RUSCHEMALLIANCE LLC v. LINDE GMBH AND ANOTHER

CAMP 62/2026, [2026] HKCA 763

On An Intended Appeal From [2025] HKCFI 6273 &

[2026] HKCFI 811

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 62 OF 2026

(ON AN INTENDED APPEAL FROM HCCT NO 11 OF 2025)

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REASONS FOR JUDGMENT

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Hon Chow JA (giving the Reasons for Judgment of the Court):

INTRODUCTION

1.  On 25 November 2025, Deputy High Court Judge Alexander Stock, SC (“the Judge”) made an order (“the Hadkinson Order”) that unless and until the Plaintiff has taken all reasonable and practical steps to fully comply with §§6 and 7 of the order made by Anthony Chan J (as he then was) on 4 January 2024 (“the 2024 HK ASI”) in HCCT 19/2023 (“the HK ASI Proceedings”), the Plaintiff’s Originating Summons filed in HCCT 11/2025 (“the OS”) shall not be substantively heard.

2.  On 12 February 2026, the Judge refused the Plaintiff’s applications for (i) leave to appeal the Hadkinson Order to the Court of Appeal, and (ii) stay of execution of the Hadkinson Order pending appeal.

3.  By a summon filed on 26 February 2026 in the Court of Appeal (“the Leave Summons”), the Plaintiff made a further application for leave to appeal the Hadkinson Order.

4.  By another summon filed on 26 February 2026 in the Court of Appeal (“the Stay Summons”), the Plaintiff applied for an order that execution of the Hadkinson Order be stayed pending the determination of the Leave Summons and, if leave to appeal is granted, pending the final determination of the substantive appeal, or until further order of the court.

5.  On the same date, ie 26 February 2026, the Plaintiff filed a Certificate of Urgency signed by counsel in support of an application for an order that the Leave Summons and the Stay Summons (collectively “the Summonses”) shall be heard urgently.

6.  On 27 February 2026, the Court directed that, subject to certain conditions (“the Conditions”) to be complied with by the Plaintiff, the Summonses shall be heard on 30 March 2026, and execution of the Hadkinson Order shall be stayed pending the determination of the Summonses (“the Interim Stay Order”). After hearing the parties at an inter partes hearing on 3 March 2026, the Court varied the terms of the Conditions and the Interim Stay Order. The Plaintiff has since complied with the Conditions as varied.

7.  The Court heard the Summonses on 30 March 2026. At the conclusion of the hearing, the Court dismissed both the Leave Summons and the Stay Summons, with reasons to be given later. This we now do.

BASIC FACTS

8.  The background facts of the underlying disputes between the parties have been set out in the decision of Mimmie Chan J dated 27 September 2023 ([2023] HKCFI 2409, “the Interim ASI Decision”), and the judgment of Anthony Chan J dated 4 January 2024, and those relating to the Hadkinson Order have been set out in the Judge’s reasons for decision dated 19 December 2025 (“the Reasons”). The relevant facts are familiar to the parties. For the present purpose, the following brief summary should suffice.

9.  The Plaintiff is a special purpose Russian company set up for a gas processing complex, which includes a gas processing plant (“the GPP”), to be built in Russia. The Defendants belong to a global industrial gases and engineering group. The 1^st Defendant, headquartered in Germany, is a subsidiary of the 2^nd Defendant, headquartered in Ireland. In 2021, an unincorporated consortium (“the Contractor”) formed by the 1^st Defendant and Renaissance Heavy Industries contracted with the Plaintiff to build the GPP (“the EPC Contract”). The 2^nd Defendant provided a guarantee of certain obligations of the 1^st Defendant to the Plaintiff under the EPC Contract (“the Guarantee”).

10.  Pursuant to the EPC Contract, the Plaintiff paid to the Contractor a total sum of approximately EUR 962 million as advance payment for the performance of works under the EPC Contract. Of that sum, EUR 662 million were paid to the 1^st Defendant.

11.  The EPC Contract and the Guarantee are governed by English law, and each contains an arbitration agreement which provides that any dispute shall be referred to and be finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (“HKIAC”), the arbitration agreement shall be governed by Hong Kong law, and the seat of arbitration shall be Hong Kong.

