Case number: 76
Article number: model arbitration law / 36(1)(a)(iv)
Thessaurs issue:
Country of decision: United Kingdom
Year of decision: 1994
Type of decision: Judicial decision

Case 76: MAL 36(1)(a)(iv)
Hong Kong: High Court of Hong Kong (Kaplan J.) 13 July 1994
China Nanhai Oil Joint Service Corporation, Shenzhen Branch v. Gee Tai Holdings Co. Ltd.
Original in English
Unpublished

(Abstract prepared by the Secretariat)

The plaintiff sought from the court leave to enforce an arbitration award rendered by the Shenzhen Subcommission of the
China International Economic and Trade Arbitration Commission (CIETAC). The defendant opposed the enforcement of the
award on the grounds that the composition of the arbitral tribunal was not in accordance with the agreement of the parties,
which provided for arbitration by CIETAC, Beijing and not CIETAC, Shenzhen (sec. 44(2)(e) of the Hong Kong Arbitration
Ordinance, same as article 36(1)(a)(iv) MAL).

The court held that CIETAC, Shenzhen did not have jurisdiction to decide this dispute, because a Chinese court would not
allow a Shenzhen arbitrator, who, at the time the dispute was arbitrated, could not arbitrate in Beijing, to decide a case
referred to CIETAC, Beijing. However, the court found that the defendant had waived its right to raise the jurisdictional
objection since it participated in the Shenzhen arbitration without clearly reserving its right to later object to the award on the
grounds that the tribunal lacked jurisdiction. The court declared the award enforceable and held that, even if the defendant had
not waived its rights to object on the grounds of lack of jurisdiction, the court would still declare the award enforceable since it
was satisfied that the defendant basically obtained what it had agreed to, that is arbitration conducted by three CIETAC
arbitrators under CIETAC rules.