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Case 76: MAL 36(1)(a)(iv)
Hong Kong: High Court of Hong Kong (Kaplan J.)
13 July 1994
China Nanhai Oil Joint Service Corporation, Shenzhen Branch v. Gee Tai Holdings Co. Ltd.
Original in English
Unpublished
(Abstract prepared by the Secretariat)
The plaintiff sought from the court leave to enforce an arbitration award rendered by the Shenzhen Subcommission of the China International Economic and Trade Arbitration Commission (CIETAC). The defendant opposed the enforcement of the award on the grounds that the composition of the arbitral tribunal was not in accordance with the agreement of the parties, which provided for arbitration by CIETAC, Beijing and not CIETAC, Shenzhen (sec. 44(2)(e) of the Hong Kong Arbitration Ordinance, same as article 36(1)(a)(iv) MAL).
The court held that CIETAC, Shenzhen did not have jurisdiction to decide this dispute,
because a Chinese court would not allow a Shenzhen arbitrator, who, at the time the
dispute was arbitrated, could not arbitrate in Beijing, to decide a case referred to
CIETAC, Beijing. However, the court found that the defendant had waived its right to raise
the jurisdictional objection since it participated in the Shenzhen arbitration without
clearly reserving its right to later object to the award on the grounds that the tribunal
lacked jurisdiction. The court declared the award enforceable and held that, even if the
defendant had not waived its rights to object on the grounds of lack of jurisdiction, the
court would still declare the award enforceable since it was satisfied that the defendant
basically obtained what it had agreed to, that is arbitration conducted by three CIETAC
arbitrators under CIETAC rules.
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 3, 1
Text of the court decision published in English: [1996] Model Arbitration Law Quarterly Reports, Vol. 2, issue 3, 3
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