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Case 57: MAL 8
Hong Kong: High Court of Hong Kong (Kaplan J.)
5 May 1993
Lucky-Goldstar International (H.K.) Limited v. Ng Moo Kee Engineering Limited
Excerpts published in [1993] 2 Hong Kong Law Reports (HKLR), 73
(Abstract prepared by the Secretariat)
The plaintiff, a Hong Kong company and subsidiary of a Korean company, sold sets of elevators to the defendant, a Hong Kong company. The contract contained an arbitration clause which provided for arbitration in a "3rd country, under the rule of the 3rd country and in accordance with the rules of procedure of the International Commercial Arbitration Association".
The plaintiff sued for damages in the Hong Kong courts and the defendant sought a stay of the proceedings pursuant to article 8 MAL.
The plaintiff argued that the arbitration agreement should be considered null since it referred by mistake to an unspecified third country, or inoperative since it referred to a non-existent organization and non-existent rules.
The court found that the arbitration clause sufficiently indicated the parties'
intention to arbitrate. It held that the reference to an unspecified third country, to a
non-existent organization and non-existent rules did not render the arbitration agreement
inoperative or incapable of being performed since arbitration could be held in any country
other than the countries where the parties had their places of business and under the law
of the place of arbitration, which could be chosen by the plaintiff. The court granted the
stay of proceedings sought by the defendant and ordered the plaintiff to pay the costs of
the proceedings.
Additional Information published in later CLOUT issue (on "14 October 1994"):
Summarized and commented on by Kaplan, Spruce and Moser in Hong Kong and China Arbitration, Cases and Materials, Butterworths, 1994.
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 1, 29
Text of the court decision published in English: [1996] Model Arbitration Law Quarterly Reports, Vol. 2, issue 1, 32
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