In Beijing Songxianghu Architectural Decoration Engineering Co., Ltd v Kitty Kam [2024] HKCFI 1657 (date of reasons for decision: 19 June 2024), the Hong Kong Court of First Instance (“the Court”) dismissed an application for a confidentiality order – made on the basis of confidentiality protected in the arbitration under the Arbitration Ordinance (Cap 609) – to effectively render the Court proceedings and all information relating to a set of related arbitration proceedings confidential (“Confidentiality Application”). The Court rejected the Defendant’s argument that arbitral confidentiality was being undermined by the Plaintiff’s decision to commence both an arbitration and allegedly “parallel proceedings” in Court, which “effectively left open a loophole that allow the Plaintiff to breach its confidentiality obligations … through the backdoor at its wishes”. This case highlights that arbitral confidentiality is not absolute, and must be balanced with the fundamental principle of open administration of justice when a party discloses information in protecting or pursuing a legal right or interest in legal proceedings.

In SYL v GIF [2024] HKCFI 1324 (date of judgment: 20 May 2024), the Hong Kong Court of First Instance (“the Court”) set aside an Interim Award made by the arbitral tribunal (“Tribunal”) in an HKIAC-administered arbitration. The award related to an unsuccessful jurisdictional challenge made before the Tribunal. A single arbitration was commenced in relation to three separate but related contracts. The Court was required to analyse the meaning and effect of “mutatis mutandis” in a Loan Agreement context / relationship, where two related Security Deeds provided that the dispute resolution provision in the Loan Agreement applied “mutatis mutandis”. The Court agreed with the plaintiff on both of what had been labelled by the parties as (i) the “Compatibility Ground” (that the arbitration agreements in the three contracts are incompatible with one another), and (ii) the “Agreement Ground” (that the composition of the Tribunal was defective because the appointment had not been done in accordance with the parties’ agreement under the three contracts). The Court therefore set aside the Interim Award made by the Tribunal. Following on from our earlier article on AAA, BBB, CCC v DDD [2024] HKCFI 513 (which covered the situation where there is a group of related contracts and two or more of those contracts have different dispute resolution clauses), this case of SYL v GIF addresses the opposite situation where the same dispute resolution provision applies “mutatis mutandis” to separate but related contracts (i.e. purports to have the same dispute resolution clauses but “with all necessary changes having been made”). The case of SYL v GIF demonstrates neatly that the “mutatis mutandis” drafting “shortcut” might not result in disputes in all related contracts being able to be brought in a single arbitration.

In AAA, BBB, CCC v DDD (HCCT 39/2023) [2024] HKCFI 513 (date of decision: 16 February 2024), the Hong Kong Court of First Instance (“the Court”) provides much welcomed guidance on the situation where there is a group of related contracts and two or more of those contracts have different dispute resolution clauses – a situation which the Court recognised as “not infrequently arises in commercial disputes today”. The Court overruled an HKIAC Tribunal’s decision that the arbitration clause in a Loan Agreement did confer jurisdiction on the Tribunal formed under it to determine related disputes arising out of a Promissory Note – a related but separate contract which has its own arbitration agreement. In his judgment, Deputy High Court Judge Reyes SC explained the proper approach to conflicting dispute resolution clause situations, through discussion of three “paradigm situations”, namely (1) the “Fiona Trust principle” (presumption of one-stop adjudication) and the “basic paradigm” under Fiona Trust & Holding Corporation v Privalov [2007] UKHK 40, (2) the “extended Fiona Trust principle” and the “intermediate paradigm” under Terre Neuve SARL & Others v Yewdale Limited & others [2020] EWHC 772 (Comm), and (3) the “centre of gravity” and the “generalised paradigm” under AmTrust Europe Ltd v Trust Risk Group SpA [2015] EWCA 437.

