Arbitration analysis: This decision concerns the plaintiffs’ (Company A and Company B) request for injunctive relief under section 45 of the Arbitration Ordinance (Cap 609) against the defendant (Company C) and its wholly owned subsidiary (D/WOS) in aid of an ongoing arbitration at the International Centre for Dispute Resolution of the American Arbitration Association (ICDR-AAA) (the Tribunal). Further to an announcement on the Shanghai Stock Exchange made by D/WOS that it intended to dispose of its equity interest in the defendant, the plaintiffs asserted that the defendant intended to transfer its assets fraudulently such that it would render any arbitration award meaningless. The plaintiffs first applied to the Tribunal for emergency relief, and with the Tribunal’s agreement then applied to the Hong Kong Court for equivalent injunctive relief to restrain the defendant from transferring its assets to D/WOS and a Mareva injunction to prevent the defendant disposing of its assets (the Injunctions). The Hong Kong Court’s robust decision to grant these Injunctions highlights the importance of interim relief measures in arbitration and the court’s supportive role in facilitating the arbitration process when the Tribunal outside Hong Kong is faced with an uncooperative and obstructive party. The decision demonstrates the practical steps that parties can take to protect their interests during an arbitration. Written by Paul Starr, partner at King & Wood Mallesons.

Arbitration analysis: The Hong Kong Court of First Instance dismissed an application by C, a British Virgin Islands (BVI) company, for an interim anti-suit injunction against proceedings commenced by D, a Cayman Islands company, for the winding-up of C in the High Court of the BVI. C’s application was unsuccessful despite the fact that C had commenced arbitration proceedings against D in relation to D’s allegation against C for failure to buy back shares of a Cayman Island company, H, which formed the basis of D’s winding-up proceedings against C in the BVI courts. Written by James Kwan, partner in the international arbitration group at Hogan Lovells, Hong Kong.

Arbitration analysis: Law360, New York: A Hong Kong appeals court has refused to set aside an order enforcing an International Chamber of Commerce (ICC) award issued to a Luxembourg company against entities from China, Hong Kong and Singapore, rejecting the companies' argument that they hadn't been able to fully present their side of a joint venture dispute.

Arbitration analysis: The Hong Kong Court of First Instance dismissed an application to set aside or stay enforcement of a London Court of International Arbitration (LCIA) award requiring a Canadian bank to pay more than €30 million under performance guarantees. The bank argued that payment would expose it and its employees to criminal liability under Canadian sanctions legislation. The court held that the alleged risk of prosecution did not justify refusing enforcement on public policy grounds and emphasised that enforcement courts must not revisit findings made by the arbitral tribunal. The decision provides a significant reaffirmation of Hong Kong’s pro-enforcement approach and clarifies the limited role of foreign sanctions regimes in resisting enforcement of New York Convention awards.

NOTE—to see whether notification thresholds in Hong Kong and throughout the world are met, see further: Where to Notify. 1. Have there been any recent developments regarding the Hong Kong's merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Hong Kong? Hong Kong introduced its first cross-sectoral competition regime by passing the Competition Ordinance (Cap 619). The Competition Ordinance, as the primary source of competition law in Hong Kong, came into full effect on 14 December 2015. The Hong Kong Competition Commission (Commission) is the principal competition authority responsible for enforcing the Competition Ordinance. The Office of the Communications Authority (Communications Authority) shares concurrent jurisdiction with the Commission in respect of the anti-competitive conduct of certain undertakings operating in the telecommunications sectors (for purposes of merger control). The Communications Authority is, in practice, the lead authority responsible for reviewing and granting merger approvals. To avoid confusion, references to the Commission in this article include the Communications Authority where concurrent jurisdictions

Arbitration analysis: The Court of First Instance held that neither the Settlement Agreement nor Procedural Order No 7 was an arbitral award that could be set aside under section 81 of the Arbitration Ordinance (Cap. 609). Section 66(2) treats a written settlement agreement as an arbitral award only for enforcement, not for annulment. The court still granted a declaration that the Settlement Agreement was null and void, because the director who signed it for LT lacked actual authority under Seychelles law and could not be clothed with apparent authority on the facts known to RV. For arbitration lawyers, the case draws a clean line between three things that are often run together in practice: a consent award under Article 30, a settlement agreement under section 66(2), and a procedural order that simply brings proceedings to an end. In cross border settlements, that line affects finality, forum, enforcement, and the due diligence that must be done on corporate authority. Written by Julien Chaisse, professor & RGC senior research fellow, City University of Hong Kong.

