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Case 109: MAL 11(3)(a); 11(5)
Hong Kong: Court of Appeal (Litton, V.P., Liu, J.A. and Keith, J.)
7 July 1995
Private Company "Triple V" Inc. v. Star (Universal) Co. Ltd. and Sky Jade Enterprises Group Ltd.
Original in English
Unpublished
(Abstract prepared by the Secretariat)
This case involves an appeal against the decision on Case 101, in which the court had appointed a sole arbitrator pursuant to article 11(3)(a) MAL.
Private Company argued that the Court of Appeal did not have jurisdiction to hear the appeal since the decision of the first instance court dealt with a matter falling within the scope of article 11(3) and, accordingly, was not subject to an appeal (11(5) MAL). The Court of Appeal dismissed that argument holding that article 11(3) applied to cases where the failure to agree on the appointment of an arbitrator was due to the parties failing to agree on a procedure for the appointment of an arbitrator and not on whether there should be an arbitration at all or on whether the arbitration should involve a particular party, as in the present case.
Star argued that the court of first instance had erred since there was no contract between Private Company and Star to arbitrate, in view of the fact that their first contract had been rescinded and their second contract was invalid. The Court of Appeal held that the court of first instance could not examine these arguments in detail without interfering with the jurisdiction of the arbitrator and was correct in forming a prima facie view as to whether there was an agreement to arbitrate, namely that there was no "overwhelming" evidence "that an agreement to arbitrate has been abrogated".
Sky argued that there was no evidence whatsoever that it was a party to the contract
between Private Company and Star. The Court of Appeal noted that the first instance court
had found that Star had signed the contract both for itself and as agent of Sky; and that
there was some evidence that Sky was to be the party to "render performance"
under the contract, although the evidence as to agency was found to be extremely weak. On
this issue too, the Court of Appeal confirmed the decision of the first instance court
holding that it was not for the court to examine the substance of the dispute but for the
arbitrator.
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Abstracts of cases
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