HONG KONG COURT GRANTS INTERIM ANTI-SUIT INJUNCTION IN FAVOUR OF ARBITRATION TO RESTRAIN COURT PROCEEDINGS INVOLVING THIRD PARTY

In GM1 and GM2 v KC [2019] HKCFI 2793, the Hong Kong Court of First Instance granted an interim anti-suit injunction restraining mainland Chinese court proceedings involving a third party, and clarified the jurisdiction basis for doing so.

The decision reflects the long-standing pro-arbitration approach of the Hong Kong courts and confirms that arbitration clauses are not to be interpreted narrowly, but may cover claims against the non-contracting affiliates or associates of a contracting party. The decision also reiterates that in considering an application for an anti-suit injunction, the question for the Court remains whether or not its jurisdiction is invoked, and the fact that the foreign Court would assume jurisdiction and refuse to stay the foreign proceedings is not relevant.

Background

GM1 and KC entered into a guarantee (Guarantee) which contained an arbitration clause in favour of arbitration in Hong Kong administered by the Hong Kong International Arbitration Centre.

KC later commenced legal proceedings in the Court of Suzhou (Mainland Proceedings) against GM1 and GM2, the latter being an affiliate of GM1 who was not a party to the Guarantee. In parallel, there were pending arbitration proceedings between GM1 and KC pursuant to the Guarantee, and related arbitration proceedings between GM1 and a wholly-owned subsidiary of KC.

GM1 and GM2 sought an anti-suit injunction from the Hong Kong Court to restrain KC from pursuing the Mainland Proceedings and commencing further proceedings in breach of the arbitration agreement, and an “interim-interim” injunction in the same terms pending the substantive hearing of the injunction application.

Decision on interim-interim injunction

The Court did not determine the substantive interim injunction application, only the “interim-interim” injunction.

In the present application, the questions before the Hong Kong Court were:

  1. whether the Court had power to grant an interim anti-suit injunction in favour of an arbitration in Hong Kong under section 45 of the Arbitration Ordinance (AO);
  2. whether the proper course would be to leave it to the Mainland Court to recognise and enforce the arbitration agreement (including determining the validity of the arbitration clause); and
  3. whether the Court can grant an anti-suit injunction in relation to proceedings commenced against a third party such as GM2.

On the first issue, the Court confirmed that it has power under AO section 45 to grant an interim anti-suit injunction. The objects of the AO are to facilitate fair and speedy resolution of disputes by arbitration without unnecessary expense and enforce arbitration agreements. Specifically, the Court has power under AO section 45 to grant interim measures which, pursuant to AO section 35, include an order to “maintain or restore the status quo pending determination of the dispute“. An anti-suit injunction is to enforce the positive promise of a party to arbitrate disputes and the negative right not to be vexed by foreign proceedings, and is therefore in line with AO section 35 to maintain such status quo pending determination of the dispute. The Court therefore had the power to grant an anti-suit injunction under AO section 45.

On the second issue, the Court held that the following grounds were not grounds to refuse the anti-suit injunction / not stay the Mainland Proceedings:

  1. that the Mainland Court may insist on its own jurisdiction and would not have granted a stay of the proceedings;
  2. that it may not be possible for KC to discontinue or withdraw from the Mainland Proceedings after its case had been accepted by the Mainland Court; and
  3. that the existence and validity of the arbitration clause was disputed.

As a matter of principle, the arbitral tribunal can decide on its own competence and jurisdiction, and, as the supervisory court, the Hong Kong Court has jurisdiction to review the findings of the tribunal on its own jurisdiction. The Court further noted that, if GM1 and GM2 later sought enforcement of the award in the Mainland, it would be open to the Mainland Court to review at that point in time the validity of the arbitration agreement and resist enforcement on that basis.

On the third issue, the Court held that anti-suit relief may be granted against a third party if the arbitration agreement can be construed to cover claims not only against the contracting party, but also against the non-contracting affiliates or associates of the contracting party. This is based on the principle in Giorgio Armani SpA v Elan Clothes Co Ltd [2019] HKCFI 530 that rational businessmen would have wanted the disputes with affiliates of the contract to be decided in the same forum in the same manner of dispute resolution. The Court did not decide decisively on the third issue, but it was satisfied that there was a serious question to be tried in the adjourned substantive hearing for the interim injunction application as to whether KC’s claims against GM2 in the Mainland Proceedings should be dealt with by the same arbitral tribunal based on the specific circumstances in relation to the existence, validity and binding effect of the Guarantee and its arbitration agreement.

