How final are arbitral awards?

Article 34 of the UNCITRAL Model Law is implemented in Hong Kong’s legislative regime by way of section 81 of the Arbitration Ordinance (AO, Cap. 609), which states that an application to court for setting aside an arbitral award can only be made under and in accordance with the provisions of that section. This enshrines the courts’ pro-enforcement approach in respect of arbitral awards.

The limited circumstances in which the court can set aside an arbitral award under section 81 are: (1) incapacity of a party; (2) invalidity of the arbitration agreement; (3) a party not given proper notice of the appointment of an arbitrator or the arbitration proceedings or otherwise being unable to present their case; (4) the award dealing with a dispute not contemplated by or not falling within the terms or scope of the submission to arbitration; (5) the composition of the arbitral tribunal or the arbitral procedure not being in accordance with the parties’ agreement or Hong Kong law; (6) the subject matter of the dispute not being capable of settlement by arbitration under Hong Kong law; or (7) the award being in conflict with Hong Kong’s public policy.

To reinforce the pro-enforcement approach, section 81(4) of the AO further provides that the leave of “the court” is required for any appeal from a decision of “the court” under article 34. The “court” is defined in the AO as the Court of First Instance of the High Court. In China International Fund v Dennis Lau & Ng Chun Man Architects & Engineers (HK) [2015] (CIF case), the Court of Appeal (CA) held that the effect of section 81(4) of the AO is that it imposes finality on the leave decision of the Court of First Instance, subject only to the limited supervisory residual jurisdiction of the CA.

Cheung Kwok Kit is a partner at Deacons in Hong Kong. He can be contacted on +852 2825 9427 or by email at kwokkit.cheung@deacons.com.hk