International Construction Law Review
CORRESPONDENTS’ REPORTS: HONG KONG
DAVID BATESON
Mallesons Stephen Jaques, Hong Kong
APPEALING DOMESTIC ARBITRAL AWARDS IN HONG KONG
Section 23 of the Hong Kong Arbitration Ordinance (Cap. 341) provides a procedure for an to appeal to the High Court on any question of law arising out of a domestic arbitral award. However, an appeal may only be brought with the consent of all the other parties to the reference, or with the leave of the court. The court will not grant leave under subsection (3)(b) unless it considers that, having regard to all the circumstances, the determination of the question of law concerned could substantially affect the rights of one or more of the parties to the arbitration agreement.
The circumstances in which the Hong Kong courts will entertain an appeal against a domestic arbitral award under the section 23(3)(b) limb were recently examined by the Hong Kong Court of Final Appeal in Swire Properties Ltd and others
v. Secretary of Justice
.1
While reaffirming the approach to “one-off” cases as laid down in previous judgments, there are grounds to argue that the Court of Final Appeal has opened the door for a relaxation of the threshold for granting leave to appeal where a question of law of general public importance or the construction of a standard clause is involved.
Swire Properties Ltd and others v. Secretary of Justice (the Swires case)
The question before the Court of Final Appeal was how to approach the exercise of the discretion to grant leave to appeal from a domestic arbitral award on a question of law. This was the first time that the question had been considered by the Court of Final Appeal.
Li CJ, Bokhary and Chan PJJ, Clough NPJ, and Sir Anthony Mason NPJ constituted the Court of Final Appeal. A single judgment of Mr Justice Bokhary PJ was delivered with which the other members of the court agreed.
Pt 3]
Correspondents’ Reports—Hong Kong
357