FACV No. 10 of 1998
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 10 OF 1998 (CIVIL)
(ON APPEAL FROM CACV No. 116 OF 1997)
|HEBEI IMPORT & EXPORT CORPORATION
|POLYTEK ENGINEERING COMPANY LIMITED
|Chief Justice Li, Mr Justice Litton PJ, Mr Justice Ching PJ, Mr Justice Bokhary PJ and Sir Anthony Mason NPJ
Date of Hearing: 21, 22, 27 and 28 January 1999
Date of Judgment: 9 February 1999
J U D G M E N T
Chief Justice Li :
1. I have read the judgment of Sir Anthony Mason NPJ. I agree with it and the orders he proposes.
Mr Justice Litton PJ :
2. I have had the advantage of reading in draft Sir Anthony Mason NPJ's judgment. As he has set out fully the background to this appeal, it is unnecessary for me to repeat it.
History of the proceedings
3. It is important at the outset to bear in mind that the court is here concerned with a Convention award: an award which, in this case, has been determined by a court in the supervisory jurisdiction to have been made in conformity with the rules governing the arbitral process.
4. It is not in dispute that every fact now relied upon by the seller for saying that there has been violation of the most basic notions of morality and justice in the arbitral process was known to the seller prior to its application to the Beijing Court to set aside the award and prior to the hearing before Findlay J in this jurisdiction. And yet, no point was taken before the Beijing Court to that effect, though points on breaches of arbitration rules were taken.
5. Before Findlay J, the seller did not rely on the public policy ground in s.44(3) of the Arbitration Ordinance, Cap. 341, to contest enforcement. What was invoked was s.44(2)(c) of the Arbitration Ordinance, on the ground that it was unable to present its case. The seller failed before the judge. After that, on appeal, it averred for the first time that a fundamental flaw in the arbitral process had occurred, rendering it expedient as a matter of public policy to deny enforcement. A court, and especially an appellate court, ought to view such a case with the utmost suspicion.
Public policy defence
6. Section 44(3) gives effect to Article V(2)(b) of the New York Convention. In considering the public policy ground for refusing enforcement, it is important to view the structure of s.44 as a whole. Subsection (1) gives recognition to mutual recognition of awards by saying: "Enforcement of a Convention award shall not be refused except in the cases mentioned in this section."
7. Subsection (2) then lists the circumstances, in six paragraphs - (a) to (f) - under which enforcement may be refused, the onus of proof being on the person against whom the Convention award is invoked to prove those circumstances. Para. (f) is particularly noteworthy. The court is empowered under this paragraph to refuse enforcement if the award "has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made". This gives recognition to the principle that the legal validity of an award is, primarily, a matter for the court of the supervisory jurisdiction to decide. We then come to subsection (3) which says:
"(3) Enforcement of a Convention award may also be refused if the award is in respect of a matter which is not capable of settlement by arbitration, or if it would be contrary to public policy to enforce the award." [Emphasis added].
8. As can be seen, refusal of enforcement on public policy grounds in subsection (3) is a residual remedy. It would be an unusual case where the "competent authority" in subsection 2(f) has ruled in favour of the validity of the award, yet the court in the enforcement jurisdiction nevertheless concludes that enforcement should be denied for public policy reasons. The practical result, as counsel for the appellant Ms Audrey Eu SC points out, can be extremely unjust: The claimant cannot enforce the award because the award has, in effect, been nullified in the eyes of the enforcement court, yet it cannot ask for the arbitration to be instituted afresh in the supervisory jurisdiction because the court in that jurisdiction has upheld its validity.
9. The expression public policy as it appears in s.44(3) is a multi-facetted concept. Woven into this concept is the principle that courts should recognise the validity of decisions of foreign arbitral tribunals as a matter of comity, and give effect to them, unless to do so would violate the most basic notions of morality and justice. It would take a very strong case before such a conclusion can be properly reached, when the facts giving rise to the allegation have been made the subject of challenge in proceedings in the supervisory jurisdiction, and such challenge has failed.
