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Case 77: MAL 1(1) and (3)(a); 5; 9; 27
Hong Kong: High Court of Hong Kong (Kaplan J.)
15 August 1994
Vibroflotation A.G. v. Express Builders Co. Ltd.
Original in English
Unpublished
(Abstract prepared by the Secretariat)
The plaintiff, a sub-subcontractor, appealed against an order of the Master of the court setting aside a subpoena issued by the plaintiff against a third party, the main contractor, for the production of certain documents before the arbitral tribunal (subpoena duces tecum), which was considering the plaintiff's claim against the defendant, sub-contractor, for breach of contract.
The court held that it had jurisdiction to grant subpoenas in order to assist arbitral tribunals in taking evidence on the grounds that an international arbitration covered by MAL was involved since the parties had their places of business in different States (article 1(1) and (3)(a) MAL); and that, while subpoenas could not be characterized as interim measures of protection falling under article 9 MAL, they could be granted under article 27 MAL, if requested by the arbitral tribunal or by a party with the approval of the arbitral tribunal, since the domestic law of Hong Kong provided for subpoenas.
The court was satisfied that in the present case the subpoena had been issued in
accordance with article 27 MAL and with the approval of the arbitral tribunal, which was
implied by the fact that the tribunal fixed a date for the production of documents that
"appeared to be relevant to one of the key issues to this arbitration". The
court however dismissed the plaintiff's application on the grounds that it was not timely,
since such a subpoena for the production of documents could only be applied for in
relation to an evidential hearing and the parties to this arbitration were "months,
if not years, away from the main evidential hearing in this arbitration".
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, 21
Text of the court decision published in English: [1996] Model Arbitration Law Quarterly Reports, Vol. 2, issue 3, 24
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