On 28 November 2022, we published an article discussing the Court of Appeal’s judgment in C v D (Arbitration) [2022] 3 HKLRD 116, which contains a summary of the facts and the rulings by the Court of First Instance and the Court of Appeal. Please refer to the article at https://minterellison.com.hk/latest-news/page/6/.

The CFA’s ruling

Just before the summer holidays, the Court of Final Appeal in Hong Kong (‘CFA’) handed down its judgment, affirming the Court of Appeal’s finding that whether pre-arbitration procedures have been complied with is a question of admissibility to be decided by the arbitral tribunal, not the court.

Before the CFA, the issue was whether an arbitral tribunal’s determination on the compliance of a pre-arbitration condition precedent is subject to recourse to the court under Articles 34(2)(a)(iii) of the UNCITRAL Model Law (as incorporated under s.81(1) of the Arbitration Ordinance (Cap. 609)). Having considered the arguments put forward by both sides, the CFA unanimously dismissed the appeal, ruling that:

(i). the distinction between questions of “jurisdiction” and questions of “admissibility” does provide a helpful aid to construction when deciding whether a particular objection warrants judicial interference. Whether pre-arbitration procedures have been complied with is a question of admissibility and not of jurisdiction, and the court may only review a tribunal’s decision on the latter but not the former,

(ii). where there is an objection in relation to a pre-arbitration condition, it is necessary first to construe the arbitration agreement. The parties are free to agree that compliance with such a condition is amenable to review by the court, but unequivocally clear language in the arbitration agreement would be required, given that it is contrary to all normal expectations to find that such is the intention of the parties who have chosen to submit disputes to an arbitral tribunal rather than a court for resolution,

(iii). it is presumed that pre-arbitration conditions are not jurisdictional. Hence, absent unequivocal language to the contrary, an objection to how the tribunal has resolved an issue concerning a pre-arbitration condition does not challenge the tribunal’s authority to arbitrate what is conferred by the parties, and

(iv). in the present case, nothing in the operative clauses of the parties’ contract suggests an intention to confer jurisdictional status on the pre-arbitration conditions. In contrast, those clauses lend themselves to a construction that the relevant conditions are merely procedural and intended to be exclusively decided by the tribunal.

The full judgment can be found at https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=153528&currpage=T.

Takeaway

As Hong Kong adopts the UNCITRAL Model Law on arbitration, the clear ruling in this judgment is likely to have an impact in the other 118 jurisdictions having their arbitration legislation also based on the Model Law. The CFA’s ruling is generally welcomed by the arbitration community in Hong Kong and demonstrates the pro-arbitration stance of the Hong Kong courts. In view of this ruling, parties are advised to be cautious not only when drafting multi-tiered dispute resolution clauses in arbitration agreements but also not to easily challenge an arbitral tribunal’s decision when one has queries about compliance with pre-arbitration conditions.