Hong Kong Court Rules No Misconduct By Arbitrator

Set-aside not a backdoor to appeal: Hong Kong Court

Herbert Smith Freehills reviews the decision in N v W [2018] HKCFI 2405, a decision under the (repealed) Arbitration Ordinance (Cap. 341), where the Hong Kong High Court refused to remit or set aside an award on the basis that an arbitrator had misconducted the proceedings.  In dismissing the plaintiff’s application, the court noted that a s.24 application to set aside or remit an award for arbitrator misconduct “should not be invoked as a back door method of circumventing ” s.23 (which restricts the court from setting aside or remitting an award for an error of fact or law), and the parties should raise complaints before the arbitral tribunal where possible, before bringing them to the court.

The authors comments that the court has reaffirmed its commitment to the objectives of the Arbitration Ordinances (old and new) and to its own policy of upholding the validity of arbitration agreements and the finality of arbitral awards, demonstrating its reluctance to entertain such claims absent direct and well-established evidence. READ MORE

The Court reiterated that when asked to exercise discretion to set aside an award for the arbitrator’s misconduct, the Court is only concerned with the structural integrity of the arbitration proceedings, and that bearing in mind the objectives of the Arbitration Ordinance – to uphold the validity of arbitration agreements and the finality of arbitral awards – the Court would only exercise its discretion to set aside an award for the arbitrator’s misconduct under s.25 of the Ordinance, if there was serious, even egregious, conduct of the arbitrator which offends the Court’s most basic notions of justice, morality, and fairness, and which results in a denial of due process and serious prejudice to a party.

See also the review by Deacons

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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