12.  The parties’ disputes arose from an amendment to EU sanctions on Russia on 8 April 2022 (“the Sanctions”), whereby restrictions were extended to natural gas. The Defendants say that the new restrictions compelled the 1^st Defendant to suspend all works on the GPP, whereas the Plaintiff’s case is that only a part of the works was restricted. Pausing here, we should point out, as mentioned by Mimmie Chan J at §55 of the Interim ASI Decision, that the Sanctions have no legal force or effect as a matter of Hong Kong law. The Sanctions are referred to in this judgment only because they are relevant to a proper understanding of the disputes between the parties.

13.  On 23 May 2022, the Contractor issued a “Sanctions Notice” to the Plaintiff, notifying the latter of the complete suspension of works in respect of the GPP as a result of a “Sanctions Prevention Event” as defined in the EPC Contract. On 18 July 2022, the 1^st Defendant claimed from the Plaintiff suspension costs in relation to the GPP, in an amount equivalent to EUR 7,327,310.45.

14.  The Plaintiff considered the 1^st Defendant’s unilateral suspension of works with no definite end date to be unlawful and in material breach of the EPC Contract. On 6 June 2022, the Plaintiff issued a notice of breach pursuant to the EPC Contract. After the 1^st Defendant had failed or refused to remedy its breach, the Plaintiff issued a termination notice of the EPC Contract on 23 September 2022 (“the Termination Notice”).

15.  The Plaintiff claimed that upon its lawful termination of EPC Contract, it was contractually entitled to reimbursement of the advance payment, as well as damages. On the other hand, the Defendants contended that they were unable to return the advance payment due to the Sanctions. The parties also disagreed on how much of the advance payment had been earned and was not returnable.

16.  On 30 December 2022, the Plaintiff obtained a freezing order (“the Russian Freezing Order”) from the Arbitrazh Court of St Petersburg and Leningrad Region (“the Russian Court”) in respect of assets of the Defendants and their subsidiaries in Russia.

17.  On 1 March 2023, the Plaintiff commenced proceedings in the Russian Court against the 1^st Defendant for recovery of unearned advance payment and other losses (“the Russian Court Claim”).

18.  On 4 March and 2 June 2023, the 1^st Defendant and the 2^nd Defendants respectively commenced arbitrations in Hong Kong against the Plaintiff pursuant to the arbitration agreements in the EPC Contract and the Guarantee. Those arbitrations were later consolidated on 28 August 2023 (collectively “the Arbitration”). In the Arbitration, the Defendants sought declarations, inter alia, that the Termination Notice was invalid, the EPC Contract remained extant until validly terminated in accordance with its terms, and the Plaintiff was not entitled to payment arising out of or in connection with the invalid purported termination of the EPC Contract, as well as compensation and costs.

19.  On 17 March 2023, the Defendants obtained from Mimmie Chan J an ex parte on notice interim anti-suit injunction against the Plaintiff. The interim injunction required the Plaintiff to take all necessary actions to seek a stay of, and take no further steps in, the Russian Court Claim.

20.  On 4 January 2024, Anthony Chan J granted the 2024 HK ASI against the Plaintiff. The 2024 HK ASI provides, inter alia, as follows:

“[1] By the [Plaintiff’s] commencement of [the Russian Court Claim] against [the Defendants], the [Plaintiff] had breached (i) Clause 57 of the [EPC Contract] and (ii) Clause 20 of the [Guarantee];

…

[6] There be a permanent injunction requiring the [Plaintiff] to withdraw and/or set aside any relief obtained against the [1^st Defendant] and/or the [2^nd Defendant] in the Russian Court, relating to disputes, controversies or claims deriving from or arising out of or regarding the [EPC Contract] …, including but not limited to [the Russian Freezing Order] on 30 December 2022 and the revisions to the said order obtained in the Russian Court on 1 March 2023, and the relief obtained by the [Plaintiff] in the Russian Court Claim;

[7] There be a permanent injunction restraining the [Plaintiff] from taking any steps to enforce (and in the case of any steps already taken withdraw, abandon or seek a stay of (or a measure with the same effect) and take no further steps, and discontinue such enforcement proceedings) either within Russia or in any other court or tribunal in any other country, state or jurisdiction, and whether by itself or its directors, officers, servants or otherwise howsoever, any judgment, determination or decision rendered and/or to be rendered by the Russian Court in [the Russian Court Claim] …”.

21.  On 20 February 2024, the Plaintiff obtained judgment (“the Russian Judgment”) in the Russian Court against the Defendants for EUR 692,931,048.31 and RUB 44,483,689,255.49.

