ENFORCEMENT AND RECOGNITION OF ARBITRAL AWARD [A Hong Kong Prospective]

Transcription

1 ENFORCEMENT AND RECOGNITION OF ARBITRAL AWARD [A Hong Kong Prospective] Christopher To To 1 Dated: 22 th November,2012

2 Objectives and Preambles We would encounter the following topics: 1. Overview of the Hong Kong Regime 2. Pre-Arbitral Challenges 3. Post-Arbitral Challenges: Set Aside an Arbitral Award 4. Post-Arbitral Challenges: Refusal to Enforce an Arbitral Award [Focuses mainly on Public Policy] 2

3 Objectives and Preambles (Cont d) We will explore: 1. Has the preamble of the New York Convention, namely proarbitration and pro-enforcement was widely adopted by the arbitration in Hong Kong, and so as to other common law jurisdictions? 2. Whether the ideology of pro-arbitration and proenforcement were reflected in the landscape of Hong Kong? 3

4 1. Overview of the Hong Kong Regime Prior to 1 June 2011, arbitration in Hong Kong was governed by the Arbitration Ordinance (Cap 341) Hong Kong Institute of Arbitrators published the Draft Report of the Committee on Hong Kong (2002) ( Report ) The Report recommended that the a unitary regime, namely, the UNCITRAL Model Law, be implemented for both domestic and international arbitration Arbitration proceedings in Hong Kong are now governed by the Arbitration Ordinance (Cap 609) since 1 June 2011 The arbitration is now governed by a unitary regime. Most of the provisions in UNCITRAL Model Law are implemented and incorporated in the Arbitration Ordinance (Cap 609) 4

5 2. Pre-Award Challenges A party may challenge the jurisdiction of an arbitral tribunal before the tribunal made an award In Hong Kong, as akin to many pro-arbitration and proenforcement jurisdictions, if the arbitration agreement is made in writing, the national court would refer the dispute back to the arbitral tribunal As stated in Article II(1) of the New York Convention, (1) Each Contracting State shall recognise an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration 5

6 Pre-Award Challenges (Cont d) Ng J in Ling Ming and Anr v Chan Shu Quen & Others [2012] 2 HKLRD 547, paragraph 33 noted that:- In any event, the onus on the defendant is merely to demonstrate to this Court a good prima facie case that an arbitration agreement exists between the defendant and the plaintiff, and if so, to refer the matter to arbitrator for final determination Facts of the case are discussed below in Validity of Arbitration Agreement 6

7 Pre-Award Challenges (Cont d) Two key principles: Doctrine of Separability Doctrine of Competence-Competence (or known as Doctrine of Kompetenz-Kompetenz ) 7

8 Doctrine of Separability and Competence-Competence New York Convention had imposed great deal of emphasis on these two legal doctrines Article II(3) of the New York Convention stated that (3) The Court of a Contracting state shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed In Hong Kong, these two legal doctrines are enshrined by Section 19(1) and 34(1) of the Arbitration Ordinance (Cap 609) 8

9 Doctrine of Separability and Competence-Competence (Cont d) Section 19(1) of the Arbitration Ordinance (Cap 609) stated that an arbitration agreement are expressed in the form of an arbitration clause in a contract or in a form of a separate agreement Section 34(1) of the Arbitration Ordinance (Cap 609) stated that an arbitration clause which forms part of the contract shall be treated as an independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not ipso jure the invalidity of the arbitration clause 9

10 Doctrine of Separability and Competence-Competence (Cont d) A matrix contract can sometimes made as a result of bribery or corruption Bribery or corruption arbitration has become a profiling topic in the region of Asia Pacific Michael Hwang S.C and Kevin Lam in Corruption in Arbitration Law and Reality (2011), had drew attention to Global Corruption Report Executive Summary Page. XXV, where it says:- In developing and transition countries alone, corrupt politicians and government officials receives bribes to total between US $20 and $40 billion annually The equivalent of some 20 to 40 per cent of official development assistance. The cost is more than measurable in more than money. When corruption allows reckless companies to disregard the law, the consequences range from water shortage in Spain, exploitative work conditions in China or illegal logging in Indonesia to unsafe medicines in Nigeria and poorly constructed buildings in Turkey that collapse with deadly consequences 10

