Read the full judgment text of HCCT4/2000 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 8 April 2000 before Hon Burrell J.
Arbitration — Enforcement of foreign arbitral award — Arbitration Ordinance Cap.341 s.43 compliance — Admissibility of affidavit evidence under Order 41 r.5 — Requirement for full and frank disclosure in ex parte enforcement applications — Public policy defence to enforcement. The plaintiff was granted ex parte leave to enforce a Korean arbitral award dated 24 June 1999 under a sales and purchase contract with an arbitration clause in Korea. The defendant sought to set aside the enforcement order, arguing non-compliance with s.43 proofs, inadmissible hearsay in plaintiff’s affidavit, failure of full disclosure at the ex parte stage, and that the award was contrary to public policy due to an alleged sham underlying contract. The Court held that s.43 was satisfied by production of the original award at inter partes hearing and solicitor's affidavit concerning the arbitration agreement. The plaintiff's 3rd affirmation was admissible notwithstanding limited hearsay which did not prejudice the defendant. There was no duty to disclose the defendant’s defence at the ex parte stage and non-disclosure was immaterial. The public policy challenge failed on the facts, as the defendant had not advanced the case at arbitration and evidence supported the validity of the contract. The summons to set aside the enforcement order was dismissed with costs against the defendant.
Legal issues: Compliance with section 43 of Cap.341 · Admissibility of plaintiff's 3rd affirmation under Order 41 rule 5 · Obligation of full and frank disclosure at ex parte stage · Whether enforcement of the award is contrary to public policy
Outcome: Defendant's summons to set aside the ex parte enforcement order is dismissed.