Proceedings were available before the date of the Evidential Hearing, either party would be entitled to bring this up to the Tribunal for consideration as to its effect on the issues before the Tribunal. It had already been noted that the parties in the Arbitration Proceedings and those in the Dongguan Proceedings were not the same. Therefore, the extent that a res judicata argument could be made remained to be argued out by the parties;

(4)  If the Award of this Tribunal were available before a final judgment in the Dongguan Case were available, then the PRC courts could consider it. There was no question of the Tribunal usurping the judicial authority of the PRC Courts as it is merely performing its function pursuant to the arbitration agreement between the parties.

4.  The progress of the Dongguan Proceedings

4.1On 18 August 2025, P filed a jurisdictional challenge in the IPC (“Mainland Jurisdictional Challenge”).  As pointed out by Mr Wong, the grounds advanced by P in the Mainland Jurisdictional Challenge are similar to those advanced in this application, including an assertion that the Alleged Settlement Agreement is subject to the arbitration clauses in the Agreements.

4.2The hearing of the Mainland Jurisdictional Challenge took place on 18 September 2025 before the IPC.  The IPC reserved judgment and granted the parties liberty to file supplemental evidence within 10 working days (ie by 9 October 2025, the day before the substantive hearing of the Summons before me).

4.3At the conclusion of the substantive hearing of the Summons on 10 October 2025, I directed the parties to provide to me updates on the progress of the Dongguan Proceedings.  Two developments are of note.

4.4First, on 11 October 2025, the IPC issued a notice to the parties stating that the substantive hearing scheduled for 23 October 2025 was cancelled.

4.5Secondly, on 27 October 2025, the IPC dismissed the Mainland Jurisdictional Challenge (“Mainland Decision”).  In so far as relevant, on the issue of whether the disputes arising from or in connection with the Alleged Settlement Agreement should be determined by arbitration, the IPC had this to say[3]:

“[P] 在本案中提出管轄權異議的主要理由有三，一是本案約定有仲裁條款，應通過仲裁解決而非訴訟；…

對於第一點，[P] 主張本案應通過仲裁解決實質嘗試提出主管異議… 在主管異議審查階段，由於案件不作實體審查，應依據原告訴訟請求、起訴時的事實和理由所主張的法律關係確定案件主管。本案中，[D] 是以 [Alleged Settlement Agreement] 為依據提起本案訴訟，請求確認[Alleged Settlement Agreement] 第6條的約定有效，以及以此約定為據所享有的財產處分權，而非基於[Agreements]，故不能直接以[Agreements] 中的仲裁條款作為[Alleged Settlement Agreement] 的爭議解決方式… 故，本案應依據[D] 所依據的[Alleged Settlement Agreement] 確定主管，[Alleged Settlement Agreement] 未約定仲裁條款，亦未約定受[Agreements] 中的仲裁條款約束，[P] 提出的主管異議理由不成立，本院不予支持。” (emphasis added)

4.6In gist, the IPC was of the view that D’s claim made under the Alleged Settlement Agreement, namely a declaration that Clause 6 thereof was binding between P and D, was not subject to arbitration, as the terms of the Alleged Settlement Agreement do not so provide nor do they make reference to the arbitration clauses in the Agreements.

4.7I am told that P can lodge an appeal against the Mainland Decision within 30 days.  As I understand the current position, the IPC has not fixed a date for the substantive hearing of the Dongguan Proceedings.

5.  The Alleged Settlement Agreement

5.1In evidence are the signed minutes of the 11/10/22 Meeting which consist of 2 pages (“11/10/22 Minutes”). The 11/10/22 Minutes record that the meeting between C and D took place on 11 October 2022 from 10 to 11:30 am. Significantly, D was described as representing B (B：D)  and C representing A Capital (A：C).  The 11/10/22 Minutes were written in Chinese on Shanghai Peninsula Hotel’s letterhead with a heading “Contents of Negotiations” (談判內容)  and enumerate 12 clauses.

5.2The agreed translation of the 12 clauses enumerated in the 11/10/22 Minutes is as follows (with my emphasis):

(1)  The two parties confirm that C (ie C)  has been fully authorized by A to resolve any difference to facilitate a smooth exit.

(2)  Mr Mok believes that A should bear the full responsibility for the failure to implement 10.2 Shareholder Agreement.

(3)  Due to point 2, Mr Mok demands that A cover the costs associated with Qualified IPO, and because of the failure regarding Qualified IPO, Mr Mok requires A to utilize its own resources to settle the foreign currency loan(s)  taken out by B for development (totaling approximately USD 150 million in the principal of USD 130 million plus interest).

(4)  Mr Mok believes that the time of A’s exit, A should provide 5% as management incentive as previously discussed in the shareholder meeting, to be handed to Mr Mok for reasonable distribution.

(5)  Due to point 2, C of A understands Mr Mok’s mentioning of B’s losses caused by the absence of Qualified IPO, and the consequent compensation.  C needs to report to A’s headquarters in the USA.

(6)  Given points 1 through 5, Mr Mok demands that the E and F parks be given to Mr Mok with full rights, and any future investor will have nothing to do with these two parks.

(7)  Mr Mok requires that any future investor must support and cooperate for B’s Qualified IPO; otherwise B will not cooperate in A’s exit.

(8)  Regarding company valuation, Mr Mok believes that A should be realistic and conduct evaluation based on the company’s actual developments.  B will cooperate in the valuation.

(9)  C of A believes that the value for A’s exit should not be lower than the evaluation determined by Colliers in 2021.

(10)  According to the above-mentioned requirements, the two parties shall endeavour to reach a preliminary conclusion by end of Oct 2022 and for a legally binding agreement by the end of Dec 2022.

(11)  Based on point 10, B needs to fully support and cooperate with the due diligence and site visit of future investor(s).

(12)  The two parties commit to confine the 10.2 issue to internal discussion.

5.3The 11/10/22 Minutes were signed by D and C at noon.