11 Doctrine of Separability and Competence-Competence (Cont d) No case law in Hong Kong had given an insight of bribery or corruption arbitration Yet, Hong Kong is a common law jurisdiction and is able to rely on persuasive authorities from other common law jurisdictions such as UK and Singapore Fiona Trust & Holdings Corp & Others v Privalov & Others [2007] EWHC Civ 20 was a hallmark case in respect of Doctrine of Separability and Competence-Competence 11

12 Doctrine of Separability and Competence-Competence (Cont d) In Fiona Trust & Holdings Corp & Others v Privalov & Others [2007] EWHC Civ 20, the English Court had made two clear indications: It is not enough to say that the bribery impeaches the whole contract unless there is some special reason for saying that the bribery impeaches the arbitration clause in particular (paragraph 29, as per Longmore LJ); Section 30 provides that the arbitral tribunal may rule on its own substantive jurisdiction including the question whether there is a valid arbitration agreement and section 32 provides for the court to be able to determine a preliminary point of jurisdiction if all the parties agree in writing or the tribunal itself permits the court (for good reason) to do so. This combination of sections shows that it is contemplated by the [English Arbitration] Act [1996] that it will be right for the arbitrators to be the first tribunal to consider whether they have jurisdiction to determine the dispute (paragraph 33, as per Longmore LJ) 12

13 Doctrine of Separability and Competence- Competence (Cont d) Fiona Trust was a persuasive authority and should give the Court in Hong Kong a sufficient guide in dealing with bribery or corruption arbitration In summing up, if the matrix contract was made as a result of bribery, it is common in practice that the national court would refer the challenge (if any) back to the arbitral tribunal An indication to show that both Hong Kong is a promising proarbitration jurisdiction 13

14 3. Post-Award Challenges The grounds to set aside an arbitral award is set out in s.81(2)(a) and (b) of the Arbitration Ordinance (Cap 609) These grounds are similar to Article V(1)(a)-(d) and Article V(2) of the New York Convention There are two profiling topics we would go through: i.) Validity of an Arbitration Agreement; ii.) Conflicting Clauses in Arbitration Agreement These case proven that the Doctrine of Separability and Competence- Competence do NOT relinquish the court s jurisdiction to review the validity of agreement entirely In fact, the court does have the jurisdiction to review the validity of agreement after the issue is awarded: See AXA Re v ACE Global Market [2006] ArbLR 7 below 14

15 Validity of an Arbitration Agreement In some cases, an arbitration clause maybe poorly drafted and it would affect the validity of the arbitration agreement Does the national court have the jurisdiction to review the validity of an arbitration agreement? See: Lin Ming and Anr v Chen Shu Quan and Others [2012] 2 HKLRD 547, PCCW Global Ltd v Interactive Communication Service [2007] HKC 327 and AXA Re v ACE Global Markets Ltd [2006] ArbLR 7 15

16 Lin Ming and Anr v Chen Shu Quan and Others [2012] 2 HKLRD 547 Facts of the case: The claimants were company incorporated in PRC The Plaintiff went into agreement and sold 1,000 shares of the company to the 28 th Defendant The 28 th Defendant entered into agreement and sold 237 out of 1,000 shares to the 27 th Defendant These agreement stated that the dispute will be resolved by arbitration Subsequent to a series of complicated arguments Plaintiff in the case request the court to grant an anti-arbitration injunction, whereas the Defendant requested the court to grant a stay of litigation in favour of arbitration 16

17 Lin Ming and Anr v Chen Shu Quan and Others [2012] 2 HKLRD 547 (Cont d) Ng J in the Court of First Instance made two remarkable indications: If it is proven that there is a consensual agreement to resolve the dispute by arbitration if this court accedes to stay Application in favour of HKIAC arbitration, it would be self-defeating for this court then to grant an injunction restraining [the] defendants from proceeding with the HKIAC Arbitration. Common sense compels this court to adopt one or other course, but not both. Given that a stay under Art.8 of the [UNCITRAL] Model Law is mandatory, the course which this Court has to adopt should be quite obvious 17