For these reasons, the Court concluded that it was within the jurisdiction of the Court, and that it was just and fair to grant the interim injunction pending the conclusion of the substantive hearing of the injunction application.

Comment

This decision demonstrates the Court is prepared and equipped to grant an anti-suit injunction to restrain a party from pursuing non-arbitral proceedings even against a third party, to the extent that such proceedings are covered by the arbitration agreement. The fact that the foreign Court may insist on its jurisdiction and refuse to stay the foreign proceedings is no bar to the Hong Kong Court granting an anti-suit jurisdiction.

This case also serves as a helpful reminder that parties should carefully consider the implications of parallel proceedings and seek legal advice for each particular case if necessary.

May Tai
May Tai
Managing Partner, Greater China
+852 2101 4031

Kathryn Sanger
Kathryn Sanger
Partner, Hong Kong
+852 2101 4029

Simon Chapman
Simon Chapman
Partner, Hong Kong
+852 2101 4217

 

Hong Kong court refuses enforcement of mainland award, rejects limitation arguments

In Wang Peiji v Wei Zhiyong [2019] HKCFI 2593; [2019] HKEC 3446, the Hong Kong Court of First Instance has set aside an order to enforce a mainland Chinese arbitration award, rejecting arguments that a twelve year limitation period applied because the award had been made under seal.

Background

The Plaintiff, the Defendant and a third party entered into a loan agreement, under which the Defendant  and the third party borrowed RMB 22 million. In case of default, the Defendant and the third party would pay interest at 2% per month, and the Defendant’s companies would guarantee the repayment. The Defendant, the third party and the Defendant’s companies failed to repay the loan, so the Plaintiff commenced arbitration at the Guangzhou Arbitration Commission, which made an award in the Plaintiff’s favour on 20 April 2009.

The Plaintiff commenced enforcement proceedings in the Panyu People’s Court where it recovered RMB 4,734,019.48, leaving RMB 3,353,496.92 plus interest outstanding under the award. The Plaintiff then commenced enforcement proceedings in Hong Kong to recover the remaining amount. On 14 May 2019 Madam Justice Mimmie Chan granted leave to enforce the award, holding that the Defendant should pay the outstanding sum plus interest. The Defendant appealed.

Decision

In setting aside the enforcement order, the court addressed two main issues.

The applicable limitation period

The first issue was the applicable limitation period under the Limitation Ordinance. The Plaintiff argued that the applicable provision was section 4(3) Limitation Ordinance (Cap. 347), which provides a limitation period of twelve years meaning that the Plaintiff was entitled to enforce the award until 20 April 2021. This was based on the fact that the award of the Guangzhou Arbitration Commission was executed under seal. The Defendant argued that the relevant period was six years under section 4(1)(c). The Court ultimately agreed with the Defendant. It rejected the Plaintiff’s argument, stating that the relevant consideration is whether the underlying contractual document, not the award, was executed under seal. As there was no suggestion of that in this case, the Court held that the default limitation period of six years applied.

Suspension of the limitation period

In the alternative, the Plaintiff argued that the limitation should be suspended for the period in which the Plaintiff was engaged in enforcement proceedings before the Chinese court. The Plaintiff sought to distinguish CL v SCG [2019] 2 HKLRD 144, in which the judge relied on the English case Agromet v Maulden Engineering Ltd [1985] 1 WLR 762 to reject the suspension argument. The judge in CL stated that there was no provision in the Limitation Ordinance or the Arbitration Ordinance that the limitation period should not run during the period a party is seeking to enforce an award abroad. The Plaintiff sought to distinguish the case on the basis that, unlike in CL, enforcement efforts in this case went on for considerable time and were successful, meaning that it could not be expected to have ceased its efforts in China.

Despite these arguments, the Court again found in favour of the Defendant. It held that the ruling in CL had been clear, and the fact that the Plaintiff had had more success in China than the plaintiff in CL was not a material difference which distinguished the two cases. The Court therefore allowed the Defendant’s application to set aside the enforcement order, and made a costs order in its favour.

Comment

The case serves as a reminder to pay close attention to limitation periods. In deciding where to bring enforcement proceedings, parties should consider not only the value of the defendant’s assets in a particular jurisdiction, but also the effect that the length of enforcement proceedings could have on their ability to enforce in other jurisdictions. Parties and their legal advisers must consider all relevant factors when assessing where to enforce.

