Read the full judgment text of HCCT 000083/2002 on BabelCite. This High Court CFI judgment was delivered on 23 April 2003 before Burrell J.
Arbitration – stay of proceedings – section 6, Arbitration Ordinance, Cap.341 – Article 8 of the UNCITRAL Model Law – mandatory stay where the dispute is the subject of an arbitration agreement – construction sub-contract of HK$32,250,000 – whether the contract was the parties' correspondence of 3 and 12 February 2000 and the meeting of 6 February 2000 (containing no arbitration clause) or the defendant's amended standard form sub-contract sent on 17 February 2000 (containing an arbitration clause) – whether the court or the arbitrator should determine existence of the arbitration agreement – whether pre-1997 English authorities on discretionary stays remain good law – proper test is whether the applicant has established a prima facie or plainly arguable case that the parties were bound by an arbitration clause, with the arbitrator retaining jurisdiction to make the final determination – application of section 2AC, Cap.341 wide definition of arbitration agreement in writing – no signature requirement – consideration of cumulative documentary evidence including the contract number HTS/DSC/A047-01 adopted by the plaintiff, interim payment applications consistent with the defendant's rates, references to "our contractual obligations", the 5% retention rate, the Supplemental Agreement of 30 November 2000, and the size and nature of the contract – stay granted, costs to the defendant – plaintiff's application to cross-examine defence witnesses dismissed with costs on a nisi basis.
Legal issues: Whether the court or the arbitrator should determine the existence of an arbitration agreement on a stay application · Proper test for determining existence of an arbitration agreement on a stay application
Outcome: Stay of proceedings granted in favour of the defendant pending arbitration; plaintiff's application to cross-examine defence witnesses dismissed