Case number: 75
Article number: model arbitration law / 1(3)(b)(ii)
Thessaurs issue:
Country of decision: United Kingdom
Year of decision: 1994
Type of decision: Judicial decision

Case 75: MAL 1(3)(b)(ii)
Hong Kong: High Court of Hong Kong (Kaplan J.) 7 July 1994
China Resources Metal and Minerals Co. Ltd. v. Ananda Non-Ferrous Metals Ltd.
Original in English
Unpublished

(Abstract prepared by the Secretariat)

The plaintiff applied to the court ex parte for leave to enforce a final arbitral award against the defendant. The leave was
granted subject to the usual stay in order to give the defendant an opportunity to oppose. The defendant requested the court to
set the ex parte order aside on the grounds that the appointment of the arbitrator, or alternatively, the arbitration agreement
was void because of mutual mistake on the part of both parties who acted in the belief that the arbitration was a domestic one
to which MAL did not apply.

The court dismissed the defendant's application holding that it was res judicata and the defendant was estopped from now
raising arguments that were not raised before the same court (case 58) and the Court of Appeal. In any case, the court was
convinced that there was no mutual mistake of the parties since, as it had previously held (case 58), the parties did not
sufficiently focus on whether the arbitration they agreed upon was a domestic or an international one; and that even if there
were a mutual mistake, it would be one of law and not of fact, and one that did not go to the root of the agreement to arbitrate
so as to lead to its annulment.