A A

B B

HCCT 38/2021
C C
[2024] HKCFI 721
D IN THE HIGH COURT OF THE D

HONG KONG SPECIAL ADMINISTRATIVE REGION

E E
COURT OF FIRST INSTANCE
F F
CONSTRUCTION AND ARBITRATION PROCEEDINGS

G
NO 38 OF 2021 G
____________________
H IN THE MATTER OF enforcement of order H
of an arbitral tribunal dated 23 April 2021
I and a Partial Award dated 6 April 2023 I
____________________
J J
BETWEEN
G Applicant
K K

and
L L
N Respondent
M ____________________ M

N N
Before: Hon Mimmie Chan J in Chambers
O Date of Hearing: 11 December 2023 O

Date of Decision: 11 December 2023

P P
Date of Reasons for Decision: 11 March 2024
Q _________________________ Q

R
REASONS FOR DECISION R
___________________________
S S
1. The essential dispute between the Plaintiff G and the Defendant
T N is set out in a Decision of this Court handed down on 29 December 2023. T

U U

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B G and N were parties to a Securities Purchase Agreement (“SPA”) dated 5 B

October 2020. The placement under the SPA (“Placement”) was, on 3 March
C C
2021, held by the BVI Court to be void under BVI law, and was invalidated
D by a judgment of the BVI Court. On 12 March 2021, G commenced an D

arbitration against N in Hong Kong (“Arbitration”) to seek repayment of the

E E
Consideration Monies it had paid to N under the SPA for the Placement. By a
F 1st Partial Award of 6 April 2023, the arbitrator found the Placement to be F

illegal, dismissed G’s restitutionary claim, and allowed N’s counterclaim on

G G
the basis of G’s conspiracy or dishonest assistance of the directors’ breach of
H fiduciary duties to N. By a 2nd Partial Award of 28 July 2023, the arbitrator H

quantified the damages to be paid by G to N under the latter’s counterclaim,

I I
at US $11,096,822 and US $1,924,541.53, with interest and costs.
J J

K
2. In April and August 2023 respectively, G applied to the Hong K
Kong Court to set aside the Awards on the grounds that they were contrary to
L L
the public policy of Hong Kong, and/or that the Awards contain decisions on

M
matters beyond the scope of the submission to arbitration. After substantive M
hearings in October 2023 and December 2023, this Court remitted the
N N
Awards to the arbitrator under section 81(4) of the Arbitration Ordinance

O (“Ordinance”), to give the arbitrator an opportunity to resume the O

proceedings or take such other action as in his opinion will eliminate the
P P
ground of public policy relied upon for the setting aside. The application to
Q set aside the Awards on the scope of the submission was dismissed. Q

R R
3. Leave to appeal the decision to remit the Awards and to stay the
S enforcement proceedings has been granted by this Court on 4 March 2024. S

The Arbitration has, in the interim, been resumed.

T T

U U

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B 4. On 30 December 2021, after the Arbitration had been B

commenced, G had initiated proceedings before the Shenzhen Court on the

C C
Mainland (“Shenzhen Proceedings”). N and 3 of its subsidiaries
D (“Subsidiaries”) were all named as defendants. In the Shenzhen Proceedings, D

G sought a declaration that it owns the shares in the Subsidiaries in

E E
proportion to the amount which N had invested in the Subsidiaries, using the
F consideration monies N had received from G for the shares issued under the F

Placement. It was highlighted that the Subsidiaries were not parties to the
G G
arbitration agreement contained in the SPA.
H H

5. N challenged the jurisdiction of the Shenzhen Court on the

I I
ground that the dispute in the Shenzhen Proceedings was governed by the
J arbitration clause contained in the SPA, and that G was seeking in the J

K
Shenzhen Proceedings the same relief as G did in the Arbitration. The K
Shenzhen Court dismissed the Shenzhen Proceedings against N, but not
L L
against the Subsidiaries.

M M
6. N therefore applied to the tribunal in the Arbitration for urgent
N N
relief to restrain the Shenzhen Proceedings and, on 7 July 2023, the arbitrator

O issued an order to the following effect: O

“(G) shall take all necessary steps to dismiss (the Shenzhen

P Proceedings) between G as plaintiff and (the Subsidiaries).” P

Q Full reasons were set out in the arbitrator’s Interim Order on Discontinuance Q

of the Proceedings, dated 7 July 2023 (“Interim Order”).

