SA AND ANOTHER v. KB

HCCT 24/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 24 OF 2011

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J U D G M E N T

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A. INTRODUCTION

1.  This is an application by originating summons by the Plaintiffs, SA and FT, for an order restraining the Defendant, KB, from proceeding further with an arbitration pending the final determination of the dispute between the parties herein in Guangdong Provincial Higher People’s Court Case No X/2010 or until further order.  I shall refer to the parties as SA, FT and KB respectively.  The arbitration was commenced in Hong Kong by KB by notice of arbitration dated 3 March 2010.

B.  THE UNDERLYING DISPUTE

2.  The underlying dispute between the parties concerns a piece of land in Zhuhai, on which a hotel complex called the G Hotel has been erected.  This property was originally owned by a subsidiary of a Macanese company called ZKG, and was mortgaged to a creditor company in the BC group.

3.  The Macanese company was wound up on 4 October 2004.  As part of its restructuring exercise, the creditor company’s rights were transferred to another Macanese company called SPRE (“FT Macau”), and it was planned that FT Macau would sell the assets to an interested third party.

4.  The NW group was among those who expressed an interest in purchasing the assets, partly because it was owed money by the Zhuhai city’s business enterprises and hoped that it could effectively obtain repayment of such indebtedness by way of set-off against any premium payable for the change of user and of plot ratio for the land.  Accordingly, the NW group entered into discussions with Mr X, the owner of SA, it being contemplated that SA would indirectly acquire the assets in question from FT Macau.  The negotiations bore fruit and eventually SA decided to arrange for the sale of the assets to the NW group, which decided that it would make such purchase through a subsidiary, namely, KB.

5.  On 16 April 2006, KB, SA, FT and FTZ signed a letter of intent in relation to the acquisition of the assets by KB.  The gist of the agreement is that KB would acquire from SA the entire shareholding in FT, which would hold FTZ.  Although FTZ had not been incorporated at that time, the parties knew that it was being incorporated as a subsidiary of FT and intended that it would acquire the assets in question from FT Macau.  The consideration for the purchase was HK$208 million.  It is specified that the agreement is governed by Hong Kong law.

6.  On 18 May 2006, FT entered into an agreement with FT Macau for the acquisition of the assets in question.

7.  By 19 June 2006, KB had paid the first two instalments of HK$50 million each to SA.

8.  In August 2006, pursuant to the letter of intent, FTZ, which had been incorporated on 18 April 2006, changed its legal person representative and executive director from Mr X to a representative of KB and changed its registered address to an address designated by KB.  KB had also obtained the corporate seal of FTZ.  Effectively, KB had taken control of FTZ.

9.  Two particular provisions in the letter of intent have given rise to a dispute between the parties as to whether it is still valid and subsisting.  Clause 6.1 of the letter of intent provides:

“If, within 360 days of the execution of this Letter of Intent, the Parties to this Letter of Intent have not signed corresponding definitive contracts (agreements) for the purpose of further performance of this Letter of Intent, this Letter of Intent shall terminate.”

Clause 7.3 provides:

“If, within 360 days of the execution of this Letter of Intent, the Parties to this Letter of Intent have not signed corresponding definitive contracts (agreements) for the purpose of further performance of this Letter of Intent, or even though corresponding definitive contracts (agreements) have been executed, the abovementioned transaction is not eventually completed due to cause(s) that Party B cannot be held responsible, Party A shall refund to Party B all amount and interests paid (interest to be calculated based on the prime rates of HSBC Bank).”

10.  The parties signed two memoranda on 2 April 2007 and 10 October 2007 respectively extending the completion period, ultimately to 12 April 2008.

11.  It is not in dispute that no further document was signed to extend the completion period, and that no formal agreement of sale and purchase was executed.  However, notwithstanding clauses 6.1 and 7.3, KB contends that the letter of intent has not expired and remains valid and of full force, and that the parties had acted on that basis up to early 2010.

12.  On 19 January 2010, KB caused the legal person representative and executive director of FTZ to be changed to one Mr Geng.

13.  On 20 January 2010, however, solicitors for SA and Mr X issued a letter to KB stating that the letter of intent had been terminated.  On 12 February 2010, the solicitors wrote to specify that the termination was based on clauses 6.1 and 7.3 of the letter of intent.  SA contends that the agreement has expired as a result of which it tendered to KB the sum of HK$100 million that KB had paid together with interest. 

14.  For the purposes of this application it is unnecessary for me to go into the details of the arguments on both sides advanced in support of their respective contentions or to assess the merits of such arguments.

C.  THE CLAIM IN THE ARBITRATION

15.  At this point it is material to note that as regards dispute resolution, clause 7.2 of the letter of intent provides:

“All Parties agree that all disputes and controversies arising from or related to this Letter of Intent shall first be resolved by all Parties through friendly discussion. If no resolution could be reached through discussion, the said disputes and controversies shall be governed by the court of the place at which the main assets of the All Aforementioned Assets are located and/or arbitrated by an arbitration tribunal in Hong Kong. Unless otherwise held, all fees and expenditures (including litigation costs and lawyer fees) shall be borne by the losing party.”

16.  Invoking clause 7.2 of the letter of intent, by a notice of arbitration dated 3 March 2010, KB commenced arbitration in the HKIAC against SA, FT and FTZ with the nature of the claim and relief being specified as follows:

“(i) A declaration that the [letter of intent] as revised by the two extension memoranda has remained valid and subsisting and binding on all the parties thereto;

(ii) Specific performance of the [letter of intent] as so revised including but not limited to the transfer of all the shares in FT to KB;

(iii) FT be restrained from permitting the transfer or dealing of any of its shares to any party other than to KB or such other party as it so directs and/or from disposing or transferring or otherwise dealing with any of its asset or property and/or instructing, directing or otherwise authorizing [FTZ] to change its legal representative or management or to dispose or transfer or otherwise deal with any of its asset or property without the consent and/or authority of KB;

(iv) Damages for breach of the [letter of intent] as so revised with interest thereon; …”

17.  It is this arbitration which SA and FT now apply to restrain KB from further progressing, pending determination of another set of proceedings being conducted in Guangdong.

D.  THE VARIOUS PROCEEDINGS IN HONG KONG AND THE MAINLAND

18.  The dispute about the continued validity and effect of the letter of intent has spawned a large number of separate sets of proceedings both in Hong Kong and in Mainland China.  It is necessary to set out the relevant steps taken in these proceedings.

19.  Shortly after commencing the arbitration in Hong Kong, on 11 March 2011, KB discovered that an application had been submitted in the name of FT to two Zhuhai government authorities, namely, the Administration for Industry and Commerce and the Science, Industry & Trade, Informatization Bureau, to change FTZ’s legal person representative, memorandum and articles, and registered address. 

