Ten Principles Of Arbitral Award Enforcement In Hong Kong

19 January, 2016

 

The Hong Kong courts have a remarkable track record of enforcing arbitral awards. According to the statistics published by the HKIAC (Hong Kong International Arbitration Centre), the Hong Kong courts have not refused enforcement of any award between 2011 and 2014.

 

A recent Hong Kong case confirmed this pro-enforcement approach and reaffirmed its underlying principles. In KB v S [2015] HKEC 2042, the Court of First Instance dismissed the Respondents' application to set aside a Court Order granting leave for enforcement. Mimmie Chan J, the Judge in charge of the Construction and Arbitration List, set out ten principles on the enforcement of arbitral awards in the Hong Kong courts, summarising various existing case authorities:

 

1. The primary aim of the court is to facilitate the arbitral process and to assist with enforcement of arbitral awards.
2. Under the Arbitration Ordinance ("Ordinance"), the court should interfere in the arbitration of the dispute only as expressly provided for in the Ordinance.
3. Subject to the observance of safeguards that are necessary in the public interest, the parties to a dispute should be free to agree on how their dispute should be resolved.
4. Enforcement of arbitral awards should be "almost a matter of administrative procedure"and the courts should be "as mechanistic as possible" (Re PetroChina International (Hong Kong) Corp Ltd [2011] 4 HKLRD 604).
5. The courts are prepared to enforce awards except where complaints of substance can be made good. The party opposing enforcement has to show a real risk of prejudice and that its rights are shown to have been violated in a material way (Grand Pacific Holdings Ltd v Pacific China Holdings Ltd [2012] 4 HKLRD 1 (CA)). 
6. In dealing with applications to set aside an arbitral award, or to refuse enforcement of an award, whether on the ground of not having been given notice of the arbitral proceedings, inability to present one's case, or that the composition of the tribunal or the arbitral procedure was not in accordance with the parties' agreement, the court is concerned with the structural integrity of the arbitration proceedings. In this regard, the conduct complained of "must be serious, even egregious", before the court would find that there was an error sufficiently serious so as to have undermined due process (Grand Pacific Holdings Ltd v Pacific China Holdings Ltd [2012] 4 HKLRD 1 (CA)).
7. In considering whether or not to refuse the enforcement of the award, the court does not look into the merits or at the underlying transaction (Xiamen Xingjingdi Group Ltd v Eton Properties Limited [2009] 4 HKLRD 353 (CA)).
8. Failure to make prompt objection to the Tribunal or the supervisory court may constitute estoppel or want of bona fides (Hebei Import & Export Corp v Polytek Engineering Co Ltd (1999) 2 HKCFAR 111).
9. Even if sufficient grounds are made out either to refuse enforcement or to set aside an arbitral award, the court has a residual discretion and may nevertheless enforce the award despite the proven existence of a valid ground (Hebei Import & Export Corp v Polytek Engineering Co Ltd (1999) 2 HKCFAR 111, 136A-B).
10. The Court of Final Appeal clearly recognized in Hebei Import & Export Corp v Polytek Engineering Co Ltd that parties to the arbitration have a duty of good faith, or to act bona fides (p 120I and p 137B of the judgment).

 

It is anticipated that the above principles will be widely applied in future cases. A recent example is China Solar Power (Holdings) Ltd v ULVAC Inc [2015] HKEC 2559 where the court cited these principles. The application to set aside an award in that case was dismissed.

 

From a practical perspective, the decision in KB v S also illustrates the following points for parties and legal practitioners:

 

During the arbitration process, the parties should promptly raise any procedural complaints, lest they might be taken to be in breach of their duty of good faith by employing delaying tactics (paras. 54 – 59 of the Judgment).

 

Any court application to challenge an award (whether by way of setting aside or resisting enforcement of an award) must be made in time and supported by proper affidavit setting out valid ground(s) of challenge.Otherwise, the application might constitute an abuse of process (paras. 21 – 25, 39).

 

The grounds of challenge must be permissible grounds to refuse enforcement recognised under the Ordinance (para. 47), which mirror the grounds for refusal in the New York Convention.

 

In a recent case, Bird & Bird acted for the Respondent Japanese multinational corporation in successfully resisting the Applicant's application to challenge the arbitral tribunal's jurisdiction, with an award of indemnity costs in the Respondent's favour.