R R

S 7. On 15 August 2023, N applied to and obtained from this Court S

leave to enforce the Interim Order (“Enforcement Order”), under section 61

T T
of the Ordinance.
U U

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B 8. On 29 August 2023, G applied by its summons to set aside the B

Enforcement Order (“Summons”), on the purported grounds that:

C C
(1) it was impermissible for the Interim Order to require G to take
D D
all necessary steps to dismiss proceedings against non-parties to

E the arbitration clause, when there was no expert evidence on E

PRC law suggesting that those non-parties would be bound by

F F
the arbitration clause or the result of the Arbitration; and
G (2) in making the Interim Order, the tribunal had overlooked or G

failed to deal with G’s submissions, which failure caused

H H
substantial injustice to G, and it would either be contrary to
I public policy to enforce same, or the Interim Order contains I

decisions on matters beyond the scope of the submission to

J J
arbitration.
K K

L
9. At the conclusion of the hearing on 11 December 2023, this L
Court dismissed G’s application to set aside. The following sets out the
M M
reasons for my decision.

N N

Jurisdictional basis
O O
10. N’s application for the Enforcement Order was made under
P P
section 61 of the Ordinance. This is for enforcement of “orders and
Q directions” of the arbitral tribunal, and provides as follows: Q

“(1) An order or direction made, whether in or outside Hong Kong,

R in relation to arbitral proceedings by an arbitral tribunal is R
enforceable in the same manner as an order or direction of the
S
Court that has the same effect, but only with the leave of the S
Court.

T (2) Leave to enforce an order or direction made outside T

Hong Kong is not to be granted unless the party seeking to
enforce it can demonstrate that it belongs to a type or
U description of order or direction that may be made in U

V V
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B Hong Kong in relation to arbitral proceedings by an arbitral B

tribunal.
C (3) If leave is granted under subsection (1), the Court may enter C
judgment in terms of the order or direction.
D D
(4) A decision of the Court to grant or refuse to grant leave under
subsection (1) is not subject to appeal.
E E
(5) An order or direction referred to in this section includes an
interim measure.” (Emphases added)
F F

G 11. G’s application to set aside the Enforcement Order was made G

under sections 45 and 61 of the Ordinance. Section 45 relates to interim

H H
measures granted by the Court in relation to arbitral proceedings.
I I

12. The grounds relied upon by G and as stated in the Summons are
J J
those provided for in section 81 of the Ordinance, and in particular
K Article 34(2)(a)(iii) and Article 34(2)(b)(ii) of the Model Law (the award K

dealing with a dispute not contemplated by or not falling within the terms of
L L
the submission to arbitration, or being contrary to public policy). The grounds
M stated in the Summons also include non-compliance with Order 73 rule 10(7) M

RHC, which refers to orders made on applications for leave to enforce

N N
arbitral awards under section 84 of the Ordinance.
O O

13. Counsel for N highlighted the distinction between awards and

P P
procedural orders made in arbitral proceedings, because the Ordinance
Q provides different enforcement regimes governing them. Enforcement of Q

“orders and directions” is governed by section 61, whereas enforcement of

R R
“awards” is governed by sections 84, 87 and 92. Sections 43 to 45 of the
S S
Ordinance specifically provide for enforcement of interim measures, and as

T
Counsel for N also highlighted, section 43 states that section 61 of the T
Ordinance has effect in substitution for Article 17H of the Model Law, and
U U

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B Article 17I does not have effect in Hong Kong by express provision in B

section 44 of the Ordinance.

C C

D D
Nature of an award

E 14. I accept the submissions made by Counsel for N, that the Interim E

Order is not an “award”, and that the grounds for setting aside an arbitral
F F
award as provided for in section 81 of the Ordinance and Article 34 of the
G Model Law are not applicable. G

H H
15. “Award” is not defined in the Ordinance. However, in principle,
I an award is a “final determination” of a claim or a particular issue in the I

arbitration (see Russell on Arbitration 24th Edition para 6-002). The learned
J J
editors of Russell on Arbitration made the distinction between an award and a
K K
procedural order, pointing out that an award may be said to be final, in that

