It is axiomatic that the existence of a valid arbitration agreement between the parties goes to the jurisdiction of the tribunal, and the Court has to be satisfied as to the correctness of the decision of the tribunal that it has jurisdiction. In AB v CD [2021] HKCFI 327, the High Court dealt with an application to set aside an award on the basis that the party against whom an award had been rendered was not the party to the agreement giving rise to the dispute. The Court considered that the award debtor was not the true party to the arbitration agreement and set aside the award.
Facts
On 26 November 2013, CD and AB Bureau entered into a commercial agreement (the “Agreement”). The Agreement contained a dispute resolution clause providing that disputes would be resolved by arbitration administered by the Hong Kong International Arbitration Centre (“HKIAC”). The “definitions” section of the Agreement defined “AB” to mean “AB Bureau or any other Affiliated entity”.
A dispute arose between CD and AB Bureau, the parties to a commercial agreement. In its original notice of arbitration, CD named AB Bureau as the respondent; some months later, CD submitted an amended notice of arbitration, which revised the stated name of the respondent, from “AB Bureau” to “AB Bureau also known as AB Bureau Co, Ltd”. Subsequently, CD made a request to the Tribunal to correct the name of the respondent from “AB Bureau” to “AB Engineering” relying upon AB Engineering’s website, and contending that following a restructuring AB Bureau had become AB Engineering. The sole arbitrator acceded to CD’s requests and made the correction by way of procedural order, ordering that CD did not have to re-send any of the pleadings or submissions to AB Engineering.
AB Engineering did not participate in the arbitration. Following an award against it of approx. USD$18m, AB Engineering applied to set aside the award.
Set Aside Application
AB Engineering argued it was not a party to the Agreement, and that there was no valid arbitration agreement between it and CD (in reliance on Article 34 (2) (a) (i) of the Model Law). The Court agreed, finding that, as a matter of fact, AB Bureau and AB Engineering were two separate and distinct legal entities, and only the former was a party to the Agreement. Further, although the agreement defined “AB” to mean “AB Bureau and any other affiliated entity”, AB Bureau had over 30 subsidiary companies at the time of the agreement and there was no evidence that AB Engineering had any role in relation to the performance under the agreement, the rights conferred by the agreement or the obligations imposed by it. The Court considered that even if AB Engineering was a party to the arbitration agreement, CD should have added AB Engineering as a party to the arbitration in its own right, rather than substitute it for the original respondent entirely.
AB Engineering also argued that it was not given proper notice of the appointment of an arbitrator or of the Arbitration proceedings (in reliance on Article 34 (2) (a) (ii)). Again, the Court agreed, finding that the Notice of Arbitration named AB Bureau as the only respondent and that the Amended Notice of Arbitration named the respondent as “AB Bureau also known as AB Bureau Co, Ltd”. On the facts, these were the only two notices of the arbitration and there was no clear evidence of actual receipt of the notices by AB Engineering.
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