In CNG v G & G (HCCT 29/2023) [2024] HKCFI 575 (date of reasons for decision: 27 February 2024), the Hong Kong Court of First Instance (“the Court”) dismissed an application to set aside an arbitration award, reiterating important principles regarding challenges to arbitration awards and/or enforcement of arbitration awards. The judgment began with the remark that: “[t]his is a typical example of a party which has agreed to submit its contractual disputes to the final and binding determination of an arbitral tribunal, but being aggrieved when the tribunal makes an award against it, makes all attempts to find loopholes and problems in the award”. The Court gave a timely reminder to legal professionals – that the Court can only look to and trust legal professionals to carry out their duties to the Court, and to act responsibly when advising their clients on whether an award can be “properly challenged”, and that “lengthy but at the root unmeritorious applications” take up precious judicial time and public resources in the process.

In May 2024, the Hong Kong Government introduced the Construction Industry Security of Payment Bill (Bill) to the Legislative Council for first reading. If the Bill is passed into law, the Bill will introduce a statutory security of payment regime for both public sector and private sector construction contracts in Hong Kong. This is the second article in a series of two articles. In the earlier article, we compared the clauses in the Bill against the public works contracts pilot programme security of payment provisions (Pilot Provisions) promulgated by the Development Bureau (DevB) in its Technical Circular (Works) No.6/2021 (Circular) for the contractual regime, and considered the key development, changes and differences. In this article, we will take a deeper look at the changes made in the Bill concerning the treatment of variation claims and time-related disputes in the payment process and the adjudication process.

In May 2024, the Hong Kong Government introduced the Construction Industry Security of Payment Bill (Bill) to the Legislative Council for first reading. If the Bill is passed into law, the Bill will introduce a statutory security of payment regime for both public sector and private sector construction contracts in Hong Kong. Currently, a contractual security of payment regime is in place for public sector construction contracts only. In this article, we will compare the clauses in the Bill against the public works contracts pilot programme security of payment provisions (Pilot Provisions) promulgated by the Development Bureau (DevB) for the contractual regime, and consider the key development, changes and differences. This is the first article in a series of two articles. In the next article, we will take a deeper look at the change of two features in the payment process and the adjudication process relating to variation claims and time-related disputes.

In X v Y (HCCT 62/2018) [2020] HKCFI 2782 (Date of Decision: 5 November 2020), the Hong Kong Court of First Instance (the Court) set aside an order to enforce an arbitration award on the basis (i) that the tribunal’s findings were beyond the scope of the arbitration clause and the parties submission to arbitration, and (ii) that the respondent in the arbitration had not been given a reasonable opportunity to present its case and to meet the case of the claimant in the arbitration.In her judgment, Mimmie Chan J explained the principles for determining the proper scope of the tribunal’s jurisdiction where a dispute involves a series of connected agreements that are subject to different dispute resolution clauses. The court also provided guidance on how arbitrators should proceed if they are impressed by a point that had never been explored or advanced by either side in evidence or submissions.

Under the Competition Ordinance, the Hong Kong Competition Tribunal (“Tribunal”) may, on application by the Competition Commission (“Commission”), impose a disqualification order prohibiting a person from being a director, liquidator or provisional liquidator of a company, a receiver or manager of a company’s property, or taking part in the promotion, formation or management of a company.The disqualification order may be for a maximum period of 5 years (ss 101-103 ). This is one of many orders, remedies and penalties the Tribunal is empowered to make in respect of competition law contraventions in Hong Kong.In Competition Commission v Fungs E&M Engineering Company Limited & others [2020] HKCT 9, the Tribunal issued its first disqualification order since the new statutory competition regime came into effect. The Tribunal also discussed the principles, guidelines and factors for determining the length of disqualification orders.

In 1955 Capital Fund I GP LLC & another v Global Industrial Investment Limited [2020] HKCFI 956, the court set aside an ex parte order for the enforcement of an arbitral award on the grounds of material non-disclosure by the applicants.This decision is a reminder to parties that they should ensure compliance with the enforcement procedures under the Arbitration Ordinance, and make full and frank disclosure of all material facts where the enforcement application is made on an ex parte basis.