A and Others v. Z
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HCCT 233/2025 [2026] HKCFI 5453 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTRUCTION AND ARBITRATION PROCEEDINGS NO 233 OF 2025 ____________________
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________________ J U D G M E N T ________________ Introduction 1.The Arbitration Ordinance Cap 609 of the Laws of Hong Kong (“Ordinance”) is founded on the principle that parties should be free to agree on how disputes arising under their contracts should be resolved, and that if they have chosen arbitration as the manner of that dispute resolution, both parties should be kept to their bargain, and the Court will uphold their arbitration agreement and the award which is made as a result of their designated mode of dispute resolution. That is the rationale behind the stated object and principles of the Ordinance. 2.Section 34 of the Ordinance gives effect to Article 16 of the Model Law, and recognizes the Komptenz-Komptenz principle of international commercial arbitration (“competence–competence”) – that the arbitral tribunal is deemed competent to rule on its own competence and jurisdiction. This important principle is itself the rationale and explanation for the manner in which the Court exercises its supervisory and other discretionary powers it has in respect of the arbitral process and the awards of the tribunal. 3.In the present case, the parties have brought into focus the manner in which the Court may or should interfere in their resolution of disputes under various contracts made between them and their associated companies, by the grant of injunctions to restrain the Defendant from prosecuting proceedings commenced on the Mainland which the Defendant claims it has the right to pursue. Parties and the background relationship 4.The background and the historical contracts made between the parties are not disputed, and below is extracted from the summary of dealings contained in the Submissions made for the Plaintiffs. 5.The 1st Plaintiff (“A”) is a company incorporated in Singapore, and a member of the G Group (“Group”) based in the USA, its head company being Parent. The Group is described by the Defendant as a giant in the worldwide and Chinese Mainland glass substrates industry, holding 50% of the market share. A is the investment platform of the Group. The 2nd Plaintiff (“B”) represents the headquarters of the Group in China, and manages the operations of the Group there. The 3rd Plaintiff (“C”) and the 4th Plaintiff (“D”) are producers of glass substrates. 6.The Defendant (“Z”) is a company incorporated in Mainland China and a player in the glass substrates market there. It began its manufacturing and production lines for glass substrates in 2007, and has since 2020 been supplying glass substrates to customers. 7.In 2017 and 2018, A and Z entered into two joint venture agreements (“JV Agreements”), to set up two joint ventures in Xianyang and Chengdu (“Xianyang JV and Chengdu JV”, together “JVs”). The key feature of the JV Agreements is an arrangement whereby the JVs would buy certain raw materials and services exclusively from entities related to G (“Exclusive Supply Arrangement”), and Z and its affiliates had to purchase LCD glass substrates exclusively from the JVs. Article 6.1 and 6.2 of each of the JV Agreements set out such arrangement, providing as follows (for the Xianyang JV Agreement):
The Chengdu JV Agreement provides for corresponding obligations relating to the Chengdu JV. I have not been informed that there are any differences which are material. 8.The companies named in Article 6.1 and 6.2 as parties to the Exclusive Supply Arrangement are all entities affiliated to A and Z. As Counsel for A highlighted, the exclusive agreements to be made between the JVs and the G entities were annexed to the JV Agreements as the defined “A-Company Supply Agreement” (“Subsidiary Agreements”). 9.The JV Agreements are governed by PRC law. Each of the JV Agreements provides for arbitration, in the following terms:
10.There is no dispute, that pursuant to the Exclusive Supply Arrangement provided for in the JV Agreements, the JVs entered into the Subsidiary Agreements with the relevant G entities. The relevant agreements (and the parties thereto) are summarized below by Counsel for the Plaintiffs, including the dispute resolution clause in each of the agreements:
The Mainland Actions 11.Since 2025, Z commenced a series of proceedings on the Mainland against the Plaintiffs and their associated companies (“Mainland Actions”). They all relate to the Exclusive Supply Arrangement, with Z complaining that the Plaintiffs and the G entities had engaged in unfair competition/market monopoly activities and had disrupted market order. These proceedings include an action brought to claim that the arbitration agreements in the JV Agreements are invalid and should be set aside. 12.The Mainland Actions are summarized in the Plaintiffs’ table below:
13.In response, the Plaintiffs sought relief from the Hong Kong Court, to restrain Z from continuing the Mainland Actions on the ground that Z is seeking by the Mainland Actions to undermine the Exclusive Supply Arrangement and the arbitration agreements contained in the JV Agreements, and is in breach of the arbitration agreement by prosecuting the Mainland Actions which are vexatious or oppressive. 14.On Z’s part, it claims that Xianyang Action 1 is a derivative action commenced by Z as a shareholder but on behalf of the JV company. A, C and D are named as defendants. 15.On behalf of the Plaintiffs, Counsel highlighted the fact that according to the Statement of Claim in Xianyang Action 1, Z claims that because of the Exclusive Supply Arrangement, the Xianyang JV can only source materials from G related entities, and that the G entities abused the Exclusive Supply Arrangement by (inter alia) selling to the Xianyang JV at a price above market price, and by exploiting G’s control of the Xianyang JV. The Statement of Claim referred to Article 84 of the PRC Civil Code, which provides that shareholders may not use “connected relationships” (“關聯關係”) to cause harm to a company. 16.According to Z, Xianyang Action 2, the Chengdu Action and the Beijing Action were all “Anti-Competition Actions”. They were commenced by Z against B and C (the 2nd and 3rd Plaintiffs in this action). As summarized by Counsel for Z, Z claims in these proceedings that B and C, as subsidiaries of Parent which controls over 50% of the glass substrates market on the Mainland, were Z’s competitors in the glass substrates market, and that they were abusing their market dominance in restricting downstream enterprises of the Xianyang JV Company from purchasing Z’s products, and had disrupted market competition, which is contrary to (inter alia) Article 2 of the PRC Anti‑Unfair Competition Act (“UC Act”). 17.The Statement of Claim in Xianyang Action 2 refers to Z’s and its affiliates’ obligation under the JV Agreements to purchase a substantial portion of their glass substrates from the JVs, and claims that such restrictions constitute unfair competition. Z pleads that as a result of the unfair competition activities of C and B, the market competition benefits of Z had been seriously damaged and it had sustained economic loss, such that C and B should be restrained from their unfair competition activities, and should compensate Z for its loss. Entity A (a Z affiliate which is a party to one of the supply agreements) is named as 3rd party in Xianyang Action 2. 18.Article 2 of the UC Act relied upon by Z provides as follows:
19.The Chengdu Action is substantially similar to Xianyang Action 2, Z as Plaintiff claims against C and B as defendants, with the Chengdu JV and Entity A joined as third parties. In the Statement of Claim filed in the Chengdu Action, Z referred to the Exclusive Supply Arrangement and the supply agreement between C and the Chengdu JV, which enabled C to limit the ability of the Chengdu JV to purchase its supplies. The Statement of Claim refers in particular to the articles of the Chengdu JV which restrict it from purchasing its supplies from Z. As in Xianyang Action 2, Z claims in the Chengdu Action that the anti-competition activities be terminated, and seeks compensation in respect of its economic loss. 20.The Beijing Action is materially the same, whereby Z as plaintiff makes claims against C and B as defendants, with Entity A joined as third party. The Statement of Claim filed in the Beijing Action referred to Z being a competitor of the defendants, with the same downstream clients. Z claims that C and B had abused their market position, restricted customers from purchasing Z’s products, and had disrupted market order by way of damage to the lawful rights of Z. The Statement of Claim refers to the Exclusive Supply Arrangement, the supply contract between the Chengdu JV and G and the articles of the Chengdu JV which restricted its purchases. 21.The G entities challenged the jurisdiction of the Mainland Courts in all the proceedings. 22.In Xianyang Action 2, B and C claimed that the anti-competitive practice complained of by Z were in performance of the Xianyang JV Agreement, which contains an arbitration clause, and that the matter should be referred to arbitration. The challenge was dismissed by the Mainland Court, on the ground that C and B were not parties to the arbitration agreements. G’s appeal is awaiting decision from the Mainland Court. 23.In the Chengdu Action, the G entities argued that the anti‑competition claim was an attempt to evade the arbitration agreement in the JV Agreement, and should not be allowed to be pursued. The challenge succeeded at first instance, but on appeal, the Sichuan High Court reversed the decision, again on the ground that C and B which were the defendants in the Chengdu Action were not parties to any arbitration agreement with Z which could be enforced. As a result of the interlocutory applications made by the G entities to the Hong Kong court, a hearing in the Chengdu Action was vacated and there has been no further progress. 24.In the Beijing Action, the G entities again argued that the alleged anti-competitive practice complained of by Z was in performance of the JV Agreements, to fall within the scope of the arbitration agreement in the JV Agreements, and that the action should be stayed to arbitration in Hong Kong. Given the issues concerning joint investment agreements, anti‑competition laws, and the arbitration law, the G entities invited the Mainland Court to transfer the case to the Beijing Intellectual Property Court. There can be no dispute however that the G entitles had challenged the jurisdiction of the Mainland Court in the action. A decision on the jurisdiction challenge is pending. 25.In the Xianyang Arbitration Actions, Z is plaintiff and A is named as defendant. Z seeks a declaration that the arbitration agreements in the JV Agreements are invalid, claiming that:
26.The ground set out in paragraph 25(2) being such a novel contention, Mr Yuen SC was questioned by this Court, and he confirmed that he would not be pursuing that claim to argue that the arbitration agreement has no effect. 27.On 24 December 2025, A commenced these proceedings for orders that Z take steps to withdraw the Mainland Actions and be restrained from taking steps to pursue those proceedings, or to seek anti-suit injunctions to restrain A from enforcing the arbitration agreements in the JV Agreements. On 27 December 2025, A successfully obtained an interim injunction from Johnny Chan J which injunction compelled Z to withdraw its conduct preservation application to the Xianyang Court in the Xianyang Arbitration Actions (“27/12 Order”). On 2 January 2026, this Court further granted an interim injunction, restraining Z from taking any steps to pursue or continue the Mainland Actions pending the determination of this action (“2/1 Order”). 28.In respect of the Chengdu Action, A applied to the Hong Kong Court on 20 January 2026 for an order that Z should withdraw the said action. Suffices it to say that a hearing on the merits which had initially been set down in the Chengdu Action for 4 February 2026 was subsequently adjourned. On 2 February 2026, an order was made by DHCJ Gary Lam which in effect restrained Z from taking any steps to pursue, continue and/or prosecute any application for judgment on the merits at any hearing in respect of the Mainland Actions. 29.A now seeks an injunction to be made by this Court under the Amended Originating Summons issued in this action, for the withdrawal of the Mainland Actions and to injunct Z from commencing, continuing, procuring or assisting the commencement or pursuit of any proceedings against A and/or its affiliates, in respect of any dispute arising out of or in relation to the JV Agreements, otherwise than pursuant to the arbitration agreements contained in the JV Agreements. The grounds relied upon by A are that the Mainland Actions were commenced in breach of the arbitration agreements in the JV Agreements; and/or were vexatious, oppressive or an abuse of process, being attempts/procedural manoeuvre designed to evade the arbitration agreements contained in the JV Agreements. 30.In opposition to A’s application, Z claims that there is no breach of any arbitration agreement, as none exists between Z and C and B (the defendants in Xianyang Actions 1 and 2, the Beijing Action and the Chengdu Action). In any event, Z claims that Xianyang Action 2, the Beijing Action and the Chengdu Action are anti‑competition actions, which (1) are not arbitrable under either Mainland law which is the governing law of the JV Agreements and the arbitration provided for therein, or Hong Kong law; and (2) do not fall within the scope of the arbitration clause in the JV Agreements. In respect of Xianyang Action 1, Z claims that it is a derivative action brought by Z on behalf the Xianyang JV company only, and is not a dispute arising from or in connection with the JV Agreement - which only governs the rights and obligations between the 2 shareholders of the JV Companies. In the absence of any arbitration agreement between Z on the one part and C, B and D on the other part; and between the Xianyang JV company and A on the other part; the Mainland Actions commenced by Z cannot be said to be either in breach of contract, or vexatious or oppressive in any way. Applicable legal principles 31.An anti-suit injunction may be granted where foreign proceedings are commenced in breach of an arbitration clause. As held in Giorgio Armani SpA v Elan Clothes Co Ltd [2019] 2 HKLRD 313, unless there are strong reasons not to do so, an injunction will be granted by the Court to uphold the agreement between the parties to submit their dispute to arbitration and to the jurisdiction of the supervisory court of the seat of the arbitration, and also to enforce and protect the right of the parties not to be vexed by proceedings brought in breach of the agreement. 32.The Court may also restrain proceedings (including arbitrations) which are vexatious, oppressive or an abuse of process (Plain Sail Holdings Ltd v Lau Wing Yan [2020] HKCFI 653; Xiamen Xinjingdi Group Ltd v Eton Properties Ltd [2023] HKCFI 1327; G&G v CNG [2026] HKCFI 902). 33.On the question of whether a valid arbitration agreement exists between the parties, and whether a dispute falls within the scope of any arbitration agreement which may be in existence, Counsel dispute the threshold or standard of proof which is applicable. On Z’s case, A must prove these to a high degree of probability (citing Commerzbank AG v Ruschemalliance LLC [2023] 2 Lloyd’s Rep 587, para 19, and Bank A v Bank B [2024] HKLRD 250 para 59). Neither of the judgments in these cases contains an analysis of the threshold or reasoning for the finding, presumably because it was not put in issue in the proceedings before the Court. 34.Mr Yuen SC for Z argued for the higher threshold, rather than the prima facie case test contended by Mr Man SC for A, on the basis that the injunction sought is likely to be final. Mr Yuen highlighted that the relief sought in the Amended Originating Summons itself is final, requiring Z to withdraw the Mainland Actions, and there is as yet no pending determination by any arbitral tribunal as to its jurisdiction in any arbitration commenced. 35.Having considered the submissions made by Counsel, I am more persuaded that the prima facie test is the appropriate threshold. 36.In support of his argument, Mr Man drew analogy from the authorities on applications made under section 20 of the Ordinance to stay a court action in favor of arbitration. These are explicit, that unless the point is clear, the Court should not resolve the issue of whether or not there is a binding arbitration agreement, but leave it to the arbitral tribunal to decide on its jurisdiction under the competence-competence principle. This was made clear by Tang VP in PCCW Global Ltd v Interactive Communications Service Ltd [2007] 1 HKLRD 309, where His Lordship observed (at paragraph 60 of the judgment):