May Tai
May Tai
Managing Partner, Greater China, Hong Kong
+852 21014031
Simon Chapman
Simon Chapman
Partner, Hong Kong
+852 21014217
Kathryn Sanger
Kathryn Sanger
Partner, Hong Kong
+852 21014029
Briana Young
Briana Young
Foreign Legal Consultant (England & Wales)/Professional Support Consultant, Hong Kong
+852 21014214

Hong Kong–Mainland interim relief arrangement to take effect 1 October

The Supreme People’s Court of China and the Department of Justice of Hong Kong SAR announced today that the Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region will come into effect on 1 October 2019 in both Mainland China and Hong Kong.  The SPC also released an explanatory memo setting out its understanding of key aspects of the Arrangement and its implementation.

The SPC and the DOJ signed the Arrangement on 2 April 2019.  As  reported in our posts of 2 April and 4 April, the Arrangement empowers Mainland Chinese courts  to order interim measures in support of Hong Kong-seated arbitrations, making Hong Kong the only seat outside Mainland China to benefit from such support.

The SPC and DOJ also released a list of “qualified arbitral institutions” in Hong Kong. These are the only institutions whose arbitrations  enjoy the benefit ofthe Arrangement.  They include:

  • Hong Kong International Arbitration Centre
  • China International Economic and Trade Arbitration Commission Hong Kong Arbitration Center
  • International Court of Arbitration of the International Chamber of Commerce – Asia Office
  • Hong Kong Maritime Arbitration Group
  • South China International Arbitration Center (HK)
  • eBRAM International Online Dispute Resolution Centre

Among other things, the SPC memo confirms that the Arrangement will apply to arbitral proceedings commenced prior to, but not yet completed as of, 1 October 2019.  As such, we anticipate that interim relief applications under the Arrangement are likely to emerge soon.

Helen Tang
Helen Tang
Partner, Shanghai
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Weina Ye
Weina Ye
Senior Associate, Shanghai
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Stella Hu
Stella Hu
Of Counsel, Hong Kong
+852 2101 4248

HONG KONG: COURT GRANTS ANTI-SUIT INJUNCTION TO RESTRAIN FOREIGN PROCEEDINGS IN BREACH OF AN ARBITRATION AGREEMENT UNDER AN INSURANCE POLICY

In the recent case of AIG Insurance Hong Kong Ltd v Lynn McCullough and William McCullough [2019] HKCFI 1649, the Hong Kong Court of First Instance (CFI) considered the effect of an arbitration agreement under an insurance policy and, in particular, the circumstances in which an anti-suit injunction may be granted to restrain a party from pursuing foreign proceedings.

The CFI held that, as a matter of Hong Kong law, a party is not entitled to found a claim on rights arising out of an insurance policy without also being bound by the dispute resolution provisions in the policy. The CFI went on to hold that an anti-suit injunction will ordinarily be granted to restrain such a claimant from pursuing proceedings in a non-contractual forum unless there are strong reasons to the contrary.

The full judgment is available here.

BACKGROUND

The underlying facts of the case relate to an accident which took place whilst Mrs Lynn McCullough and Mr William McCullough were on holiday in the Caribbean in 2015. During that holiday, Mrs McCullough suffered a fall from a zip line, owned and operated by Rain Forest Adventures (Holdings) Ltd, Rain Forest Sky Rides Ltd and Rain Forest Tram Ltd (together, Rain Forest), and was rendered permanently quadriplegic.

AIG Insurance Hong Kong Ltd (AIG) had previously issued a Directors’ and Officers’ Liability Insurance Policy to Rain Forest (the Policy). The Policy covered Rain Forest (as the policyholder) and its directors, including a Mr Harald Joachim von der Goltz. The Policy referred any disputes arising under the Policy to arbitration in Hong Kong under the rules of the Hong Kong International Arbitration Centre (HKIAC).

On 15 January 2016, the McCulloughs commenced a claim in the Florida courts against several defendants, including Rain Forest, alleging negligence in the operation of the zip line excursion. They sought damages for the injuries that Mrs McCullough sustained.

On 14 July 2016, the McCulloughs filed a Second Amended Complaint adding Mr von der Goltz as a defendant, who subsequently gave notice to AIG that he was seeking an indemnity under the Policy as a director of the policy holder. The claim was rejected by AIG on the basis that claims resulting from a bodily injury were excluded under the Policy.