22.  On 17 May 2024, the arbitral tribunal (“the Tribunal”) in the Arbitration issued a partial award (“the Partial Award”), by which:

(1)  the Plaintiff’s jurisdictional challenge to the Arbitration was dismissed;

(2)  a declaration was made that the Plaintiff was in breach of the arbitration agreements contained in the EPC Contract and the Guarantee by commencing proceedings and obtaining freezing relief in Russia; and

(3)  a further declaration was made that the Defendants were entitled to be indemnified by the Plaintiff in respect of losses arising from the Plaintiff’s breaches of contract.

23.  On 11 June 2024, the Russian appellate court issued a judgment dismissing the Defendants’ appeal and upholding the Russian Judgment.

24.  On or about 6 December 2024, the Proceedings Committee of the HKIAC upheld the Plaintiff’s Notice of Challenge to the presiding arbitrator of the Tribunal, on the basis that there were circumstances which the presiding arbitrator ought to have disclosed (but failed to do so) which gave rise to justifiable doubts as to his independence and impartiality (ie apparent bias).

25.  On 12 February 2025, the Plaintiff issued the OS to set aside the Partial Award pursuant to s 81 of the Arbitration Ordinance, Cap 609 (“the Ordinance”)[1].

26.  On 17 February 2025, the HKIAC appointed a substitute presiding arbitrator in the Arbitration.

27.  On 12 March 2025, the Defendants issued a summons seeking, inter alia, an order that until such time as the Plaintiff has fully complied with the 2024 HK ASI, the OS shall not be heard.

THE JUDGE’S REASONS FOR MAKING THE HADKINSON ORDER

28.  The Defendants’ application for a Hadkinson order against the Plaintiff came before the Judge on 25 November 2025.

29.  By the time of that hearing, the Defendants accepted that, in light of the evidence before the court (in particular, the evidence of the single joint expert), it was no longer possible for the Plaintiff to comply with §§2 to 5 of the 2024 HK ASI in respect of the Russian Court Claim. This was because the Russian Judgment had become final under Russian law upon the dismissal of the Defendants’ appeal, and it was no longer possible for the Plaintiff to apply to withdraw the Russian Court Claim. Accordingly, the application was pursued based on the Plaintiff’s non-compliance with §6 (relating to the Russian Freezing Order) and §7 (relating to the enforcement of the Russian Judgment) of the 2024 HK ASI.

30.  After hearing submissions from the parties, the Judge made the Hadkinson Order at the conclusion of the hearing on 25 November 2025, and gave the Reasons on 19 December 2025.

31.  In the Reasons, the Judge, after setting out the relevant background facts and the parties’ respective positions, referred to the judgment of the Court of Appeal in CCMJ v SSM (formerly known as SKL) [2022] HKCA 173, at §27, and identified 5 conditions which were required to be satisfied for the grant of a Hadkinson order:

(1)  the respondent to the application is in contempt of court;

(2)  the contempt is deliberate and continuing;

(3)  as a result, there is an impediment to the course of justice;

(4)  there is no other realistic and effective remedy; and

(5)  the order is proportionate to the problem and goes no further than is necessary[2].

32.  Next, the Judge considered each of the 5 conditions mentioned above, and came to the conclusion that they were all satisfied on the facts of the present case[3]. We do not propose to set out the detailed reasons given by the Judge, but shall come back to some of them below when we consider the intended grounds of appeal raised by the Plaintiff.

33.  With a view to giving the Plaintiff an opportunity to remedy the breaches of §§6 and 7 of the 2024 HK ASI, the Judge granted leave to the Plaintiff to file affidavit evidence within 56 days from the date of the order to demonstrate compliance therewith, and directed that a further hearing be fixed for the court’s determination on whether they had been complied with: see §3 of the Judge’s order dated 25 November 2025 (“the §3 Order”).

34.  The Judge also ordered the Plaintiff to pay 80% of the Defendants’ costs on an indemnity basis. The Judge subsequently assessed the amount of the costs payable by the Plaintiff summarily at HK$1,160,000.

THE INTENDED GROUNDS OF APPEAL

35.  As earlier mentioned, the Judge refused the Plaintiff’s application for leave to appeal against the Hadkinson Order on 12 February 2026 (“the Leave Decision”). By the Leave Summons, the Plaintiff renews the application for leave to appeal.

36.  In the draft Notice of Appeal attached to the Leave Summons, the Plaintiff raises 6 substantive grounds of appeal:

(1)  Ground 1: the Judge erred in failing to properly apply the test for, and to take into account the draconian nature of, a Hadkinson order which takes away a litigant’s constitutional right of access to court and should only be given if it is an abuse of court proceedings and subject to limitations, and is only justified by grave considerations of public policy.