20.  To preserve the status quo, KB commenced proceedings in Hong Kong on 11 March 2010 by originating summons in HCCT No 16 of 2010 seeking an injunction in aid of the arbitration, pursuant to section 2GC of the Arbitration Ordinance, to prevent, inter alia, the disposal of the shares in FT and FTZ, alteration of the legal person representative, company documents, company seal and registered address of FTZ.  An urgent ex parte injunction in the terms sought was granted by Saunders J on 12 March 2010.

21.  SA retorted with two steps.  First, on 26 March 2010, it commenced a civil claim against KB (with FT and FTZ joined as third parties) in the Zhuhai City Intermediate People’s Court in respect of the letter of intent under Civil Claim No X/2010 (“the Zhuhai Action”).  SA sought, inter alia, an order confirming that the letter of intent had expired, an order that KB should accept a refund of all moneys paid with interest, and an order that KB return various corporate documents and seals of FT and FTZ as well as other original documents.

22.  Secondly, in Hong Kong, by a summons taken out in HCCT No 16 of 2010 dated 19 April 2010, SA and FT sought an order to set aside the service of KB’s originating summons on them or alternatively a stay of proceedings thereunder on the ground of forum non conveniens, that is to say, that the dispute between the parties ought to be resolved in the courts of Zhuhai.

23.  After an inter partes hearing on 20 April 2010, Saunders J continued the ex parte injunction and adjourned KB’s originating summons and SA’s and FT’s summons to 31 May 2010.

24.  On 18 May 2010, KB issued a summons in HCCT No 16 of 2010 to apply for leave to amend its originating summons so as to include an application for relief in the form of what is commonly known as an anti‑suit injunction, to restrain SA, FT and FTZ from, inter alia, proceeding with the Zhuhai Action and certain other actions which had been commenced between related parties in the Mainland.

25.  On 31 May 2010, at the hearing of the summonses in HCCT No 16 of 2010, the parties were able to come to terms on how their various applications should be disposed of, with the result that:

(i) SA and FT withdrew its application to set aside service and to stay proceedings;

(ii) KB withdrew its application for anti-suit injunction;

(iii) KB’s originating summons was adjourned sine die; and

(iv) SA, FT and FTZ undertook to preserve the status quo with respect to the corporate structures of the companies being the subject matter of the dispute, pending the determination of the arbitration initiated by KB in Hong Kong.  An injunction in like terms was in addition granted against FTZ (there being a dispute as to who could properly represent it).

26.  On 12 July 2010, KB commenced an action in the Guangdong Provincial Higher People’s Court (“the Guangdong Court”) under Case No X/2010 (“the Guangdong Action”) in respect of the letter of intent against SA, FT and FTZ, seeking an order that they continue to perform the letter of intent and damages in the sum of Rmb 30 million.  The prosecution of this action was accepted by the Higher People’s Court on 30 September 2010. 

27.  Meanwhile, KB had on 29 July 2010 obtained a pre-judgment freezing order from the Guangdong Court to restrain FT from disposing of the share capital of FTZ.

28.  In summary, at this stage there were therefore on foot the arbitration commenced by KB in Hong Kong, the Zhuhai Action commenced by SA and the Guangdong Action commenced by KB.  As from October 2010, however, the Zhuhai Action became merged with the Guangdong Action, in circumstances which I shall presently describe.

29.  In the Zhuhai Action, KB who was defendant to that action disputed the jurisdiction of the Zhuhai court to deal with the case on the ground that the amounts involved in the dispute exceeded the relevant monetary limit of its jurisdiction.  It contended that the matter should be dealt with by the Guangdong Court instead.  KB’s jurisdictional challenge was rejected by the Zhuhai City Intermediate People’s Court on 19 August 2010, which took the view that the subject matter of the litigation was represented by the consideration payable under the letter of intent in the sum of HK$208 million, which by reference to the exchange rate as at the date when the Zhuhai Action was accepted by the court, did not exceed the relevant limit of Rmb 200 million.

30.  KB then appealed to the Guangdong Court, which by judgment dated 11 October 2010 allowed KB’s appeal but only on the ground that because KB had already commenced the Guangdong Action, which was in the nature of a cross-claim to SA’s claim, the Zhuhai Action could be consolidated with it and be dealt with together by the Guangdong Court.  The effect of the appeal was therefore that the Zhuhai Action became, in a way, “consolidated” with the Guangdong Action.  I shall hereinafter refer to the merged proceedings as the consolidated Guangdong Action or simply as the Guangdong Action.

31.  A week later, on 18 October 2010, KB made an application to join GHZ as a third party to the Guangdong Action, and to add a claim for an order confirming that FTZ had the right to acquire various land use and ownership rights registered in the name of GHZ.  The purpose of seeking to join this company as a party was to secure an order to preserve the underlying assets that were held in its name.  The application was, however, refused by the Guangdong Court.

32.  On 18 March 2011, KB made an application to amend and supplement the relief that it sought in the consolidated Guangdong Action, which amendment appears to have been permitted.  As amended, the relief sought by KB is as follows:

(1) an order that the letter of intent was valid and should continue to be performed;

(2) an order that SA transfer the shares it holds in FT to KB;

(3) an order that FT transfer the shares it holds in FTZ to KB;

(4) an order requiring the three defendants to transfer to FTZ the various land use and ownership rights registered in the name of GHZ;

(5) an order requiring the appointment of KB’s nominee as director of FT in place of SA’s nominee;

(6) an order requiring the appointment of KB’s nominee as director and legal person representative of FTZ in place of SA’s nominees;

(7) an order that KB need not return the documents and seals received from the three defendants;

(8) an order that the three defendants return the seals, licences and registration documents obtained by FTZ after 9 February 2010;

(9) damages in the sum of Rmb 30 million; and

(10) costs.

33.  A substantive hearing of the consolidated Guangdong Action was held on 24 March 2011, where the Guangdong Court made extensive inquiries into the background and evidence and heard submissions from the parties. A transcript prepared by the legal representatives of SA was put in evidence before me, from which it can be seen that, at the conclusion of the hearing, the court indicated that, having adequately heard submissions from the parties, it would deliberate among the members of the court and deliver its judgment on a date to be fixed, and that any further submissions could be made to the court in writing within seven working days.

34.  Despite that indication, however, no judgment has so far been delivered by the Guangdong Court.  Instead, there have been three steps in the consolidated Guangdong Action to which I shall refer below.

35.  In addition to the arbitration, the Zhuhai Action and the Guangdong Action, proceedings have also been instituted by the parties relating to the change of legal person representative of FTZ.  Thus FTZ, represented by one Ms You (nominee of SA), commenced a civil claim in Zhuhai to restrain Mr Geng (KB’s nominee) from representing FTZ.  FTZ, represented by Mr Geng, commenced an administrative action in Zhuhai challenging the validity of the approval by the Mainland authorities of the change of legal person representative of FTZ.  Ms You and FTZ commenced an action in Hong Kong in HCCT No 47 of 2010 to restrain Mr Geng from holding himself out as having authority to act for FTZ.  Further, an application was made by SA, FT and FTZ by summons dated 12 January 2011 in HCCT No 16 of 2011 to vary the order made by Saunders J on 31 May 2010, with a view to removing the restraint, inter alia, on FTZ from changing its legal person representative.  This summons is still extant and is fixed to be heard before Saunders J on 29 November 2011. The action in HCCT No 47 of 2010 was adjourned sine die with liberty to restore pending that application to vary the injunction.

