Parkside’s Ernest Ng and Nicole Chui successfully resisted the Respondent’s out-of-time application to set aside the enforcement order of an arbitral award issued by the Xiamen Arbitration Commission.

Mr. Ernest Ng and Ms. Nicole Chui (acting for the Applicant) successfully resisted the Respondent’s application to set aside the enforcement order of an arbitral award to transfer certain shares to the Applicant.

Despite the 14-day time limit for application to set aside provided in the enforcement order, the Respondent only took out such an application 44 months later.  Mimmie Chan J applied Astro Nusantara International BV v PT Ayunda Prima Mitra (2018) 21 HKCFAR 118 and found that the Respondent’s failure to apply in time must have been a conscious and deliberate choice. In particular, the Court agreed with the Applicant that the Respondent’s explanation for the delay is disingenuous; the Respondent had been able to instruct lawyers to commence other proceedings on the relevant matters (§§27-34).

There were also no merits to Respondent’s grounds of opposition.

First, the Court rejected the submission that the dispute is not arbitrable under Mainland law. Applying Gao Haiyan v Keeneye Holdings Ltd [2012] 1 HKLRD 627 at §102, where the arbitration was held in the Mainland and was governed by PRC law, the Court should give due weight and regard for the Mainland Court’s findings. The Mainland Courts had never found the dispute not arbitrable, nor had the Respondent raised these issues of jurisdiction. Accordingly, the Respondent should be treated to have waived, or be estopped from objecting to the same (§§36-45).

Second, the Respondent failed to cite any authorities to show the dispute is non-arbitrable under Hong Kong law, (§46).

Third, the Court also rejected the Respondent’s submission that the arbitral award should not be enforced since it affects third party interests.  The Court found that the third party did not possess any shares subject to the arbitral award, such that he would not be bound, affected or prejudiced by the enforcement of the award (§§58-63).

Given the substantial delay, the lack of justification for the delay and the lack of merits of the intended application, the Court refused leave to extend time for the Respondent to set aside the enforcement order.

For Ernest’s full profile, see: http://www.parksidechambers.com.hk/members/ernest-c-y-ng/

https://www.linkedin.com/in/ernest-cy-ng-8a367782/

For Nicole’s full profile, see:

http://www.parksidechambers.com.hk/?s=nicole+chui

https://www.linkedin.com/in/nicole-chui-%E5%BE%90%E7%A9%8E%E6%96%87-a466a2103/

For the Court’s decision, see: https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=161508&currpage=T