Pacific China Holdings Ltd (in Liquidiation) v. Grand Pacific Holdings Ltd
Read the full judgment text of FAMV18/2012 on BabelCite. This Court of Final Appeal judgment was delivered on 21 February 2013 before Chief Justice Ma, Mr Justice Chan PJ, Mr Justice Ribeiro PJ.
Civil procedure – arbitration – setting aside arbitral award – UNCITRAL Model Law Article 34(2)(a)(ii) and (iv) – inability to present case – non-compliance with agreed procedure – procedural and case management discretions – leave to appeal – great general or public importance – leave as of right – liquidated sum – Court of Final Appeal – Pacific China Holdings Ltd (in liquidation) v Grand Pacific Holdings Ltd – FAMV18/2012 – The respondent obtained an arbitral award for US$55 million against the applicant. The applicant sought to set aside the award on grounds that the tribunal's procedural rulings prevented it from presenting its case or deviated from agreed procedure. The Court of First Instance set aside the award, but the Court of Appeal restored it. The applicant sought leave to appeal to the Court of Final Appeal. The Appeal Committee dismissed the application, holding that the tribunal's rulings were proper exercises of its procedural and case management discretions, and no viable grounds under Article 34 were established. The questions raised were not of great general or public importance, and leave was not as of right as the proceedings did not involve a liquidated sum. Application dismissed with costs.
Legal issues: Grounds for setting aside arbitral award under Article 34(2)(a)(ii) and (iv) of UNCITRAL Model Law · Leave to appeal as of right under section 22(1)(a) of the Court's statute · Whether the questions raised were of great general or public importance
Outcome: Application for leave to appeal dismissed with costs.
Cited by 3 cases · Cites 2 cases
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FAMV No. 18 of 2012 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 18 OF 2012 (CIVIL) (ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO. 136 OF 2011) _____________________ Between:
_____________________ Appeal Committee: Chief Justice Ma, Mr Justice Chan PJ and Mr Justice Ribeiro PJ Hearing and Decision: 19 February 2013 Handing Down of Reasons: 21 February 2013 _________________________ DETERMINATION _________________________ Chief Justice Ma: 1.We dismissed this application for leave to appeal with costs, with reasons to be given later. These are our reasons. 2.The respondent (“GPH”) commenced an arbitration in Hong Kong against the applicant (“PCH”) to recover a debt of US$40 million plus interest under a loan agreement. After numerous interlocutory applications and rulings, the arbitral tribunal made its final award in favour of GPH on 24 August 2009, ordering PCH to pay US$55,176,170.48 with interest at 5% pa from 1 June 2009. 3.On 8 March 2010, PCH applied to the Court of First Instance to set aside that award. The application succeeded before Saunders J[1] but the Court of Appeal allowed GPH’s appeal and restored the award.[2] By the present application, PCH sought leave to appeal from the Court of Appeal’s judgment. 4.PCH applied to set aside the award invoking Article 34(2)(a)(ii) and (iv) of the UNCITRAL Model Law which is given the force of law by the Arbitration Ordinance.[3] Relevantly, the provisions relied on state as follows:
5.In our view, the Court of Appeal was entirely correct to hold that the complaints advanced by PCH do not constitute viable grounds for setting aside the award under the aforesaid provisions. The rulings complained of were made by the tribunal in the proper exercise of its procedural and case management discretions, reflecting its assessment of the requirements of procedural fairness as appropriate to the circumstances. There is no basis for interference by the Court. No reasonably arguable basis has been disclosed for granting leave to appeal. 6.Notwithstanding the way in which the six questions set out in the Notice of Motion are framed, none of them in the context of the present case constitute questions of great general or public importance. The first four involve at best considerations of a jurisdiction which an arbitral tribunal undoubtedly possesses (powers of case management). In reality, raising these questions constitutes an attempt by the plaintiff to argue for the third time fact sensitive matters. The fifth question either does not arise for determination or is also an attempt to re-argue the facts. The sixth question does not arise and is academic. We express no view on it. We also prefer to refrain from expressing any views about the Court of Appeal’s obiter discussion (which it acknowledged to be academic) concerning a possible discretion to refuse to set aside an award notwithstanding proof of a recognized ground for such setting aside.[4] Neither of these matters affects our agreement with its judgment on the fundamental issues affecting leave to appeal. 7.The only possible reservation that we have about the Court of Appeal’s judgment involves its discussion of the substantive merits when it stated its views as to the applicability of the doctrine of ratification.[5] That is, however, of no assistance to the applicant. 8.The applicant also seeks to suggest that leave is as of right. That suggestion must be rejected. The proceedings instituted by PCH in the courts below have involved no claim for any liquidated sum. The subject-matter of the proposed appeal equally involves no such claim. The question sought to be raised is whether the tribunal’s procedural rulings constitute viable grounds under Article 34 for setting aside its award. That is not an appeal that comes within section 22(1)(a) of the Court’s statute.
Mr Jat Sew Tong SC and Mr Victor Dawes instructed by Sidley Austin for the applicant Ms Teresa Cheng SC and Mr Adrian Lai instructed by Herbert Smith Freehills for the respondent |
Cases cited in this judgment