L
it determines all the issues (or all the outstanding issues) in the arbitration, or L
in the sense of its being a complete decision without leaving matters to be
M M
dealt with subsequently or by a third party, and in the sense of the award

N
being final and binding on the parties. N

O O
16. The learned editors of Arbitration in Hong Kong A Practical

P Guide 5th edition considered (see paragraph 19.013) that only awards which P

contain decisions finally disposing of disputed substantive matters between

Q Q
the parties, rather than procedural awards, may be challenged.
R R

17. In Gingerbread Investments Ltd v Wing Hong Interior

S S
Contracting Ltd [2008] 2 HKLRD 436, when considering the meaning of
T “award”, the Court drew the distinction between procedural and non- T

U U

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B procedural issues, but found that the test was to have regard to the subject B

matter of the order or award (paragraph 9 of the judgment).

C C

D 18. Mustill and Boyd’s Commercial Arbitration made the distinction D

between interim and final awards, when the editors considered the different
E E
types of awards and the possible recourse to the courts against awards.
F F

19. The Interim Order is an order which directs G to take all

G G
necessary steps to dismiss the Shenzhen Proceedings. It is in substance an
H injunction and was made on the basis of there being a strong prima facie case H

of N’s entitlement to the injunction to restrain G from pursuing the Shenzhen

I I
Proceedings against its Subsidiaries, when the claims in those proceedings
J fall within the scope of the arbitration agreement contained in the SPA. It was J

K
expressly described (at paragraph 27 of the Interim Order) as “an interim K
measure”, granted to protect the arbitral process, in the interim of the
L L
Arbitration which was still continuing then, as the 2 nd Partial Award was only

M
issued on 28 July 2023. M

N N
20. The Interim Order is of course binding on the parties in that G is

O obliged to take all necessary steps to dismiss the Shenzhen Proceedings O

against the Subsidiaries. However, it is clear that there was no final
P P
determination of the issues considered in the application for the Interim Order,
Q whether as to the merits of the claims (or the outstanding claims on quantum) Q

made in the Arbitration, or as to the merits of the claims made in the

R R
Shenzhen Proceedings.
S S

21. Mr Pao SC for N has referred to ZCCM Investments Holdings

T T
v Kansanshi Holdings [2019] 1 CLC 770, and the relevant factors set out
U U

V V
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B therein for classifying an order as either an award, or an interim order. At B

paragraph 40 of the judgment, Cockerill J explained:

C C
“A consideration of these authorities ... suggests the following
D points: D

(a) The court will certainly give real weight to the question of
E substance and not merely to form ... E

(b) Thus, one factor in favour of the conclusion that a decision is

F an award is if the decision is final in the sense that it disposes F
of the matters submitted to arbitration so as to render the
G
tribunal functus officio, either entirely or in relation to that G
issue or claim ...

H (c) The nature of the issues with which the decision deals is H
significant. The substantive rights and liabilities of parties are
likely to be dealt with in the form of an award whereas a
I decision relating purely to procedural issues is more likely not I
to be an award ...
J J
(d) There is a role however for form. The arbitral tribunal’s own
description of the decision is relevant, although it will not be
K conclusive in determining its status ... K

(e) It may also be relevant to consider how a reasonable recipient

L of the tribunal’s decision would have viewed it ... L

M
(f) A reasonable recipient is likely to consider the objective M
attributes of the decision relevant. These include the
description of the decision by the tribunal, the formality of the
N language used, the level of detail in which the tribunal has N
expressed its reasoning ...
O (g) While the authorities do not expressly say so I also form the O
view that:
P P
(i) A reasonable recipient would also consider such matters
as whether the decision complies with the formal
Q requirements for an award under any applicable rules. Q

(ii) The focus must be on a reasonable recipient with all the

R information that would have been available to the parties R
and to the tribunal when the decision was made.
S It follows that the background or context in the S
proceedings in which the decision was made is also
likely to be relevant. This may include whether the
T arbitral tribunal intended to make an award ...” (citations T
omitted)
U U

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B 22. Applying the factors considered in ZCCM, Counsel argued that B

as a matter of substance, the Interim Order was an anti-suit injunction against

C C
G, and did not in substance decide any of the parties’ rights under the SPA,
D and it certainly did not render the arbitrator functus officio, as the arbitrator D

continued to act, inter alia, in deciding on the issues in the 2nd Interim Award.
E E
This is obviously correct.
F F

23. As also highlighted by Counsel, the arbitrator expressed the

G G
order he made as “an interim order in the form of an injunction to restrain the
H (Shenzhen Proceedings) in breach of the arbitration clause” (paragraph 27 of H

the Interim Order).

