ENFORCING AND SETTING ASIDE AWARDS: RECENT LESSONS FROM THE HONG KONG COURT
In this article we consider two recent cases on enforcement and setting aside in front of the Hong Kong courts; both featuring issues that tribunals commonly face. The first case, C v. D, concerns whether the court should scrutinise a tribunal’s ruling that the pre-conditions to arbitrate were met. In the second case, X v. Y, new arguments were raised by one party in its post-hearing brief that the other side did not have a chance to respond to. In both cases, the court’s decisions and clarifications on existing legal principles provide valuable takeaways for practitioners.
Multi-tiered dispute resolution clauses – admissibility or jurisdiction?
Many arbitration agreements include an escalation mechanism before arbitration can be commenced. Compliance with this precondition has traditionally been a concern as non-compliance could risk an award being set aside or not enforced. Such concerns may now be eased because of a recent case – C v. D – confirming that it is for the tribunal (and not the court) to decide whether such pre-conditions had been satisfied.
It was common ground that the parties must first make a written request to negotiate in good faith before commencing arbitration. The parties, however, disagree on whether such a written request had to be referred specifically to the other party’s chief executive for the condition to be satisfied. The claimant argued that this additional step was not required. The tribunal agreed and issued a partial award.
Oct-Dec 2021 issue
Quinn Emanuel Urquhart & Sullivan LLP