Read the full judgment text of HCCT24/2004 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 21 June 2004 before Deputy High Court Judge Poon.
Arbitration — Construction and Arbitration Proceedings — Arbitration agreement validity — Whether deleted arbitration clause could be revived by conduct or written communications — Jurisdictional challenge timing — Submission to jurisdiction by counterclaim — Leave to appeal — Arbitration Ordinance Cap. 341. The applicant, Incorporated Owners of Tak Tai Building, contracted Leung Yau Building Ltd for renovation works with an arbitration clause (Clause 35) later alleged deleted. Arbitration was commenced and jurisdiction challenged by applicant. The Arbitrator found an arbitration agreement existed either by written agreement or by exchange of written communications and rejected the timing and submission pleas on jurisdiction. The court found the Arbitrator erred in holding the jurisdictional plea was raised late and submission by counterclaim but upheld the finding of an arbitration agreement by conduct under sections 2AC(2)(d) and (e) and the existence of an ad hoc arbitration agreement. As these alternative grounds supported the award, leave to appeal was refused. Costs were apportioned with the respondent entitled to half. The decision confirms the high threshold for challenging an arbitral tribunal’s jurisdiction and stresses the importance of conduct and references at preliminary meetings in determining arbitration agreements. Appeal to Court of Appeal dismissed with costs in CACV230/2004.
Legal issues: Timing of jurisdictional plea · Submission to jurisdiction by filing counterclaim · Existence of arbitration agreement by exchange of written communications · Existence of arbitration agreement by conduct under section 2AC(2)(d) and (e) · Ad hoc arbitration agreement existence
Outcome: Refused leave to appeal against the interim award