36.  These ancillary proceedings are in my view only of peripheral relevance for present purposes.  KB raised the point that by commencing administrative proceedings in the Mainland in April 2010, SA acted in breach of the ex parte interim injunction granted by Saunders J on 12 March 2010.  However, the evidence is far from sufficient to establish this serious allegation, nor has KB pursued this complaint by way of contempt proceedings or otherwise in HCCT No 16 of 2010.  In these circumstances I do not rest my decision on this ground at all.

E.  JURISDICTIONAL CHALLENGE IN THE ARBITRATION

37.  Far more relevant than those ancillary proceedings is the status of the arbitration, to which I now turn.  Further to the notice of arbitration, the arbitrators were appointed and the tribunal was constituted on 7 October 2010.  The first preliminary hearing of the arbitration was held on 1 November 2010.

38.  KB’s points of claim served on 29 November 2010 in the arbitration seek relief similar but not identical to those sought in the Guangdong Action, namely, specific performance of the letter of intent, an order that SA and FT cause or procure the relevant transfers of shares and resignation of relevant personnel, related injunctions, consequential accounts and inquiries, a declaration that all the shares in FT have been charged to KB by virtue of the letter of intent, a declaration that KB has a lien on the shares in FT and FTZ for the payment of the sum of HK$100 million, damages for breach of the letter of intent, and damages in lieu of or in addition to specific performance.

39.  Shortly before the points of claim was served, on 15 November 2010, SA, FT and FTZ mounted a jurisdictional challenge to the arbitration, contending that the tribunal had no jurisdiction to determine the claim, alternatively that the dispute between the parties ought to be resolved in the Zhuhai court, not in an arbitration in Hong Kong.  This challenge was heard by the tribunal on 19 March 2011.  Although framed in those terms, it is clear from the First Award on Jurisdiction issued by the arbitrators on 12 April 2011 that SA, FT and FTZ accepted that one of the means of dispute resolution provided for in clause 7.2 of the letter of intent is arbitration in Hong Kong and that the jurisdictional challenge was in essence based on the principles of forum non conveniens.

40.  In its First Award on Jurisdiction, the tribunal ruled that they had no power either as a matter of the general law of arbitration or as a matter of the construction of the particular arbitration clause in question to stay the arbitral proceedings before them on the ground of forum non conveniens.  They also expressed the view that even if they were to approach the application for stay on the basis of the principles of forum non conveniens, they did not consider there was sufficient justification for staying the arbitral proceedings in Hong Kong.

41.  In addition, the arbitrators considered themselves duty-bound under section 2GA(1)(b) of the Arbitration Ordinance to avoid unnecessary delay, which reinforced their belief that they could not order a stay of the arbitral proceedings unless a stay was requested by both parties or ordered by a competent court having jurisdiction over the tribunal.

F.  CROSS-APPLICATIONS IN MAY 2011

42.  Over a month after the arbitral tribunal rejected the jurisdictional challenge, on 23 May 2011, SA’s solicitors wrote to KB’s solicitors, giving notice that SA, FT and FTZ intended to make an application for an injunction to restrain KB from taking further steps in the arbitration pending the final determination of a list of specified proceedings which were on foot in Mainland China.  The purpose as stated was to prevent the arbitral tribunal from adjudicating on the same set of facts and disputes as had already been heard by the Guangdong Court and to avoid an arbitral decision conflicting with the decision of the Guangdong Court.

43.  In response, on 25 May 2011, KB’s solicitors told SA’s solicitors that not only was KB not prepared to consent to such an injunction, but that KB had submitted to the Guangdong Court a copy of the arbitral tribunal’s First Award on Jurisdiction and was preparing its own application to the Guangdong Court for a stay of the consolidated Guangdong Action.

44.  On the same day, KB filed its application with the Guangdong Court for a stay of the consolidated Guangdong Action pending the determination of the arbitration in Hong Kong.  The main reason given in the application was that because the letter of intent was governed by Hong Kong law, it would be more desirable for the Hong Kong arbitral tribunal to adjudicate on the dispute, whose decision could then form the basis for determination of the consolidated Guangdong Action.  KB also made the point there that it would be confusing to the parties if the Guangdong Court and the arbitral tribunal came to different conclusions.

45.  On the following day, 26 May 2011, SA and FT issued the originating summons in these proceedings seeking an injunction to restrain KB from further conduct of the arbitration.  SA’s solicitors also wrote to the arbitrators asking them for a direction that the arbitral proceedings be stayed pending the determination of the originating summons. This was swiftly rejected by the arbitrators on 30 May 2011.

46.  In compliance with the tribunal’s direction but without prejudice to the present application, SA and FT served their points of defence in the arbitration on 30 May 2011.  KB served its points of reply in the arbitration on 30 June 2011.

47.  Another application for stay was made by letter by SA, FT and FTZ to the arbitrators on 5 August 2011.  By then the originating summons herein had been fixed to be heard on 19 October 2011.  The application was for an order to stay the arbitration pending the outcome of the application for injunction in this originating summons.  This was again summarily rejected by the arbitrators on 9 August 2011.

48.  Pursuant to an order for directions on discovery made by the arbitrators on 9 August 2011, on 30 August 2011 the parties to the arbitration exchanged list of key documents in support of their pleadings. Production of the documents has also occurred in mid-September 2011.  There is at present an outstanding request made by KB to SA on 12 October 2011 to produce certain specified documents.

G.      FURTHER DEVELOPMENT AND APPLICATION TO ADJOURN HEARING OF ORIGINATING SUMMONS

49.  Unexpectedly, on 14 October 2011, the Guangdong Court issued a notice to the parties in the Guangdong Action summoning the parties to a hearing on 3 November 2011.  The purpose was stated to be for “court investigation”.  This notice apparently did not reach the parties’ Chinese lawyers until 17 October 2011.

50.  At the same time on 17 October 2011, KB also received from the Guangdong Court a copy of an opinion on Hong Kong law dated 8 August 2011 which had been issued by a Hong Kong solicitor on behalf of SA and supplied by SA to the Guangdong Court.  That opinion gave the author’s views on the principles of contractual interpretation and other concepts such as estoppel, waiver and affirmation under Hong Kong law, which may be relevant to the substantive issues that have to be determined by the Guangdong Court.

51.  At the start of the hearing on 19 October 2011, in light of the notice from the Guangdong Court, counsel for SA and FT sought an order from me to adjourn the hearing of the originating summons to a date after 3 November 2011.  I refused that application there and then.  The Plaintiffs chose to issue the originating summons as they did on 26 May 2011, on the basis that there was nothing left to be done in the consolidated Guangdong Action.  It seems to me that they must take the position in relation to that action as they find it.  Moreover, the Guangdong Court’s notice is bland.  It is impossible to decipher whether the purpose of the further hearing was to deal with the opinion on Hong Kong law submitted to that court by SA, or KB’s stay application, or indeed the substantive issues argued in March 2011.  I took the view that the notice did not amount to such special circumstances as to justify vacating the date for hearing the originating summons.