5.4D primarily seeks a declaration that Clause 6 is binding between him and P.  The contemporaneous documents show that C and D carried out further discussions on Clause 6:

(1)  C and D met in Foshan on 19 October 2022 (“Foshan Meeting”).  By an email dated 25 October 2022 to D, C provided draft minutes of the Foshan Meeting to D.  In relation to Clause 6, the discussions during the Foshan Meeting were to the effect that Clause 6 was conditional upon A’s exit being successful (就 [Clause 6]，雙方初步達成一致。在此次紀要的基礎上，若A成功退出，則A同意 [Out of Group Assets] 未涵蓋在集團公司內的資產將交給 [D] 自行處理);

(2)  By an email dated 27 November 2022, C set out certain proposed terms to D.  In relation to Clause 6, it was suggested that, on the basis of a successful exit, P was prepared to waive its rights in relation to the Out of Group Assets (受限於投資人完成其轉讓/出售其公司的股票之交易的完成且投資人不再持有公司的任何股票為前提，投資人同意豁免其對集團外資產 (Out of Group Assets)  的權利): AD&C §123;

(3)  By an email dated 30 November 2022, C provided to D a draft letter (“Draft Letter”)  on a without prejudice and subject to contract basis.  The Draft Letter was addressed to B Parent and D and in, inter alia, the following terms (AD&C §124):

“In the recent communications between Mr. Mok and the Investor, we have communicated to you our intention to exit from our investment in the Company (the “Proposed Exit”). To incentivize B Parent and the Company (including the management team (including Mr. Mok)  and other key personnel of the Company and its subsidiaries)  in cooperating, assisting and facilitating with the Proposed Exit, we are willing to offer certain economic benefits to you and/or the Company upon successful completion of the relevant transaction for the Proposed Exit, such economic benefits include our intention to waive our rights under the SHA and the Subscription Agreements with respect to the Out of Group Assets. We are pleased to know that the principal commercial terms of such offer have been agreed between the parties subject to documenting such offer into a formal agreement (the “Supplemental Deed”).

We sincerely wish, that after signing of this letter, the parties will, with the assistance of their respective legal counsel, discuss and negotiate in good faith the Supplemental Deed with the aim of entering into the Supplemental Deed by no later than [31] December 2022. Notwithstanding any terms of this letter, it is agreed and acknowledged by the parties that unless and until the Supplemental Deed is signed, each party shall continue to be bound by and subject to the terms and conditions of the SHA and the Subscription Agreements in their current forms.

This letter and any action or inaction of the Investor shall be without prejudice to and shall not be viewed, deemed or construed as a waiver of any rights, interests, benefits or remedies which we may have or enjoy under the SHA, the Subscription Agreements, the M&A and all other documents to which we are a party. We hereby reserve all such rights, interests, benefits and remedies and all the rights, interests, benefits and remedies provided by law or in equity. No failure or delay, whether past, present or future, on the part of the Investor to exercise any of its aforesaid rights, remedies and powers under the SHA, the Subscription Agreements, the M&A and all other documents to which we are a party and/or at law, shall constitute any waiver of those rights. Without prejudice to the foregoing, we reserve all of our rights and powers in respect of any breach which may have occurred or may occur in the future, and other facts or circumstances which may give rise to a claim against B Parent and/or the Company.” (emphasis added)

5.5By an email dated 6 December 2022, D informed C that the terms of the Draft Letter were accepted:

“… 經查閱，基本同意承諾書所議的承諾與內容及其待，現本人正式知會您。可以接受此承諾書。期待盡簽置並發給本人收存。

另，希望貴方盡快發出 (退出) 補充協議，以便我方安排法律部門對接與討論，盡可能在本月底前達成共識。”

5.6As pleaded at AD&C §126, multiple drafts of the envisaged supplemental deeds were in fact prepared by the lawyers of P and the B Parties.  As noted by the Tribunal during the 2^nd CMC[4], the draft supplemental deeds all provide for arbitration in Hong Kong and for Hong Kong law as the governing law.

5.7I shall first deal with the Summons.

6.  The applicable principles

6.1It is common ground between counsel that there are two bases on which an ASI may be granted by the Hong Kong court (Ever Judger Holding Co Ltd v Kroman Celik Sanayii Anonim Sirkeit [2015] 2 HKLRD 866 §§38-45 and Liaoyang Shunfeng Iron and Steel Co Ltd v Yeung Tsz Wang, CACV 234/2011, 14 June 2012 §§83-89):

(1)  Where the foreign proceedings involve a breach of contract (whether exclusive jurisdiction clause or arbitration clause)  (“Contractual Ground”);

(2)  Where it can be shown that the foreign proceedings are vexatious or oppressive (“Vexatious and Oppressive Ground”).

6.2On the Contractual Ground, GM1 v KC (Interim Injunction) [2020] 1 HKLRD 132 is an authority for the following propositions in respect of an application for an ASI to restrain foreign proceedings brought in breach of an arbitration clause, under both section 45 of the Arbitration Ordinance Cap 609 (“AO”)  and section 21L of the High Court Ordinance Cap 4 (“HCO”):

“[7] The power to grant injunctions to restrain foreign proceedings in breach of an arbitration agreement was examined in The Angelic Grace [1995] 1 Lloyd’s Rep 87 and Donahue v Armco Inc [2002] CLC 440. In the classic judgment of Millett LJ in The Angelic Grace, the following observations were made on the Court’s “undoubted jurisdiction” to restrain a party from taking or continuing proceedings in a foreign court, in breach of an agreement to refer the dispute to arbitration:”

In my judgment, the time has come to lay aside the ritual incantation that this is a jurisdiction which should only be exercised sparingly and with great caution. There have been many statements of great authority warning of the danger of giving an appearance of undue interference with the proceedings of a foreign Court. Such sensitivity to the feelings of a foreign court has much to commend it where the injunction is sought on the ground of forum non conveniens or on the general ground that the foreign proceedings are vexatious or oppressive but where no breach of contract is involved. In the former case, great care may be needed to avoid casting doubt on the fairness or adequacy of the procedures of the foreign Court. In the latter case, the question whether proceedings are vexatious or oppressive is primarily a matter for the Court before which they are pending. But in my judgment there is no good reason for diffidence in granting an injunction to restrain foreign proceedings on the clear and simple ground that the defendant has promised not to bring them.

…

In my judgment, where an injunction is sought to restrain a party from proceeding in a foreign Court in breach of an arbitration agreement governed by English law, the English Court need feel no diffidence in granting the injunction, provided that it is sought promptly and before the foreign proceedings are too far advanced. I see no difference in principle between an injunction to restrain proceedings in breach of an arbitration clause and one to restrain proceedings in breach of an exclusive jurisdiction clause as in Continental Bank NA v Aeakos Compania Naviera SA [1994] 1 WLR 588. The justification for the grant of the injunction in either case is that without it the plaintiff will be deprived of its contractual rights in the situation in which damages are manifestly an inadequate remedy. The jurisdiction is, of course, discretionary and is not exercised as a matter of course, but good reason needs to be shown why it should not be exercised in any given case.

