Read the full judgment text of HCA3492/2002, HCA3973/2002 & HCCT21/2003 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 2 July 2003 before Deputy High Court Judge Muttrie in Chambers.
Arbitration and Mediation — Contract Interpretation — Arbitration Agreement — Clause 21.1 of Sub-Contract — Whether mediation clause or arbitration clause — UNCITRAL Model Law on Arbitration Articles 8 and 16 — Jurisdiction of arbitrator to rule on jurisdiction — Jurisdiction of court to decide existence of arbitration agreement — Stay of proceedings to arbitration — Contractual dispute between building subcontractors. The parties entered into a subcontract containing Clause 21.1, referring to a mediation procedure with a final and binding award. Later Supplemental Agreements modified dispute settlement procedures. A dispute arose and NK3 sought to stay proceedings in favor of arbitration relying on Clause 21.1; Kenon denied the validity of arbitration agreement. The court held that Clause 21.1, despite use of the term 'award', was a mediation clause and not an arbitration clause, given specific reference to mediation and the parties' knowledge. The court further held that it has jurisdiction under the Arbitration Ordinance and UNCITRAL Model Law Articles 8 and 16 to determine whether an arbitration agreement exists before referring the matter to arbitration. The arbitrator's jurisdiction is provisional and subject to court review. Hence, the court dismissed NK3's stay applications and granted Kenon's declaration that there was no valid arbitration agreement obliging referral to arbitration, ordering costs accordingly.
Legal issues: Whether Clause 21.1 is an arbitration clause · Jurisdiction of court to decide existence of arbitration agreement
Outcome: Kenon's declaration that Clause 21.1 is not an arbitration clause is upheld; NK3’s applications to stay proceedings to arbitration are dismissed.
Cited by 3 cases