(2)  Ground 2: the Judge erred in failing to take into account or placing sufficient weight on various matters referred to in §§2.1 to 2.4 thereof in considering whether the Plaintiff is in contempt of the 2024 HK ASI and whether the contempt is deliberate.

(3)  Ground 3: the Judge erred in placing excessive weight on the condition “whether Plaintiff was in contempt” and failing to place sufficient weight on all other conditions for making a Hadkinson order.

(4)  Ground 4: the Judge erred in failing to take into account, or to accord sufficient weight to the other factors that provide exceptions to the grant of a Hadkinson order even if all the requisite conditions are met.

(5)  Ground 5: the Judge rightly found that the Defendants had not made any proper application for adducing new evidence which was unilaterally inserted into the hearing bundles for the hearing on 25 November 2025 and objected to by the Plaintiff, but erred in allowing the Defendants to refer to and make submissions in reliance on this new evidence without leave, which it is alleged is “most unjust and unfair to the Plaintiff who is not given any opportunity to file any evidence in reply”.

(6)  Ground 6: the Judge erred in granting a costs order against the Plaintiff on an indemnity basis based on the default rule of indemnity costs in cases of setting aside of an arbitral award in enforcement proceedings, when that rule should not be extended to the scenario where a party is resisting a Hadkinson application as in the present case. At any rate, the usual requirements for the grant of an indemnity costs order are not satisfied.

DISCUSSION

37.  The test for granting leave to appeal under s 14AA(4) of the High Court Ordinance, Cap 4, is well settled, and will not be repeated here.

38.  The parties differ on whether the decision of the Judge to grant the Hadkinson Order should be regarded as a case management decision.

(1)  The Defendants say that a Hadkinson order is an exercise of the court’s case management direction, and thus the usual restrictions against interfering with a case management decision apply.

(2)  In the Plaintiff’s original Written Statement dated 26 February 2026, at §1, although there is no acceptance by the Plaintiff that the Hadkinson Order should be regarded as a case management decision, the Plaintiff accepts that the Judge’s decision dated 25 November 2025 is a discretionary decision, and thus the normal principles on which the appellate court may interfere with a discretionary decision are applicable. However, in the Plaintiff’s Reply Skeleton Submissions dated 17 March 2026, at §2, the Plaintiff argues that (i) the Hadkinson Order involves the determination of substantive rights by dismissing the OS, and debarring access to the court under s 81 of the Ordinance, (ii) it is a legal decision based on whether there is the necessary nexus between the alleged contempt and the substantive application debarred, and (iii) it cannot be a discretionary exercise on whether a challenge against the jurisdiction to make an award can be made.

39.  In CCMJ, at §47, the Court of Appeal expressed the view that a Hadkinson order is an aspect of the court’s case management powers under Order 1B, rule 1(2)(l) of the Rules of the High Court, Cap 4A. In any event, regardless of whether a decision to make (or refuse to make) a Hadkinson order is strictly to be regarded as a case management decision, there can be no doubt that the decision involves an exercise of discretion, and thus the well-known principles governing an appeal against such a decision are applicable: see La Dolce Vita Fine Dining Group Holdings Ltd v Zhang Lan and Another [2020] HKCFI 1969, at §3, per Mimmie Chan J:

“The orders in the Decision were made in the exercise of the discretion of the Court. In an appeal against an exercise of a judge’s discretion, the authorities are clear that the ambit of the appellate court’s interference is restricted. The Court of Appeal will not intervene unless the appellant can show that the judge had exercised his discretion under a mistake of law or misdirected himself with regard to the legal principles in accordance with which his discretion had to be exercised, or had misapprehended material facts, or had taken into account irrelevant matters or failed to take relevant matters into account, such that the judge’s conclusion was plainly wrong, and ‘outside the generous ambit within which reasonable disagreement is possible’.” (See paragraph 59/0/54, Hong Kong Civil Procedure 2020.)

We shall apply these principles when considering whether to grant the Plaintiff leave to appeal in the present case.

40.  We do not accept the Plaintiff’s argument that the Hadkinson Order involves a determination of the substantive rights of the parties. Significantly, the order does not determine the underlying cause in the OS, namely, the Plaintiff’s application to set aside the Partial Award. Further, whether the Plaintiff will be debarred from pursuing the application, or whether the Plaintiff will be denied access to the court under s 81 of the Ordinance, are dependent on the Plaintiff’s compliance with §§6 and 7 of the 2024 HK ASI, a matter well within the Plaintiff’s own power or control. As for the question of whether there is the necessary nexus between the alleged contempt and the substantive application debarred, while that is a matter relevant to court’s decision on whether to grant, or refuse to grant, a Hadkinson order, it does not impinge on, or change, the nature of the discretionary exercise.