[8] These principles have been applied in Hong Kong, for example in the recent case of Giorgio Armani SPA v Elan Clothes Co Ltd [2019] 2 HKLRD 313. In that case, the learned Deputy Judge Field observed that the Hong Kong Court has power under both s.45 of the Arbitration Ordinance and s.21L of the High Court Ordinance to grant an anti-suit injunction as an interim measure in relation to arbitral proceedings. The Deputy Judge referred to and followed The Angelic Grace and other cases such as Compania Sud Americana de Vapores SA v Hin-Pro International Logistics Ltd (2016)  19 HKCFAR 586, referring also to Ever Judger Holding. In particular, the seminal speech of Lord Hoffman in Fiona Trust & Holding Corp v Privalov [2007] UKHL 40 was endorsed, that the construction of an arbitration clause should start with the presumption that the parties, as rational businessmen, are likely to have intended any dispute arising out of the relationship in which they have entered to be decided by the same tribunal, unless the language makes it clear that certain questions were intended to be excluded from the arbitrator’s jurisdiction.” (emphasis added)

6.3Whilst the foregoing propositions are common ground, Mr Wong and Mr Manzoni differ on the merit threshold to be met before the court’s discretion is engaged. 

6.4Relying on Ecobank Transnational Inc v Tanoh [2015] EWCA Civ 1309 §89, Mr Wong says that where an ASI is sought to enforce an arbitration agreement, the applicant must show a high degree of probability that there is an arbitration agreement that governs the dispute in question.

6.5Conversely, Mr Manzoni argues that the merit threshold is only one of a prima facie case.  He cites GM1 §22 and 24 in support and relies further on Friendship Shipping and Trading SA v IVL Dhunseri Polyester Co SAE [2024] HKCFI 3180 in which Ecobank was considered.  I agree with the analysis of DHCJ Roxanne Ismail SC set out at Friendship §§31-38 which led the learned Judge to the conclusion that the prima facie case threshold is the appropriate test, for the principal reason that 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, the court primarily serves as a filter for the arbitral tribunal:

“[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.

[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 all convenient to do so, I see 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 relief under the AO in order to facilitate the tribunal to determine both its own competence and process, and to make a decision decisions as it sees fit, then that rationale falls away, after the code serves as a filter for the arbitral tribunal.

[39] For present purposes, I consider that P must satisfy the Court of a prima facie case of an arbitration agreement.”

6.6In any event, as set out in the analysis below, I am of the view that P is able to surmount even the more stringent merit threshold.

6.7Mr Wong further reminds me that, even in respect of the Contractual Ground, comity remains relevant.  He relies on Sea Powerful II Special Maritime Enterprises (ENE)  v Bank of China Ltd [2016] 3 HKLRD 352 and Sun Travels & Tours Pvt Ltd v Hilton International Manage (Maldives)  Pvt Ltd [2019] SGCA 10.

6.8In Sea Powerful II, the Court of Appeal said as follows:

“[17] I agree with Mr Sussex that to ascertain the true role of comity considerations in Contractual anti-suit injunctions, a distinction should be drawn between FNC anti-suit injunctions and Contractual anti-suit injunctions…

[18] However, this is not to say that for Contractual anti-suit injunctions, comity would have no or minimal relevance, as Mr Sussex has contended. In Contractual anti-suit injunctions, comity considerations would have reduced importance, not that they would have no importance. This is borne out in the cases we have been referred to, see Ecobank (CA)  at [105] and [106]. It is also pertinent to note the context in which Longmore LJ’s statements were made in [32] and [33] of OT Africa Line Ltd. As pointed out in Ecobank (CA)  at [100], in that case there was no question of the applicant having been dilatory and the court was not concerned with the impact of delay.”

6.9In Sun Travels, the Singapore Court of Appeal observed:

“[74] This need to take cognisance of and respect the foreign court’s decision to assume jurisdiction was cited by the Judge in her earlier decision in Morgan Stanley ([68] supra)  at [34], where reference was also made to Amchem Products Inc v British Columbia (Workers’ Compensation Board)  [1993] 1 SCR 897 at 931–932. These considerations, however, do not apply when the granting of an anti-suit injunction is founded on a breach of agreement. In such a case, the local court is not arrogating to itself jurisdiction over a dispute that a foreign court had exercised jurisdiction over; it is merely enforcing the parties’ agreement. As Longmore LJ put the point in OT Africa Line Ltd v Magic Sportswear Corporation [2005] 2 Lloyd’s Rep 170 at [32], the issuance of an anti-suit injunction in the context of an exclusive jurisdiction clause is “to uphold party autonomy not to uphold the courts of any particular country”.

[75] In this sense, comity loses some significance in cases involving exclusive jurisdictional clauses and arbitration agreements. But it will be incorrect to say that in such cases comity considerations can never be engaged. This was the position taken by the English Court of Appeal in Ecobank ([70] supra)  at [106] and by the Court of Appeal of Hong Kong in Sea Powerful II Special Maritime Enterprises (ENE)  v Bank of China Ltd [2017] 1 HKC 153 (“Sea Powerful”)  at [18]. Both refer to delay in bringing the application for injunctive relief and explain how delay relates to comity.

[81] In our judgment, comity considerations are relevant when there is delay in bringing an application for anti-suit relief, and this is true even if the proceedings involve an exclusive jurisdiction clause or an arbitration agreement (as was the case in Ecobank and Sea Powerful). We set out two other propositions that are relevant to this appeal.

[82] First, the longer the delay and the more advanced the foreign court proceedings become, the stronger the considerations of comity would be...

[83] While the length of delay is relevant, what is of greater importance is the extent to which the delay has allowed foreign proceedings to have progressed… Where a foreign judgment has already been delivered as a result of delay, a host of different considerations come into play, and for reasons expounded on below (see [97] and [98]), we are of the view that exceptional circumstances must be shown in addition to the usual requirements for anti-suit relief.