37.The prima facie test has been consistently applied in Hong Kong for stay of proceedings to arbitration, including Polytec Overseas Ltd v Grand Dragon International Holdings Co Ltd [2017] 3 HKLRD 258. 38.As Mr Man contended, the grant of an anti-suit injunction is in fact the mirror image (Mr Man used the term “twin”) of the grant of a stay under section 20 of the Ordinance. If the prima facie threshold applicable to an application for a stay of proceedings to arbitration is not applicable to an application for an anti-suit injunction to restrain proceedings brought in breach of an arbitration agreement, it would create the strange result that if there is violation of the parties’ bargain outside Hong Kong, a higher threshold would be required to restrain the violation, compared to a violation of the bargain within Hong Kong, by the commencement of proceedings here. Mr Man’s submission is that it is only right that the same test, of a prima facie case of the existence of an arbitration agreement, is applicable. Otherwise, the architecture of the Hong Kong arbitration regime would be undermined. 39.The fact that the proceedings to be restrained are outside the jurisdiction does not by itself justify any differentiation. As Millett LJ found in The Angelic Grace [1995] 1 Lloyd’s Rep 87, and followed in GM1 v KC [2020] 1 HKLRD 132, there is no good reason for diffidence to restrain foreign proceedings on the clear and simple ground that the defendant has promised not to bring them, so long as the relief is sought promptly. 40.In P v D [2025] HKCFI 5424, there was dispute before the Court as to the threshold to be met before the Court should exercise its discretion to grant an anti-suit injunction to restrain foreign proceedings said to have been brought in breach of an arbitration agreement. The learned judge in the case rejected the contention that a high degree of probability is required to show that there is an arbitration agreement governing the dispute in question. Instead, DHCJ Jonathan Wong found that the appropriate test is a prima facie case, the principal reason being that where the Court is asked to order interim relief to facilitate the tribunal in the determination of its competence and process, the Court only serves as a filter for the tribunal and the decision of the Court is not a final conclusion. 41.In this case, Mr Man highlighted the fact that in deciding issues as to arbitrability and the existence of a valid arbitration agreement, the rationale for adopting a prima facie test, and the rejection of the higher threshold normally required for a final order, is based on the important competence‑competence principle appliable to an arbitral tribunal. I agree with Mr Man, that on an application for the grant of an anti-suit injunction, the Court is not called upon to make, and should not normally make, any final order or determination, because it is the arbitral tribunal which should first decide on questions of its jurisdiction - such as whether it has jurisdiction over the dispute by virtue of a valid binding agreement between the parties, whether the dispute is arbitrable by nature, and whether the dispute falls within the scope of the arbitration agreement. It is only after the tribunal has made a ruling, whether as a preliminary question or in an award on the merits, that the matter can be reviewed by the supervisory court, whether under section 34 or 81 of the Ordinance. 42.Further, Mr Man rightly pointed out, that although the injunction seeks to order Z to withdraw, and not to continue or pursue, the Mainland Actions, and for the claims to be made pursuant to the arbitration agreements contained in the JV Agreements, this is only to enable the arbitral tribunal to decide the questions of the existence and validity of the arbitration agreements, and whether it has jurisdiction to decide the claims. If the tribunal ultimately rules against A, and such a ruling is not set aside by the supervisory court, Z is at liberty to pursue its claims in the Mainland Actions. The injunction cannot be regarded as final, or determinative, in this light. 43.In the context of deciding whether the anti-suit injunction should be granted on the contractual ground, the questions for determination by this Court are accordingly whether there is a prima facie case that there is a valid arbitration agreement which can be enforced by Z against the defendants in the Mainland Actions, and whether there is a prima facie case that the claims made in the Mainland Actions are arbitrable, and fall within the scope of the arbitration clauses. The Arbitration Agreement 44.It is indisputable that the JV Agreements which contain the arbitration clause were only made between A and Z. 45.On behalf of Z, it was argued that the starting point should be that only the parties to a contract are bound by the arbitration clause in the JV Agreements, and if in any case the contracting parties intend that the exclusive jurisdiction/arbitration clause should apply to a non-contracting party, clear words are required to be used to set out such intention. Reliance was placed on the judgments in Cavendish Square Holding BV v Ghossoub [2017] EWHC 2401 (Comm), and Clearlake Shipping v Xiang Da [2019] EWHC 2284 (Comm), where Andrew Burrows QC (now Lord Burrows) observed:
I would add that Lord Burrows continued to observe, as follows:
46.As the cases cited by Counsel show, the question and focus is ultimately the objective interpretation of the contract in question. In Cavendish Square Holding BV v Ghossoub [2017] EWHC 2401 (Comm), the Court summarized the principles as follows:
47.Counsel for Z drew distinction between the provisions of the JV Agreements and those in the contract considered in the case of Giorgio Armani SpA v Elan Clothes Co Ltd [2019] 2 HKLRD 313, to argue that the arbitration clause in the JV Agreements was not intended to extend, and cannot be extended, to claims made by Z against non-parties such as C, B and D. 48.Mr Yuen highlighted the fact that the JV Agreements were expressed to have been made “by and between” A and Z, without reference to the associates or affiliates. The term “Party” or “Parties” was defined to mean “individually, either A or Z, and collectively, A and Z. Article 2 states the Parties to the contract to be A and Z. Article 6 of each of the JV Agreements provides for the responsibilities of the parties, and this states at Article 6.1 that (inter alia):
49.Z’s responsibilities are in turn stated at Article 6.2, to include the following:
