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Guo Shun Kai v Wing Shing Chemical Co Ltd

Judgment Cited in 10 Precedent Map Related
Vincent
Judgment Date05 June 2013
Year2013
Citation[2013] 3 HKLRD 484
Judgement NumberHCCT35/2012
Subject MatterConstruction and Arbitration Proceedings
CourtHigh Court (Hong Kong)
HCCT35/2012 GUO SHUN KAI v. WING SHING CHEMICAL CO LTD

HCCT 35/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 35 OF 2012

____________

BETWEEN
GUO SHUN KAI郭順開 Applicant

and
WING SHING CHEMICAL CO LTD Respondent
永成化工有限公司
____________
Before: Hon G Lam J in Chambers
Date of Hearing: 5 June 2013
Date of Decision: 5 June 2013

_____________

D E C I S I O N

_____________

1. This is an application by Wing Shing Chemical Company Limited (“Wing Shing”) pursuant to RHC Order 73 rule 10(6), to set aside or vary a prior order made by Au J on 20 September 2012 giving leave for an arbitral award to be enforced as a judgment of this court.

2. The award in question is an award made by the South China Sub-Commission of China International Economic and Trade Arbitration Commission dated 1 June 2012 against Wing Shing in favour of Guo Shun Kai.

3. The underlying dispute arose out of an investment co‑operation agreement between Wing Shing and Guo. The award requires Wing Shing to pay Guo:

(1) compensation for economic loss in the amount of RMB 29,195,470.58 and interest thereon in the amount of RMB 12,293,716.33;

(2) legal costs in the amount of RMB 500,000; and

(3) costs of the arbitration proceedings in the amount of RMB 675,473 and costs of the arbitrators in the amount of RMB 134,574.

4. The ground relied upon by Wing Shing for setting aside or varying the order giving leave for enforcement is contained in section 95(2) of the Arbitration Ordinance (Cap 609), which provides:

“(2) Enforcement of a Mainland award may be refused if the person against whom it is invoked proves―

…

(f) that the award―

(i) has not yet become binding on the parties; or

(ii) has been set aside or suspended by a competent authority of the Mainland or under the law of the Mainland.”

5. Wing Shing says that the award “has not yet become binding on the parties” or “has been … suspended … under the law of the Mainland” within the meaning of section 95(2)(f). The basis on which it says so is that Wing Shing had on 27 August 2012 commenced legal proceedings in Shenzhen to dismiss the award. On 30 August 2012, the Shenzhen Intermediate People’s Court (“the Shenzhen Court”) accepted jurisdiction over the case. On 18 September 2012, the Shenzhen Court heard both parties in relation to Wing Shing’s application to set aside or dismiss the award. Judgment was reserved and is being awaited.

6. On 4 October 2012, Wing Shing took out the summons to set aside or vary the order for leave to enforce the award in Hong Kong.

7. The resolution of the summons turns upon whether the award “has not yet become binding on the parties” or “has been … suspended … under the law of the Mainland” by virtue of the application made by Wing Shing to the Shenzhen Court. This in turn depends on the examination and interpretation of the Mainland written laws relied upon by Wing Shing.

8. The application made by Wing Shing to the Shenzhen Court was made on the ground that the award exceeded the scope of the arbitration and the procedures of the arbitration were contrary to law. It does not appear to be an appeal on the merits of the underlying dispute.

9. There are three principal provisions of Mainland law on which Wing Shing relies. It is, however, unnecessary to set them out here since I am not satisfied that the expert evidence filed by Wing Shing conclusively proves that the award has been suspended by operation of the provisions of Mainland law.

10. As a matter of practicalities, however, Wing Shing’s application having already been heard by the Shenzhen Court in September 2012, it is I think an appropriate case in which I should adjourn Wing Shing’s application in Hong Kong pending the determination of the Shenzhen proceedings in order to see what the outcome may be. If Wing Shing fails there, then there will perhaps be little more that it can say to oppose enforcement of the award in Hong Kong. If on the other hand, the award is...

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10 cases
  • La Dolce Vita Fine Dining Group Holdings Ltd v Zhang Lan And Another
    • Hong Kong
    • Court of First Instance (Hong Kong)
    • 23 April 2020
    ...Court in Grand Pacific Holdings Ltd v Pacific China Holdings Ltd [2012] 4 HKLRD 1 (CA) and Guo Shun Kai v Wing Shing Chemical Co Ltd [2013] 3 HKLRD 484. 31. The principles applicable to the determination of an application to stay enforcement of an arbitral award pending an application to th......
  • La Dolce Vita Fine Dining Co Ltd v Zhang Lan And Others
    • Hong Kong
    • Court of First Instance (Hong Kong)
    • 23 April 2020
    ...Court in Grand Pacific Holdings Ltd v Pacific China Holdings Ltd [2012] 4 HKLRD 1 (CA) and Guo Shun Kai v Wing Shing Chemical Co Ltd [2013] 3 HKLRD 484. 31. The principles applicable to the determination of an application to stay enforcement of an arbitral award pending an application to th......
  • Firm “H" V.“w”
    • Hong Kong
    • Court of First Instance (Hong Kong)
    • 8 January 2021
    ...Ltd v Government of the Republic of Uganda [1993] 2 Lloyd’s Rep 208, 212; applied in Guo Shun Kai v Wing Shing Chemical Co Ltd [2013] 3 HKLRD 484; Dana Shipping and Trading SA v Sino Channel Asia Ltd [2017] 1 HKC 281; Weili Su v Shengkang Fei [2019] 2 HKLRD 1214; and X v Jemmy Chien [2019] ......
  • Weili Su And Another v Shengkang Fei And Others
    • Hong Kong
    • Court of First Instance (Hong Kong)
    • 15 May 2019
    ...Ltd v Government of the Republic of Uganda [1993] 2 Lloyd’s Rep 208 at 212, applied in Guo Shun Kai v Wing Shing Chemical Co Ltd [2013] 3 HKLRD 484 and Dana Shipping and Trading SA v Sino Channel Asia Ltd [2017] 1 HKC 281. They will not be repeated here. The strength of the argument that th......
    • Request a trial to view additional results

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