Read the full judgment text of CACV 106/2008 & CACV 197/2008 on BabelCite. This 高等法院上訴法庭 judgment was delivered on 11 June 2009 before Hon Rogers VP, Le Pichon JA, Hartmann JA.
Arbitration — Enforcement of Mainland arbitration award — Arbitration Ordinance (Cap. 341) sections 2GG and 40B — Public policy ground to refuse enforcement — Impossibility of performance — Jurisdiction of court to remit award back to arbitral tribunal — Distinction between execution and registration stages of enforcement — Hong Kong companies versus PRC company — Restructuring and dilution of shares during arbitration — Applicant seeking specific performance — Appeal dismissed. The applicant, a PRC company, sought enforcement of a Mainland arbitration award against Hong Kong appellants relating to a share purchase agreement involving land in Xiamen. The appellants argued that performance was impossible due to the completion of the land development and restructuring of shareholdings. The Court of Appeal held that impossibility of performance is not a valid public policy ground to refuse enforcement and that the restructuring was self-inflicted. The court further held it does not have jurisdiction to remit the matter back to the arbitral tribunal for directions. The distinctions between enforcement's registration (conversion to judgment) and execution stages were clarified. The appeals were dismissed, and the ex parte order enforcing the award was upheld.
Legal issues: Enforceability of arbitration award despite alleged impossibility of performance · Jurisdiction to remit award to CIETAC for further directions
Outcome: Appeal dismissed; enforcement of the arbitration award upheld.
Cites 1 case