50.As Counsel for Z pointed out, Article 6.1 and 6.2 do not provide for the affiliates of Z or A to be parties to the JV Agreements. Under Article 6.1 and 6.2, each of A and Z was only required to “cause” its relevant Affiliate to perform “on its behalf” its obligations “assumed by it” in the contract. Whilst affiliates are expressly mentioned, there is no express or implied assumption of the contractual obligations by the affiliate itself. 51.Mr Yuen highlighted in particular that the arbitration clause itself (Article 20.1) is clearly a bipartite agreement between A and Z, expressed to apply to disputes between the two stated Parties, A and Z, which disputes were to be settled amicably by negotiations between the representatives of the Parties as defined, with the right conferred on A and Z each to appoint an arbitrator. There is no mention of any affiliate in the clause: only A, Z, or “the Parties” as defined, nor any indication that any affiliate would acquire rights under the clause. 52.Counsel for the Plaintiffs highlighted from the start that the courts have never allowed a party to evade an arbitration agreement, and the obligations assumed thereunder, simply by choosing to sue or join in the action a third party associated or close to the contracting party, or by framing a claim as non-contractual, in order to avoid the scope of the arbitration agreement. On behalf of the Plaintiffs, it was contended that it would be contrary to the reasonable understanding of commercial businessmen entering into a carefully drafted contract (such as the JV Agreements in this case) that the arbitration agreement included in the contract could be so easily circumvented. 53.Mr Man submitted that it would also be contrary to the Fiona Trust presumption against fragmentation of claims and disputes to construe the arbitration clause in the JV Agreements as meaning that any claim which arises from or in connection with the JV Agreement should not be determined by the arbitral tribunal, but by another forum, simply because the claim involves a company associated with A, when the exclusive agreements entered into between the JVs and affiliates of A were not only contemplated but were expressly referred to, and provided for, in the JV Agreements. Mr Man highlighted the fact that the contracts to be entered into between the JV companies, C, B and D under and pursuant to the Exclusive Supply Arrangement were all provided for in Article 6.1 and 6.2 of the JV Agreements, and that the relevant supply contracts/Subsidiary Agreements and Project Agreements were all appended to the JV Agreements. 54.Considered as a whole, I would have to agree that the only parties to the JV Agreements were A and Z. Despite the references to the Exclusive Supply Arrangement and the exclusive supply/purchase contracts to be entered into between the G entities and the JV companies, these contracts were provided for and intended to be made between the JV companies and the separate G entities, distinct from and separate to A and Z. Applying the guidelines summarized in Cavendish Square, it cannot be said that B, C and D were made parties to the arbitration agreement. 55.However, the absence of an arbitration agreement between Z, B, C and D does not mean that the injunction sought by the Plaintiffs should not be granted to restrain the proceedings brought by Z against the G entities other than A. The authorities are clear that the Court may restrain the Mainland Actions if it can be shown that they are vexatious, oppressive and an abuse of process. In his judgment in Clearlake, whilst Lord Borrows had explained that it is a matter of interpretation of the jurisdiction clause in the contract whether it extends to cover court proceedings against a third party on a contractual basis, His Lordship made the following clear at paragraph 23(ii) and (iii) of his judgment (having referred to the question of whether an exclusive jurisdiction clause in a contract between A and B could be enforced by B against A, to prevent tort proceedings by A against C):
Whether the Mainland Actions should be restrained 56.To determine the question of whether the anti-suit injunctions should be granted on the application made by the Plaintiffs in this case - which include A, a party to the JV Agreements - it is necessary to consider: the nature of the claims made in the Mainland Action, whether they fall (prima facie) within the scope of the arbitration clause in the JV Agreements, whether Z can rely on the arbitration agreement and the JV Agreements to commence arbitration of the claims it seeks to make in the Mainland Actions, or whether there is good reason for Z to commence the Mainland Actions instead of arbitration, for example because the claims are non-arbitrable, as alleged. 57.In my judgment, the observations made by Foxton J in JP Morgan Securities PLC v VTB [2025] EWHC 1368 (Comm) (at paragraph 112) are highly pertinent:
58.Foxton J continued to explain at paragraph 146 of his judgment:
59.To the extent that the cases cited by the parties show that there may be different bases for the courts to allow injunctions to restrain proceedings against a non‑party: on contractual grounds purely on construction of the exclusive jurisdiction clause or the arbitration agreement, on quasi-contractual grounds, or under the principle that the forum selection clause should be given maximal effect over strict contractual construction and implication, I would prefer to accept the contention that the public policy in Hong Kong, of recognizing and enforcing arbitration agreements and awards, and maintaining Hong Kong as a pro-arbitration regime, favors a more flexible approach in construing and giving effect to an arbitration clause. As Mr Man submitted, it would not be conducive to Hong Kong public policy to find that parties can easily avoid the effect of a binding agreement whereby they had consented to the submission of all their disputes to arbitration, simply by joining or taking action against parties closely related to and associated with the contracting party, when the claim can be made against the contracting party in accordance with the arbitration clause. It may be said to be that the grant of an injunction in such circumstances is on the contractual ground that the arbitration clause must be reasonably construed to extend to such closely connected claims against closely connected parties. It may also be said that the injunction is granted in such cases on some wider quasi-contractual ground, or because the proceedings against the third parties are abusive. 60.In this regard, and as explained in G v CNG [2026] 3 HKLRD 615, this Court as the supervisory court of the arbitration to which A and Z had agreed under their JV Agreements has the duty to supervise and protect the arbitral process. Acting in the public interest to facilitate the fairness and well-being of a consensual method of dispute resolution, the supervisory court has the duty to grant the necessary injunction, if it is just and necessary to protect the arbitral process and agreement, to restrain parties from conducting proceedings which were brought in breach and disregard of an arbitration clause in their contract. 61.The principles highly pertinent to the issues in dispute in the present case have also been highlighted at the outset of the hearing by Mr Man for A, as summarized at para 12-151 of Dicey, Morris and Collins on The Conflict of Laws (16th edition):
