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P1 P2
Judgment
Mimmie Chan J in Chambers
Background
1. This is an application made by Z (“Applicant”) to this Court under s 34 of the Arbitration Ordinance (“Ordinance”) and Article 16 of the Model Law, for a declaration that Mr Gavin Denton (“Arbitrator”) has no jurisdiction to hear and deal with the issues in dispute in ICC Arbitration Case No 18228/C YK (“Arbitration”), and on that basis to set aside the Arbitrator’s Partial Award dated 19 February 2013 (“Award”).
2. The history of the matter is that the Applicant entered into 2 separate contracts (collectively “Agreements”) with A (“1st Respondent”) and AGEMA, respectively dated 20 April 2007 and 2 June 2007. The 1st contract is referred to as the CKD and Agency Agreement (“CKD Agreement”), and the parties therein are described as the Applicant on the one part, and the 1st Respondent “and/or any of its affiliated companies or subsidiaries and/or AGE (under formation)” of the other part. The 2nd contract is referred to as the Technical Cooperation Agreement (“TC Agreement”), and the parties are described as the Applicant on the one part, and “AGEMA (a company under formation) ... and also with its affiliated company A” on the other part.
3. The CKD Agreement contains an arbitration clause, which provides as follows:
“In case of breach of any of the Articles of this agreement by either of the parties, both Parties agree to put best efforts to remedy by negotiations. Otherwise, those Parties agree to arbitration as per the International Chamber of Commerce and held in CHINA? ..(sic)” (emphasis added)
4. The TC Agreement also provides for arbitration, in the following terms:
“Any dispute, controversy or difference which may arise between the parties out of or in relation to this Agreement or for the breach thereof shall be settled amicably by the parties, but in case of failure, it shall be finally settled in CHINA by arbitration pursuant to the Rules of the International Chamber of Commerce whose award shall bind the parties hereto.” (Emphasis added)
5. Clause 2.3 of the CKD Agreement further provides as follows:
“Both parties reached the agreement in accordance with Chinese laws...”
6. Clause 19 of the CKD Agreement provides:
“The Agreement shall be governed and construed under and in accordance with the Laws of the People’s Republic of China.”
7. The TC Agreement is silent on the governing law of the contract, but the parties do not dispute that its governing law is the law of the People’s Republic of China (“PRC”).
8. Dispute arose between the parties under the Agreements, and on 11 October 2011, the 1st Respondent and companies associated or affiliated with the 1st Respondent (together referred to hereinafter as “Respondents”) commenced the Arbitration. A Request for Arbitration
Cases cited in the judgment:
BCCI v Ali [2001] 1 AC 251
Chatney v Brazilian Submarine Telegraph Co Ltd [1892] 1 QB 79
Louis Dreyfuss v Bonarich International (Group) Ltd [1997] 3 HKC 597
Tai Hing Cotton Mil Ltd v Glencore Grain Rotterdam BV [1996] 1 HKC 363
The United Mexican States v Cargill Incorporated 2011 ONCA 622
Black Clawson International Ltd v Papierworke Waldhof-Aschaffenburg SA [1981] 2 Lloyd’s Rep 446
Brutus v Cozens [1973] AC 854
Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan [2011] 1 AC 763
Fiona Trust & Holding Corp v Privalov [2007] 4 All ER 951
Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896
Zoan v Rouamba [2000] 2 All ER 620
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