On 24 April 2018, a dispute resolution agreement was entered into by the McCulloughs and the Rain Forest defendants now including Mr von der Goltz. This agreement was approved by the Florida court which referred the matter to arbitration. The arbitration award was subsequently issued on 28 May 2018 and judgment was entered into on 12 July 2018 in favour of the McCulloughs against, among others, Mr von der Goltz, in the sum of US$ 65.5 million.

On 20 August 2018, the McCulloughs filed the Third Amended Complaint adding AIG as a defendant. The Third Amended Complaint contained a “common law tort claim available under Florida law against [AIG] for having failed to act in good faith in handling, litigating, and settling the US Proceedings, resulting in an excess judgment (i.e. judgment in excess of Policy limits) being entered into against the insured, Mr. von der Goltz” (the Bad Faith Claim). The nature of the Bad Faith Claim was that if AIG had honoured the Policy and provided Mr von der Goltz with US$ 5 million in coverage (i.e. the Policy limit), it would have been possible for him to have settled the McCulloughs’ claim. It was submitted that this failure by AIG exposed Mr von der Goltz to a liability of US$ 65.5 million and as a result, he had a claim against AIG for this amount. The right to claim directly against AIG for the US$ 65.5 million was said to be based on the McCulloughs being judgment creditors of Mr von der Goltz.

In the instant case, there were two applications before the CFI:

  1. An application from AIG for a continuation of an ex parte injunction originally issued on 18 December 2018 by DHCJ Simon Leung restraining the McCulloughs from pursuing proceedings in the Florida courts against AIG on the basis that the Policy provides that all disputes regarding coverage under the Policy should be settled by arbitration in Hong Kong under the HKIAC Rules; and
  2. An application from the McCulloughs for, amongst other things, (1) a declaration that the CFI should not exercise any jurisdiction that it may have; and (2) an order staying the action in the Hong Kong courts in favour of the proceedings in the Florida courts.

AIG’s position was that the underlying issue of coverage under the Policy should be determined by arbitration in Hong Kong under the HKIAC rules, irrespective of whether or not the McCulloughs were the insured under the Policy.

The McCullough’s position was that their cause of action against AIG was a freestanding tortious claim and that, as non-parties to the Policy, they cannot be compelled to arbitrate it.

Accordingly, the principal question for the CFI to decide was whether the proceedings commenced by the McCulloughs in the Florida courts, despite the McCulloughs not being parties to the Policy, amounted in substance to a claim to enforce the Policy such that the McCulloughs were bound by the agreement to arbitrate as set out in the Policy.

DECISION

The CFI accepted the position of AIG that the dispute was to be resolved in accordance with the dispute resolution procedure provided for in the Policy, namely by arbitration in Hong Kong under the HKIAC rules, and exercised its equitable jurisdiction to grant an anti-suit injunction restraining the McCulloughs from pursuing proceedings in the Florida courts.

The CFI held that the relevant issue for the purposes of determining whether the anti-suit injunction should be granted was whether there was coverage under the Policy: “Such issue is clearly contractual, since it determines the liability of the insurer to the insured under the terms of the policy“. The CFI went on to hold that the establishment of coverage is a pre-condition to the Bad Faith Claim against AIG and, as a matter of Hong Kong law, the governing law of the Policy, AIG is entitled to have it determined in accordance with the contractual procedure.

In this regard, the CFI followed the principle applied in Qingdao Huiquan Shipping Company v Shanghai Dong He Xin Industry Group Co Ltd [2018] EWHC 3009 (Comm) that a party “is not entitled to found a claim on rights arising out of a contract without also being bound by the forum provisions of that contract“.

The CFI concluded that an anti-suit injunction will ordinarily be granted to restrain a claimant from pursuing proceedings in a non-contractual forum unless there are strong reasons to the contrary, whether the claimant is a party to the policy or not. The basis of the CFI’s decision was that a dispute resolution provision is an essential part of the contractual basis upon which coverage arises under an insurance policy, and a party seeking to enforce a policy cannot do so free of its contractual dispute resolution mechanism.

COMMENTS

This case serves as a useful reminder of the Hong Kong courts’ desire to give effect to an arbitration agreement wherever appropriate, albeit on this occasion in somewhat unusual circumstances. In so doing, the CFI has further reinforced Hong Kong’s reputation as a pro-arbitration jurisdiction.

