Read the full judgment text of CACV 136/2011 on BabelCite. This Court of Appeal judgment was delivered on 9 May 2012 before Tang VP, Kwan JA, Fok JA.
Arbitration – setting aside of award – Article 34 of the UNCITRAL Model Law on International Commercial Arbitration – section 34C(4) of the Arbitration Ordinance (Cap 341) – Article 34(2)(a)(ii) and (iv) – loan agreement governed by New York law with ICC arbitration clause in Hong Kong – late amendment to plead illegality under Taiwanese law – whether procedural order for sequential filing of pre-hearing submissions and expert reply breaches duty to give full opportunity to present one's case under Article 18 – whether refusal to admit three new authorities in joint expert report breaches Article 18 – whether refusal of leave to file further submissions on Hong Kong law authority issue breaches Article 18 – whether reliance on New York authorities not cited by parties breaches Article 18 – court's discretion to refuse to set aside where outcome would be the same – whether grounds for setting aside are to be construed narrowly and engaged only in serious cases. The Court of Appeal held, allowing GPH's appeal and reinstating the Award, that the Tribunal had wide case management discretion under section 2GA of the Arbitration Ordinance and the ICC Rules, and was entitled when faced with a late amendment to require sequential filing of pre-hearing submissions to avoid delay and balance prejudice. The Tribunal's refusal to admit the three new Taiwanese law authorities was a legitimate case management decision and did not deny PCH the opportunity to present its case. The Tribunal was entitled to refuse PCH further submissions on the Hong Kong law issue raised at a late stage, and in any event the Tribunal's decision on the Hong Kong law issue was supported by the independent ground of ratification. The complaint regarding New York authorities not cited by the parties was rejected. The Court of Appeal further held that the court has a residual discretion to refuse to set aside an award even if a ground under Article 34(2)(a)(ii) or (iv) is established, where the breach is not material to the outcome, following Dallah Real Estate v Ministry of Religious Affairs of Pakistan and Brunswick Bowling Billiards Corp v Shanghai Zhonglu Industrial Co Ltd, and that Article 18 / Article 34(2)(a)(ii) grounds are to be construed narrowly and engaged only in serious or egregious cases involving a denial of due process. Appeal allowed; Saunders J's order set aside; Award reinstated; originating summons dismissed; costs nisi to GPH both in this court and below.
Legal issues: Whether the Tribunal's procedural order for sequential filing on the Taiwanese law issue violated Article 34(2)(a)(ii) and (iv) · Whether the Tribunal's refusal to admit three additional Taiwanese law authorities violated Article 34(2)(a)(ii) · Whether the Tribunal's refusal of leave to PCH to reply on the Hong Kong law issue violated Article 34(2)(a)(ii) · Whether the Tribunal citing New York authorities not relied on by the parties violated Article 34(2)(a)(ii) · Whether the court has discretion to refuse to set aside an award notwithstanding a violation of Article 34(2)(a)(ii) or (iv)
Outcome: Appeal allowed; Saunders J's order setting aside the Award set aside; Award reinstated; originating summons dismissed; costs nisi to GPH both in the Court of Appeal and below.
Cites 1 case