R v. C

On 18 August 2026, Deputy High Court Judge Jonathan Wong handed down judgment in R v C [2026] HKCFI 4688, dismissing the Plaintiff R's originating summons under section 26 of the Arbitration Ordinance (Cap 609). R, a sovereign state, had sought to challenge the appointment of arbitrator SS in a BIT arbitration administered by the HKIAC. Mr Charles Manzoni SC (leading Mr Elson Tong, instructed by BF & Co) acted for R; Mr Simon Chapman and Mr Antony Crockett of Herbert Smith Freehills Kramer acted for C.

The dispute arose from C's majority shareholding in a local energy company, allegedly harmed by R's governmental measures. C commenced two parallel arbitrations against R under a Bilateral Investment Treaty and the Energy Charter Treaty, appointing SS as arbitrator in both. R challenged SS's appointment on three grounds: a Prejudgment Ground based on SS's writings on Most Favoured Nation (MFN) clauses; a Multiple Appointments Ground based on SS's concurrent appointments in related arbitrations; and a Nationality Ground based on SS's nationality and connections. C raised two preliminary challenges: a Time-Bar Argument and a Waiver/Estoppel Argument premised on the Procedural Agreement.

The Court held that:

(1) The Time-Bar Argument failed because time did not start running until the BIT NOA was received by R's Ministry of Foreign Affairs on 12 November 2024, not when it was received by R's embassy on 4 November 2024. Service on the embassy by courier, without diplomatic channels, was insufficient (§§5.6-5.7).

(2) The Waiver/Estoppel Argument failed because the right to resort to the court under Article 13(3) of the UNCITRAL Model Law cannot be contracted out by agreement. The court distinguished CNG v G & Ors [2025] HKCFI 3598 on its facts (§§6.3-6.8).

(3) The Prejudgment Ground failed because SS's articles were general scholarly writings on MFN issues, not opinions about the present case. Following CC Devas (Mauritius) Ltd v India and Urbaser SA v The Argentine Republic, the court held that abstract doctrinal commentary is insufficient to give rise to doubts as to impartiality (§§7.22-7.31).

(4) The Multiple Appointments Ground failed because, following Electrabel S.A. v The Republic of Hungary, parallel appointments alone do not give rise to justifiable doubts. The record was insufficient to show the additional significant overlap required (§§8.14-8.15).

(5) The Nationality Ground failed because the applicable rules do not prohibit appointment based on nationality, and the connections alleged were insufficient (§9.1).

(6) Cumulatively, the grounds did not cross the threshold for disqualification (§9.6).

The OS was dismissed with costs on an indemnity basis in C's favour.

Why it matters

For practitioners: abstract scholarly writings on legal issues relevant to an arbitration will rarely support a successful challenge, even where the arbitrator has expressed strong views. The court reaffirmed the orthodox position that parallel appointments require more than similarity of subject matter to justify removal. Service of process on a state's embassy by courier, without diplomatic channels, may not trigger time limits for procedural steps.