18 PCCW Global Ltd v Interactive Communication Service [2007] HKC Facts of the case: 327 The Plaintiff and Respondent went into an agreement to buy and sell international telephone services from each other Respondent alleged that some of the bills issued by the Plaintiff were inconsistent, and therefore refused to pay to the Plaintiff according to the contract Subsequently, the Plaintiff started these proceedings against the Respondent, requiring the Respondent to pay for the unpaid invoice, a net balance of USD $718, The Respondent did not admit the liability 18

19 PCCW Global Ltd v Interactive Communication Service [2007] HKC 327 (Cont d) In brief, the key argument in this case is that there is a jurisdiction clause and arbitration clause in an agreement In Clause 4 and 5, it stated that the differences between the parties shall be submitted to the Hong Kong Court and the Court of Hong Kong has exclusive jurisdiction on the matter [Clause 4 expressly stated that In the event the Parties are unable to resolve the dispute amicably with[in] a reasonable period of time and havin[g] exchanged their respective call detail records, not to exceed 14 days ] Whereas Clause 11.2 and 11.3 stated that the dispute should be submitted to the State of York, it shall be commenced in accordance with the commercial arbitration rules of American Arbitration Association and the arbitration shall take place in New York 19

20 PCCW Global Ltd v Interactive Communication Service [2007] HKC 327 (Cont d) Tang V-P had made a number of clear indications: The proper approach to interpretation is to consider the agreement as a whole [The Court must] avoid an interpretation that would leave contractual clause meaningless and that one must give unambiguous provisions their plain and ordinary meaning (paragraph 20) It is important that the court not to usurp the function of an arbitrators, and unless the point is clear, the matter should be stayed for arbitration (paragraph 60) 20

21 PCCW Global Ltd v Interactive Communication Service [2007] HKC 327 (Cont d) However, since the action pursuant by the Respondent had exceeded 14 days as stated in Clause 4.3 The Court was of the view that, as said by Reyes J in the early court, To remit the question to an arbitrator would only lead to unjustifiable delay and expense Thus, the court is refused to grant the stay in favour of arbitration Had the Respondent brought the case promptly [not exceeding 14 days], there was a strong chance that the court would grant a stay in favour of arbitration 21

22 AXA Re v ACE Global Market [2006] ArbLR 7 Similar to PCCW Global Ltd, there is a jurisdiction clause and an arbitration clause consisted in the same agreement Two indications were made by Gloster J 1. the jurisdiction clause, even taken on its own, is not necessarily an exclusive jurisdiction agreement, because it does not transitively require all dispute to be submitted to an English Court. I refer in this context to Jurisdiction and Arbitration Agreement and their Enforcement by David Joseph QC where he states that Similarly, an agreement in terms which provided that each party consents to the jurisdiction of the courts of England has been held to give rise to a nonexclusive jurisdiction agreement 22

23 AXA Re v ACE Global Market [2006] ArbLR 7 (Cont d) 2. It is perfectly possible to construe the two clauses in a harmonious manner. In my judgment, they can be read together in such a way to avoid both conflict and surplusage. The arbitration agreement envisages the possibility that the proceeding will take place in the court, through only after arbitration. The contract, when properly construed, demonstrates that the parties does not treat arbitration and courts as mutually exclusive, but envisage arbitration as a step when may, or will take place before any action in court 23

24 Validity of an Arbitration Agreement In summing up: The role of the court and arbitral tribunal does correspond to each other The New York Convention, the Doctrine of Separability or Doctrine of Competence-Competence does NOT relinquish the court s power to review the validity of an arbitration agreement At the stage of Pre-Award Challenge, the national court should refer the challenge to an arbitral tribunal. However, they would regain their jurisdiction to review the validity of an arbitration agreement after the tribunal had issued an award (Post-Award Challenge) 24

25 4. Post-Award Challenge: Refusal to Enforce an Arbitral Award Challenge of an arbitral award is a distinctive feature in international arbitration Christopher Style QC and Stephan Balthasar in an article Enforcing International Arbitration Awards: Pitfalls and Strategies noted that such feature is one of the essential safeguards against misconduct on the side of the arbitral tribunal Two aspects will be discussed: i.) Enforcement of an Arbitral Award in Practical Prospective; ii.) Public Policy Defence in Practical Prospective 25