H.  ISSUES

52.  The issues that arise on this application are:

(i) whether the court has jurisdiction to grant the injunction sought to restrain the conduct of an arbitration in Hong Kong;

(ii) if there is jurisdiction, what principles govern the exercise of the power by the court; and

(iii) whether applying the applicable principles this is an appropriate case in which to grant the injunction sought.

I.  JURISDICTION TO GRANT INJUNCTION TO RESTRAIN ARBITRATION

53.  On behalf of SA and FT, Mr Shieh submits that the Court has jurisdiction to grant the injunction sought as part of its general jurisdiction to grant injunction under section 21L of the High Court Ordinance (it being common ground that the power to give interim relief under section 2GC of the Arbitration Ordinance is not applicable).  He relies on a number of recent decisions of the High Court and Court of Appeal in England, to which I shall refer below.

54.  Mr Chan, who appears for KB, disagrees.  I can discern three strands in Mr Chan’s argument, though they overlap to some extent.  First, there is no jurisdiction for the Court to grant an injunction except to protect against the invasion of some legal or equitable right of the plaintiff.  Unless the Plaintiffs here can identify some such right which is injured by the proceeding of the reference to arbitration, there is no power for the Court to grant an injunction to restrain the arbitration.  Secondly, Mr Chan says that the High Court of Hong Kong, as with the High Court of England, has no inherent supervisory jurisdiction over arbitration or arbitral tribunals apart from what is conferred upon the court by statute.  Thirdly, he contends that because of the provisions of section 2AA of the Arbitration Ordinance (Cap 341)[1] and article 5 of the UNCITRAL Model Law, the Court is precluded from granting any order to restrain an arbitration such as is sought by the Plaintiffs in this case.  I shall consider these arguments in turn. 

(1)  The Siskina

55.  In support of his first proposition Mr Chan refers to Siskina (Owners of cargo lately laden on board) v Distos Compania Naviera SA [1979] AC 210 and in particular the statement of Lord Diplock at p 256F that

“the High Court has no power to grant an interlocutory injunction except in protection or assertion of some legal or equitable right which it has jurisdiction to enforce by final judgment”.

This statement was affirmed by a majority of the House of Lords in Bremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909, a case which concerned an application for an injunction to restrain further conduct of a reference to arbitration.

56.  Thus in The North London Railway Co v The Great Northern Railway Co (1883) 40 Ch D 30, where an injunction was sought to restrain a party from proceeding with an arbitration on the ground that the subject matter of the dispute fell outside the arbitration clause, the Court of Appeal held that it had no power to grant the injunction on the basis that a court could not issue an injunction in a case where if the thing went on there would be no legal injury.

57.  At p 36 Brett LJ said that where the whole matter is beyond the jurisdiction of the arbitrators, the fact of a party going on with such futile arbitration is no legal injury to the other party.  Recognising that in Bremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909, both Lord Fraser (at p 992C) and Lord Scarman (at p 995C‑D) rejected the very broad proposition that no legal injury could arise from the futility and vexation of the arbitration process, Mr Chan submits that the underlying principle is still good law.  In other words, for an injunction to issue there has to be injury to some legal or equitable right, although that right can arise from an implied term of the arbitration agreement, as is demonstrated by Bremer Vulkan itself.

58.  However, it has long been recognised that equity may lend its aid to prevent multiplication of litigation.  Thus a principle developed in the courts of chancery that where a plaintiff commences proceedings in two courts in respect of the same matter, a court of equity will put him to his election as to which proceedings he wishes to pursue and will restrain him from prosecuting the other: Meagher, Gummow & Lehane’s Equity Doctrines & Remedies (4^th ed), paragraph 21-030.  In Jones v Earl of Strafford (1730) 3 P Wms 79 at 90, the plaintiff was ordered to make election in what court he would sue, the reason as recorded in the note being “the defendant is doubly vexed”; see also Mortimore v Soares (1859) 5 Jur (NS) 574.  The case of Australian Commercial Research and Development Ltd v ANZ McCaughan Merchant Bank Ltd [1989] 3 All ER 65 is an illustration that the principle applies even if one set of proceedings is commenced outside the jurisdiction.

59.  In furtherance of the same policy of equity, the principle has extended to the case beyond that in which the plaintiff has sued the same defendant in two sets of proceedings, but simply where there are concurrent proceedings between the same parties.  Equity enables the court to restrain by injunction a party from taking step in a proceeding before another court on the same subject matter, provided the forum court is satisfied that the party seeking the injunction is harassed by such other proceeding.  The power to act on that basis has been used to order parties amenable to the court’s jurisdiction “to take, or to omit to take, any steps and proceedings in any other court of justice, whether in this country, or in a foreign country”: Leach VC in Bushby v Munday (1821) 5 Madd 297, 307.  This power is said to have been recognisably established by the time of Lord Portarlington v Soulby (1834) 3 My & K 104, 108: per Lord Hobhouse in Turner v Grovit [2002] 1 WLR 107, 116F.

60.  In the case of restraint of foreign proceedings, as the Privy Council explained in Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] 1 AC 871, 892, 896, the jurisdiction is to be exercised when the “ends of justice” require it (citing Bushby v Munday, supra), but where a remedy for a particular wrong is available both in the English court and in a foreign court, a plaintiff will generally only be restrained from pursuing proceedings in the foreign court if such pursuance would be vexatious or oppressive.

61.  That The Siskina was not intended to remove this long-standing jurisdiction of equity is clear.  In Castanho v Brown & Root (UK) Ltd [1981] AC 557, the plaintiff submitted that the jurisdiction to grant injunction was exercisable only in two classes of case: (1) lis alibi pendens, where the object is to prevent harassment; and (2) where there is a right justiciable in England, which the court seeks to protect, relying on The Siskina.  Lord Scarman, with whom the other law lords including Lord Diplock agreed, said at p 573 that most cases fell within one or other of these classes but even that formulation was too rigid.  In other words, it seems to me that the House of Lords recognised that an injunction could lie to prevent harassment arising from multiplicity of suit, whether or not that object could neatly fit into the concept of the prevention of invasion of a legal or equitable right.