In making its decision, the CFI has helpfully confirmed that an anti-suit injunction to restrain a party from pursuing proceedings in a non-contractual forum will ordinarily only be denied if there are strong reasons not to grant it. Accordingly, the Court has emphasised the high bar that the counter-party has to meet in order to resist such an injunction.

An article in which Simon Chapman and Naomi Lisney examined this decision, which was published on Lexis®PSL Arbitration on 15 August 2019, can be found here.

May Tai
May Tai
Managing Partner, Greater China
+852 2101 4031
Simon Chapman
Simon Chapman
Partner, Hong Kong
+852 2101 4217
Kathryn Sanger
Kathryn Sanger
Partner, Hong Kong
+852 2101 4029
Madhu Krishnan
Madhu Krishnan
Registered Foreign Lawyer (England & Wales)
+852 2101 4207

 

Hong Kong – Mainland interim relief arrangement: full text and more detail

 

Following Tuesday’s announcement of the Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region (Arrangement), the Supreme People’s Court of China has released the full official text (in Chinese).  The Hong Kong Government has also provided a courtesy English translation on its website.  We expect that the official English text will be released closer to the time when the Arrangement comes into force.

 

Application process

Readers of this blog may be very familiar with seeking interim orders in the Hong Kong High Court in aid of on-going or prospective arbitrations seated in Mainland China, under section 45 of the Hong Kong Arbitration Ordinance (Cap. 609).

The key distinction of the “mirror image” in Mainland China is that parties to a Hong Kong-seated arbitration do not apply directly to the competent Intermediary People’s Court.  Rather, the applicant should submit the interim relief application to the relevant arbitration institutions in Hong Kong, which would forward the application to the competent Intermediary People’s Court in Mainland China.

It is possible to apply for pre-arbitration interim measures in Mainland China via the Arrangement in the same procedure described above, although the People’s Court must receive proof of the institution’s acceptance of the arbitration within 30 days after the Court grants the interim measures.

 

General requirements

At the risk of stating the obvious, although parties first submit the interim relief application to an approved Hong Kong arbitration institution, the law of the application is Chinese law.  After the Court has accepted the application, the interim relief hearings must be conducted by Mainland-qualified lawyers.

The application shall include:

  • the application for interim measure;
  • the arbitration agreement;
  • identity/incorporation documents for natural persons and legal entities, respectively;
  • the request for arbitration, with exhibited evidence, and proof that the institution has accepted the case (for on-going arbitrations[1]); and
  • any other supporting materials required by the People’s Court.

There are some practical difficulties and uncertainties to bear in mind.  The Arrangement requires “documents of identity” issued outside the Mainland to be certified in accordance with PRC law.  This may require certification by a China-appointed attesting officer (in Hong Kong) or Chinese consulate/embassy notarisation and authentication procedures (overseas).  The Arrangement also requires “accurate Chinese translation” for all documents submitted to the People’s Court.  Parties must factor in the additional time and cost of meeting these requirements.  The catch-all requirement for “any other materials required by People’s Court” adds additional uncertainty to the process.

The Arrangement also provides a useful list of issues that must be covered in the application to a Mainland court (Article 5).  Applications must also refer to the PRC Civil Procedure Law and other laws or regulations, depending on the types of interim measures sought by the applicant.  Article 5 of the Arrangement lists the following:

  • basic information of the parties;
  • applied interim measures, including the applied amount of assets to be preserved and particulars of the conduct and the time period;
  • facts and justifications on which the application is based, together with the relevant evidence;
  • clear particulars of the property and evidence to be preserved or concrete threads which may lead to a chain of inquiry;
  • information about the property in the Mainland to be used as security or certification of financial standing; and
  • whether any application under this Arrangement has been made in any other court, relevant institution or permanent office, and the status of such application.

 

What are the approved Hong Kong arbitration institutions?

“Arbitral proceedings in Hong Kong” in the Arrangement refers to arbitrations seated in the Hong Kong SAR and be administered by institutions either headquartered, or with permanent offices, in the SAR. The list of such institutions or permanent offices will be provided by the Hong Kong SAR Government to the Supreme People’s Court, and will be subject to confirmation by both sides.

We anticipate that the list of approved arbitration institutions will include at least HKIAC, the CIETAC Hong Kong Center and ICC Hong Kong.  Ad hoc arbitrations seated in Hong Kong will not benefit from the Interim Measures Arrangement.