[84] The second proposition is that delay cannot be justified on the basis that jurisdictional objections are being raised in the foreign court. In The Angelic Grace ([68] supra), it was contended that the proper approach would have been to defer any application for an injunction until “something ha[d] gone wrong”, such as when the foreign court accepted jurisdiction (at 95). Leggatt LJ rejected this approach, and found that this would be patronising and would achieve the “reverse of comity””

6.10As regards the Vexatious and Oppressive Ground, Liaoyang Shunfeng observes at §89 that the applicant is normally required to show the follows:

(1)  The applicant is a party to existing legal proceedings in this jurisdiction;

(2)  The defendants have in bad faith commenced and propose to prosecute proceedings against the applicant in another jurisdiction for the purpose of frustrating or obstructing the proceedings in this jurisdiction;

(3)  The court considers that it is necessary in order to protect the legitimate interest of the applicant in the Hong Kong proceedings to grant the applicant restraining order against the defendants.

6.11On the second limb above, as the Court of Appeal observed in §107, the real question is whether the Court can make the inference (for the purposes of the anti-suit injunction)  that the proceedings upon which they were based must be entirely tactical, intended to subvert the Hong Kong proceedings, and therefore must be vexatious and oppressive.

6.12On the third limb, the relevant enquiry is to ask: if the bringing of the suit in the foreign court is in the circumstances unconscionable that in accordance with our principles of a wide and flexible equity it can be seen to be an infringement of an equitable right of the applicant. The right is an entitlement to be protected from a foreign suit the bringing of which by the defendant to the application is in the circumstances unconscionable and so unjust.

6.13In Renaissance Securities (Cyprus)  Ltd v ILLC Chlodwig Enterprises [2025] EWCA Civ 369 §§1, 55-56, the English Court of Appeal granted an anti-suit injunction against a contracting party to an arbitration agreement from suing the counterparty’s affiliate in a foreign jurisdiction, in relation to that contract. At §§55-56, Singh LJ observed that even if the claims in the foreign jurisdiction were not in breach of the arbitration agreements, “they do appear to be designed to circumvent and undermine the effect of those agreements”, and as such an anti-suit injunction ought to be issued to “protect the integrity of the arbitral process”.

6.14As set out in the analysis below, I do not need to resort to the Vexatious and Oppressive Ground as I can come to a decision solely by reference to the Contractual Ground.  Indeed, as Mr Manzoni confirmed at the hearing, P principally relies on the Contractual Ground.

6.15Given the legal framework on the Contractual Ground, the issues to be determined are:

(1)  Whether P is able to meet the requisite merit threshold to show that the disputes arising out of or in connection with the Alleged Settlement Agreement (“Relevant Disputes”)  are within the ambit of the arbitration clauses in the Agreements (“Issue 1”);

(2)  If the answer to the foregoing is yes, whether there are good reasons (including comity considerations)  why the court should not exercise its discretion to grant an ASI (“Issue 2”).

7.  Issue 1

7.1As a preliminary point, Mr Wong reminds me that the Summons is not a merits determination of the Alleged Settlement Agreement’s validity and effect - such questions are for the competent forum to decide in due course.  As a matter of general proposition, the foregoing is undoubtedly correct: Bank A v Bank B [2024] 5 HKLRD 250 §60.  However, in the circumstances of the present case, I accept Mr Manzoni’s submission that I do need to grapple with those disputed issues which are germane to the determination of Issue 1.  For example, one of Mr Wong’s arguments on Issue 1 is that the Alleged Settlement Agreement is entirely independent of the Agreements (disputed by Mr Manzoni).  To proceed on the basis of Mr Wong’s argument would, ironically, be a determination of the effect of the Alleged Settlement Agreement in D’s favour. Lest there be any doubt, any views stated herein are entirely provisional.

7.2The starting point is the terms of the arbitration clauses in the Agreements (“Arbitration Clauses”), which are in materially similar terms:

“Any dispute, controversy, difference or claim arising out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall first be resolved through good faith discussion and negotiation among the Parties, and if any such dispute cannot be resolved through such discussion and negotiation within thirty (30)  days after such dispute is referred to the Parties’ discussion and negotiation, then such dispute shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (“HKIAC”)  under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted. The arbitration tribunal shall consist of three arbitrators. The place of arbitration shall be Hong Kong. The language of the arbitration shall be English. An arbitral award shall be final and binding on the Parties.”

7.3I accept Mr Manzoni’s submission that the Arbitration Clauses are in extremely wide terms.  As set out at Gorgio Armani SPA v Elan Clothes Co Ltd [2019] 2 HKLRD 313§33, the Fiona Trust approach is to construe an arbitration clause through the prism that rational businessmen conduct their affairs on the basis that, an agreement to arbitrate would/should ordinarily result in a “one-stop” adjudication:

“The modern approach to the construction of arbitration clauses involves a departure from the former tendency of the English courts to draw fine distinctions between those issues that were within an arbitration clause and those that were not. Instead the approach now is to give effect, so far as the language used by the parties will permit, to the commercial purpose of the arbitration clause, namely, to have disputes that may arise out of the agreement containing the arbitration clause to be decided by a chosen tribunal. Construction of the clause must therefore be influenced by whether the parties, as rational businessmen, were likely to have intended that only some of the questions arising out of their relationship were to be submitted to arbitration and others were to be decided by national courts. If, as appears to be generally accepted, there is no rational basis upon which businessmen would be likely to wish to have only some issues arising out of, or in connection with, the agreement containing the arbitration clause determined by arbitration, one needs to find very clear language before deciding that they must have had such an intention. The construction of an arbitration clause should therefore start with the presumption that the parties, as rational businessmen, are likely to have intended any dispute arising out of the relationship into which they have entered to be decided by the same tribunal unless the language makes it clear that certain questions were intended to be excluded from the arbitrator’s jurisdiction. (See Lord Hoffmann’s seminal speech in Fiona Trust & Holding Corp v Privalov [2007] UKHL 40, [2007] 4 All ER 9512).”

7.4Mr Wong’s arguments that the disputes arising out of or in connection with the Alleged Settlement Agreement (“Relevant Disputes”)  fall without the scope of the arbitration agreements are premised on the following propositions:

(1)  D is not a party to the Agreements and is therefore not subject to the arbitration clauses in the Agreements (“Argument 1”);

(2)  The Alleged Settlement Agreement itself does not contain an arbitration clause nor does it make reference to the arbitration clauses in the Agreements (“Argument 2”);

(3)  The Alleged Settlement Agreement creates an independent Mainland law right and is an entirely separate agreement from the Agreements, in that Clause 6 creates personal rights to D to dispose of specific Mainland assets (“Argument 3”);

(4)  In addressing the Fiona Trust approach, Mr Wong says that would be uncommercial to impose Hong Kong arbitration on a dispute over D’s Mainland property rights, in particular where it is said that the Tribunal cannot grant in rem relief over Mainland property (“Argument 4”).