I I

J 24. Mr Pao pointed out that the drafters of the Model Law regarded J

K
anti-suit injunctions as interim orders, and referred to The Asian Leading K
Arbitrators’ Guide to International Arbitration, where the learned authors
L L
explained (at p 229, footnote 9) that it was for the purpose of conferring a

M
power on the arbitral tribunal to issue anti-suit injunctions, that Article 17 M
included in (2)(b) as an interim measure an order against a party to “take
N N
action that would prevent, or restrain from taking action that is likely to cause,

O current imminent harm or prejudice to the arbitral process itself”. O

P P
25. I accept Mr Pao’s submissions, that anti-suit injunctions have
Q been treated and granted by the courts in Hong Kong as an interim measure in Q

relation to and in aid of arbitral proceedings (as in Giorgio Armani SpA

R R
v Elan Clothes Co Ltd [2019] 2 HKLRD 313, and GM1 v KC [2020] 1
S HKLRD 132). S

T T
26. Considering the substance, the form, and the nature of the issues
U decided in the Interim Order, I conclude that it was not a final award but an U

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B interim order, granted as an interim measure under Article 17 of the B

Model Law as applied under section 35 of the Ordinance, during the interim
C C
and prior to the issuance of the final award by which all the issues in the
D dispute in the Arbitration have been finally decided. D

E E
Enforcement regime for interim orders
F F
27. The Ordinance is structured and divided into sections governing
G different aspects of an arbitration. G

H H
28. Part 6 of the Ordinance is on “Interim Measures and Preliminary
I Orders”. Division 1 of Part 6 is on “Interim measures”, including the power I

of the tribunal to order interim measures and the conditions for granting
J J
interim measures. Division 2 of Part 6 deals with “Preliminary orders”.
K K
Division 3 sets out provisions applicable to interim measures and preliminary

L
orders, including the power of the tribunal to modify, suspend or terminate an L
interim measure or a preliminary order it has granted, the provision of
M M
security in connection with the interim measure, and the power of the tribunal

N
to require a party to disclose any material change in the circumstances in N
which an interim measure was granted.
O O

P 29. Division 4 of Part 6 of the Ordinance sets out provisions for the P

recognition and enforcement of interim measures. This is separate to the other

Q Q
parts of the Ordinance which relate to the making of an award, set out in Part
R 8 of the Ordinance, recourse against an award under Part 9, and recognition R

and enforcement of awards under Part 10.

S S

T 30. Article 17 of the Model Law has effect by section 35 (under T

Part 6) of the Ordinance, and this governs the grant of interim measures by
U U

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B the tribunal. An interim measure includes any temporary measure by which, B

at any time prior to the issuance of the award by which the dispute is finally
C C
decided, the tribunal orders a party to maintain or restore the status quo
D pending determination of the dispute, or to take action which would prevent D

or is likely to cause imminent harm or prejudice to the arbitral process itself.

E E
Section 35(2) expressly provides that an interim measure includes an
F injunction. F

G G
31. Under Division 4, on “recognition and enforcement of interim
H measures”, section 43 states that section 61 of the Ordinance has effect in H

substitution for Article 17H of the Model Law, and section 44 also states that
I I
Article 17I does NOT have effect.
J J

K
32. Section 61 is set out in paragraph 10 above, and Counsel for N K
has drawn attention to its legislative background.
L L

M
33. Article 17H (excluded by section 61) provides that: M

“An interim measure issued by an arbitral tribunal shall be

N recognized as binding and, unless otherwise provided by the arbitral N
tribunal, enforced upon application to the competent court,
irrespective of the country in which it was issued, subject to the
O O
provisions of Article 17I…”

P P
34. Article 17I of the Model Law (which does not have effect in
Q Hong Kong) then provides for specific grounds whereby recognition or Q

R
enforcement of an interim measure may be refused. These are not the same as R
but include those set out in Articles 34 and 36 of the Model Law, providing
S S
respectively for setting aside and refusal of enforcement of an arbitral award.

