Finality may be defined as the quality or condition of being final, settled, resolved or complete. In arbitration, is the final award the end of the road for the disputing parties ? Section 73 of the Arbitration Ordinance, Cap 609 (“AO”) states that generally “an award … is final and binding both on the parties” etc. Generally, there is no right of appeal against an award on point of law under the AO. That said, Section 81 of the AO (which gives effect to Article 34 of the UNCITRAL Model Law) provides for an “application for setting aside as exclusive recourse against arbitral award” to the Hong Kong Court of First Instance (“CFI”) based on specific grounds : incapacity, award conflicts with public policy, etc.
In a recent case, the courts grappled with the question of finality of an arbitral award in the context of Section 81 (Article 34) of the AO and the court’s power to grant an anti-arbitration injunction against a new arbitration commenced under the same arbitration agreement.
Background
The case of G & G v CNG & SIL [2026] HKCFI 902 concerned a shareholders’ dispute about a mining project between China National Gold Group Hong Kong Ltd (“CNG“) and two affiliates of G Group (together, the “G Parties“).
The First Arbitration
In November 2020, the G Parties (applicants) commenced the first HKIAC arbitration and later obtained partial final awards against CNG (respondent).
In February 2024, the CFI dismissed CNG’s application to set aside the partial final awards (under Section 81 of the AO).
In August 2025, the CFI rejected CNG’s application to remove the presiding arbitrator for alleged apparent bias and an application to set aside another partial final award in the first arbitration (which along with the first partial final awards are collectively referred to as the “Partial Final Awards”).
The Second Arbitration
In July 2025, CNG commenced a new HKIAC arbitration against the G Parties alleging bribery and fraud. In this “second” arbitration, CNG claimed :-
(a) that the tribunal should order rescission of the Share Purchase Agreement (“SPA”) and Shareholders’ Agreement (“SHA”), and award damages; and
(b) declarations that would call into question the effect of the Partial Final Awards.
On 26 June 2025, CNG applied inter alia to the CFI for a stay of (then ongoing) execution of the enforcement court orders (in early 2025) on the Partial Final Awards in the first arbitration pending the outcome of the second arbitration and related investigations by the National Supervisory Commission (in Congo) into the G Parties’ bribery of a Mr A, who was at the material time of the negotiations for the SPA and SHA the Deputy Manager of the CNG Group etc.
G Parties’ Anti-Arbitration Injunction Application against Second Arbitration
In September 2025, the G Parties applied to the CFI for an anti-arbitration injunction to restrain CNG from pursuing the second arbitration (the “Injunction Application”).
The G Parties’ main objection to the second arbitration is that under the arbitration agreements concerned, CNG had agreed not only to submit disputes relating to the SPA and SHA to arbitration in Hong Kong, but had further agreed to accept Hong Kong as the seat of arbitration and that the Hong Kong courts should have exclusive supervisory jurisdiction over any challenge that may be made to the awards made in the arbitration (pursuant to Section 81 of the AO and Article 34 of the Model Law). It is a breach of the arbitration agreement to challenge the Partial Final Awards, whether by way of a fresh arbitration, etc. (“Contractual Ground”). Further, CNG had already attempted but failed to set aside the Partial Final Awards within the relevant 3 months time limit.
The G Parties’ alternative ground (“Abuse Ground”) to support the Injunction Application argued that CNG’s claim to set aside the Awards on the ground of alleged fraud / bribery is (inter alia) “a collateral attack abuse (as it seeks to collaterally attack the Partial Final Awards of the Tribunal and the judgment of the Court to enforce the Awards)” etc.
The Key Issues before the CFI
The essential issue before the CFI is whether CNG should be permitted to pursue the second arbitration, and if yes, whether the Enforcement Orders should be stayed pending its determination ?
In gist, for the reasons outlined below, the CFI (Mimmie Chan J) :-
(a) held that the second arbitration was an “impermissible collateral attack” on the existing Partial Arbitral Awards;
(b) granted the anti-arbitration injunction to restrain the second arbitration; and
(c) refused CNG’s stay application regarding execution of the enforcement orders on the Partial Arbitral Awards.
Court’s Reasons
- Section 81 of the AO is an exclusive legal path to challenge arbitral awards. The court held that (referring to the Explanatory Note to the Model Law), Section 81 of the AO (which is based on Article 34 of the Model law) is the sole and exclusive mechanism for challenging arbitral awards, which bars both direct and indirect applications (ie. the second arbitration).
The court referred to Paragraph 45 of the Explanatory Note, which states: “… Article 34(1) provides that the sole recourse against an arbitral award is by application for setting aside, which must be made within three months of receipt of the award (article 34(3))….”
The court rejected CNG’s argument that Section 81 of the AO applies to procedural recourse against an award only, otherwise: “that would mean that it would be open to any party to avoid Article 34(1) by commencing an action before a court to obtain (for example) a declaration that an award is null and of no effect, by reason of any vitiating factor ….That cannot be the intention”.
Finally, allegations of fraud (or other cause of action) do not allow a party to bypass the Section 81 of the AO regime (nor the stated 3 months deadline).
- CNG’s NOA in the second arbitration alleged bribery was an operative cause of the awards in the first arbitration : that but for the alleged bribery, CNG would not have entered into the SPA and SHA etc., and the Tribunal was allegedly misled. The court found the claims were fundamentally inconsistent with the Partial Final Awards : “the focus should be on the substance of the application and dispute, and not how it is framed or articulated in technical lawyers’ jargon”.
- CNG’s argument that Article 34 only provides for exclusive recourse before a “court”, (and not a tribunal) was rejected. The arbitration agreement did not support this argument.
- The CFI rejected CNG’s challenge to G Parties’ injunction application based on alleged “Thieves’ Charter” (referring to a party that procures an award by fraud, and can be allowed to conceal its dishonesty for the statutory period of 3 months in order to render the award unassailable), stating that, while one of the grounds to set aside an award under Article 34(2) (public policy, etc.), “fraud itself does not take the recourse outside the scope of Article 34(1)” and the “three month period for a challenge is absolute”.
- On procedural abuse, CFI found the second arbitration constituted an abuse of process, taking into account the procedural history, eg. the second arbitration was found to be part of CNG’s efforts to resist the Partial Final Awards. Also, CNG’s allegations in the second arbitration (even fraud) are not a valid basis to effectively re-open disputes finally determined in the first arbitration.
Comments
The case further demonstrates the Hong Kong courts’ pro-arbitration approach as well as the finality of arbitral awards and the exclusive pathway in Section 81 of the AO.
Parties on the losing side should think long and hard before launching a set aside application and even more before starting a new arbitration based on the same arbitration agreement. The losing party may be liable to pay costs on an enhanced indemnity basis, which tends to be the norm in Hong Kong (as happened in the above case).
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