Herbert Smith Freehills review the Hong Kong District Court’s 2018 decision in Castlemil Infant (HK) Supplies Co Ltd v Care N Love Development Ltd [2018] HKDC 1419, where the court granted a mandatory injunction, having found that the plaintiff’s underlying tort claims did not fall within the scope of the parties’ arbitration agreement.
The authors observe that the Hong Kong court had power to grant this injunction whether the plaintiff’s claim fell within the arbitration agreement (in which case the court’s power would be derived from s.20 Arbitration Ordinance (Cap. 609) or not (in which case it was an exercise of its inherent jurisdiction), and note that the judge did not explain why this arbitration agreement did not affect a tortious claim, nor engage in a close analysis of its wording with reference to cases such as Fiona Trust & Holding Corporation v Privalov [2007] UKHL 40, which advocates a broad interpretation of arbitration clauses, on the basis that commercial parties generally intend all their disputes to be determined in a single forum.
