Hong Kong Refuses Leave To Appeal Award In Domestic Arbitration

Hong Kong Refuses Leave to Appeal an Arbitral Award in “Domestic” Arbitration

Herbert Smith Freehills review the Hong Kong High Court’s decision in A and Others v Housing Authority (HCCT 54/2017), where the Court reiterated the high threshold for leave to appeal an arbitral award on a question of law.  Dismissing the Plaintiffs’ application, the Court confirmed that leave would only be granted if it can be demonstrated to the Court, clearly, quickly and easily, without meticulous legal argument that the decision is “obviously, or demonstrably, wrong“, or that the correctness of the decision is “seriously in doubt“.

As noted by HSF, under current legislation, parties to arbitrations seated in Hong Kong do not, in general, have an automatic right to appeal an arbitral award on a question of law; such right is set out in Schedule 2 to the Arbitration Ordinance (Cap. 609)and is a key feature of the old “domestic regime”. Since 1 June 2017, parties wishing to enjoy such rights must expressly “opt in” to these provisions pursuant to Section 99 of the Ordinance.  (The provisions in Schedule 2 will continue to apply to arbitration agreements providing for “domestic arbitration” that were entered into before 1 June 2017).

The authors observe that this decision demonstrates the high threshold in Hong Kong for appealing arbitral awards (consistent with the pro-arbitration approach adopted by the Hong Kong judiciary), and illustrates that, even in the context of “domestic” arbitrations, the courts will be slow to interfere with the decisions of arbitral tribunals.

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About Phillip Rompotis

Phillip practices as a barrister and arbitrator in Hong Kong. He has over 25 years’ litigation and arbitration experience in commercial disputes relating to construction & engineering, financial services, joint venture & shareholders agreements, technology, trusts, property and landlord & tenant. He is a Fellow of the Chartered Institute of Arbitrators, the Singapore Institute of Arbitrators, the Malaysian Institute of Arbitrators, and a member of various lists/panels of arbitrators.

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