T
The grounds to refuse recognition and enforcement of interim measures T
include, eg, where the court finds that the interim measure is incompatible
U U

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B with the powers conferred upon the court, or where the tribunal’s decision B

with respect to the provision of security in connection with the interim

C C
measure has not been complied with. In footnote 3 to Article 17I, it is stated
D that: D

“The conditions set forth in article 17I are intended to limit the
E E
number of circumstances in which the court may refuse to enforce
an interim measure. It would not be contrary to the level of
F harmonization sought to be achieved by these model provisions if a F
State were to adopt fewer circumstances in which enforcement may
be refused.” (Emphases added)
G G

H 35. When the Ordinance was enacted, Article 17I was disapplied, H

together with all the grounds for refusal of enforcement which Article 17I
I I
provides for. In place of Articles 17H and 17I, section 61 of the Ordinance
J has effect with regard to the enforcement of the orders and directions of the J

tribunal. As Mr Pao submitted, sections 61(2), (4) and (5) impose a far more
K K
restrictive regime, and there is no express mention of any grounds to refuse
L enforcement of an interim measure. All that is stated (in section 61(1)) is that L

an interim measure ordered by the tribunal is enforceable with the leave of

M M
the court, and all that is required is that, for an interim measure order made
N N
outside Hong Kong, the order or direction sought to be enforced here belongs

O
to a type or description of order or direction that may be made in Hong Kong O
in relation to arbitral proceedings by an arbitral tribunal (section 61(2)).
P P

Q
36. Under section 61(4), the decision of the Court to grant or refuse Q
leave to enforce the order or direction of the tribunal is not subject to appeal.
R R
The restriction of the right of appeal, and the exclusion of the grounds to

S refuse enforcement provided for in Article 17I, are consistent with and can be S

explained by the principle and object stated in section 3 of the Ordinance: to

T T
facilitate the fair and speedy resolution of disputes by arbitration without
U unnecessary expense. Arbitrations would inevitably be delayed, if parties U

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B were able to challenge interim orders and directions as and when they are B

applied for and made in the course of the arbitral process. The conduct and
C C
progress of the arbitration would be unnecessarily hampered and the issue of
D the final award would be delayed by the challenges to the Court. D

E E
37. Mr Pao pointed out that the Singapore Court adopts the same
F approach to the recognition of interim orders of a tribunal, as can be seen F

from the decision of the Court in CXG v CXH [2023] SGHC 244. The
G G
International Arbitration Act of Singapore is not the same as the Ordinance,
H but they are both modelled on the Model Law. In CXG v CXH, the Court H

explained:
I I

“42. The IAA differentiates interim measures ordered under s 12

J from awards. Interim measures do not determine the merits of the J
dispute between parties but seek to preserve parties’ rights pending
the final determination of the dispute by the tribunal. Thus, s 2(1) of
K the IAA defines ‘award’ to mean ‘a decision of the arbitral tribunal K
on the substance of the dispute [which] includes any interim,
L interlocutory or partial award but excludes any orders or directions L
made under section 12’. By virtue of s 2(2) of the IAA, which
provides that ‘a word ... used both in this Part and in the
M Model Law ... has, in the Model Law, the meaning given by this M
Part’, this definition of ‘award’ applies to the Model Law as well.
N N
43. The significance of this statutory distinction is that procedural
and interim measures issued by a tribunal under s 12(1) are exempt
O from the usual judicial oversight which applies to awards under the O
IAA and the Model Law. In particular, the grounds for setting aside
an award under Art 34(2) of the Model Law do not apply to
P domestic interim measures under s 12(6) of the IAA. Neither does P
s 24 of the IAA, which provides two additional grounds for the
Q setting aside of a Singapore-seated award - if (a) the making of the Q
award was induced or affected by fraud or corruption; or (b) a
breach of the rules of natural justice occurred in connection with the
R making of the award by which the rights of any party have been R
prejudiced.
S S
44. Thus, Lee J in Pukuafu noted (at [21]) that by introducing
s 12(6) of the IAA, Parliament had instituted ‘a sui generis
T enforcement mechanism [for orders under s 12] without broadening T
the definition of “award” to allow the court to set aside these orders’.
This approach reflected Parliament’s decision to insulate these
U orders from judicial challenge while lending the coercive powers of U