26 Enforcement of an Arbitral Award The recent case authorities in Hong Kong demonstrated that it is very difficult, if not impossible, for petitioner to set aside an arbitral award See: Pacific China Holdings v Grand Pacific Holdings Ltd [2011] 4 HKLRD 188 (Court of First Instance) and [2012] 4 HKLRD 1 (Court of Appeal); Pang Wai Hak and Other v 華允鑒 and Others [2012] 4 HKLRD 113 Legal practitioners shall advise their clients about the potential consequences of challenging an arbitral award: Pacific China Holdings Ltd [2012] 4 HKLRD

27 Pacific China Holdings v Grand Pacific Holdings Facts of the case The Claimant ( PCH ) and Respondent ( GPH ) had entered into a contract, agreed to have resolved their dispute by arbitration A dispute was incurred, both parties submitted the case to an arbitral tribunal on March 2006 The arbitral tribunal held in favour of the GPH, dated 24 August 2009 PCH filed a petition to set aside the arbitral award on two grounds 27

28 Pacific China Holdings v Grand Pacific Holdings (Cont d) 1. PCH argued that they were not given full opportunity to present their case during the arbitral proceedings; 2. In addition, PCH argued that the alleged procedure was not in accordance with the agreement of the parties Saunders J in the Court of First Instance based on three distinctive issues and found that there was a series of infringement of Article 34(2) of the UNCITRAL Model Law (And so as to Article V(1) of the New York Convention) 28

29 Pacific China Holdings v Grand Pacific Holdings (Court of First Instance) (Cont d) 1. Pre-Hearing Submission Issues PCH and GPH had made an agreement that they would exchange the document simultaneously PCH requested to amend its pleadings the day before the filing date Tribunal had granted a reasonably opportunity for GPH to reply, and subsequently granted 10 days to file supplementary submissions CFI reinstated that the tribunal s conduct, by granting 10 days for GPH to file supplementary submissions was a breach of Article 34(2)(i) and (iv) of the UNCITRAL Model Law (Equivalent to Article V(1)(a) and (d) of the New York Convention) 29

30 Pacific China Holdings v Grand Pacific Holdings (Court of First Instance) (Cont d) 2. Taiwanese Legal Issues PCH adduced three additional Taiwanese legal authorities The Tribunal was of the view that the additional Taiwanese legal authorities were not sentimental and refused to allow PCH to adduce further legal authorities PCH argued that the Tribunal was not entitled to determine whether these authorities were sentimental or not Saunders J in CFI found that refusal to admit additional authorities did in fact prevent PCH to present its own case CFI concluded that there was a breach of Article 34(2)(ii) of the UNCITRAL Model Law (Equivalent to Article V(1)(b) of the New York Convention) 30

31 Pacific China Holdings v Grand Pacific Holdings (Court of First Instance)(Cont d) 3. Hong Kong Law Issues PCH was arguing about the relevance of Hong Kong Law towards the contract Arbitration agreement itself stated that the governing law of the contract was in fact the New York Law GBH objected the view that Hong Kong Law was relevant to the contract Nevertheless, GBH had adduced two new cases in this aspect The Tribunal determined the Hong Kong Law Issues by relying on those two new cases adduced by GBH CFI held that this was a breach of Article 34(2)(ii) of the UNCITRAL Model Law 31

32 Pacific China Holdings v Grand Pacific Holdings (Court of Appeal) (Cont d) Thus, CFI held that the arbitral award should be set aside Court of Appeal, however, reversed the decision of the Court of First Instance, reinstated the arbitral award Tang V-P had responded those three indications in a meticulous manner 32

33 Pacific China Holdings v Grand Pacific Holdings (Cont d) In relation to the Pre-Hearing Submissions, the Court of Appeal held that GPH was prejudiced by the late submission by the PCH In relation to the Taiwanese Law Issues and Hong Kong Law Issues, the Court of Appeal was of the view that a national court should neither inferred nor questioned the merits of the arbitral tribunal s decision. The Court of Appeal commented that such interference would simply limit the discretionary management power of an arbitral tribunal, which would defeat the objective of arbitration 33

34 Pacific China Holdings v Grand Pacific Holdings (Cont d) In respect of discretion to set aside an arbitral award, Tang V-P had referred to the publication by Professor van den Berg in New York Convention 1958, where it is noted that the grounds for refusal of enforcement are to be construed narrowly it means that their existence is accepted in serious cases only Tang V-P had drew the attention to another publication International Chamber of Commerce Arbitration, 3 rd Edition in page It is stated that a national court would set aside an arbitral award only in themost egregious cases. Thus, the Court of Appeal reversed the CFI s decision and had reinstated the arbitral award 34