62.  That principle has been treated as being applicable not only to court actions but also arbitral proceedings.  In The Ithaka (1939) 64 Ll L R 259, the ship Ithaka had been stranded in Turkish waters.  A standard form salvage agreement, containing an arbitration clause, was signed by the master and the vessel was salved. Arbitration was commenced in London by the salvors.  The ship owners then brought an action in the Turkish courts to set aside the salvage agreement, alleging that it was signed by the master under duress.  They then applied by motion to the Admiralty Court in London for an order restraining the arbitrator from proceeding with the reference.  In dismissing the appeal from Bucknill J who had refused the injunction, MacKinnon LJ said at p 262:

“This is an application by motion under the equitable jurisdiction of the Court to stop legal proceedings being pursued in this country. It is an application to stop an arbitration which is, on its face, perfectly valid and proper and within the jurisdiction of the arbitrator. I think one should refer to the powers of the Court to stop an action which has been started within the jurisdiction, the parties having been properly served within the jurisdiction. The grounds on which such action will be taken by the Court are set out in the headnote in the case of Logan v. Bank of Scotland and Others (No 2), [1906] 1 KB 141:

‘The Court will stay an action, brought within the jurisdiction, in respect of a cause of action arising out of the jurisdiction, if satisfied [ - and these are the conditions on which it will so act - ] that no injustice will be done thereby to the plaintiff, and that the defendant would be subject to such injustice in defending the action as would amount to vexation and oppression. …’ ”

63.  To the same effect is the decision in The Oranie and the Tunisie [1966] 1 Ll R 477.  The facts are complicated. Suffice it to say that disputes had arisen under certain charters of the two ships in question.  Those disputes were referred to arbitration in London.  The charterers then brought an action in France against the owners seeking a declaration that the charters were not effective bargains.  Some four years later, when the arbitration was about to be heard, the charterers applied to the English courts for an injunction restraining the owners from taking further steps in the arbitration.  Both McNair J at first instance and the Court of Appeal refused the injunction, but the significant point for present purposes is that neither considered there was no jurisdiction to grant an injunction to restrain arbitration in an appropriate case.  Rather, they approached the application on the basis of principles applicable to a stay or restraint of concurrent proceedings in litigation.  Sellers LJ set out the guiding principles at p 487 as follows:

“(1) that the stay must not cause injustice to the claimant in the arbitration, and (2) that the applicant for a stay must satisfy the Court that the continuance of the arbitration would be oppressive or vexatious to him or an abuse of the process of the court: in short that it would be unjust.”

64.  Neither The Ithaka nor The Oranie and the Tunisie was mentioned by Lord Diplock in Bremer Vulkan.  That would be surprising if his lordship had intended to disapprove of them.  In fact, far from being treated as impliedly overruled, The Oranie and the Tunisie continued to be relied upon in England (at least up to the enactment of the Arbitration Act 1996) as setting out the applicable principles for a stay of references to arbitration: see Northern Regional Health Authority v Derek Crouch Construction Co Ltd [1984] 1 QB 644, 659; The University of Reading v Miller Construction Ltd (1994) 75 BLR 91.

65.  In Elektrim SA v Vivendi Universal SA [2007] 1 CLC 227 at paragraphs 55 to 57, Aikens J, referring to The Siskina, supra; South Carolina Insurance Co v Assurantie Maatschappij ‘De Zeven Provincien’ NV [1987] AC 24 and Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334, held that the House of Lords had firmly established that an injunction could be granted to protect a party against infringement of his legal or equitable right, or to protect against vexatious or oppressive proceedings.  Mr Chan submits that Aikens J must have used the word “or” in paragraph 55 conjunctively rather than disjunctively.  That submission seems to me to be contrary to the whole tenor of the section of the judgment from paragraph 50 to paragraph 66.

66.  The position seems to me to be that, as Aikens J held, an injunction can in an appropriate case be granted to restrain vexatious or oppressive proceedings, and that in such situations the courts have not sought to explain the basis of the injunction on the ground of the need for protection of a legal or equitable right, whether formulated as a right not to be vexed or oppressed, or otherwise.  Indeed, if I may respectfully say so, there is much to be said for Lord Goff’s view expressed in South Carolina, supra, at p 44H, that these are but examples of circumstances in which, in the interests of justice, the power to grant an injunction may be exercised.

67.  Mr Shieh has cited further recent English authorities, all of which affirm the existence of the jurisdiction of the court to grant an injunction to restrain an arbitration in appropriate circumstances: J Jarvis & Sons Ltd v Blue Circle Dartford Estates Ltd [2007] BLR 439; Claxton Engineering Services Ltd v TXM Olaj-Es Gazkutato KTF [2011] EWHC 345 (Comm); Excalibur Ventures LLC v Texas Keystone Inc [2011] EWHC 1624 (Comm).  Without meaning any disrespect, it is unnecessary for me to lengthen this judgment with extensive quotations from these authorities.

68.  Accordingly I reject Mr Chan’s argument based on The Siskina that there is no jurisdiction to grant the injunction applied for in the present case because it is not being sought to protect against invasion of SA’s and FT’s legal or equitable right.

(2)  No general supervisory jurisdiction over arbitrations

69.  As a general statement of the law, Mr Chan’s second proposition is in my view unexceptionable.  It has been held by a majority of the House of Lords in Bremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909 at 977H-979F that the English High Court has no general supervisory power over the conduct of arbitrations more extensive than those conferred upon it by statute.  I am prepared to proceed on the basis that the power of the Hong Kong Court is similarly circumscribed, especially in light of the provisions of the Arbitration Ordinance that are based on the provisions of the Arbitration Act 1996 in England.

70.  It by no means follows from this proposition, however, that an injunction will not issue to restrain arbitration other than in circumstances specifically provided for by statute.  In my view, where the Hong Kong Court in an appropriate case grants an injunction restraining a party to a reference from taking any further step in the arbitration, it does not assert any supervisory jurisdiction, general or otherwise, over the arbitration, even though in the end result the arbitration is affected, any more than the court asserts supervisory jurisdiction over a foreign court by granting what is commonly known as an anti-suit injunction.  What the Hong Kong Court does assert in such a case is personal jurisdiction over the party to be enjoined who is amenable to the jurisdiction of the court, and the power to make an order in personam requiring him to do or refrain from doing certain act.

71.  As Lord Fraser pointed out in Bremer Vulkan, supra, at p 993D (the force of whose statement on this point is in my view not diminished by the fact that he dissented in the result):

“the court, in granting an injunction to restrain an arbitrator from proceeding, is not exercising a supervisory jurisdiction of the same sort as it exercises over inferior tribunals by the issue of prerogative writs”.

72.  In relation to anti-suit injunction to restrain foreign proceedings, the position has been explained in the highest authorities.  As Lord Goff stated in Lee Kui Jak, supra, at p 892C, “where the court decides to grant an injunction restraining proceedings in a foreign court, its order is directed not against the foreign court but against the parties so proceeding or threatening to proceed”.  The same point was emphasised by Lord Hobhouse in Turner v Grovit [2002] 1 WLR 107 at paragraph 23.

73.  The fact that the Hong Kong Court has no general supervisory jurisdiction over arbitrations in Hong Kong is therefore not a ground for holding that there is no power at all for the Court to grant the type of injunction sought here.

(3)  Section 2AA and Article 5

74.  Thirdly, Mr Chan relies on section 2AA of the Arbitration Ordinance.  This section provides:

“2AA. Objective and principles of Ordinance

(1) The object of this Ordinance is to facilitate the fair and speedy resolution of disputes by arbitration without unnecessary expense.

