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20 Jan 2022

Hong Kong—arbitration—set aside of award—multi-tiered arbitration agreement (T v B)

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Arbitration analysis: An arbitration provision contained conditions precedent to the commencement of arbitration. These conditions were not met and arbitration was commenced in any event. The jurisdiction of the tribunal was challenged and the tribunal ruled that it did not have jurisdiction. The plaintiff (T) applied to the Hong Kong court to set aside the award under section 81 of the Hong Kong Arbitration Ordinance Cap 609 (AO) (which incorporates article 34 of the United Nations Commission on International Trade Law Model Law (the Model Law)). The defendant (T) also commenced a fresh action before the Hong Kong court for the same dispute as referred to arbitration. B defended the set-aside action and applied for a stay of the court action. The Hong Kong court refused the application to set aside the award and granted a stay of the court action in favour of arbitration. The court affirmed the principle set out in C v D and Kinli Civil Engineering Ltd v Geotech Engineering Ltd, that non-compliance with pre-arbitration procedures or conditions goes to admissibility of the claim not to the jurisdiction of the tribunal, Written by Andrew Rigden Green, partner, head of international arbitration in Great China, at Stephenson Harwood, Hong Kong.

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This analysis was first published on Lexis®PSL on 10 January 2022.

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