62.It is with these principles in mind that I turn to consider the Mainland Actions which are sought to be restrained in this case. The Derivative Action 63.It was contended on behalf of Z that under both Hong Kong and Mainland law, Xianyang Action 1 is a shareholders derivative action. It was emphasized that if a party to an arbitration agreement has a claim against a non-party in its own right, it would not be vexatious or oppressive for the party so to do in exercise of its entitlement (citing Foxton J’s observations made in his judgment in JP Morgan International Finance Ltd v Werealize.com Ltd [2025] EWHC 1842 (Comm), which Mr Man pointed out were obiter since an injunction was in fact granted in the case). 64.There can be no dispute, that the nature and true substance of any claim made is not characterized by the label which is attached to it. 65.I accept the submissions made by Counsel for A, that despite the fact that Xianyang Action 1 is referred to as a “derivative action” brought by Z only in name as representative for the Xianyang JV as true plaintiff, the claims made in the action all relate to and arise out of and in connection with the performance of the JV Agreements made between A and Z, and fall within the scope of the arbitration clause in their JV Agreements. 66.The real and substantial complaint made in the Statement of Claim filed in Xianyang Action 1 is that because of the Exclusive Supply Arrangement contained in the JV Agreements, the Xianyang JV could only source materials from G related entities and sell them at prices controlled by the G Group, and these G entities had acted in concert with A (also named as a defendant in Xianyang Action 1), and exploited their affiliated relationship and control over the glass substrates production operations, to deprive the Xianyang JV of its rightful operating profits. It is further claimed that the management appointed and controlled by A had, in concert with A and other G entities, acted against the best interests of the Xianyang JV, by agreeing to purchase raw glass sheets at unjustifiably inflated prices. The acts said to be injuring the Xianyang JV were possible because of the Exclusive Supply Arrangement contractually agreed under and provided for in the JV Agreements. 67.It is claimed by Z that by reason of the foregoing matters, there is a breach of Article 84 of the PRC Civil Code, which provides that shareholders may not use connected relationships to cause harm to a company. It was contended that Xianyang Action 1 was commenced under and for breach of the PRC Civil Code, and was not a contractual claim made under the JV Agreements. By way of relief, Z seeks (on behalf of the Xianyang JV) injunctions to enjoin A, C and D from harming the interests of the Xianyang JV, and claims that they are jointly and severally liable to compensate Xianyang JV for losses of RMB 300 million. 68.On behalf of Z, it was contended that Article 84 of the PRC Company Law creates a right for Z as a shareholder to bring the derivative action on behalf of the Xianyang JV company, for wrongs committed against the company, and that this brings the claim in Xianyang Action 1 outside the scope of the JV Agreements. Z may well have the right to bring action under PRC Company Law, but the whole object of the arbitration clause contained in the JV Agreements is to secure the parties’ express agreement not to bring such proceedings in the Mainland, but to arbitrate all their disputes instead in Hong Kong (see GM1 v KC [2020] 1 HKLRD 132, paras 22-23). 69.The PRC Civil Code or the Company Law may provide Z or the Xianyang JV with the foundation for a claim (of breach of duties), but this does not alter the fact that what is attacked in Xianyang Action 1 and the so‑called derivative action is in truth the Exclusive Supply Arrangement agreed and set up under the JV Agreement between A and Z for the Xianyang JV (under Articles 6.1 and 6.2). The claims that A, the other G entities and affiliates, and the management appointed by the Group, were acting contrary to the law or their duties as directors, arise from and are in connection with the performance of the JV Agreements which provide for the Exclusive Supply Arrangement complained of, and which is the real and core dispute between the parties and their associates. Drawing analogy from the case of Arjowiggins HKK2 v Shandong Chenming Paper Holdings Limited [2018] HKCFI 93, Counsel for A argued that Z’s right to commence the derivative action on behalf of the Xianyang JV arises by virtue of its acquiring shares in the Xianyang JV under the JV Agreement, A’s alleged misuse of power as a shareholder through its nominated management is likewise based on the rights acquired by A under the Xianyang JV Agreement, and the damage allegedly sustained by the Xianyang JV was suffered because of the Exclusive Supply Arrangement. All these bring the claims squarely within the wide scope of the arbitration clause in the JV Agreement. I agree. 70.Once it is apparent that the derivative claims made by Z are related to the performance of the JV Agreement and the Exclusive Supply Arrangement, there is nothing remarkable about the claims of alleged breach of duties of directors/controllers/shareholders of the JV Company, and their being acts constituting independent causes of action, as these are the usual claims and complaints made in a derivative action. The directors/management were simply giving effect to the Exclusive Supply Arrangement and the contracts made pursuant thereto that they engaged in the conduct said to be against the interests of the JV company. 71.On a plain reading and construction of the arbitration clause contained in the JV Agreements between A and Z, it is not limited or confined to claims of a contractual nature only, but covers claims of all character so long as there is a disputed claim which arises from, or is in connection with the JV Agreements. A claim that performance of the JV Agreement involves the parties acting in breach of the law, or that the JV Agreement requires parties to enter into contracts the performance of which is in breach of the law, is a claim which is closely connected with the JV Agreement and the performance thereof. 72.If performance of the JV Agreements and the Exclusive Supply Arrangement provided for thereunder, and if compliance with the Articles of Association provided for the JV companies under the JV Agreements, are in breach of any aspect of the Mainland law - be it the provisions of the PRC Civil Code or the PRC Law Against Unfair Competition - it would be natural for and open to Z to assert this in a claim against A brought under the JV Agreement, to seek release of Z and its entities from the obligations under the JV Agreement, and under the contracts provided for in the JV Agreement. The obligations of A under Article 6.1 of the JV Agreement included the performance of the JV Agreement by itself, and the procurement of the performance of the JV Agreement and the Project Agreements by its affiliates on its behalf, as well as causing its affiliates to enter into the supply contracts/Subsidiary Agreements. In my judgment, a claim that A’s performance of and compliance with these obligations is contrary to the PRC Civil Code or the UC Act naturally falls within the scope of the arbitration clause of the JV Agreement, and certainly cannot be said to be entirely unrelated to the JV Agreement. 73.There is unquestionably a prima facie case that the claims made by Z in Xianyang Action 1 fall within the scope of the arbitration agreement between A and Z. A is entitled to an order that Z should be restrained from pursuing Xianyang Action 1 on the contractual ground, on the basis that Z had agreed not to pursue such claims against A and its associates named to be parties to the contracts under the Exclusive Supply Arrangement, otherwise than in accordance with the arbitration clause in the JV Agreements. It cannot be said that it was within the reasonable intention of A and Z at the time of the JV Agreements that actions could be brought against the entities to sign the Subsidiary Agreements. 74.The joinder in Xianyang Action 1 of G affiliates other than A is, in my judgment, clearly a “procedural manoeuvre” designed merely for the purpose of evading the arbitration agreement between A and Z, and to take action on the Mainland instead. There is no reason why Z cannot make the representative claims it did make in Xianyang Action 1 by way of arbitration against A in Hong Kong. The remedies Z seeks in the derivative action (as representative for the Xianyang JV company) are for an order declaring that the Xianyang JV’s interests had been damaged by A, C and D, and that A should be jointly liable with C, D and XXX (the Manager) for the JV company’s damages. These remedies can and should be sought against A in accordance with the arbitration agreement, and because A is claimed to be jointly liable with its affiliates for the claims made in the so-called derivative action, A is entitled to an injunction to restrain the continuance of Xianyang Action 1 against C and B as the action has impact on A’s consequential liability. 75.As early as in Donohue v Armco Inc [2001] UKHL 64, Lord Scott had explained this (in the context of an exclusive jurisdiction clause not being restricted to contractual claims):