Grounds 1 to 4

41.  Grounds 1 to 4 are taken together in Mr So’s written submissions. In his oral submissions to the Court, Mr So raises 4 main arguments in support of those grounds.

42.  First, at the forefront of Mr So’s argument is what he calls the “Model Law” point. He argues that the Judge failed to consider or take into account that under Article 34(2)(b)(ii) of the Model Law, the court is under a positive duty to hear and determine the OS in order to safeguard the public policy of Hong Kong against an arbitral award resulting from serious procedural injustice such as where it is tainted by bias. Regardless of whether the Plaintiff is barred due to the Hadkinson Order or otherwise from applying to set aside the Partial Award, the court is under a duty to consider whether it is tainted by bias and ought to be set aside. To buttress his argument, Mr So refers to the fact that in a case falling under Article 34(2)(b)(ii), the court has the power to examine whether an award is in conflict with the public policy of the jurisdiction on “its own motion”, even in the absence of any application by a party to set aside the award.

43.  As a matter of fact, the Defendants do not dispute that the court may, on its own motion, examine whether an award falls under Article 34(2)(b)(ii) and thus should be set aside. The Defendants refer the Court to the commentary in Choong & Weeramantry, The Hong Kong Arbitration Ordinance: Commentary and Annotations, 2^nd Edn, at §§81.19 and 81.58, in support of this view.

44.  Mr So has not, however, produced any authority which supports the proposition that the court is under a positive duty to make a determination of whether an award is contrary to public policy and should be set aside, or that such duty would override the court’s power to make a Hadkinson order where the conditions for making such an order are satisfied. The best that Mr So can come up with is a decision of Moor J in BR v SN [2024] 1 WLR 5018, where it was held that the court should not make a Hadkinson order in proceedings under the Children Act 1989 unless it was in the best interests of the child to do so. That case is readily distinguishable, because in proceedings under the 1989 Act, s 1(1) thereof requires that the child’s welfare should be the court’s paramount consideration. This requirement is laid down by an Act of Parliament, and is thus binding on the UK courts. No similar consideration is applicable to the present case.

45.  We do not accept that merely because an award may be challenged on the ground of bias/apparent bias, the court is thereby barred from making a Hadkinson order which has the effect of preventing such challenge from being advanced. In this regard, it is relevant that under Article 34(2) of the Model Law, the power of the court to set aside an award in cases failing under sub-paragraphs (a) or (b) is permissive (“may”), not mandatory (“shall” or “must”). Furthermore, it is within the power of the Plaintiff to remedy its breaches of, and comply with, §§6 and 7 of the 2024 HK ASI if it wishes to maintain and pursue the application to set aside the Partial Award on the ground of bias/apparent bias. We do not see that the Plaintiff can have any legitimate complaint that the issue of whether the Partial Award ought to be set aside on the ground of bias/apparent bias is not determined by the court when it chooses not to take advantage of the course open to it under the §3 Order.

46.  Second, Mr So argues that to justify the making of a Hadkinson order, it must be shown that the contempt itself “impedes the course of justice”, and there must be a sufficient nexus or connection between the contempt complained of and the course of justice which has allegedly been impeded by the contempt. However, the Judge, while accepting the principle that a sufficient nexus was required to be shown, applied that principle incorrectly as there was no direct link between the right to set aside the Partial Award on the basis of bias/apparent bias and the alleged contempt. Mr So also argues that the Judge failed to take into account the distinction between (i) the proceedings for the anti-suit injunction commenced by the Defendants 2 years earlier under HCCT 19/2023, and (ii) the present proceedings commenced by the Plaintiff to set aside the Partial Award.

47.  We do not accept Mr So’s argument. The Judge dealt with the issue of whether or not there was a sufficient nexus or connection in the context of the third condition for a Hadkinson order, namely, whether there is an impediment to the course of justice as a result of the contempt. It should be noted, in the first place, that whether there is a sufficient nexus or connection is only a factor to be taken into account in considering whether or not the contempt would result in an impediment to the course of justice. As Tomlinson LJ put it somewhat tentatively in JSC BTA Bank v Ablyazov [2015] EWCA Civ 70, at §20:

“[it] may be that it is not only where the contempt impedes the course of justice in the cause that the court will decline to hear a contemnor, but the lack of connection between the contempt and the subject matter of the application on which the contemnor wishes to be heard is plainly a powerful factor to be taken into account.”

