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Hong Kong court stays proceedings in favour of arbitration where no ‘clear intention by the parties to conclusively and unreservedly abandon the arbitration agreement’ (L v M)

Published on: 11 October 2021
Published by: LexisPSL
  • Hong Kong court stays proceedings in favour of arbitration where no ‘clear intention by the parties to conclusively and unreservedly abandon the arbitration agreement’ (L v M)
  • What are the practical implications of this case?
  • What was the background?
  • What did the court decide?
  • Case details

Article summary

Arbitration analysis: The Hong Kong court has re-emphasised its pro-arbitration stance by staying proceedings in favour of arbitration in circumstances where the respondent accepted the existence of an arbitration agreement but argued that the parties had agreed to abandon it in favour of litigation. The court noted that the onus on an applicant seeking a stay of proceedings is to establish a prima facie case of the existence of an arbitration agreement. Once the applicant has discharged that burden, the stay ought to be granted even if questions of admissibility and jurisdiction remain. Such matters are for the tribunal. If the respondent contends that the parties have abandoned their arbitration agreement, the court must be satisfied that there was a clear intention to conclusively and unreservedly do so. In this case, the intention was conditional. Since the conditions had not been fulfilled, the court held there was no concluded and certain agreement to abandon arbitration and the court proceedings must be stayed. Written by Ben Bury, partner at Holman Fenwick Willan in Hong Kong. or take a trial to read the full analysis.

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