Read the full judgment text of HCCT73/2000 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 5 December 2000 before Hon Burrell J in Chambers.
Arbitration — Arbitration Clause Construction — Validity of Arbitrator Appointment — Jurisdiction — Arbitration Ordinance Cap 341 s.12 and s.23(4) — Contractual Clause Requiring Co-joint Appointment by Two Bodies One of Which Ceased to Exist — Whether Appointment by HKIAC Valid — Existence of Dispute for Arbitration purposes. The case concerns two arbitration proceedings between Ken Forward Engineering Ltd and respondents Weltime Hong Kong Limited and Healthy Sun Limited arising under contracts containing an arbitration clause providing for appointment of an arbitrator co-jointly by HKIA and RICSHK. RICSHK ceased to exist in 1997 and was replaced by HKIS, a distinct body. The claimants failed to obtain respondent's consent and proceeded to HKIAC nomination under s.12 Cap.341. The respondents challenged the validity of the arbitrators' appointments and jurisdiction. The Court confirmed that the appointment mechanism under clause 35 was technically inoperable due to the dissolution of RICSHK; HKIA acting alone did not satisfy the clause; and substitution of HKIS was not agreed or appropriate. Resort to HKIAC under s.12 was upheld as proper. The Court applied the PT Dover test to find no strong prima facie case that the arbitrators were plainly wrong. The Court also held that there was a valid dispute for arbitration since respondents disputed the liability despite admitted non-payment. The summonses for leave to appeal were dismissed with costs.
Legal issues: Validity of arbitrators' appointment under clause 35 · Existence of a dispute for arbitration purposes
Outcome: Leave to appeal the arbitrators' awards was refused; the summonses were dismissed with costs.