48.  That it is not a condition for a Hadkinson order that there must be shown a sufficient nexus or connection between the contempt and the proceedings barred by the order was confirmed by the Court of Appeal in CCMJ in a subsequent decision ([2022] HKCA 1033) refusing to grant leave to appeal. In the application for leave to appeal, one of the intended grounds of appeal raised by the contemnor was that there was no “direct linkage” between (i) the alleged contempt (for failing to comply with 2 financial orders made for the benefit of a child), and (ii) the contemnor’s appeal against an order refusing his application for the custody, care and control of the child, because they “related to different issues” and were “heard in different levels of Courts”. That ground was held by the Court of Appeal to be not reasonable arguable:

“Ground 2 is not reasonably arguable. Hadkinson and de Gafforj do not lay down any requirement for the so-called ‘direct linkage’ as contended for by the Father. Nor do they establish that the Court’s jurisdiction to make a Hadkinson order is necessarily confined to the factual circumstances of those cases.” (§8)

49.  As for the question of whether there is a sufficient nexus or connection in the present case, the contempt on the part of the Plaintiff complained of by the Defendants relates to (i) the failure of the Plaintiff to withdraw and/or set aside any relief obtained against the Defendants in the Russian Court relating to disputes, controversies or claims deriving from or arising out of or regarding the EPC Contract, including the Russian Freezing Order (contrary to §6 of the 2024 HK ASI), and (ii) the taking of steps by the Plaintiff to enforce, within Russia or elsewhere, any judgment, determination or decision rendered by the Russian Court in the proceedings in Russia (contrary to §7 of the 2024 HK ASI), while the relevant “cause” in which impediment to the course of injustice occurs is the Plaintiff’s application to set aside the Partial Award. In this regard, it is relevant to take account of the fact that:

(1)  the Plaintiff’s claims in Russia are for recovery of unearned advance payment received by the 1^st Defendant and losses consequent upon suspension of works under, inter alia, the EPC Contract; while

(2)  the Partial Award was made in an arbitration commenced by the Defendants seeking, amongst other things, declarations that the Termination Notice issued by the Plaintiff was invalid, that the EPC Contract remained extant until validly terminated, and that the Plaintiff was not entitled to any payment arising out of or in connection with its invalid purported termination of the contract, as well as compensation.

It is clear that the Russian Court Claim and the Arbitration relate to the same substantive matter, namely, the right of the Plaintiff to terminate the EPC Contract (or the validity of the termination), and consequential relief.

50.  The Judge took the view that there was a sufficient nexus because the 2024 HK ASI was based, fundamentally, on the Hong Kong court’s findings as to an arbitration agreement covering the parties’ dispute, which was the same subject matter or closely related to that addressed by the Partial Award (and sought to be challenged by the OS), referring by way of broad comparison to La Dolce Vita Fine Dining Group Holdings Ltd v Zhang Lan and Another [2020] HKCFI 622, which the Judge considered to be not too distant from, though of course not identical to, the case before him[4]. On the facts of the present case, we consider that it was open to the Judge to find that there was a sufficient nexus or connection between the contempt complained of and the Plaintiff’s application to set aside the Partial Award. We see no sufficient basis for this Court to interfere with this finding of the Judge.

51.  The Judge also took the view that the Plaintiff’s disobedience of §§6 and 7 of the 2024 HK ASI is an impediment to the course of justice, in that it undermined the enforcement of the court’s orders in the HK ASI Proceedings, and the continued enforcement actions taken by the Plaintiff against the Defendants in the proceedings in Russia in the face of the 2024 HK ASI and the court’s findings as to the arbitration agreement, created prejudice to the Defendants which impeded the course of justice from the standpoint of Hong Kong law[5]. We consider that the Judge was entitled to take this view.

52.  Third, Mr So argues that the Judge failed to consider or take into account that the Court alone has the jurisdiction and power (on its own motion or otherwise) to set aside the Partial Award on the ground of public policy, and the only available avenue to set aside the Partial Award on this ground is barred by the Hadkinson Order. Mr So accepts that this argument is closely related to his first argument referred to at §42 above. The discussion at §§43-45 above sufficiently addresses this argument. Mr So’s complaint that the Hadkinson Order goes further than necessary to remedy the Plaintiff’s contempt and disproportionately impairs and restricts the Plaintiff’s constitutional right of access to court is similarly without merit.