V V
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B the court to their enforcement: Pukuafu at [22]. Thus, the court has B
no jurisdiction under the IAA to set aside or review interim
measures made by an arbitral tribunal. Limiting challenges only to
C awards that decide the substantive merits of the case would reduce C
the risk of delay and prevent tactical attempts to obstruct the
D arbitration process by bringing challenges on interim orders: D
Pukuafu at [25]. It also reflected the principle that procedural issues
fall directly within the province of the arbitral tribunal and should
E be decided solely by the tribunal: Pukuafu at [23]. E

45. Indeed, at the drafting stage, the regime for enforcement of

F F
interim measures was envisioned to be largely free from judicial
interference. The LRC Report, which was adopted by Parliament,
G recommended (at para 35) that ‘curial assistance should be available G
such that the interim orders and/or directions may be registered with
the courts for enforcement as an administrative process’ ...”
H H

I 38. Having considered the relevant provisions of the Ordinance I

which apply to interim measures and the enforcement of such measures,

J J
I agree with Mr Pao that section 81, and the grounds set out therein for setting
K aside, does not apply to the Interim Order at all. K

L L
Merits of setting aside
M M
39. If I should be wrong on the question that there is no basis for G
N to apply to set aside the Interim Order under section 81, I can deal with the N

merits of the actual grounds relied upon, succinctly.

O O

P 40. Whether an anti-suit injunction can be made against a party P

which is not a party to the arbitration agreement sought to be enforced by the

Q Q
Court depends on the construction of the arbitration agreement
R (“Agreement”), and the underlying contract (“Contract”), to see if the party R

S
sought to be injuncted can be considered to have been included by the parties S
to the Contract and Agreement in question, and if the dispute in the
T T
proceedings to be injuncted falls within the scope of the Agreement. Similar

U
injunctions were granted in Giorgio Armani SpA v Elan Clothes Co Ltd U

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B [2019] 2 HKLRD 313 and GM1 v KC [2020] 1 HKLRD 132. The Fiona B

Trust presumption is applicable.

C C

D 41. It has to be borne in mind that all that is required for the grant of D

the interim injunction in this case is for the tribunal to be satisfied that there
E E
is a strong prima facie case, that the Agreement covers and extends to the
F Shenzhen Proceedings. F

G G
42. It is not a ground to set aside any award of the tribunal on the
H basis that the arbitrator had applied the wrong tests or threshold in granting H

the order, or had given erroneous or insufficient weight to any aspect of the
I I
evidence, or that the tribunal was wrong in its construction of the relevant
J provisions of the agreement, as these would at most be errors of law or of fact J

K
made by the tribunal. K

L L
43. In this case, G sought to argue that it was impermissible for the

M
tribunal to order G to dismiss the Shenzhen Proceedings against the M
Subsidiaries, in the absence of any expert evidence on PRC law as to whether
N N
these parties would be bound by the arbitration agreement or by the award, or

O whether the award would be enforceable against the Subsidiaries. O

P P
44. This is tantamount to saying that the tribunal did not have
Q sufficient evidence to support its decision in granting the Interim Order. That Q

is not a ground to set aside any award.

R R

S 45. As to whether the Interim Order is enforceable against the S

Subsidiaries under PRC law, first, the fact that an award or order may not be
T T
enforceable or cannot be performed on the Mainland is not by itself a ground
U to set it aside in Hong Kong. Any question of the Interim Order being U

V V
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B unenforceable on the ground of illegality, if it be relevant, would and should B

have been raised before the tribunal. There is no claim of illegality in this
C C
case. At most, it is for the Subsidiaries to take this point of alleged
D unenforceability to any relevant court in any relevant proceedings on the D

Mainland, if the Interim Order is sought to be enforced there.

