Read the full judgment text of HCCT 54/2007 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 24 June 2008 before Hon Reyes J.
Arbitration — Enforcement of Mainland Arbitration Award — Arbitration Ordinance (Cap. 341) ss. 2GG, 40B, 40C, 40E(3) — Specific performance — Impossibility of performance — Public policy — Share transfer and property development — Role of court of seat of arbitration — Enforcement of part of award — Material non-disclosure. The Applicant sought enforcement in Hong Kong of a Mainland arbitration award ordering the Respondents to pay sums and continue performance of an Agreement involving transfer of shares in a Hong Kong company controlling a Mainland property-owning entity and development of Mainland land. The Respondents argued enforcement should be refused due to impossibility of performance caused by share restructuring and prior property development rendering delivery impossible, also relying on public policy and procedural grounds including alleged Applicant non-disclosure and AO restrictions on enforcing matters not arbitrable or previously enforced in Mainland courts. The Court applied a mechanistic principle that enforcement courts should not go behind awards except where enforcement would violate compelling public policy or be plainly impossible, emphasizing exclusive jurisdiction of the arbitration seat court over substantive questions. The Court held partial enforcement is permissible and no plain and obvious impossibility or public policy bar existed. The Applicant’s readiness to perform was accepted. The alleged material non-disclosure was held immaterial. The Court distinguished enforcement of share transfer obligations (in personam) from property conveyance (in rem) not subject to AO restrictions. Mainland enforcement failure on jurisdiction was no bar to enforcement in Hong Kong under AO s.40C. Respondents’ set aside application dismissed; enforcement granted with costs.
Legal issues: Impossibility of further performance and public policy · Applicant's readiness, willingness and ability to perform · Material non-disclosure at ex parte stage · Enforcement of part of an award involving land situate outside Hong Kong · Effect of AO s.40C on enforcement after Mainland enforcement proceedings
Outcome: The Respondents’ application to set aside Andrew Cheung J’s Order dated 31 October 2007 is dismissed; enforcement granted.
Cited by 17 cases · Cites 1 case