(2) This Ordinance is based on the principles that –

(a) subject to the observance of such safeguards as are necessary in the public interest, the parties to a dispute should be free to agree how the dispute should be resolved; and

(b) the Court should interfere in the arbitration of a dispute only as expressly provided by this Ordinance.”

75.  Mr Chan also relies on Article 5 of the UNCITRAL Model Law, which provides:

“Article 5. Extent of court intervention

In matters governed by this Law, no court shall intervene except where so provided in this Law.”

76.  I deal with Article 5 first.  There is no dispute that the arbitration taking place is international arbitration to which the Model Law applies.  Article 5 starts with the words “in matters governed by this Law”, not “in arbitrations governed by this Law”.  One must therefore have regard to the matter in question to see whether the Court’s jurisdiction to act is ousted.  The matter here is the termination or suspension of an arbitration that is said to be a vexatious or oppressive proceeding because, inter alia, of the existence of concurrent proceedings between the same parties on the same subject before a court of competent jurisdiction.

77.  This is not expressly dealt with in the Model Law.  The closest one gets to it is in Article 32(2) which provides that:

“The arbitral tribunal shall issue an order for the termination of the arbitral proceedings when … (c) the arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.”

In my view, this does not govern the matter raised in these proceedings.  It is also relevant to note that the arbitrators have themselves held they had no power to stay the arbitration, implicitly but necessarily ruling that the Model Law did not empower them to decide whether or not to stay the arbitration on the ground of lis alibi pendens.  I do not therefore think that this article is sufficient to oust the Court’s jurisdiction.

78.  This reason also distinguishes the case of Mitsui Engineering & Shipbuilding Co Ltd v Easton Graham Rush [2004] 2 SLR 14, relied upon by Mr Chan.  There one of the parties to the arbitration (Mitsui) had challenged the arbitrator’s position and asked him to withdraw, on the ground that he had in an interim award dealt with matters outside the scope of what had been submitted for decision and pre-judged issues that were to be dealt with subsequently.  These are very much matters governed by the Model Law, as can be seen from Mitsui’s reliance on Articles 13 and 34 of that Law. In these circumstances, it is not surprising that the court considered that, partly because of Article 5, the court had no power to grant an interlocutory injunction to restrain the arbitrator from further acting in the arbitration pending the hearing of an application for a final injunction against the arbitrator in similar terms.

79.  As regards section 2AA(2)(b) of the Arbitration Ordinance, Mr Shieh submits that it sets out a principle, not a rigid rule.  He also points out that a similar provision exists in the 1996 Act of England.  This may be found in section 1 of that Act, which provides as follows:

“The provisions of this Part are founded on the following principles and shall be construed accordingly:

(a) the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense;

(b) the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest;

(c) in matters governed by this Part the court should not intervene except as provided by this Part.”

80.  Mr Chan submits that the language of the Hong Kong provision “should interfere in the arbitration of a dispute only as expressly provided by this Ordinance” is stronger than that of the English counterpart “should not intervene except as provided by this Part”.  I am not sure there is a difference in the strength of language, or that anything material here can be inferred from the different wording used.

81.  However I note that unlike the 1996 Act, the Hong Kong provision does not contain the words “in matters governed by this Part” and it may be argued that it is intended to have wider effect.  Nevertheless, in my view, it is right to bear in mind that the section sets out principles on which the Ordinance is based.  It embodies a “culture” (per Ma J in Ha Hau Kwan Fong Mary v The Incorporated Owners of Golden Plaza, HCCT 9/2002, 28 May 2002, at paragraph 16), or an “ethos” (borrowing the word used by Lord Steyn in Lesotho Highlands Development Authority v Impregilo SpA [2006] 1 AC 221, 230F).  I do not think section 2AA(2)(b) is intended to lay down an absolute rule ousting the Court’s jurisdiction to grant an injunction, in whatever circumstance, at the behest of whatever person, to restrain another person from taking any further step in an arbitration.

82.  In England, the view has been taken that the jurisdiction remains to grant an injunction to restrain arbitrations that are subject to the Arbitration Act 1996, though the circumstances in which such an injunction would be granted have to be wholly exceptional: see Weissfisch v Julius [2006] 2 All ER (Comm) 504 at paragraph 33(v); Elektrim SA v Vivendi Universal SA [2007] 1 CLC 227 at paragraphs 67 to 77.  In J Jarvis & Sons Ltd v Blue Circle Dartford Estates Ltd [2007] BLR 439 at paragraph 39, Jackson J also took the view that the court’s jurisdiction to restrain continuance of an arbitration on the grounds identified in The Oranie and The Tunisie, supra, survived the enactment of the 1996 Act, but the exercise of that jurisdiction “will now be even more sparing than before”.  In Claxton Engineering Services Ltd v TXM Olaj-Es Gazkutato KTF [2011] EWHC 345 (Comm), an injunction was actually granted by Hamblen J to restrain pursuit of an arbitration in Hungary, in circumstances where an English court had already found there was an exclusive jurisdiction clause in favour of the English courts and there was no arbitration agreement.

83.  I respectfully adopt the approach of these English decisions.  In my judgment, section 2AA(2)(b) of the Ordinance does not remove the Court’s jurisdiction to grant an injunction in an appropriate case to restrain a party to an arbitration from proceeding further with it.  The principle of the autonomy, independence and finality of arbitration as embodied in that section must, however, be borne in mind and will play an important part when it comes to the exercise of the Court’s power.

84.  I am accordingly satisfied and hold that under section 21L of the High Court Ordinance, the Court has power in an appropriate case to grant an injunction restraining a party (who is amenable to the jurisdiction of the Court) from proceeding with an arbitration.

J.  THE PRINCIPLES GOVERNING THE EXERCISE OF THE POWER

85.  The power to grant an anti-suit injunction to restrain a person from taking any step in foreign proceedings is exercised by the court where the “ends of justice” require it: Société Nationale Industrielle Aerospatiale v Lee Kui Jak, supra, at p 892A-B.  Generally, the applicant has to show that the pursuit of foreign proceedings in question would be vexatious or oppressive to him: ibid, p. 896F-G, or, to use another phrase, unconscionable on the part of the respondent: see Turner v Grovit, supra, at paragraph 24.

86.  In principle an applicant for an injunction to restrain arbitration ought to be required to show nothing less.  What is or is not vexatious or oppressive will, however, depend on the circumstances of each case.  As Bowen LJ said in McHenry v Lewis 22 Ch D 397, 407-408, the law does not lay down any definition of what is vexatious or oppressive and it would be unwise to do so. 

