Case number: 57
Article number: model arbitration law / 8
Thessaurs issue:
Country of decision: United Kingdom
Year of decision: 1993
Type of decision: Judicial decision

Case 57: MAL 8
Hong Kong: High Court of Hong Kong (Kaplan J.) 5 May 1993

(Abstract prepared by the Secretariat)

The plaintiff, a Hong Kong company and subsidiary of a Korean company, sold sets of elevators to the defendant, a Hong
Kong company. The contract contained an arbitration clause which provided for arbitration in a "3rd country, under the rule of
the 3rd country and in accordance with the rules of procedure of the International Commercial Arbitration Association". The
plaintiff sued for damages in the Hong Kong courts and the defendant sought a stay of the proceedings pursuant to article 8
MAL.

The plaintiff argued that the arbitration agreement should be considered null since it referred by mistake to an unspecified third
country, or inoperative since it referred to a non-existent organization and non-existent rules.

The court found that the arbitration clause sufficiently indicated the parties' intention to arbitrate. It held that the reference to an
unspecified third country, to a non-existent organization and non-existent rules did not render the arbitration agreement
inoperative or incapable of being performed since arbitration could be held in any country other than the countries where the
parties had their places of business and under the law of the place of arbitration, which could be chosen by the plaintiff. The
court granted the stay of proceedings sought by the defendant and ordered the plaintiff to pay the costs of the proceedings.