HONG KONG SAR, CHINA Law and Practice Contributed by: Eric H. H. Chow, Michael Cheng, Stephanie Wong and June Wong, C L Chow and Macksion Chan
only in so far as it relates to the arbitral decisions that can be separated from the unrelated deci - sions. • The composition of the tribunal, or the procedure, was not in accordance with the parties’ agreement or, if there was no agreement, the law of the coun - try where the arbitration took place (or the law of the Mainland or the law of Macau, as appropriate). • The award has not yet become binding or has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made. Enforcement of an award may also be refused if the following apply. • The award is in respect of a matter which is not capable of settlement by arbitration under the law of Hong Kong. (Part 11A confirms that intellec - tual property disputes may be arbitrated (Section 103D), and that enforcing such an award is not against public policy merely because of its subject matter (Section 103G)). • It would be contrary to public policy to enforce the award. This is narrowly construed. Enforcement is refused where it would offend fundamental con - ceptions of morality and justice (Hebei Import & Export Corp v Polytek Engineering Co Ltd (1999) 2 HKCFAR 111) or shock the conscience of the court (A v R [2009] 3 HKLRD 389). Setting aside the enforcement order is not the same as setting aside the award. The above-mentioned grounds pertain to setting aside the order permitting enforcement, not the award itself. Only a court at the seat can set aside an award. Where Hong Kong is the seat, the relevant provision is Sec - tion 81 of AO (enacting Article 34 of the Model Law), the only recourse against a Hong Kong award. An application to set aside must be made within three months, and the court cannot extend that deadline (AAD and AAE v BBF [2024] HKCFI 698, citing AW and others v PY and another [2022] HKCFI 1397). By contrast, the court can extend the time for chal - lenging an ex parte enforcement order, under Order 3 rule 5 of the RHC, which can be applied to Order
73 rule 10 (6) of the RHC (AAD and AAE v BBF, cit - ing Astro Nusantara International BV and others v PT Ayunda Prima Mitra [2018] HKCFA 12). 4.4 Process of Enforcing Arbitral Awards Summary Procedure Under Order 73 Rule 10 of the RHC • Step 1 – apply for leave. An award creditor makes an application to court for recognition and enforce - ment of an award. The application will be support - ed by an affidavit exhibiting the evidence required by Section 85, 88, 94 or 98C (as applicable) of the AO and by Order 73 rule 10 (3) of the RHC. The application is typically made on an ex parte basis. • Step 2 – full and frank disclosure. Because the application is made without notice, the award creditor must disclose everything relevant, includ - ing any challenge to the award. Failure to do so can lead the court to set aside the enforcement order and order the award creditor to pay costs. • Step 3 – serve the order. The court typically con - siders the application ex parte on documents alone and makes a provisional order if so minded. It is for the party seeking refusal of enforcement to make an application to set aside the provisional order within the time required in Order 73 rule 10 (6) of the RHC, in the provisional order, or any order permitting extension of time. The provisional order cannot be enforced until that time expires, or the determination of the set-aside application, if so made. • Step 4 – enforce. Once the enforcement order stands, the ordinary enforcement tools (see 2. Domestic Judgments ) become available against local assets. Common-Law Action on the Award The common-law action on the award is the second route. As explained in 4.1 Legal Issues Concerning Enforcement of Arbitral Awards , it is not the summary procedure and is a case-by-case question best taken up with Hong Kong counsel. 4.5 Costs and Time Taken to Enforce Arbitral Awards • Unopposed. If the leave application is dealt with on paper without a hearing, the order often follows within a few weeks; allowing for service and the
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