87.  In the case of an anti-suit injunction affecting foreign proceedings, the jurisdiction is exercised by the Hong Kong Court with caution because of the need of respect for comity.  An injunction to restrain a local arbitration, as in the present case, is not affected by considerations of international comity in the same way.  But, as explained above, it is subject to a different principle which also requires that the power should be exercised with great caution, and that is the principle of autonomy and independence of arbitration which has been given statutory recognition in section 2AA(2)(b) of the Arbitration Ordinance.  The approach to an anti-arbitration injunction cannot therefore be entirely assimilated to that for an anti-suit injunction.

88.  In J Jarvis & Sons Ltd v Blue Circle Dartford Estates Ltd [2007] BLR 439 Jackson J derived four propositions from the authorities relating to the grant of injunction to restrain arbitration, the last three of which concern considerations for the exercise of the power:

“(i) The court’s power under section 37 of the Supreme Court Act 1981 to grant injunctions includes a power to grant an injunction to restrain an arbitration from proceeding.

(ii) That power may be exercised if two conditions are satisfied, namely: (a) the injunction does not cause injustice to the claimant in the arbitration, and (b) the continuance of the arbitration would be oppressive, vexatious, unconscionable or an abuse of process.

(iii) The court’s discretion to grant such an injunction is now only exercised very sparingly and with due regard to the principles upon which the Arbitration Act 1996 is expressly based.

(iv) Delay by the party applying for an injunction is material to the court’s exercise of discretion and may in some cases be fatal to the application.”

I would gratefully, and with respect, adopt these principles, substituting the relevant Hong Kong statutory provisions for their English counterparts.

K.  THIS APPLICATION

89.  On these principles, it is incumbent upon the Plaintiffs here first and foremost to show that it is vexatious, oppressive or unconscionable for KB to continue to pursue the arbitration in Hong Kong. Because the injunction is sought by way of final relief, I have to be satisfied on the balance of probabilities that this is so: Elektrim SA v Vivendi Universal SA, supra, at paragraph 57.

90.  Mr Shieh does not shrink from that burden.  In a nutshell, his argument is that given KB’s active pursuit and participation in the consolidated Guangdong Action as well as in the arbitration, coupled with the fact that the consolidated Guangdong Action is now at an advanced stage, it would be vexatious and oppressive for KB to continue to proceed with the arbitration.

91.  I am unable to accept that submission.  In my view, what SA and FT have pointed to is far from sufficient to show that the continuation of the arbitration in Hong Kong would be vexatious or oppressive to them.

92.  First, there is no presumption that a multiplicity of proceedings is vexatious: Société Nationale Industrielle Aerospatiale v Lee Kui Jak, supra, at p 894B-C.  However, relying on Australian Commercial Research and Development Ltd v ANZ McCaughan Merchant Bank Ltd [1989] 3 All ER 65 at 69, where Browne-Wilkinson VC said:

“where a plaintiff seeks to pursue the same defendant in two jurisdictions in relation to the same subject matter, the proceedings verge on the vexatious”,

Mr Shieh submits that it is prima facie vexatious for KB to bring proceedings against SA and FT both in the arbitration and in the Guangdong Action.

93.  But the litigation postures in the Mainland litigation in this case are not as simple as that.  It was SA who first started litigation in the Mainland, in the form of the Zhuhai Action, after KB commenced arbitration in Hong Kong.  KB’s cross-claim in the Guangdong Action had to be brought in the Guangdong Court because, apparently, it exceeded the monetary limit of the jurisdiction of the Zhuhai court.  After the consolidation of the Zhuhai Action and the Guangdong Action, it appears that KB took the position of a “counterclaiming defendant” in the combined proceedings. According to the transcript of the “trial” in the Guangdong Court on 24 March 2011, the proceedings were conducted with SA as the claimant, KB defendant, and FT and FTZ third parties. 

94.  It is an oversimplification therefore to say that KB sued SA and FT both in Guangdong and in Hong Kong.  This ignores the fact that the SA is very much a claimant in the consolidated Guangdong Action. Indeed, even if KB had not brought proceedings in the Guangdong Court, there would in all likelihood have still been a claim by SA in the Zhuhai Action covering much the same ground as the Guangdong Action.

95.  In the affirmation filed on behalf of KB for this application, there was a suggestion that the Guangdong Action was brought by KB in order to seek a “freezing order” to preserve the assets which are at stake.  Mr Shieh says, however, that all that KB applied for and obtained in July 2010 from the Guangdong Court was an order preventing FT from disposing of the shares it held in FTZ.  He criticises the explanation put forward by KB as being disingenuous.

96.  It should be remembered, however, that there were also other proceedings between the parties whereby each party sought to secure control over FTZ.  The fact that the freezing order obtained from the Guangdong Court was limited to the shares of FTZ does not in my view invalidate the avowed purpose of the Guangdong Action.  Further, although the undertakings obtained by KB in HCCT No 16 of 2010 on 31 May 2010 (referred to in paragraph 25 above) extended to the shares in FTZ, I do not think this means that obtaining an additional freezing order in the Mainland to prevent disposal of the shares in FTZ was pointless.  After all, FTZ was a Mainland company.

97.  Moreover, in October 2010, soon after the Guangdong Court consolidated the Zhuhai Action with the Guangdong Action, KB did apply to add GHZ as a party for the purpose of obtaining an order to preserve the underlying assets, which were held in its name.  It seems to me that the conduct of KB was not inconsistent with preservation of assets being its primary purpose in launching proceedings in Guangdong.

98.  But even if KB was simply a plaintiff pursuing the same defendants for the same matter in two different jurisdictions without sufficient justification for having parallel proceedings, the Court would ordinarily only put the plaintiff to election, without making the decision for him as to which set of proceedings should be continued or abandoned: see Australian Commercial Research and Development Ltd v ANZ McCaughan Merchant Bank Ltd, supra; Hing Fat Plastic Manufacturing Co Ltd v Advanced Technology Products (HK) Ltd [1992] 2 HKLR 350.  These authorities do not support the course that SA and FT advocate, namely, that the Court should decide for KB which set of proceedings to maintain, still less do they suggest that the Court should reverse the election made by a plaintiff.

99.  Here, it seems to me that KB has, by making the application for stay in the consolidated Guangdong Action, effectively elected, so far as it is a matter for its election, to proceed with the arbitration in Hong Kong.  I see no basis in these circumstances for the Court to reject that election and dictate the opposite.  Mr Shieh says that the election came too late, for the Guangdong Action has largely been completed and all the efforts and expenses had been incurred.  I shall deal below with the submission that the Guangdong Action is near completion.  But the short point is that the present application was not instituted by SA and FT until after the time when the Guangdong Action had come to what they describe as a very advanced stage.

100.  An important factor in an application such as the present one is that the parties have agreed that the disputes should be dealt with by arbitration.  The fact that arbitration is consensual is no doubt one of the reasons why it would rarely be proper to grant an injunction to restrain it.  This is also why the case of Claxton Engineering Services Ltd v TXM Olaj-Es Gazkutato KTF, supra, where the court had held no arbitration agreement existed, is so exceptional.