76.Mr Man pointed out that the joinder of additional non-parties as an attempt to evade an arbitration agreement is not only impermissible under Hong Kong law, but has likewise been rejected by the Mainland Courts as an unacceptable circumvention of the application of an arbitration agreement (citing the case of (2019) 最高法商初2號亞洲光學股份有限公司、東莞信泰光學有限公司等與富士膠片株式會社等加工合同糾紛) (the “Asia Case”). 77.Having considered the nature of the claims made in Xianyang Action 1, I am satisfied that there is a clear prima facie case that they fall within the scope of the arbitration agreement contained in the JV Agreements between A and Z, and there is no reason why they cannot be made against A in accordance with the arbitration agreement. The only reason why the claims were brought before the Mainland Court in Xianyang Action 1 is to enable Z to evade the arbitration agreement and to ignore its obligations and the rights of A under the arbitration agreement. On that basis, Xianyang Action 1 is also vexatious, designed to be oppressive on the G entities, amounts to an abuse of process, and should be restrained. Anti-Competition Actions and whether arbitrable 78.With regard to the claims made in the Anti-Competition Actions (“AC Claims”), in addition to relying on the fact that the defendants in the Anti-Competition Actions are B and C, which are not parties to the JV Agreements, Z’s opposition to the grant of the injunction sought to restrain these proceedings is essentially on the ground that the AC Claims are not arbitrable. If there is a valid arbitration agreement between Z and A, then the question of arbitrability is for the tribunal to decide. The mere fact that a claim is not arbitrable is not a reason or excuse not to arbitrate. 79.On behalf of Z, it was contended that the AC Claims are not arbitrable, under both the law of the arbitration seat (Hong Kong law) and the law governing the arbitration agreement (Mainland law). 80.Counsel for Z submitted that in Hong Kong, which is where the arbitration is to be conducted under the arbitration agreement relied upon by A, the Competition Tribunal has exclusive jurisdiction over all competition law claims. Counsel contended that private standalone causes of action under competition law are not allowed (citing the consultation paper of the Commerce and Economic Development Bureau dated May 2008), such that standalone competition law actions will not be arbitrated in private in Hong Kong. 81.However, it was highlighted by counsel for Z that Article 21.2 of the JV Agreements provides not only that the formation, validity, interpretation and execution of the JV Agreements, but “the settlement of any disputes” arising thereunder, shall be governed by Mainland law. Mr Yuen submitted that it is Mainland law which is applicable and that, in the cautious exercise of the Court’s discretion in relation to the grant of anti-suit injunctions, the orders sought by A should not be made when it is clear that the AC Claims are not arbitrable under Mainland law. In this regard, Z further contends that any award made in respect of Xianyang Action 1 (as a derivative action) and in the Anti-Competition Actions will not be enforceable on the Mainland, if they are non-arbitrable. 82.A’s expert on Mainland law disagrees with the views of the experts called by Z, that the AC Claims are not arbitrable. A’s expert cited examples of cases where AC Claims have been held by the Mainland court to be arbitrable (namely, the decision of the Shanghai Pudong District People’s Court in (2020) 滬0115民初94152號湖北鼎泰恆升科技設備有限公司與賽默飛世彌科技（中國）有限公司) (the “Hubei Case”). 83.According to Mr Man for A, where there is conflict in the expert evidence, the starting point should be that property and contract disputes are arbitrable. Z and its experts have not been able to adduce any persuasive authority against the arbitrability of the AC Claims, and as such the Court should accept that the issue should be left to the tribunal for its determination as to its jurisdiction, which decision may thereafter be reviewed by the supervisory court, if necessary. Mr Man highlighted again the importance of the competence-competence principle, and that unless the matter is clear, the Court should leave it to the tribunal to decide on the arbitrability of the AC Claims, under the relevant law. 84.I accept the submissions made for A, that on the evidence of the experts so far adduced, it is not clear that the AC Claims are not arbitrable under Mainland law and that the injunctions should not be granted on that basis. 85.The AC Claims made in the Anti-Competition Actions have been considered and summarized in the earlier part of this Judgment. The Anti‑Competition Actions were proceedings commenced in the People’s Court, not before any administrative tribunal. The remedies sought include claims for compensatory damages to be paid by B and C, and for orders that these entities cease their anti-competition activities. 86.I have considered the expert reports of Wang Liming (“WL”) and Vincent Mu (“VM”), adduced for CH. 87.First, VM accepts that the 2017 PRC Arbitration Law does not expressly state that competition law disputes are not arbitrable. 88.The experts have referred to Article 3 of the PRC Arbitration Law, which only states that disputes which may not be arbitrated are: (1) marital, adoption, guardianship, support and inheritance disputes; and (2) administrative disputes which shall be handled by administrative organs as prescribed by law. 89.VM relies on Article 3 of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Hearing of Civil Cases Involving Disputes over Monopolistic Acts (“Interpretation”) to support his view that civil disputes arising from “monopoly-related” conduct are not arbitrable. The Interpretation states:
90.VM accepts that monopolistic conduct and unfair competition are regulated under separate statutes (the Anti-monopoly Law, and the Anti‑Unfair Competition Law), but argued that they both fall within the broad category of “competition law”, referring to the case (2019) Zui Gao Fa Zhi Min Xia Zhong No 47 (the “Zui Case”). In that case the Supreme People’s Court explained that the principal object of the Anti-Monopoly Law is to safeguard a sound and orderly market competition regime, and that Article 1 of the Anti-Monopoly Law provides that it was enacted for “preventing and restraining monopolistic conduct and protecting fair competition in the market”, such that the Anti-Monopoly Law together with the Anti-Unfair Competition Law form part of China’s competition law regime. 91.On the above basis, VM referred to the Zui case as authority for his view that AC Claims are not arbitrable, because the Court held in Zui that an arbitration clause agreed in the parties’ distribution agreement cannot constitute a sufficient basis to exclude the jurisdiction of the courts over disputes concerning monopoly agreements, because the Anti-Monopoly Law is of public law in nature, and the determination of whether the conduct constitutes a monopoly goes beyond the allocation of rights and obligations between contractual parties. 92.A’s expert (“WZ”) explained in his report that the “administrative disputes” which are excluded by Article 3 of the Arbitration Law mean disputes between government administrative organs, and disputes between government administrative organs and individual units and citizens in relation to administrative action or management. He explained that Article 22 of the UC Act states that operators who act in contravention of the UC Act and causes damage to other parties incur civil liability, and if an operator’s interests and rights have been damaged by acts of unfair competition, such operator may commence proceedings in the People’s Courts. According to WZ, this shows that AC Claims and actions brought on the basis of unfair‑competition are not “administrative disputes” and do not fall within Article 3 of the Arbitration Law to be non-arbitrable. 