 

For further information on the Mainland China interim relief regime, please speak to May Tai, Kathryn Sanger, Helen Tang, Stella Hu or your usual Herbert Smith Freehills contacts.

[1] It is not entirely clear here for pre-arbitration applications, whether the applicants need to submit draft request for arbitration; and whether following the commencement of arbitration, the applicants need to provide the request of arbitration, on top of the letter confirming the acceptance of the case.

May Tai
May Tai
Managing Partner - Greater China
+852 2101 4031
Kathryn Sanger
Kathryn Sanger
Partner, Hong Kong
+852 2101 4029
Stella Hu
Stella Hu
Senior Associate, Hong Kong
+852 2101 4248

AUSTRALIA AND INDONESIA SIGN COMPREHENSIVE ECONOMIC PARTNERSHIP AGREEMENT

On 4 March 2019, Australia and Indonesia signed the Australia-Indonesia Comprehensive Economic Partnership Agreement (“CEPA“). In this post, we briefly consider some of the noteworthy features of the CEPA chapter on investment and in particular its provisions regarding investor-State dispute settlement (“ISDS“).

Indonesia and Australia signed a bilateral investment treaty (“BIT“) containing ISDS provisions in 1992. Both States are also party to the ASEAN-Australia- New Zealand Free Trade Agreement (“AANZFTA”), signed by Australia in 2009 and Indonesia in 2012, which contains an investment chapter.

As we reported in a previous post, Indonesia announced in 2015 that it would seek to renegotiate and replace its older investment treaties with more modern agreements. The Australia-Indonesia BIT, however, will remain in force even after CEPA enters into force. This is in contrast to the Hong Kong-Australia Free Trade Agreement signed this week (see our post here) pursuant to which Australia and Hong Kong have agreed to terminate the Hong Kong-Australia BIT, which was signed in 1993 and became infamous in Australia after Philip Morris used the treaty to commence arbitration against Australia challenging the Tobacco Plain Packaging Act 2011.

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AUSTRALIA AND HONG KONG SIGN NEW TRADE AGREEMENT CONTAINING INVESTOR-STATE DISPUTE RESOLUTION PROVISIONS

On 26 March 2019, Australia and Hong Kong signed the Australia-Hong Kong Free Trade Agreement (A-HKFTA) and its associated Investment Agreement (Agreement).

These agreements were negotiated against the background of a heated political debate in Australia regarding the benefits and risks of investment treaties. This debate occurred as a result of an arbitration brought against Australia by Philip Morris in 2011 under the 1993 Hong Kong-Australia Bilateral Investment Treaty (1993 BIT), challenging the introduction of the Tobacco Plain Packaging Act 2011 (Cth).

The 1993 BIT will be replaced by the new Agreement once it enters into force, which is expected to occur after both countries complete their respective treaty-making processes and ratify the agreements. Accordingly, investors who may have a claim under the 1993 BIT should consider whether to pursue it before that treaty is terminated.

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HONG KONG COURT FINDS ENFORCEMENT OF ARBITRAL AWARD TIME BARRED

In CL v SCG [2019] HKCFI 398, the Hong Kong Court of First Instance found that enforcement of a 2011 arbitral award by CL was time barred, clarifying when a cause of action for failure to honour an award accrues and the effect of the Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region (the “Mainland and Hong Kong Arrangement“) on time limits under the Hong Kong Limitation Ordinance.

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HONG KONG COURT GRANTS ANTI-SUIT INJUNCTION TO BIND THIRD PARTY TO ARBITRATION AGREEMENT

In Dickson Valora Group (Holdings) Co Ltd v Fan Ji Qian [2019] HKCFI 482, the Hong Kong Court of First Instance has granted an anti-suit injunction restraining mainland Chinese court proceedings commenced by Fan Ji Qian on the ground that the dispute should be referred to arbitration. Although Fan was not a signatory to the contract containing the arbitration clause, he had nevertheless sought to enforce a contractual right under that agreement, such that he was also bound by any conditions integral to the exercise of this right (including the agreement to arbitrate).

This decision shows that an arbitration agreement can, in certain circumstances, bind third parties. This is something which should be considered when drafting agreements which purport to confer a benefit on non-signatories, particularly if it is intended that third parties exercising rights under the contract should also be bound by the arbitration provisions.

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