Tongcheng Travel Hldgs Ltd v OOO Securities (HK) Group Ltd is a veritable tour of issues that can arise on applications to stay to arbitration. Edward Alder looks at three worth highlighting.
First, in a stark warning to the profession, the Arbitration Judge said it is a ‘complete waste of time and costs’ for factual witness affidavits to deal with arguments which should properly be made by Counsel at the hearing. It is not conducive to the underlying objectives for legal arguments to be made in witness affidavits, to be either abandoned or repeated by Counsel at the hearing, and for the Court and other party to have to compare the submissions in the evidence and at the hearing to decide which are pursued in part or in full, and which abandoned. Costs should be ordered against lawyers responsible for the affidavits in these circumstances. This will be music to the ears of fellow Judge Hon Anthony Chan J, of the Commercial and Admiralty Lists, who has made similar comments.
Second, the arbitration clause referred disputes to ‘the relevant legally authorized body in Hong Kong for arbitration’. This, it was argued, was non-existent. Following an earlier ruling of her own, the Judge found that HKIAC was the body, but even if it were not, the parties clearly expressed the intention to arbitrate, which is sufficient for there to be an operable arbitration agreement which can be performed in Hong Kong.
Third, while one clause referred disputes to arbitration in Hong Kong, by the preceding clause the parties submitted to the exclusive jurisdiction of the Hong Kong courts. This could be reconciled, as in several previous cases, to mean only that the Hong Kong Court has supervisory jurisdiction over the arbitration.
[2024] HKCFI 2710, Hon Mimmie Chan J, 8 October 2024