Case number: 77
Article number: model arbitration law / 1(1); 1(3)(a); 5; 9; 27
Thessaurs issue:
Country of decision: United Kingdom
Year of decision: 1994
Type of decision: Judicial decision

Case 77: MAL 1(1) and (3)(a); 5; 9; 27
Hong Kong: High Court of Hong Kong (Kaplan J.) 15 August 1994
Vibroflotation A.G. v. Express Builders Co. Ltd.
Original in English
Unpublished

(Abstract prepared by the Secretariat)

The plaintiff, a sub-subcontractor, appealed against an order of the Master of the court setting aside a subpoena issued by the
plaintiff against a third party, the main contractor, for the production of certain documents before the arbitral tribunal (subpoena
duces tecum), which was considering the plaintiff's claim against the defendant, sub-contractor, for breach of contract.

The court held that it had jurisdiction to grant subpoenas in order to assist arbitral tribunals in taking evidence on the grounds
that an international arbitration covered by MAL was involved since the parties had their places of business in different States
(article 1(1) and (3)(a) MAL); and that, while subpoenas could not be characterized as interim measures of protection falling
under article 9 MAL, they could be granted under article 27 MAL, if requested by the arbitral tribunal or by a party with the
approval of the arbitral tribunal, since the domestic law of Hong Kong provided for subpoenas.

The court was satisfied that in the present case the subpoena had been issued in accordance with article 27 MAL and with the
approval of the arbitral tribunal, which was implied by the fact that the tribunal fixed a date for the production of documents
that "appeared to be relevant to one of the key issues to this arbitration". The court however dismissed the plaintiff's application
on the grounds that it was not timely, since such a subpoena for the production of documents could only be applied for in
relation to an evidential hearing and the parties to this arbitration were "months, if not years, away from the main evidential
hearing in this arbitration".