XCHRX SHENZHEN CITY TONG YING FOREIGN TRADE CORPORATION LTD. v. ALPS CO. LTD.

HCCT 82/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS
NO. 82 OF 2000

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D E C I S I O N

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1. This is the Defendant's application to set aside the Judgment dated 10 August 2000 for the enforcement of a mainland arbitration award. The arbitration award upon which this application is based was dated 30 April 1997 (slightly less than 3 years from the date of the Originating Summons therein). This application was originally fixed for hearing on 8 December 2000 but that hearing was adjourned to enable the Defendant to file and serve expert opinion on mainland law in response to the Plaintiff's expert opinion.

2. By today's hearing, conflicting expert opinions have been filed and served respectively by both parties. I raised the point with counsel and asked them how the conflicting expert opinions relating to mainland law (which in essence is a matter of fact) can be properly resolved on paper. Plaintiff's counsel submitted that in such a case, the Defendant will fail in this application because it is unable to discharge the burden of proof cast upon it in an application of this kind.

3. Having heard this argument, defence counsel (after taking instructions from the Defendant) asks for an adjournment to enable the expert(s) to attend court and be cross-examined. This application is opposed by the Plaintiff on the ground that it is a delaying tactic.

4. I have considered the circumstances of this case and do not find that the Defendant is employing a delaying tactic in seeking this adjournment.

5. In any event, the Plaintiff only seeks to enforce the arbitration award some 3 years after it was made. Any prejudice to the Plaintiff likely to be caused by the adjournment of today's hearing would be less than the prejudice likely to be suffered by the Defendant if the application for an adjournment was refused.

6. For the above reasons, I will grant the adjournment sought.