Hong Kong Court of Appeal Overturns an Order of the Court of First Instance to Set Aside ICC Arbitration Award


The Hong Kong Court of Appeal has recently handed down a decision in Pacific China Holdings Ltd v. Grand Pacific Holdings Ltd overturning an order of the Court of First Instance to set aside an ICC arbitration award made in Hong Kong. On the facts of the case, the Court of Appeal concluded that there was no violation of due process pursuant to Article 34(2)of the UNCITRAL Model Law. The Court of Appeal also discussed its views on what constitutes a violation of due process and how the Court should exercise its discretion should a violation be established. This decision demonstrates the Hong Kong Courts' pro-enforcement stance when faced with an application to set aside or enforce an international arbitration award.

The Arbitration

The ICC arbitration began in 2006. The claimant, Grand Pacific Holdings Ltd ("GPH") claimed from the respondent, Pacific China Holdings Ltd ("PCH") a sum of US$40 million under an agreement executed by the parties. The Tribunal rendered an Award in August 2009 ordering PCH to pay GPH a sum in excess of US$55 million together with interest.

PCH applied to set aside the Award in Hong Kong, being the seat of arbitration. PCH relied on Article 34(2)(a)(ii) and (iv) of the UNCITRAL Model Law, alleging that it was unable to present its case and that the arbitral procedure was not in accordance with the agreement of the parties. The challenge was based on various procedural matters which arose during the course of the arbitration.

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