93.WZ opined that anti-monopoly claims and disputes are different in nature to claims and disputes of unfair competition, and disagrees with VM’s opinion that because anti-monopoly claims have been held to be non‑arbitrable, AC Claims are likewise non-arbitrable. Apart from the fact that there were (in WZ’s opinion) cases on AC Claims being arbitrable, WZ explained that monopoly disputes and AC Claims disputes are based on different laws, and are different in nature. The Anti-Monopoly Law and the UC Act are “parallel”, and are not “inclusive” in nature. Anti-monopoly claims and disputes and anti-competition claims and disputes are both classified as intellectual property rights and competition disputes, and WZ highlighted the fact that intellectual property claims and disputes are arbitrable. 94.In his report, WZ explained that whereas the Anti-Monopoly Law focuses on protection of the market and overall fair competition, the UC Act focuses on protecting the rights and interests of parties in their dealings, and by nature, the latter is more akin to the protection of civil rights from infringement. WZ further explained that the acts of unfair competition regulated by Articles 7 to 15 of the UC Act include false advertising, trade libel and violation of commercial secrets, which belong to disputes concerning infringement of civil rights. He referred to an academic’s differentiation of the public and private law nature of the two different laws, and also highlighted the current trend of the Mainland authorities’ support of arbitration, to argue that it is not appropriate to consider AC Claims as non‑arbitrable simply because such claims involve public law or the protection of public interests. 95.In WL’s expert report (filed for Z), he sought to explain that AC Claims are different in nature from a contractual claim, and that they basically form different causes of action. WL opined that although some tortious claims may be regarded as property rights claims which are related to contracts, that does not mean that they can be arbitrated. He agreed that monopoly disputes and unfair competition disputes are both in the realm of competition law and that they are different in nature to contractual disputes. 96.The above analysis of WL cannot explain why AC Claims are not arbitrable, or why arbitration can only be confined to claims which are contractual in nature, and cannot under Mainland law extend to claims relating to infringement of rights or tortious claims (as the experts themselves have labeled the AC Claims). 97.WL only went on to explain that AC Claims have to be decided by a market regulator in the exercise of its public powers, and that the intention of an arbitration clause in a contract is to regulate disputes arising from the contractual parties’ performance of the contract. WL appeared to accept that disputes relating to the infringement of property rights could be covered by an arbitration clause if the dispute is “closely related” to the performance of a contract and the parties can be said to have agreed to submit the dispute to arbitration. He also accepted that whilst in the earlier cases, the Mainland Courts have held that such infringement of property rights disputes are different in nature to disputes relating to breach of contract, and hence are not covered by the arbitration clause, the judicial approach on the Mainland has now evolved, and there is currently more respect for the parties’ intention to arbitrate their disputes, if the dispute on infringement of rights is related to the contract. 98.This is an important acknowledgment on the part of WL. 99.WL’s final opinion appears simply to be that if the dispute of infringement of rights involves third parties or public interest, such as unfair competition which has effect on market order, then it cannot be said that the parties had intended such disputes to be arbitrated. This brings it more in line with the Hong Kong authorities that it is ultimately a question of construction of the relevant arbitration agreement, whether a dispute falls within the ambit of the arbitration agreement as having been intended by the parties, as opposed to there being any general, wide principle that such disputes are not arbitrable. 100.To the extent that Z’s experts draw analogy from anti-monopoly cases being non-arbitrable, A’s expert likewise relies on other cases under the UC Act, of violation of trade secrets, having been accepted by the Mainland Courts as claims which validly fall within the ambit of arbitration clauses, and arbitrable. 101.Of the three experts, I find WZ’s evidence on Mainland law to be more reasoned and persuasive. 102.On behalf of A, Mr Man submitted that Z has not adduced any direct authority that AC Claims under the UC Act are not arbitrable. The cases on non-arbitrability which are relied upon by Z’s experts are cases on anti-monopoly only. 103.On the other hand, A’s expert has referred to a direct authority stating that AC Claims can be arbitrated (the Hubei Case). Although Counsel for Z contended that that was a first instance decision, and is neither a binding authority nor one with precedential value, I bear in mind that this is at least one decision on AC Claims, and the Mainland court found in the case that the arbitration clause extended to the AC Claims made by the plaintiff, and that the plaintiff in the case could not avoid the application of the clause simply by using anti-competition as a cause of action. The fact that the arbitration clause in the Hubei Case expressly included disputes on AC Claims meant that the court must have considered whether such a clause extending to AC claims was valid, when it held that the parties were bound by the clause, and that the AC Claims should be arbitrated. 104.Although much emphasis was put on the fact that under Article 3 of the PRC Arbitration Law, “administrative disputes which shall be handled by administrative organs as prescribed by law” may not be arbitrated, it is indisputable that the Anti-Competition Actions were commenced by Z in the Mainland Courts, and not before any administrative body. There is no action being handled by any administrative organ. Z itself claims in the Anti-Competition Actions that it has the right under the UC Act to bring action and to seek the damages it claims by way of remedy in the Anti-Competition Actions. This is consistent with WZ’s illustration, of a party asserting that its civil rights had been infringed. 105.Counsel for A further pointed out that although the Mainland Courts have dismissed the challenges made in Xianyang Action 2 and the Chengdu Action on the ground that B and C were not parties to any arbitration agreement to be enforced, the Courts did not make any finding or express any view that the AC Claims were not arbitrable. As A was not named as a party in Xianyang Action 2 and the Chengdu Action, the Mainland Court did not consider or decide the question of whether A’s rights under the arbitration agreement had been violated, or whether the actions were oppressive. 106.To conclude, I do not accept the assertion that the AC Claims are clearly not arbitrable, such that the Court should not grant the injunction sought. At the least, if there is an arbitration agreement to be enforced between A and Z, there is a prima facie case that the claims are arbitrable. Whether the Anti-Competition Actions should be restrained 107.The substance of the AC Claims has been summarized at paragraphs 16 to 20 of this Judgment. 