53.  Fourth, Mr So relies on what he refers to as the “Gordon Principle”, and complains that the Judge wrongly rejected the argument in the Leave Decision by suggesting that it had not been raised previously[6].

54.  In its skeleton argument before the court below, the Plaintiff submitted that there was “an important but often overlooked principle [in Gordon v Gordon [1904] P 163 at 167] … that the Court ‘never would extend the [Hadkinson] rule to a case where the order, sought to be set aside on the ground of irregularity, was made subsequently to the contempt. Such an extension of the rule would place the party in contempt too much at the mercy of his adversary’”. The quote was in fact taken from what Lord Cottenham said in Barker v Dawson (1836) 1 Coop 207. Everything that appears on p 167 of Gordon v Gordon was counsel’s arguments. The judgment on the preliminary objection starts with Vaughan Williams LJ’s decision at the top of page 171 of the report.

55.  Although what Lord Cottenham said in Barker v Dawson was cited by counsel in Gordon v Gordon, it does not appear that the English Court of Appeal found what Lord Cottenham said as determinative. As pointed out by Parker J in the New South Wales Supreme Court in Ip v Chiang [2019] NSWSC 1549, at §110:

“In Gordon v Gordon [1904] P 163, a decision of the English Court of Appeal, the sequence of events was such that the case came within the exception stated by Lord Cottenham. But it is far from clear that the Lord Justices who decided the case treated that as determinative, and they seem to have relied also on the fact that the challenge to the order in question was a challenge to jurisdiction, not merely to the exercise of discretion (see Vaughan Williams LJ at 173, Stirling J at 174, Cozens-Hardy LJ at 174). Indeed Cozens-Hardy LJ said he was unable to discern what the basis for the distinction adopted by Lord Cottenham LC actually was. What this underlines is how much the ‘rule’ in the form adopted in Hadkinson represented Lord Cottenham’s individual practice.”

56.  In our view, the Plaintiff has misunderstood the effect of Gordon v Gordon. In any event, even if there is a principle that a Hadkinson order should not be made where the order sought to be set aside on the ground of irregularity was made subsequently to the contempt, it has no application to the present case in view of the Judge’s finding, amply supported by the evidence, that the Plaintiff has been in “serious, continuing and long term breach” of the 2024 HK ASI. That this was so was not seriously disputed by the Plaintiff’s counsel at the hearing before the Judge[7]. It is clear that after the making of the Partial Award by the Tribunal on 17 May 2024, the Plaintiff continued to act in breach of §§6 and 7 of the 2024 HK ASI. In our view, this ground of appeal has no prospect of success, regardless of whether the Judge was correct to say that it was a new argument not made previously.

57.  In the draft Notice of Appeal and written submissions, the Plaintiff has raised various other minor points in support of its intended appeal. We have considered all those points, but do not see that they have any merits. It is not necessary to deal with them in detail here, save to mention that:

(1)  Complaints such as that the Judge failed to place “sufficient weight” on various matters (under Ground 2), or the Judge placed “excessive weight” on the condition whether the Plaintiff was in contempt and failed to place “sufficient weight” on all other conditions (under Ground 3), or the Judge failed to accord “sufficient weight” to other factors that provide exceptions to the grant of a Hadkinson order (under Ground 4), are no more than attempts to re-argue the Plaintiff’s case in the Court of Appeal, and cannot constitute valid grounds of appeal against the Judge’s exercise of discretion.

(2)  The Plaintiff’s reference to and reliance on “the exception in the interim ASI/AEI Orders of 17.03.2023 (as amended on 24.03.2023) and continued on 27.09.2023 to take steps to preserve the Russian Freezing Order”[8] is beside the point, because the Judge’s finding was that the Plaintiff acted in breach of §§6 and 7 of the final (or permanent) injunction order granted by Anthony Chan J on 4 January 2024, not the earlier interim orders made by the court.

(3)  The contention that the single joint expert opined that it was impossible for the Plaintiff to comply with the 2024 HK ASI effectively after the “Russian Jurisdiction Ruling and after 11 June 2024 when the Russian appellate court upheld [the Russian Judgment]”[9] is contrary to the Judge’s findings at §§35, 39 and 40 of the Reasons.