101.  In the present case, in my view, one must not lose sight of the fact that clause 7.2 of the letter of intent provides for litigation “and/or” arbitration, by which, as was common ground in the jurisdictional challenge of the arbitrators, the parties must be taken to have contemplated that parallel proceedings are possible.  In other words, the clause contemplated three possible situations: (1) litigation in the Mainland courts; (2) arbitration in Hong Kong; (3) both of the above.

102.  In the absence of agreement between the parties, the third scenario may well arise where one side sues the other in the Mainland, and the latter commences arbitration in Hong Kong against the former.  Where this happens, the clause does not itself authorise the parties or anyone else to choose between litigation and arbitration.  The fact that the parties contemplated parallel litigation and arbitration militates against the submission that there is vexation and oppression involved.

103.  Some emphasis was placed by Mr Shieh on his submission that the Guangdong Action is at an advanced stage.  He submits that the stage of progress of the Guangdong Action is a factor to be taken into account, relying on Yip Lai Fong v Sing Tung Hing, HCA 1282/2003, 29 April 2009, and that KB’s participation in the Guangdong Action up to its final stages makes it all the more vexatious and oppressive for it to continue pursuing the parallel arbitration in Hong Kong. 

104.  I accept this as one of the matters that the Court can properly take into account together with all the other circumstances.  Here, SA placed reliance on the transcript of the hearing on 24 March 2011 which appears to suggest that the hearing of the action has been concluded.  Indeed, Mr Tang, a solicitor who made an affirmation on 3 June 2011 in support of the Plaintiffs’ originating summons herein, stated that judgment in the Guangdong Action “may be delivered at any time” and “is expected to be delivered … before long”.  Despite the passage of over five months since that prediction, however, no judgment has been delivered by the Guangdong Court.

105.  In their counsel’s skeleton argument, the Plaintiffs stated that no other step remained to be taken by the parties in the Guangdong Action but for KB’s application for stay.  This however sits uncomfortably with the fact that an opinion on Hong Kong law was submitted on behalf of SA to the Guangdong Court in (probably) August 2011 – a fact which only came to the knowledge of KB on 17 October 2011 and which was no doubt unknown to the Plaintiffs’ own counsel when they prepared the skeleton. Despite that this disclosure contradicted the Plaintiffs’ stance that the Guangdong Action had completed in March 2011 with only the judgment outstanding, no explanation was offered by the Plaintiffs of the circumstances in which and the purpose for which that opinion came to be submitted to the Guangdong Court.

106.  Moreover, one must not ignore the application for stay made by KB to the Guangdong Court, the outcome of which is still awaited.  There is conflicting opinion from experts on Chinese law on the merits and likely outcome of KB’s application for stay, a conflict which I am in no position to resolve on the basis of their written opinions alone. Suffice it to say that KB has not been notified that the application has been dismissed, nor has SA received any notice from the Guangdong Court to make submissions on that application.  For present purposes I consider that I must treat the application as being extant before the Guangdong Court.

107.  If that application is granted, that means the Guangdong Court will have decided to wait for the arbitration in Hong Kong to proceed to a substantive resolution.  In those circumstances it would lead to a standstill if the arbitration is also restrained.  The Plaintiffs submit that I could grant an injunction now with liberty to apply in the event the Guangdong Court decides to stay the Guangdong Action.  I am not prepared to adopt that approach in this case, which would, it seems to me, only create confusion for the Guangdong Court when it seeks to understand the proceedings in Hong Kong.

108.  The Plaintiffs also submit that I should discount KB’s application for stay because it was, they submit, an attempt to “steal a march” on them.  I do not read the evidence in that way.  Well before SA indicated an intention to seek an injunction to restrain the arbitration, KB had sent the arbitrators’ First Award on Jurisdiction to the Guangdong Court and, accordingly to its solicitors’ letter of 25 May 2011, was preparing an application for a stay of the Guangdong Action.  I do not infer that KB only started preparing and managed to complete and lodge the application for stay in Guangdong all on the same day after receiving the letter from SA’s solicitors on 25 May 2011.  It seems to me this is more probably a case where both parties independently decided to try to put a stop to different proceedings.

109.  In these circumstances, while I accept there has been a hearing of the Guangdong Action on 24 March 2011 during which the parties adduced evidence and made submissions, it is unclear what remains to be done and when judgment will be given in that action.  In any event the Plaintiffs have failed to satisfy me that the Guangdong Action is as advanced as they submit it to be.

110.  The position would of course be different if the Guangdong Court had already given judgment.  Provided that the judgment satisfies the criteria for giving rise to res judicata or issue estoppel, it may be (and I put it no higher than that) that the successful party in the Guangdong Action can rely on the judgment as a bar to re-opening in the arbitration those issues which have been determined by the judgment.  Indeed, it may be possible, based on the doctrine of res judicata, to seek an injunction to restrain an arbitration: Glasgow and South-Western Railway Co v Boyd & Forrest, 1918 SC (HL) 14.  But this also means that I am not satisfied that there is at present a real risk of conflicting decisions between the Guangdong Court and the arbitral tribunal.

111.  I must also have regard to what has happened in the arbitration.  SA has applied to the arbitral tribunal for a stay not only once but three times.  While in the First Award on Jurisdiction the arbitrators held that they had no power to grant a stay (a point on which I express no opinion for it was not argued before me), the arbitrators did also say that even if they had power they were of the view that the circumstances did not justify a stay.  The arbitrators, in giving that award, would have known there had been a hearing of the Guangdong Action on 24 March 2011.  Moreover, by the time of the two subsequent occasions in May and August 2011, when the arbitrators refused an interim stay, they had been broadly apprised of what had occurred in the Guangdong Action.

112.  I bear in mind the need for caution because of the principle against interference with arbitration.  In these circumstances, it seems to me that for me to grant an injunction to restrain the arbitration notwithstanding the clear view taken by the arbitrators would undermine the principle enshrined in section 2AA(2)(b) of the Arbitration Ordinance.  There are no exceptional circumstances to justify such a course.

113.  In the result, applying the legal principles discussed above, I am far from satisfied that this is an appropriate case to issue an injunction to restrain KB’s continued pursuit of the arbitration.

L.  TANG’S 2^ND AFFIRMATION

114.  There is an affirmation in reply by Mr Tang, solicitor for SA and FT, which was filed and served pursuant to an unless order setting the deadline for service at 23 September 2011.  The Plaintiffs’ solicitors left the document for the Defendant’s solicitors at a documents exchange on 22 September 2011 and there is evidence that it was available for collection on 23 September 2011.  The Defendant’s solicitors however did not collect it until 26 September 2011.  A dispute arose as to whether, having regard to the provisions of Order 65 rule 5(1)(c) and (2A), the documents exchange was a proper address for service.  This dispute is wholly technical and inconsequential.  I am satisfied that if leave was required to rely on that affirmation I would give it.  In these circumstances it is unnecessary to say anything more about this.

M.  CONCLUSION

115.  For these reasons, I would dismiss the originating summons and make an order nisi for costs in favour of KB with a certificate for two counsel.