Arbitration analysis: The High Court of Hong Kong held that a ‘procedural order’ that terminated arbitration proceedings without deciding on the dispute’s merits could amount to an arbitral award and be subject to the same rules of enforcement and challenge as an award, based on the substance and impact of the order. In addition, the court held that a settlement agreement not recorded in an arbitral award could be treated as an award for the purposes of challenging or resisting its enforcement. The decision suggests that the actual consequences of a tribunal’s order, rather than its title, determine its legal standing, and could influence how procedural orders are handled in future Hong Kong-seated arbitrations. Written by Yashan Huang, senior associate at CMS Hasche Sigle, Hong Kong LLP.

Arbitration analysis: The 1st and 2nd defendants and the plaintiff entered into a contract for their co-investment opportunity which contained an arbitration agreement. The plaintiff later instituted proceedings in the HKSAR Court of First Instance against two individuals plus the 3rd defendant (not a party to the arbitration agreement), for fraudulent misrepresentations which induced the plaintiff to enter into the contract (but no claims were made against the 1st and 2nd defendants). The 1st and 2nd defendants later appealed a decision made by the Court of First Instance (‘CFI’), whereby the CFI set aside an arbitral award of ‘non-liability’ given in their favour on the basis that there was no dispute between the plaintiff and the defendants and therefore the arbitrator did not have jurisdiction. The Court of Appeal (‘CA’) reviewed the question on jurisdiction and upheld the decision of the CFI: where there is no dispute between the parties to an arbitration agreement, an arbitrator does not have jurisdiction as such jurisdiction will not have been invoked by a dispute falling within the agreement. It was also determined against public policy to uphold an arbitral award arising out of an abuse of process —given by an arbitrator without jurisdiction. Written by Andrew Rigden Green, partner head of International Arbitration, Greater China at Stephenson Harwood.

Arbitration analysis: The plaintiffs (X and YCo) applied to set aside an arbitral award issued in the defendant’s (ZCo’s) favour on the basis that the arbitral tribunal had not dealt with ‘key issues’ put before it. In dismissing the plaintiffs’ application to set aside the award, the Hong Kong Court of First Instance emphasised that the onus is on the parties to identify the salient issues in dispute before the tribunal. Written by Amanda Lees, partner at King & Wood Mallesons.

Arbitration analysis: The Court of First Instance took a middle course on security pending a Hong Kong bid to set aside leave to enforce a Paris ICC award. WI said enforcement would offend Hong Kong public policy because SIC had procured the award through dishonest concealment of documents and false statements about document production. SIC asked for security at the level of the award and its costs. Honourable Mimmie Chan refused both extremes. On a brief look, the fresh material obtained after the award was capable of supporting an arguable fraud case, yet deliberate dishonesty and causation still required full argument. The award was not plainly valid. It was not plainly invalid either. The court also found that more delay would cause some prejudice to SIC, given the size of the debt and the live French appeal route, but SIC had itself waited years before moving in Hong Kong and there was no evidence of asset dissipation. Security was fixed at USD600,000 to cover part of SIC’s legal costs, not the award debt itself. Written by Julien Chaisse, professor & RGC senior research fellow, City University of Hong Kong.

Produced in partnership with Shaun Wu of Kobre & Kim Ad hoc arbitrations are conducted according to procedures either agreed between the parties themselves or as laid out by the arbitral

Arbitration analysis: This judgment provides an illustration of how the Hong Kong court will exercise its power under section 45 of the Arbitration Ordinance (Cap 609) (AO) to grant interim anti-suit injunctions. Anti-suit injunctions were granted by the Hong Kong Court of First Instance in respect of two sets of proceedings in Mainland China. One set of proceedings was brought in breach of a written arbitration agreement. The other set of proceedings was brought in respect of related contracts without clear written arbitration agreements. However, the Hong Kong court held that the applicants had shown a strong probability that the parties’ intention was that the disputes should be resolved under the same arbitration agreement. Written by Andrew Rigden Green, partner, head of International Arbitration Greater China, at Stephenson Harwood.