108.Counsel for Z highlighted that the AC Claims are that B and C, as subsidiaries of Parent which controls over 50% of the glass substrates market in the Mainland, abused their market dominance in restricting downstream enterprises from purchasing Z’s products, and had disrupted market competition, which is contrary to Article 2 of the UC Act (“Article 2”). Article 2 requires operators to abide by the principles of voluntariness, equality, fairness and good faith in their production and operations activities, and to participate in market competition fairly. Unfair competition is defined in Article 2 to mean acts of operators in their production and operation activities which violate the provisions of the law, disrupt order in market competition, and damage the legitimate rights and interests of other operators or consumers. 109.What cannot be disputed is that Parent’s control over the market and the Group’s alleged dominance of the market was a matter which was known to Z at the time of the JV Agreement, when the terms of the exclusive sales and purchase set out in Article 6.1 and 6.2 were agreed. 110.It was emphasized by counsel for Z that the cause of action under Article 2 is distinct from the other causes of action, of passing off (under Article 6 of the UC Act), and infringement of trade secrets (under Article 9). Z claims that A is a Singaporean company which is merely the investment platform for the G Group, and that it is arguable that it does not conduct any unfairly competitive acts on the Mainland, since it is C which is the relevant G entity responsible for selling the raw glass sheets to the JV companies, and B which is responsible for managing the affiliates of the G Group and for procuring the allegedly unfair competitive actions of C. C and B are accordingly said to be the proper defendants in the Anti-Competition Actions. 111.Z referred in its evidence to the investigations which have been made by the European Commission into the G Group, and of the Group’s abuse of its dominant market position. Mr Yuen explained that this, and the undertaking given by the Group to the European Commission not to enforce a particular type of exclusive sourcing and supply agreements, show that Z has genuine concerns and claims against the Group. The fact that Z has a genuine claim may be taken into account when the Court considers whether it is abusive or oppressive for Z to commence the Anti-Competition Actions. However, having a genuine claim is not a reason to avoid bringing the claim in accordance with the contractual bargain, of having the claim arbitrated. 112.Counsel for Z further pointed out that the relief sought by Z in the Anti-Competition Actions include remedies pertaining to “any trading counterparty” of the defendants, since the order sought is to restrain C and B to cease (inter alia) coercing any trading counterparty to refuse purchase of the products of Z, that C and B should terminate the exclusive provisions in their contracts with any trading counterparty, and should be restrained from entering into exclusive provisions in any contract with any trading counterparty, 113.Although it is claimed that there is no other contractual mechanism which would allow Z to obtain the remedies it seeks in the Anti‑Competition Actions, Z has not satisfactorily explained why it cannot make claims against A, by arbitration pursuant to the arbitration clause in the JV Agreements, that the Exclusive Supply Arrangement provided for in the contracts to be procured by A and to be entered into by the G entities, as set out in the JV Agreements, are contrary to the provisions of the UC Act and invalid, and that the Exclusive Supply Arrangement and the contracts to be procured and entered into are null and void. Such orders are not binding on third parties to the JV Agreements but they do bind A, which can be ordered to procure other acts of its affiliates as may be required to invalidate, terminate or discharge the relevant contracts. 114.Having considered the nature of the claims made in the Anti‑Competition Actions, the observations made at paragraphs 71 to 74 of this Judgment (with regard to Xianyang Action 1) apply to the Anti‑Competition Actions as well. The AC Claims fall within the scope of the arbitration clause in the JV Agreements and could have been made against A under the JV Agreements to seek the necessary relief against A. A is entitled to an injunction to restrain its counter‑party Z from pursuing the AC Claims against B and C, its associates which were required to enter into the Subsidiary Agreements pursuant to the JV Agreements. 115.Further, in my judgment, Z’s act of commencing the Anti‑Competition Actions was simply an attempt to evade the arbitration agreement contained in the JV Agreements, and to exert oppression on A, B, C, and their affiliates. This is abuse. The 2019 Asia Case and the 2020 Hubei Case cited by the expert for A are support for the proposition that the Mainland Courts adopt the same principle and approach, of not permitting parties to evade arbitration agreements, and are consistent with the view of the experts, that the Mainland Courts now are more supportive of the parties’ free choice of arbitration as the manner of resolution of their disputes. The Xianyang Arbitration Actions 116.I have no hesitation in granting an injunction to restrain the Xianyang Arbitration Actions. These actions were brought by Z against A, seeking a declaration that the arbitration agreements contained in the JV Agreements are invalid, on grounds of duress, and that the AC Claims are outside the scope of the arbitration clause. The ground, that the arbitration agreement is unlawful as being contrary to Mainland public policy by excluding the supervision of the Mainland Court and recognizing the finality of the Hong Kong arbitration and the award, is stated simply to be dismissed as baseless. Z had agreed to arbitrate disputes arising from or in connection with the JV Agreements in Hong Kong, and had thereby agreed also to submit to the supervisory jurisdiction of the Hong Kong courts in respect of the arbitration. Whatever ground is relied upon by Z to attack the validity of the arbitration agreement, such question is to be determined by the tribunal, and then by the Hong Kong courts in accordance with the procedural law in Hong Kong. The fact that the Mainland Court may also have jurisdiction does not affect the situation, nor prevent the grant of the injunction, as the purpose of the parties’ arbitration agreement is to covenant not to invoke that and any other jurisdiction in breach of the arbitration agreement (GM1 v KC [2020] 1 HKLRD 132, and the cases cited therein; Dicey, Morris & Collins on the Conflict of Laws, 16th ed, para 12-151; Akai Pty Ltd v People’s Insurance Co Ltd [1998] Lloyd’s Rep 90, para 105). Summons to discharge 117.Although there was a summons issued by Z to discharge the interim 27/12 Order and the 2/1 Order, Mr Yuen did not make submissions at the hearing and according to Mr Man, that application has been rendered academic. In any event, I can see no ground of delay. No orders will be made on the summons. Disposition 118.Having considered and rejected the objections raised by Z, I can find no other strong reason not to grant the injunctions sought. I therefore make orders in terms of the Amended Originating Summons. To avoid any dispute, the orders should expressly provide for the fact that they are “until further orders of the Court or of the tribunal”. 119.It follows that the costs of the Amended Originating Summons (including any costs reserved) should be paid by Z to A, on indemnity basis, with Certificate for 2 Counsel, to be taxed if not agreed. Such order will be made absolute unless application for variation is made within 14 days.
Mr Bernard Man SC, Mr Norman Nip SC and Mr Sik Chee Ching, instructed by Gall, for the 1st to 4th plaintiffs Mr Rimsky Yuen SC, Ms Jennifer Fan and Mr Cristian Tsang, instructed by Zhong Lun Law Firm LLP, for the defendant | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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