35 Pang Wai Hak and Other v 華允鑒 and Others [2012] 4 HKLRD 113 Tang V-P s approach is affirmed in a recent case in Pang Wai Hak and Other v 華允鑒 and Others [2012] 4 HKLRD 113. It is noted that the court does not sit as an appeal court from the decision of the arbitrator and will not address itself to the substantive merits of the dispute, or to the correctness or otherwise of the award The only basis on which the court may intervene is where the party has denied in due process in the arbitration (paragraph 41) 35

36 Pacific China Holdings v Grand Pacific Holdings [2012] 4 HKLRD 569 What are the consequences if the party had challenged the award unsuccessfully? Tang V-P referred to Gao Haiyan & Anor v Keeneve Holdings Ltd & Anor (No.2) [2012] 1 HKC 491, where it is observed that: Experienced judges in charge of the Construction and Arbitration List have adopted that, in proceedings in connection with the arbitral proceedings, in the absence of special circumstance, the court will normally consider it appropriate to order costs on an indemnity basis (Paragraph 12, as per Reyes J) 36

37 Pacific China Holdings v Grand Pacific Holdings [2012] 4 HKLRD 569 (Cont d) His Lordship had referred to another remarkable comments as made by Reyes J in A v R [2009] 3 HKLRD 389. It is noted that: Application by a party to appeal against or set aside an [arbitral] award or for an Order refusing enforcement should be exceptional events. Where a party unsuccessfully makes such application, he should in principle expect to have to pay costs on a higher basis. This is because a party seeking to enforce an award should not have had contend with such type of challenge (Paragraph 68, as per Reyes J) 37

38 Pacific China Holdings v Grand Pacific In summing up: Holdings In Hong Kong, the threshold of setting aside of an arbitral award is extremely high As noted by in Pacific China Holdings and Pang Wai Hak, the court would only set aside an arbitral award if the error or misconduct of the arbitral tribunal was serious and egregious Pacific China Holdings also highlighted that the case management power of an arbitral tribunal should not be inferred Legal practitioner should advise their client about the potential cost of challenging an arbitral award. The party who challenged an arbitral award unsuccessfully would need to pay the cost on an indemnity basis 38

39 Public Policy Defence: Hebei International & Export v Polytec Corporation [1999] 1 HKLRD 665 Article V(2) of the New York Convention had stated that:- 2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that:- (a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or (b) The recognition or enforcement of the award would be contrary to the public policy of that country 39

40 Hebei International & Export v Polytek Corporation [1999] 1 HKLRD 665(Cont d) Facts of the case: Hebei International ( Appellant ) is a Mainland company whereas Polytek Corporation ( Respondent ) is a company in Hong Kong The Respondent agreed to sell a set of equipment for the production of rubber powder to the Appellant in April 1993 The Appellant had almost fully paid the purchase price of the equipment, while the equipment was delivered to the Appellant by ship in due course 40

41 Hebei International & Export v Polytek Corporation [1999] 1 HKLRD 665 (Cont d) However, the Appellant found that the equipment shipped by the Respondent was in fact defective The parties referred their dispute to the China International Economic and Trade Arbitration Commission ( CIETAC ) for arbitration. On 26 th March 1996, the Tribunal held in favour of the Appellant. The Respondent had to refund the purchase price and pay compensation to the Appellant together with interest and costs 41

42 Hebei International & Export v Polytek Corporation (Cont d) During the arbitral proceedings: Respondent received an expert report during the proceedings The Respondent requested the American Manufacturer of the equipment be made to be a party in the arbitration or called as a witness to explain the defects of the eqipment Tribunal declined such request, noted that If you have any opinion on the context of the expert assessment report, please submit the same in writing to the Tribunal The Respondent replied to the Tribunal that The equipment has up to now failed to attain the targets prescribed in the Agreement. Although this was not caused by the deliberate act of the seller, and the [seller (Respondent)] was in fact a victim, [the seller (Respondent)] is willing to assume its own responsibility of compensation if the equipment is repairable The Respondent admitted the liability 42

