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Case 88: MAL 36(1)(a)(ii)
Hong Kong: High Court of Hong Kong (Kaplan J.)
16 December 1994
Nanjing Cereals, Oils and Foodstuffs Import & Export Corporation v. Luckmate Commodities Trading Ltd.
Original in English
Unpublished
(Abstract prepared by the Secretariat)
The plaintiff obtained an arbitration award from the China International Economic and Trade Arbitration Commission (CIETAC) ordering the defendant to pay the purchase price of Peruvian fishmeal, which the defendant had bought from the plaintiff. The defendant failed to pay and the plaintiff applied to the court for leave to enforce the arbitral award.
The court granted leave for enforcement and the defendant requested the court to set aside the leave because it was not given a sufficient opportunity to present its case as to the quantum of the claim (sec. 44 of the Hong Kong Arbitration Ordinance, which is identical to article 36(1)(a)(ii) MAL). The defendant based its argument on the fact that the arbitral tribunal formed its opinion as to the amount of the claim "through independent investigation".
The court found that the defendant had ample opportunity to present its own evidence as
to the amount of the claim but failed to do so. It was held that even if there were
grounds for the court to set aside the award, it was at the discretion of the court to do
so, since MAL provided that enforcement "may be refused" (emphasis added).
The court dismissed the application to set aside the leave for enforcement of the arbitral
award.
UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW
CASE LAW ON UNCITRAL TEXTS (CLOUT)
Abstracts of cases
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