7.5Despite the persuasion with which Mr Wong advanced his submissions, I am persuaded that P has demonstrated that there is a prima facie case (if necessary a compelling case)  that the Relevant Disputes fall within the Scope of the Arbitration Clauses.

7.6First, I think the weight of the authorities shows that, depending on the circumstances, Argument 1 and Argument 2, even if established, are not determinative:

(1)  In Giorgio Armani, the arbitration agreement is between the plaintiff and the defendant.  On the facts of that case, DHCJ Field held that there was a good argument that the arbitration agreement, construed according to the Fiona Trust principles, claims made by the defendant against the affiliates of the plaintiff and granted an ASI against D in respect of proceedings commenced by D in the Mainland against, inter alia, the affiliates: §§42, 52 and 58;

(2)  In Sonact Group Ltd v Premuda Spa [2018] EWHC 3820, Males J held that an arbitration clause in a charterparty, again by reference to the Fiona Trust principles, covered the settlement agreement between the contracting parties when the settlement agreement itself did not contain an arbitration clause: §§12, 14-20;

(3)  In Monde Petroleum SA v Westernzagros Ltd [2015] EWHC 67, Popplewell J, again by reference to the Fiona Trust principles, observed as follows:

“The presumption in favour of one-stop adjudication may have particular potency where there is an agreement which is entered into for the purpose of terminating an earlier agreement between the same parties or settling disputes which have arisen under such an agreement. Where parties to a contractual dispute enter into a settlement agreement, the disputes which it can be envisaged may subsequently arise will often give rise to issues which relate both to the settlement agreement itself and to the previous contract which gave rise to the dispute. It is not uncommon for one party to wish to impeach the settlement agreement and to advance a claim based on his rights under the previous contract. In such circumstances rational businessmen would intend that all aspects of such a dispute should be resolved in a single forum. Where the settlement/termination agreement contains a dispute resolution provision which is different from, and incompatible with, a dispute resolution clause in the earlier agreement [which is not the case here], the parties are likely to have intended that it is the settlement/termination agreement clause which is to govern all aspects of outstanding disputes, and to supersede the clause in the earlier agreement, for a number of reasons.”

(4)  In Dickson Valora Group Holdings Co Ltd v Fan Ji Qian [2019] 2 HKLRD 173, G Lam J (as he then was)  held that, in the circumstances where a supplementary agreement was silent on the dispute resolution mechanism, a presumption could arise such that the dispute resolution mechanism in the main contract would regulate the supplementary contract: §§25-26.

7.7Dickson Valora merits a more detailed treatment as it is, like here, concerned with a claim made by a non-party to an arbitration clause and the reasons set out therein are germane to the resolution of Argument 3.  One Mr Fan, who was not a party to an addendum of supplementary agreement (“Addendum”), asserted that he acquired a cause of action thereunder, and commenced Mainland court proceedings “pursuant” to the Addendum claiming a contractual right to certain success fees.  Even though Mr Fan was not a party to the arbitration clause in the main shareholders agreement (which was held by G Lam J to apply to the Addendum), G Lam J granted an anti-suit injunction against Mr Fan, on the Contractual Ground:

“[29] DHE is the counterparty to the 3^rd Addendum, the Supplementary Agreement and the Shareholders Agreement. There is no dispute that it is bound by the arbitration clause assuming it is incorporated into the 3^rd Addendum. If, instead of Fan, DHE had commenced proceedings in the Mainland seeking an order for the success fee to be paid to Fan (analogous to the order for specific

performance in Beswick v Beswick [1968] AC 58), DHE would clearly be acting in breach of the arbitration clause.

[33] It is not clear on what specific basis in Hong Kong law Fan claims to be able to sue on the 3^rd Addendum while insisting he is not a party to it, or whether he is relying on certain Mainland legislation similar in effect to the Contracts (Rights of Third Parties)Ordinance. For present purposes I am prepared to assume that Fan has a prima facie cause of action under the 3^rd Addendum against the Companies for the success fee. Whatever the precise basis may be, however, it is undeniable that his right is derived from the contract in the 3^rd Addendum.

[34] Let it further be assumed that, because Fan is not a party to the contract, he cannot be said to be acting positively in breach of contract or promise by commencing and pursuing the Qianhai proceedings. Does it make a difference for present purposes that instead of procuring his corporate vehicle (DHE), which is a party to the contract, to bring proceedings to enforce it, Fan has instituted proceedings in his own name to enforce the contract as a third party?

[46] Even if Fan is not an assignee of the DHE’s rights under the contract, it is plain that his rights to the success fee, if any, are derived from the promise made by the Companies to DHE, of which the arbitration clause forms an inseparable part. The promise of the success fee was subject to the enforcement mechanism chosen by the parties to the contract, namely, arbitration in Hong Kong. Insofar as he has any direct right, Fan’s claim is clearly one “arising out of or relating to” the contract and is justiciable only in accordance with that contractual mechanism. It is no less unconscionable of Fan to make a claim under the contract in a different forum than it would be for DHE to do so, even though there would be a breach of contract only in the latter case: see The Jay Bola at p.1001D–F. In pursuing court proceedings in the Mainland against the Companies, Fan is seeking to claim a benefit under the contract without recognising the condition to which it is plainly subject. Such conduct in my view falls within the principles expounded in The Angelic Grace, The Jay Bola and The Yusuf Cepnioglu. The Companies have the right to prevent a claim against them based on their contractual obligations being pursued otherwise than by the contractually agreed mode, viz arbitration in Hong Kong. Unless an injunction is granted such right will be rendered wholly ineffective and valueless.

[47] For the above reasons I consider that in determining whether an anti-suit injunction should be granted against Fan in this case, this Court should be guided by The Angelic Grace approach. It should grant an injunction to restrain Fan from acting inconsistently with the inherent conditions forming part of the promise of success fees, unless there are strong reasons for not doing so.” (emphasis added)

7.8Mr Wong has spent some time in his written submissions to distinguish the present case from Dickson Valora on facts and principle:

(1)  He says that the Alleged Settlement Agreement is not supplemental to the Agreements.  It is a separate agreement reached years apart;

(2)  He further contends that D’s claim here is independent and is not premised on rights derived from the Agreements;

(3)  He next argues that D’s right to dispose of the Out of Group Assets arises from the Alleged Settlement Agreement, not the Agreements, and such right is not a benefit promised under the Agreements, but one P waived in favour of D under a separate agreement.

