Hong Kong Lawyer

March 2017

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CASES IN BRIEF 案 例 撮 要 ARBITRATION A v D [2016] HKEC 2821 Court of First Instance Miscellaneous Proceedings No. 1014 of 2016 Mimmie Chan J in Chambers 22 December 2016 Arbitral award – setting aside – application to set aside under Sch. 2 s. 4 on ground of serious irregularity – where no express in agreement that Sch. 2 would apply, court had no jurisdiction – where non-compliance with O. 73 r. 5(4), abuse of process to argue application as if made under s. 81 P1–3 and D, equity partners of a firm under an agreement dated 11 May 2007 (the "Agreement"), submitted a dispute over the amounts allegedly due from D as well as his entitlement to drawings and profits share under the Agreement to arbitration (the "Arbitration") pursuant to an arbitration clause, expressly agreeing that the Arbitration Ordinance (Cap. 609) applied. However, the Agreement did not provide that Sch. 2 to the Ordinance was applicable or that the Arbitration was a domestic arbitration. Ps' application to strike out D's counterclaim was dismissed by the Arbitrator (the "Decision") with costs to D (the "Costs Order"). Ps applied by originating summons to set aside the Decision and the Costs Order pursuant to O. 73 r. 5 of the Rules of the High Court (Cap. 4A, Sub. Leg.) and s. 4 of Sch. 2 to the Ordinance on the ground of serious irregularity (the "OS"). The Ordinance came into force on 1 June 2011 and under s. 100: "All the provisions in Sch. 2 apply, … to – (a) an arbitration agreement entered into before the commencement of this Ordinance which has provided that arbitration under the agreement is a domestic arbitration …". Held, dismissing the application, that: • The Court had no jurisdiction to deal with the OS. The provisions of Sch. 2 of the Ordinance applied only if the parties opted for its application. Since the Agreement made no such express provision, there was no basis for Ps to apply to this Court to set aside the Decision and the Costs Order on the ground of serious irregularity under s. 4 of Sch. 2. Under s. 3(3) of the Ordinance, the court should interfere in the arbitration of the dispute only as expressly provided for in the Ordinance. Section 100 did not provide for Sch. 2 to apply to "domestic" arbitrations or agreements, but to an arbitration agreement which provides that the arbitration under the agreement was a domestic one. Further, an arbitration agreement could not by implication provide for domestic arbitration simply because the parties were Hong Kong residents and have a local place of business. • In addition, it would be an abuse of process to permit Ps, as they had sought, to argue the application as if it were made under s. 81 of the Ordinance since the OS did not, as required by O. 73 r. 5(4) of the RHC, state any ground to set aside the Decision and Costs Order under s. 81. • Even if the finding that s. 4 of Sch. 2 did not apply was wrong, Ps' application lacked merit. There was no irregularity, either in the arbitral procedure or in the Arbitrator's exercise of his powers. 仲 裁 A v D [2016] HKEC 2821 原訟法庭 高院雜項案件2016年第1014號 原訟法庭法官陳美蘭內庭聆訊 2016年12月22日 仲裁裁決 — 撤銷 — 以嚴重不當事 件為由而根據附表2第4條申請撤 銷裁決 — 假如雙方協議沒有訂明 附表2適用,則法庭不具有司法管 轄權 — 假如申請人沒有遵守第73 號命令第5(4)條規則的規定,則 該人在其申請猶如根據第81條提 出的基礎上提出爭辯的做法乃屬 濫用司法程序 根據一份日期為2007年5月11日的協議( 下稱「涉案協議」),本案第一至第三原 告人(以下統稱Ps)及被告人(下稱D)是某商 行的權益合夥人。他們之間出現爭議,其 涉及D被指欠下款項以及他是否有權根據 涉案協議支取款項和分享利潤。他們根據 一項訂明各方同意《仲裁條例》(第609 章)適用的仲裁條款,把上述爭議提交仲 62 www.hk-lawyer.org •  March 2017

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