Case number: 64
Article number: model arbitration law / 7
Thessaurs issue:
Country of decision: United Kingdom
Year of decision: 1994
Type of decision: Judicial decision

Case 64: MAL 7
Hong Kong: High Court of Hong Kong (Kaplan J.) 13 May 1994
H. Small Limited v. Goldroyce Garment Limited
Original in English
Unpublished

(Abstract prepared by the Secretariat)

The plaintiff, who had previous dealings with the defendant, sent to the defendant a purchase order, which, in its general
conditions, contained an arbitration clause. The goods were delivered and a dispute arose as to their quality. The defendant
made an offer for compensation. The plaintiff rejected it and sought the appointment of an arbitrator by the court on behalf of
the defendant pursuant to s. 12 of the Hong Kong Arbitration Ordinance, on the ground that the defendant failed to appoint an
arbitrator.

The plaintiff was not able to produce a copy of the purchase order signed by the defendant but stated that a former employee
of the defendant told them that the defendant had signed the purchase order and had kept the signed copy. The plaintiff argued
that the evidence met the threshold of article 7 MAL requiring an arbitration agreement in writing. The plaintiff further argued
that it was clearly beyond doubt that a contract existed between the parties and that the contract contained an arbitration
clause.

The court, citing its ruling on Pacific International Lines etc. (case 40), found that the evidence produced by the plaintiff was
hearsay, which, in the absence of a testimony from the former employee of the defendant, could not be held to meet the
threshold of article 7 MAL. As to the second argument of the plaintiff, the court held that the arbitration agreement was
separable from the contract of the parties and its existence could not be assumed on the basis of the conduct of the parties, but
had to be either in a writing signed by the parties or in another document which provides a record of the agreement. The court
decided in favour of the defendant and dismissed the plaintiff's application.