7.9In the present case, I have grave reservations on the merits of D’s case on the Alleged Settlement Agreement, as regards both the assertion that it has become binding as at 11 October 2022 on the terms contained in the 11/10/22 Minutes and that the parties to it are P and D.  The matters set out in section 5 above, in particular the contemporaneous documents, are quite inconsistent with D's case.  

7.10However, I remind myself that the underlying merits are for the competent forum. 

7.11For present purposes, P has a prima facie case (and if necessary a compelling case)  that Mr Wong’s characterization of the Alleged Settlement Agreement might be incorrect.  I am able to reach the foregoing provisional view by reference to the contemporaneous documents and D’s own evidence:

7.12On D’s own evidence:

(1)  Since early 2020, a dispute arose in relation to the Out of Group Assets, and in particular, B Parent and P maintained rival interpretations of Clause 6.3 of the SSA (the effect of which has been set out at §2.10(3)(c)  above): Mok 2^nd §§16 and 16.1;

(2)  The Alleged Settlement Agreement was generally an agreement between B Parent and P concerning P’s exit, but D was advised by PRC lawyers that Clause 6 specifically gave him rights and powers with respect to the Out of Group Assets under PRC law: Mok 2^nd §21;

(3)  On 6 December 2022, he emailed C to reiterate his acceptance of the treatment of the Out of Group Assets and the implementation of the Alleged Settlement Agreement on terms set out in the Draft Letter: Mok 2^nd §22.4 and see §§5.4(3)  and 5.5 above;

(4)  Subsequently, the legal representatives of P and the B Parties worked on multiple drafts of the supplemental agreement: Mok 2^nd §22.5 and §5.6 above;

(5)  The effect of the Alleged Settlement Agreement was (a)  P had consented to D having sole right to dispose of the Out of Group Assets and retain any sale proceeds thereof and (b)  by necessary implication, the foregoing settled any obligation owed by B Parent under the SSA in relation to the Out of Group Assets: Mok 2^nd §37.3.

7.13In my view, P has a prima facie case (and if necessary a compelling case)  that:

(1)  B Parent is at least one of the parties to the Alleged Settlement Agreement;

(2)  By reference to the observations set out in the cases at §7.6 above, since the effect of the Alleged Settlement Agreement is to, inter alia, settle the dispute between the parties on Clause 6.3 of the SSA, the Arbitration Clauses, on their proper construction, would cover or apply to the Alleged Settlement Agreement;

(3)  The foregoing is clear from conduct of the parties.  The Contracting Parties (as rational businessmen)  had included an arbitration clause in the drafts of the supplemental deed exchanged between their lawyers (§5.6 above);

(4)  If D were a contracting party to the Alleged Settlement Agreement, he would be bound by the agreement to arbitrate since Clause 6 (assuming it is binding)  does not create an independent right but is, as set out in the Draft Letter, an intention on P’s part to waive its rights in respect of the Out of Group Assets to incentivize B Parent and the management (including D)  in facilitating P’s exit and would only materialize upon the successful completion of P’s exit;

(5)  That Clause 6 did not create an independent right is set out by the terms of the Draft Letter which, on D’s own evidence, its terms were accepted;

(6)  Even if D were to claim that he was not a contracting party to the Alleged Settlement Agreement but is merely seeking to claim a personal right created by Clause 6, that right (a)  arises out of or is related to the Agreements and (b)  is a conditional right derived from the promise made by P in the context of settling the disputes between the Contracting Parties.

7.14For the above reasons, there is a prima facie case (and if necessary a compelling case)  that D’s claim premised on Clause 6 of the Alleged Settlement Agreement is subject to the Arbitration Agreements.

7.15I am further of the view that Argument 4 does not affect the above analysis.  In my view, there is at least a prima face argument (and if necessary a strong argument)  that D’s claim is not proprietary in nature.  It seems to me that the dispute between the parties is merely contractual, namely whether P has by the Alleged Settlement Agreement waived its right under Clause 6.3.  As is tolerably established, not all disputes in relation to foreign land are “in rem” in nature and concerned with title - a claim in relation to foreign land may simply involve a contractual or equitable claim: Four Treasure Zhuhai Limited v Zhuhai Greenery Hotel Company Limited [2025] HKCFI 1296 §§5.1 and 5.27.  In the present case, for example, there is no dispute between the Contracting Parties that the E Assets have been sold and the dispute between the parties are over the valuation of that sale (and hence the value which ought to have been transferred to B)  under Clause 6.3 of the SSA and whether P has waived its right thereunder.  There is a good argument that the proper characterization of D’s claim premised on Clause 6 is primarily a contractual claim.  I therefore do not agree with Mr Wong that Argument 4 has any significant influence upon the Fiona Trust analysis.

8.  Discretion

8.1Mr Wong says that the following factors are a “complete answer” to the Summons:

(1)  It is said that the Summons is premature, abusive and an affront to comity, essentially premised on the fact that the Mainland Jurisdictional Challenge was pending decision by the IPC at the time of the hearing;

(2)  He relies on two cases, namely C v D [2020] HKCFI 1596 and The Sumitomo Bank Ltd v Xin Hua Estate Ltd, HCCL 256 of 1998, 5 February 1999;

(3)  He submits that an ASI, if granted, would (a)  preempt and override the IPC’s decision, (b)  render the Mainland Jurisdictional Challenge a wasteful exercise, and (c)  signal that the Hong Kong court does not respect the IPC’s competence to determine its own jurisdiction.

8.2I am unable to agree to Mr Wong that the above factors constitute a good reason for the court to decline an ASI.  This is especially so when it was conceded by Mr Wong at the hearing that there is no delay in taking out of the Summons on P’s part.