43 Hebei International & Export v Polytek Corporation [1999] HKLRD 665(Cont d) Respondent raised two distinctive challenges: 1. Tribunal failed to give an opportunity for Respondent to present its case after the expert submitted the expert report 2. Chairman of the Tribunal made private conversation with the expert during the inspection process without the presence of both parties 43

44 Hebei International & Export v Polytek Corporation [1999] HKLRD 665(Cont d) Based on these two allegations, Respondent argued that:- 1. A breach of principle of natural justice. As a result, 2. Enforcement of the award would be contrary to the public policy in Hong Kong The Court of Appeal held in favour of the Respondent and refuse to enforce thearbitral award However, the decision was reversed by the Court of Final Appeal. A number of remarkable indications must be discussed 44

45 Hebei International & Export v Polytec Corporation (Cont d) 1. Breach of Principle of Natural Justice Litton PJ do have an overriding duty is to provide reasonable opportunity for parties to present their case This is also enshrined by other statutory legislation, such as Article 10 of the Bill of Right Ordinance in Hong Kong The Respondent were given ample of opportunity to challenge the independence and impartiality Litton PJ was of the view that the Respondent failed to make the challenge of the private communication promptly The Respondent did not mention this challenge in front of the earlier trial (It was not raised in Beijing Court and Court of First Instance) His Lordship concluded that there is no breach of natural justice 45

46 Hebei International & Export v Polytec Corporation Bokhary PJ emphasised that an arbitrator should not make any unilateral communication with the expert anyway However, Bokhary PJ was of the view that the private conversation does not affect the decision of the tribunal Chairman of the Tribunal made a conversation with the expert was to ensure that the inspection was done properly No evidence suggested that the arbitrator had formed any view during the inspection process Bokhary PJ concluded that there is no infringement of natural justice 46

47 Hebei International & Export v Polytek Corporation (Cont d) Sir Mason Anthony concurred with the view of Litton PJ Respondent was entitled to challenge the tribunal s independence and impartiality However, the failure of bringing the challenge promptly suggested that the right to challenge an award was waived Sir Mason Anthony concluded that there was no breach of natural justice 47

48 Hebei International & Export v Polytek Corporation (Cont d) 2. Public Policy Defence Bokhary J in the dictum emphasised that public policy defence must be supported with compelling reason. His Lordship noted that:- In regard to the refusal of enforcement of Convention awards on public policy, there are references in the cases and texts to what has been called international public policy. Does it mean some standard common to all civilized nations? Or does it mean those elements of a State s own public policy which are so fundamental to its notions of justice that it feel obliged to apply the same not only to purely internal matters but even to matters with a foreign element by which other States are affected? I think it should be taken to mean the later (Paragraph 29, as per Bokhary J) 48

49 Hebei International & Export v Polytek Corporation (Cont d) His Lordship then concluded:- In my judgment, the position is as follows [In order to] refuse enforcement of a Convention award on public policy grounds, the award must be so fundamentally offensive to that jurisdiction s notions of justice (Paragraph 31, as per Bokhary J) 49

50 Galsworthy Ltd of the Republic of Liberia v Glory Wealth Shipping Pte Ltd [2010] SGHC 304 The approach in Hebei International was adopted by a recent case in Singapore The Singapore High Court noted that: it was unnecessary for me to consider the consequential issue of whether these contentions met the high threshold required under s.31(4). Even if I were to assume that GWS s complaints had the necessary evidential basis, I did not find that those complaints offended any notion of justice or morality (see Hebei Export Corp v Polytek Engineering Co Ltd [1999] 2 HKC 205) or amounted to exceptional circumstances to justify a refusal of enforcement (paragraph 17, as per Choo Han Tak J) 50

51 Public Policy Defence: Hebei International & Export v Polytec Corporation [1999] 1 HKLRD 665 In summing up: The threshold to rely on public policy defence remained to be extremely high Based on the decision as in Heibei International and Galsworthy Ltd, it conveys that the national court would exercise its motion and refuse to enforce an award in rare circumstances 51

52 Conclusion The preamble of New York Convention is to encourage the international counterparties to resolve their dispute by arbitration Case precedents as mentioned above affirmed that Hong Kong, so as many common law jurisdictions, such as Singapore and United Kingdom are also a pro-arbitration and proenforcement jurisdictions 52

53 Thank You 53