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Case 64: MAL 7
Hong Kong: High Court of Hong Kong (Kaplan J.)
13 May 1994
H. Small Limited v. Goldroyce Garment Limited
Original in English
Unpublished
(Abstract prepared by the Secretariat)
The plaintiff, who had previous dealings with the defendant, sent to the defendant a purchase order, which, in its general conditions, contained an arbitration clause. The goods were delivered and a dispute arose as to their quality. The defendant made an offer for compensation. The plaintiff rejected it and sought the appointment of an arbitrator by the court on behalf of the defendant pursuant to s. 12 of the Hong Kong Arbitration Ordinance, on the ground that the defendant failed to appoint an arbitrator.
The plaintiff was not able to produce a copy of the purchase order signed by the defendant but stated that a former employee of the defendant told them that the defendant had signed the purchase order and had kept the signed copy. The plaintiff argued that the evidence met the threshold of article 7 MAL requiring an arbitration agreement in writing. The plaintiff further argued that it was clearly beyond doubt that a contract existed between the parties and that the contract contained an arbitration clause.
The court, citing its ruling on Pacific International Lines etc. (case 40), found that
the evidence produced by the plaintiff was hearsay, which, in the absence of a testimony
from the former employee of the defendant, could not be held to meet the threshold of
article 7 MAL. As to the second argument of the plaintiff, the court held that the
arbitration agreement was separable from the contract of the parties and its existence
could not be assumed on the basis of the conduct of the parties, but had to be either in a
writing signed by the parties or in another document which provides a record of the
agreement. The court decided in favour of the defendant and dismissed the plaintiff's
application.
Additional Information published in later CLOUT issue (on "10 April 1995"):
Commented on by Kaplan in Asia LawJanuary/February 1995, 23.
Additional Information published in later CLOUT issue (on "12 July 1995"):
Cases 39-41, 57, 60-64, 76 and 78, reported on in English: [1992] The Arbitration and Dispute Resolution Law Journal (ADRLJ) 235, [1992] ADRLJ 240, [1993] ADRLJ 100 and [1994] ADRLJ 49, 295, 307, 291, 290, 298 respectively.
Additional Information published in later CLOUT issue (on "9 February 2000"):
Abstract published in English: [1996] Model Arbitration Law Quarterly Reports, Vol. 2, issue 2, 97
Text of the court decision published in English: [1996] Model Arbitration Law Quarterly Reports, Vol. 2, issue 2, 100
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Abstracts of cases
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