8.3First, Mr Wong can derive no assistance from the 2 cases he cited:

(1)  In C v D, the court was asked to grant an urgent ASI when only one side’s evidence was before it, in the circumstances where a full-blown jurisdictional challenge was to take place in a few days’ time in the BVI;

(2)  The court declined to grant an urgent ASI, on the bases that (a)  such injunction would be highly intrusive as the parties as well as the BVI court might well be preparing for the hearing in earnest and it would be a strong thing for the court to grant an injunction on the eve of that hearing to bring it to a grinding halt; and therefore in such circumstances comity considerations became particularly important because of the considerable wastage of resources that would be caused by such an injunction (§12)  and (b)  the defendant was only provided with the papers the day before and D did not place all the evidence it wished to before the court had there been sufficient time, and importantly, the urgency and shortness of time was self-induced by the plaintiff itself (§13);

(3)  It is therefore plain that C v D is entirely distinguishable from the present case since (a)  D has put in the required evidence, (b)  D has conceded that there is no delay on P’s part, and (c)  there is no wastage of resources as the IPC has already issued the Mainland Decision;

(4)  In a similar vein, in Sumitomo, Stone J, in an ex tempore decision, declined to grant an interim ASI as there was an ongoing jurisdictional challenge in the Guangdong Higher People’s Court, on the basis that any determination of the application before it would not accord with considerations of comity, in that the Guangdong court was currently deliberating upon the jurisdictional issue;

(5)  As pointed out by Mr Manzoni, Sumitomo is not a case involving the Contractual Ground and many of the relevant and more recent cases are not referred to in Stone J’s ex tempore decision.

8.4Secondly:

(1)  The starting point is that an ASI is an order of the Hong Kong court addressed to a party before it, in personam, and not an order addressed to or binding upon a foreign court: Ever Judger §23. There is hence no question of the Hong Kong court usurping the jurisdiction of the IPC;

(2)  D has adduced expert evidence on PRC law to the effect that an ASI, if granted, would violate principles of judicial sovereignty and international judicial comity under the Mainland law.  However, Ever Judger §79 is an authority for the proposition that an ASI sought on the Contractual Ground does not involve any assertion that the Hong Kong court or arbitral tribunal is a superior or better forum either for the resolution of the dispute in question or generally.  It seeks simply to uphold the parties’ contract to resolve any dispute within the scope of the clause by arbitration.  Importantly, the considerations of comity that exercised Stone J’ s mind in Sumitomo do not arise in the same way in this kind of case.

8.5Thirdly, the mere fact that there are parallel applications taken by the P in the Mainland and here does not make the present application premature or abusive. Indeed, the principles set out in Sun Travels §84 contemplates the possibility of parallel applications and those principles in fact behove the applicant to prosecute promptly the “local” application (§6.9 above).  A similar point is made at GM1 §7 (§6.2 above)  that the court should feel no diffidence in granting an ASI, provided that it is sought promptly and before the foreign proceedings are too far advanced.  In this regard, the mere fact that an applicant has failed in its jurisdictional challenge in the foreign court does not prevent the grant of an ASI: Dickson Valora §60.

8.6Fourthly, given that the Hong Kong court is the supervisory court of the Arbitration Proceedings, the following observations in GM1 is especially apposite:

“[23] The fact that the foreign court may insist on its own jurisdiction is, as held by the English court in Tamil Nadu Electricity Board v ST-CMS Electric Company Private Ltd [2007] EWHC 1713 (Comm)  irrelevant to the court of the seat of the arbitration when it deals with an arbitration provision governed by its own law. The Mainland court may have jurisdiction as claimed by the defendant, but the issue is whether the defendant should be allowed, in view of the arbitration agreement, to invoke that jurisdiction.”

8.7There are other matters raised by Mr Wong under the rubric of D’s opposition to the Vexatious and Oppressive Ground.  Out of an abundance of caution, I deal with one of them which might be said to constitute a good reason under the Contractual Ground.

8.8As set out at §3.12 above, one of the grounds advanced by P in the Arbitration Proceedings that the issues in the Dongguan Proceedings were different.  Mr Wong says that it is manifestly an abuse of process, in that there is approbation and reprobation on P’s part by now asserting that the two proceedings are so intimately connected such that the Dongguan Proceedings are designed to subvert the Arbitration Proceedings.

8.9I do not agree with Mr Wong.  In the Arbitration Proceedings, P was contesting the B Parties’ application to stay the Arbitration Proceedings pending the resolution of the Dongguan Proceedings.  Here, the court is concerned with the Contractual Ground.  The considerations, it seems to me, are entirely different.

8.10For the above reasons, D has failed to demonstrate that there are good reasons for the court to exercise its discretion not to grant an ASI.

9.  Disposition of the Summons

9.1I grant an interim ASI pending the resolution of the OS.

9.2The draft order handed up by P seeks, inter alia, an order that D do take all necessary steps to withdraw the Dongguan Proceedings. 

9.3Mr Wong says that an order that D should withdraw the Dongguan Proceedings should be one only made in the OS, as P is sufficiently protected by the remaining terms of the draft order, namely that D be restrained in the meantime from prosecuting or continuing the Dongguan Proceedings.

9.4I agree with Mr Wong.  I will make an order in terms of the draft order submitted by P but without requiring D to withdraw the Dongguan Proceedings.  P is to submit a revised draft order for my approval.

9.5However, I have also taken on board Mr Manzoni’s submission that it is unlikely that the evidence or the arguments in the OS will be substantially different from those ventilated before me.  I direct that the parties do submit their proposed directions (hopefully an agreed set of directions), within 7 days hereof, to bring the OS to a substantive hearing.

9.6I also make a costs order nisi that D is to pay to P the costs of the Summons (including any reserved costs), with a certificate for 2 counsel, to be taxed if not agreed.

10.  Reasons for the 26/9/25 Order

10.1The Substituted Service Order arose in this way. 

10.2On 29 July 2025, P’s solicitors (“DLA”)  served the OS by inserting the same through the letterbox at Flat A, 1/F, Blue Water, 25 Tai Tam Road, Tai Tam Hong Kong (“Tai Tam Address”).  It is pertinent to note that the Tai Tam Address is the address of D stated in the PRC Writ.

10.3On 11 August 2025, DLA served the Summons by inserting the same through the letterbox at the Tai Tam Address.

10.4DLA took additional steps to bring the present proceedings to the notice of P:

(1)  On 29 July 2025, DLA attended the offices of Messrs So Lung & Associates (“SLA”), the solicitors on record for the B Parties in the Arbitration Proceedings and delivered a cover letter enclosing the OS asking if SLA had instructions to accept service for and on behalf of D;

(2)  On 16 August 2025, DLA sent a copy of the OS and the Summons to D’s email addresses;

(3)  On 18 August 2025, DLA attended the office of SLA and delivered a cover letter enclosing a copy of the Summons (and related documents);

(4)  On 18 August 2025, DLA attended the registered office of B and delivered a copy of the OS and the Summons;

(5)  On 19 August 2025, DLA sent an email to Grandall Law Firm Shanghai (“Grandall”), the solicitors for D in the Dongguan Proceedings enclosing copies of the OS, the Summons and related documents.