(4)  The contention that it is strongly arguable that the Judge erred in principle by focusing primarily on “contempt” itself[10] is without foundation, when it is clear from the Reasons that the Judge carefully considered each of the 5 conditions for the grant of a Hadkinson order.

(5)  The contention that the Judge “noted that there are jurisdictional issues at the substantive hearing of the OS based on challenge against the jurisdiction of its arbitral tribunal, and if P succeeds, the very jurisdictional basis of the [2024 HK ASI] will be defeated (as it was granted with respect to the jurisdiction of the arbitral tribunal)”[11] is likewise without foundation. The Judge never questioned whether Anthony Chan J had jurisdiction to make the 2024 HK ASI. Regardless of the merits of the Plaintiff’s challenge to the jurisdiction of the Arbitration/Tribunal, there cannot be any doubt that Anthony Chan J had jurisdiction to make the 2024 HK ASI.

Ground 5

58.  The Plaintiff’s complaint that the Judge erred in allowing the Defendants to refer to and made submissions in reliance on evidence filed without leave is plainly unsustainable. As mentioned by the Judge at §28 of the Leave Decision, he permitted the Defendants to refer to the disputed materials on a de bene esse basis, and Mr So expressly accepted that the course adopted by the Judge was “practical and fair”. Further, at §66 of the Reasons, the Judge confirmed that he declined the Defendants’ application to adduce new evidence, and proceeded only on the basis of the affidavit evidence filed. In these circumstances, Ground 5 cannot even get off the ground. It is most surprising, to say the least, that Mr So would see fit to submit that the “new evidence” was accepted and taken into account by the Judge in his findings in the face of the Judge’s said confirmation, or that the Judge’s decision was procedurally unfair and unjust as the Plaintiff was given no opportunity to file reply evidence[12]. Such submission is completely unjustified, and should never have been made by counsel.

Ground 6

59.  The Plaintiff’s complaint about the indemnity costs order made by the Judge can be disposed of shortly.

60.  At §36 of the Leave Decision, the Judge explained the reasons for ordering the Plaintiff to pay indemnity costs, namely, the deliberate and continuing contempt of the court’s order on the Plaintiff’s part, which formed the backdrop to and one of the central items of disputes between the parties at the hearing. The Plaintiff’s argument that the Judge applied the default rule of indemnity costs in arbitration set-aside cases has no foundation.

61.  The Judge considered that there was a deliberate and continuing contempt of the 2024 HK ASI on the Plaintiff’s part. The Plaintiff’s contention that it was “impossible” for it to comply with §§6 and 7 of the 2024 HK ASI was feeble at best. The Judge plainly did not accept that there was any valid excuse for the Plaintiff’s conduct. It was open to the Judge to take a serious view of the matter, and considered that an order for indemnity costs was justified. It was within the ambit of the Judge’s discretion to make the order for indemnity costs in the present case. There is no proper basis for this Court to interfere with his exercise of discretion. In coming to this view, we have not lost sight of the matters urged upon us by the Plaintiff against the making of the Hadkinson Order, or the indemnity costs order, but we do not consider that they have any merits.

62.  In all, none of the Plaintiff’s proposed grounds of appeal is reasonably arguable or has a realistic prospect of success. We also do not see any other reason in the interests of justice why the appeal should be heard. Accordingly, the application for leave to appeal was refused. It follows that the application for a stay of execution of the Hadkinson Order pending appeal should also be refused.

DISPOSITION

63.  For the above reasons, we dismissed both the Leave Summons and the Stay Summons at the hearing on 30 March 2026, save that we made an order that the time for the Plaintiff to comply with the §3 Order be extended by 6 weeks (counting from the date of the hearing). Save as aforesaid, the Interim Stay Order lapsed upon our dismissal of the Summonses on 30 March 2026.

64.  Mr So does not resist the Defendants’ application for the costs of the Summonses. We see no reason why the Defendants should not have the costs of the Summonses. We so order.

65.  We have considered the Defendants’ updated Statement of Costs for Summary Assessment dated 30 March 2026, and Mr So’s submissions on it. Mr Lewis has confirmed on behalf of the Defendants that they do not seek indemnity costs, notwithstanding the indication to the contrary at §18(d) of the Defendants’ Skeleton Arguments dated 13  March 2026. We summarily assess the Defendants’ costs at HK$560,000.

66.  Lastly, we give liberty to the parties to apply in respect of the sum of HK$1,160,000 paid into court by the Plaintiff on 12 March 2026 pursuant to §3 of the Court’s order dated 27 February 2026 as varied on 3 March 2026.