Read the full judgment text of HCCT000047/1997 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 25 November 1998 before The Hon Mr Justice Findlay.
Arbitration — Arbitration Ordinance (Cap. 341) — Application of pre- and post-1996 amendment law — Stay of proceedings under section 6 — Arbitration agreement existence — Court's discretion vs mandatory stay — Jurisdiction of arbitrator to rule on existence of arbitration agreement. The plaintiff commenced legal proceedings against the first and second defendants and later added the third defendant after commencing arbitration against it post-June 1997 Arbitration Ordinance amendment. The third defendant sought a stay of court proceedings under the amended Arbitration Ordinance. The court considered the transitional provisions of the 1996 amendment, holding the amended Ordinance applies since the arbitration was commenced after its effective date. The court further held that pursuant to section 6(1) incorporating Article 8 of the Model Law, a mandatory stay applies where a valid arbitration agreement exists, unless it is invalid or unenforceable. However, the third defendant contended no arbitration agreement existed with the plaintiff. The court found the third defendant had not met the precondition for a stay as the arbitration agreement was allegedly between the third defendant and a different party, not the plaintiff. The court rejected the notion that an arbitrator has inherent jurisdiction to decide the existence of an arbitration agreement without statutory backing. Consequently, the stay application was dismissed and costs were ordered against the third defendant.
Legal issues: Applicable law for stay of proceedings under Arbitration Ordinance · Whether the court must order a stay under section 6(1) of the amended Ordinance · Existence of arbitration agreement between plaintiff and third defendant
Outcome: The third defendant's application for a stay or dismissal was dismissed.