10.5For the purpose of 22/8/25 Hearing, Mr Manzoni lodged his first set of skeleton submissions on 19 August 2025 seeking a substantive order for interim ASI.

10.6However, on 21 August 2025, P lodged a further set of skeleton submissions by which the court was provided with the following updates:

(1)  By a letter dated 18 August 2025, SLA informed DLA that they have no instructions to act for D and returned all court papers sent by P’s solicitors;

(2)  By an email letter dated 19 August 2025, Grandall informed DLA that they have no instructions to act for D in these proceedings;

(3)  P did not have information as to whether D was or was not within the jurisdiction as at the time when the OS was inserted through the letterbox at the Tai Tam Address;

(4)  If D was not within the jurisdiction at the time of insertion, P could not rely on the deeming provisions in RHC Order 10, rule 1.

10.7P therefore refrained from asking for a substantive order for an interim ASI and instead asked for an order for substituted service.  As part of P’s arguments, Mr Manzoni relied on Saif Partners II LP v Zhixiong Zhou [2020] HKCFI 987 for the proposition that an order for substituted service may be made if a defendant is evading service or otherwise “game playing”.  Further, at L & R [2024] HKCFI 1611 §30, the following observations were made:

“On the evidence, I am satisfied that the Substituted Service Order was not unjustified and was not improperly made. As Counsel for L emphasized, the fact that R’s solicitors had refused to accept service of the Originating Summons on behalf of R in these proceedings, whilst at the same time acting for R in other proceedings, gives rise to a strong inference of evading service, or game playing (in the words of Anthony Chan, J in Saif Partners II LP and ors v Joe Zhixiong Zhou [2020] HKCFI 987). This is not a practice to be encouraged when the underlying objectives of the RHC are to avoid unnecessary costs and delay, and to ensure the expeditious disposal of proceedings.”

10.8Mr Manzoni further relied on the proposition set out in Deutsche Bank AG Hong Kong Branch v Zhang Hong Li [2016] 3 HKLRD 303 §79, namely that, notwithstanding the fact that SLA was not authorized to accept service on behalf of D, an order may still be made for substituted service on SLA, so long as that was a method that would reasonably likely bring the contents of the court documents to the attention of D.

10.9Incidentally, prior to the 22/8/25 Hearing, on 21 August 2025, D sent a fax (“Fax”)  to court (without copying P)  stating that (1)  he was informed by his family members of the Summons, (2)  he was residing and working in the Mainland and gave the address of one of the science parks in Suzhou as his address (“Suzhou Address”)  and (3)  he would return to Hong Kong (but without stating precisely when)  to deal with the Summons and asked the court not to make a substantive order at the 22/8/25 Hearing.  As D did not copy P on the fax, apart from mentioning to Mr Manzoni that I had received the Fax, its contents were not divulged to D at the 22/8/25 Hearing.

10.10D’s application to set aside the Substituted Service Order was premised on misrepresentations and material non-disclosure in the following respects:

(1)  P had mispresented that there was valid service of the OS;

(2)  P in its skeleton submissions asked for a substantive order on the false premise that there was valid service;

(3)  P advanced an unfounded “evasion” narrative as P well knew that D was ordinarily based in the Mainland since his management of 16 science parks across the Mainland required his continued presence in the Mainland;

(4)  In failing to disclose the matters set out in the preceding subparagraph, P obtained an order for substituted service as a means of bypassing the requirement for service out and was therefore an abuse of process.

10.11I did not agree with D. 

10.12First, the matters set out in subparagraphs (1)  and (2)  were plainly correctly represented or disclosed to me, since by Mr Manzoni’s supplemental skeleton filed on 21 August 2025, P had already acknowledged that there might be potential problems with service, and hence the need for the Substituted Service Order.

10.13Secondly, as accepted by Mr Wong, the Tai Tam Address was D’s residential address.  The evidence plainly showed game playing since:

(1)  In the Dongguan Proceedings, P stated that his address was the Tai Tam Address and gave his Hong Kong ID Card information, but in these proceedings he claims that he is ordinarily resident in the Mainland and the Suzhou Address is the address for service;

(2)  Whilst SLA represented the B Parties (but not D)  in the Arbitration Proceedings, there were nevertheless still incidents of game playing.  As stated above, the OS and the Summons were respectively provided to SLA on 29 July and 18 August 2025.  It was only on 18 August 2025 that SLA wrote to DLA to state that they did not act for D.  There was no reference by SLA to the provision of the OS on 29 July 2025.  The inference was that D gave instructions to SLA not to accept service of the Summons as the hearing was imminent whereas there was no or less urgency associated with the OS.

10.14Thirdly, as submitted by Mr Manzoni, P had properly brought to the attention of the court the following matters: (1)  the Tai Tam Address was stated by D himself as his “residential address” in the PRC Writ for the Dongguan Proceedings, (2)  P did not have knowledge of D’s exact whereabouts and D might argue that he was not in Hong Kong and (3)  the B Parties’ Hong Kong solicitors (SLA)  as well as D’s Mainland lawyers (Grandall)  both refused to accept service on behalf of D.

10.15Fourthly, I had inquired with Mr Wong as to what steps ought to have been taken by P, given the transient nature of D’s stay in the Mainland as it was D’s own evidence that he had to manage the 16 science parks situate in different areas of the Mainland.  He submitted that an application for leave to serve outside of jurisdiction should be made to all 16 science parks and it was only if that service could not be effected in the foregoing manner then P was entitled to apply for an order for substituted service.  In my view, Mr Wong’s suggestion could not be a sensible or practical way forward, especially in the light of the then perceived urgency that the IPC would hold the substantive hearing of the Dongguan Proceedings in October 2025.

10.16Once the case of “game playing” was made out, as submitted by Mr Manzoni, on the observations set out at Deutsche Bank §§72-77, it was perfectly possible to make an order for substituted service on a Mainland-based defendant’s solicitors and such order would not contravene RHC Order 11, rule 5A.

10.17For the above reasons, I made the 26/9/25 Order.

Mr Charles MANZONI, SC leading Mr Martin HO, instructed by Messrs DLA Piper Hong Kong, for the Plaintiff

Mr William WONG, SC leading Mr Alex YEUNG, instructed by Messrs Chui & Lau, for the Defendant