10. It is an admitted fact that the seller received a copy of the experts' report in mid-December 1995. Sir Anthony Mason NPJ has in his judgment referred to the letter of 4 January 1996 from the tribunal to the seller, where the Chief Arbitrator's presence at the inspection was disclosed. There were further submissions thereafter from the seller, in the course of which the seller asked that the American manufacturer of the equipment Jacobson Inc. be made a party to the arbitration proceedings or be called as a witness to explain the defects in the equipment. Not surprisingly this was declined by the tribunal. In its reply dated 25 January 1996 the tribunal went on to say:
"If you have any opinion on the contents of the expert assessment report, please submit the same in writing to the Tribunal before 16 February 1996."
11. The seller responded on 14 February 1996 with lengthy submissions and ended up by saying:
"The equipment has up to now failed to attain the targets prescribed in the Agreement. Although this was not caused by the deliberate act of ... the seller, and [the seller] was in fact a victim, [the seller] is willing to assume its own responsibility of compensation if the equipment is repairable ...."
12. There was then an admission of liability to the tune of US$55,994.38 and RMB 77309.39. This was followed by a request that the tribunal should postpone making an award for two months. Not surprisingly, this was not accepted by the tribunal which then published its detailed award on 29 March 1996.
13. On the facts I conclude that the seller comes nowhere near establishing a case for intervention by the court on public policy grounds. As I read the Court of Appeal's judgment, it was led astray by the notion that, at the inspection at the end-user's factory, there was some process of assessment of the state of the equipment by the Chief Arbitrator in the presence of the experts, but in the absence of the other two arbitrators, and of the seller. Whether such a process, had it occurred, might have brought the case within s.44(3) is beside the point. There is no evidence that this had occurred. On the evidence, the Chief Arbitrator was there to ensure propriety of conduct on the part of the experts; he was not there to form any kind of judgment on the state of the equipment, nor whether modification of its design was possible. The arbitral tribunal ultimately based its award on the report of the experts, not on the Chief Arbitrator's evaluation of the state of the equipment. As to the contents of the experts' report, the seller had ample opportunity to comment and to challenge its conclusions.
14. The Court of Appeal, in my judgment, made far too much of the so-called briefing by the technicians on the history of the equipment, when the experts attended at the end-user's factory, accompanied by the Chief Arbitrator. On the evidence, this was the first view of the equipment by the experts. They had been appointed by the tribunal at the seller's request, and their initial task was to see whether, as the seller contended, the equipment might be modified so as to perform to the contract specification. That was the focus of the "briefing". On these facts, it was not open to the Court of Appeal to conclude that the seller, being absent at the inspection, had been prevented from presenting its side of the case. The inspection at the factory was not a "hearing" nor was it an occasion for either party to present its case.
Article 32 of the CIETAC Arbitration rules and Article 45 of Arbitration Law of the PRC
15. The Court of Appeal found as a fact that there had been breaches of Articles 32 and 45 (Article 32 says: "The arbitration tribunal shall hold oral hearings when examining a case. At the request of the parties or with their consent, oral hearings may be omitted if the arbitration tribunal also deems that oral hearings are unnecessary, and then the arbitration tribunal may examine the case and make an award on the basis of documents only." Article 45 says: "The evidence should be demonstrated only at the tribunal session, and the parties have the right to question the evidence"). The Court of Appeal made its findings despite the conclusion of the Beijing Court that there had been no breaches of the arbitration rules. The Court of Appeal's findings cannot stand. The "rules" which apply in this jurisdiction are those set out in s.44(2) of the Ordinance. Before Findlay J the seller invoked s.44(2)(c) and failed. It did not appeal against that finding but, in the Court of Appeal, invoked a different provision, s.44(3), on the basis that public policy was a common-law concept which had no equivalence in...