Read the full judgment text of HCCT 66/2007 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 10 February 2009 before Hon Lam J.
Arbitration — UNCITRAL Model Law — Arbitration Ordinance (Cap. 341) Article 34 grounds for setting aside award — Respondents challenging award on procedural grounds including Tribunal applying undisclosed view of PRC law — Tribunal’s failure to give parties opportunity to address undisclosed legal interpretation on PRC contract law concerning validity of Orders in System (OIS) contracts found to be deprivation of opportunity to present case under Article 34(2)(a)(ii); although this ground was established, court exercised discretion not to set aside award on that basis because Tribunal's decision on breach of Clause 10.2 was also based on other valid grounds. Quantum of damages assessed by Tribunal on loss of revenue and setoff rather than loss of profits was within Tribunal’s discretion and not procedural irregularity. Tribunal’s failure to specifically address whether default cured under Clause 12.2 was an error on merits, not procedural breach. Tribunal’s application of PRC law without parties’ submissions on conversion claims was a breach under Article 34(2)(a)(ii), and award portion on conversion claims was set aside. Tribunal’s allocation of hearing time departing from agreed chess-clock system to ensure fairness was proper and did not breach arbitral procedure. Tribunal’s choice to produce award not bilingual as per Clause 23.2 was reasonable. Allegations of arbitrators’ impartiality and independence dismissed for lack of evidence. Tribunal’s refusal to entertain some counterclaims on jurisdictional grounds did not warrant relief as no award was made; counterclaims remain open. Tribunal’s application of double actionability rule to counterclaims, even if erroneous, was not procedural irregularity under Article 34(2). Respondents’ application dismissed except for conversion claims; Respondents ordered to pay costs of the Claimant.
Legal issues: Application of undisclosed PRC law by Tribunal on validity of OIS contracts · Discretion to set aside award despite ground under Article 34(2) · Validity of Tribunal’s quantum of damages based on loss of revenue and setoff · Failure to consider cure within 30 days under Clause 12.2 · Tribunal’s application of PRC law to conversion claims without party submissions · Allocation of hearing time and departure from agreed chess-clock procedure · Language of award and arbitration · Allegations of arbitrator impartiality and independence · Tribunal’s refusal to exercise jurisdiction on Respondents’ counterclaims · Application of double actionability rule by Tribunal to counterclaims
Outcome: The Respondents’ application to set aside the award was allowed in part only with respect to the conversion claims which were set aside; in all other respects, the application was dismissed.
Cited by 1 case · Cites 1 case