Noble Resources Pte Ltd v. China Sea Grains and Oils Industry Co Ltd
Read the full judgment text of HCCT23/2006 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 28 March 2006 before Hon Burrell J.
Arbitration — Arbitrator resignation — Termination of mandate under Arbitration Ordinance and UNCITRAL Model Law — Effect of arrest and incommunicado status on arbitrator’s mandate — Court’s power to declare termination to facilitate continuation of arbitration proceedings. In this dispute arising from a contract of sale dated 8 April 2004 settled by arbitration, the chairman of the tribunal, Dr Wang Shengchang, was arrested and detained in mainland China prior to resumption of hearings in Hong Kong. Although direct communication ceased, a fellow arbitrator relayed Dr Wang’s clear intention to resign due to personal circumstances. The court held that this was sufficient to declare termination of Dr Wang’s mandate under section 34(C) of the Arbitration Ordinance and Articles 14 and 15 of the UNCITRAL Model Law. The court found it necessary and proper to make the declaration without waiting for further details of Dr Wang’s arrest to allow the arbitration to proceed. Costs of the application were ordered against the Defendant.
Legal issues: Arbitrator resignation and mandate termination
Outcome: Declared termination of Dr Wang Shengchang’s mandate as arbitrator; costs to be paid by the Defendant
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HCCT23/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTRUCTION AND ARBITRATION PROCEEDINGS NO.23 OF 2006 ------------------------- BETWEEN
---------------------- Before : Hon Burrell J in Court Date of Hearing : 28 March 2006 Date of Judgment : 28 March 2006 Date of Reasons for Judgment : 29 March 2006 --------------------------------------------------------- REASONS FOR JUDGMENT --------------------------------------------------------- 1.These are my brief reasons for making the following declaration at the conclusion of the hearing on Tuesday, 28 March 2006, namely that :
2.The motion became necessary because Dr Wang who was the chairman of a tribunal of three arbitrators in a part-heard arbitration was arrested recently in Beijing and is currently in custody in the mainland. The arbitration is due to resume on Monday, 3 April in Hong Kong. 3.It is true that many uncertainties exist as to Dr Wang’s present circumstances. In my judgment however, those uncertainties do not extend to the question, has Dr Wang resigned? 4.It is clear that he has been arrested, but not clear why. It is clear that he is in custody, but not clear for how long that will remain. It is clear that he will not be in Hong Kong on Monday, 3 April. 5.More importantly it is clear that he has spoken to his fellow arbitrators. It seems to me that nothing has changed since 20 March 2006 when one of the arbitrators, Mr Philip Yang, wrote to all the solicitors concerned in these terms :
6.It is true that, other than the above, there has been no direct communication from Dr Wang but that is simply because he is incommunicado in mainland China. 7.In my judgment, the only purpose that would be served by “waiting a few weeks” (Ms Teresa Cheng SC’s proposal on behalf of the defendant) would be to find out more about the circumstances surrounding Dr Wang’s arrest. 8.However, the only important fact is that he has expressed his intention to resign. It is safe and proper to accept the truth of that from Mr Yang’s letter. It is therefore in the interest of the part-heard arbitration to treat that as his resignation and now take such steps as are necessary to resume the hearing in accordance with the proper procedure. 9.The combination of his known present circumstances and his known present intention make it safe and proper to declare that Dr Wang’s mandate has been terminated. Whether or not Dr Wang might, at some future date, be theoretically able to resume as arbitrator is neither here nor there once it is established that he has resigned. In all the circumstances, I am satisfied that there is a sufficiency of evidence that he has and it therefore sensible and desirable to so declare sooner rather than later.
Mr Jeremy J. Bartlett, instructed by Messrs Laracy Gall, for the Plaintiff Ms Teresa Cheng, SC, instructed by Messrs Deacons, for the Defendant |