E E

F 46. As for the other ground relied upon to set aside the Interim Order, F

that the arbitrator had failed to deal with the key issue of the effect of
G G
clause 6.13 of the SPA (as made in G’s submissions dated 8 December 2022),
H this has no substance. G’s submissions were on the effect of clause 6.13, H

which provides that the SPA may only be enforced against the entities
I I
expressly named as parties.
J J

K
47. The non-party argument was considered and dealt with by the K
arbitrator in the Interim Order, where the arbitrator referred (at paragraph 38)
L L
to the Subsidiaries as not being parties to the arbitration agreement, and to the

M
argument made by G that the tribunal should not grant an anti-suit injunction. M
The arbitrator cited the case of Giorgio Armani SPA, and explained (at
N N
paragraph 40) that there was a strong prima facie case for the injunction

O sought. The arbitrator stated that he was satisfied that the claims pursued by O
G in the Shenzhen Proceedings were covered by the arbitration agreement,
P P
that the nature of the SPA and the broadly drafted arbitration clause supports
Q the conclusion that the parties had “made a strong decision in favor of a one- Q

stop arbitration”. The arbitrator pointed out at paragraph 41 that the

R R
continuation of the Shenzhen Proceedings against the Subsidiaries would go
S against the intention of the parties and would be in breach of their agreement S

to arbitrate.
T T

U U

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B 48. At paragraph 43 of the Interim Order, the arbitrator further B

explained that the question of whether an award in the arbitration could be

C C
enforced over the Subsidiaries on the Mainland is irrelevant to the issue of
D whether G should be restrained from breaching its own obligations under the D

arbitration agreement.
E E

F 49. As the courts have repeatedly emphasized (see eg LY v HW F

[2022] HKCFI 2267 and CNG v G&G [2024] HKCFI 575), an applicant has a
G G
high threshold when it claims that a tribunal has failed to deal with an issue in
H an award, for the reason that an award has to be read in a reasonable and H

commercial way expecting, as is usually the case, that they will be no

I I
substantial fault that can be found with it (Zermalt Holdings SA v Nu-Life
J Upholstery Repairs Ltd [1985] 2 EGLR 14), and that any inference sought to J

K
be drawn that a tribunal had failed to consider an important issue can only be K
made if it is clear and virtually inescapable.
L L

M
50. Having reviewed the Interim Order, I am satisfied that the M
arbitrator did not fail to consider, and had dealt with and given adequate
N N
reasons for his decision on the non-party argument made in reliance on clause

O 6.13 of the SPA. Any question of his having erred in the construction of the O
clause is not a ground for setting aside.
P P

Q 51. Moreover, as Counsel for N pointed out, the argument now made Q

for G as to the significance of clause 6.13 is contrary to the submissions made

R R
before the arbitrator. The arbitrator had in fact requested the parties on 2
S December 2022 for “some guidance on the effect (if any) of clause 6.13 of S

the SPA on the (application for the injunction)”, and in G’s written
T T
submissions filed on 8 December 2022, it was claimed that:
U U

V V
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B “Clause 6.13 (if it were valid) would in any event highlight the B
imperative of not affecting non-parties. While G takes the stance
that the entire SPA (and not only the placement) is void and clause
C 6.13 is irrelevant, the clause nonetheless illustrates the need for C
caution.” (Emphasis added)
D D
G further submitted that “the true issue is not whether Clause 16.3 applies,
E but whether the tribunal has jurisdiction to grant the (unpleaded) relief in the E

F
first place”. According to Counsel for N, G did not argue in its subsequent F
submissions that Clause 6.13 prevented the arbitrator from making the
G G
injunction order sought and there was no mention of Clause 6.13 in the later

H
submissions. H

I I
52. From the above, it is clear to me that there is no merit in G’s

J claim made before the Court that the arbitrator had failed to deal with any key J
issue. Nor is there any other valid ground to set aside the Enforcement Order
K K
on the ground that it is an award which deals with a dispute not contemplated
L by or not falling within the terms of the submission to arbitration, or contains L

matters beyond the scope of the submission. To state the obvious, there is
M M
no serious irregularity as alluded to, and nothing shocking to the conscience
N of the Court to enforce the Interim Order. N

O O
Disposition
P P
53. The Summons was accordingly dismissed, with the usual costs
Q order made that G is to pay N’s costs, on indemnity basis, with certificate for Q

2 Counsel.
R R

S S

T (Mimmie Chan) T

Judge of the Court of First Instance

U High Court U

V V
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B B
Mr Jose Maurellet SC and Mr Tom Ng, instructed by Stevenson, Wong & Co,
C for the applicant C

D Mr Jin Pao SC and Mr Zenith Chan, instructed by Gall, for the respondent D

E E

F F

G G

H H

I I

J J

K K

L L

M M

N N

O O

P P

Q Q

R R

S S

T T

U U

V V