Arbitration analysis: This is a rare case of leave to appeal an arbitration award in Hong Kong. The Arbitration Ordinance enacted the UNCITRAL Model Law on International Commercial Arbitration, with some modifications. One of the modifications was the inclusion of Schedule 2 which preserves the right to appeal an award on a question of law, subject to obtaining leave from the court. The Model Law contains no appeal rights. Schedule 2 of the Arbitration Ordinance applied to domestic arbitrations for a transition period of 6 years from the commencement of the Ordinance (ie until 31 May 2017), or if the parties specifically opt in to Schedule 2. This decision involves the appeal of an earlier refusal of leave. CS sought to appeal a May 2024 arbitration award in a construction dispute on the basis of four questions: (1) construction of a sub-contract concerning environmental requirements and fill usage, (2) expert assessment methodology for rock fill calculations, (3) double recovery issues, and (4) interpretation of contract provisions regarding seawall work omission. Madam Justice Mimmie Chan denied leave to appeal on all four grounds in November 2024, finding that the issues were either factual determinations or not obviously wrong in law. CS appealed this decision and the matter went to an oral hearing. On 7 February 2025, the judge allowed appeal on Questions 1 and 3, finding these had reasonable prospects of success and denied leave to appeal of Questions 2 and 4. Written by Andrew Rigden Green, partner, head of International Arbitration (Greater China) at Stephenson Harwood.

ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note was originally written for LexisAdvance® Practical Guidance Hong Kong. Conducting a trade mark search Prior to filing an application to register a trade mark, it is advisable to conduct a trade mark search to check whether there are any identical or similar marks already registered in Hong Kong, which would be useful in accessing the chance of successful registration of the trade mark. A trade mark search can save an applicant unnecessary application and official fees if the trade mark is likely to be refused. Upon obtaining and reviewing the trade mark search results, the applicant may then amend the mark or choose another mark to avoid being similar to other existing registered trade marks, or avoid objection on the basis of inherent registrability. A trade mark search can be conducted on the online Trade Mark Search system on the Intellectual Property Department’s website. Alternatively, one can also use the ‘Search

Arbitration analysis: China National Machine Tools (‘Plaintiff’) sought to enforce in Hong Kong a China International Economic and Trade Arbitration Commission (CIETAC) arbitration award made in Mainland China against Nationsync Electrical and Machinery (‘Defendant’). The defendant was ordered to pay over RMB 232m to the Plaintiff. The Hong Kong court made an order to enforce the award. The defendant challenged the enforcement of this award under section 95 of the Arbitration Ordinance and sought a stay of enforcement proceedings. Concurrently, the plaintiff requested security both for costs and for the sum awarded if any stay of enforcement is granted. The plaintiff resisted the provision of security claiming that the Hong Kong court had taken the wrong path since Karaha Bodas v Persusahaan Pertambangan in applying the guidelines set out in Soleh to questions of security in circumstances where the enforcement of an award is being challenged. Rather, the decision in IPCO v NNPC should be followed. The Hong Kong Court disagreed and awarded security to the plaintiff. Written by Andrew Rigden Green, partner at Stephenson Harwood, Head of International Arbitration, Asia.

This Practice Note considers the categories of serious irregularity on which an application challenging an arbitral award for serious irregularity may be brought where parties have opted in, or are deemed to have opted in, to the relevant provisions of Schedule 2 to the Arbitration Ordinance (Cap 609) (AO). This Practice Note should be read in conjunction with Practice Note: Hong Kong—challenging arbitral awards on grounds of serious irregularity (AO, Sch 2). Note: The Hong Kong cases referred to below are not reported by LexisNexis® UK. There are nine categories of serious irregularity on which arbitral awards can be challenged under AO, Sch 2, s 4(2). Equivalent provisions in the Arbitration Act 1996 (England and Wales) The wording of AO, Sch 2, s 4 is similar to that of section 68 of the Arbitration Act 1996 (AA 1996). Accordingly, English case law considering AA 1996, s 68 can be considered for assistance in interpreting AO, Sch 2, s 4. For guidance on the position under AA 1996, s 68, see Practice Notes: AA

Note: Hong Kong judgments below are not reported by LexisNexis®. A successful party in an arbitration may enforce the award in Hong Kong either: • under statute, by a summary process provided in the Arbitration Ordinance (Cap 609). This process dispenses with the full formalities of the action to enforce an award. The successful party to the arbitration can apply ex parte (with a supporting affidavit) for leave of the court to enforce the award in the same way as if it were a judgment of the court—see Practice Note: Hong Kong—guide to the Arbitration Ordinance, or • under common law, by commencing an action based on an implied promise to perform an award (commonly called an ‘action on the award’) (Xiamen Xinjingdi Group Co Ltd v Eton Properties Ltd [2016] 4 HKC 357) Nature of the cause of action The common law action on award is an independent cause of action, separate and distinct from the breach of the underlying ‘substantive’ or ‘matrix’ contract which led to the arbitration, even

Arbitration analysis: It is not uncommon that commercial agreements contain conditions precedent to arbitration. In this case, the condition precedent in question was a requirement that the parties attempt to resolve the dispute by negotiation in good faith. If any dispute could not be resolved within 60 business days of the date of a party’s request in writing for negotiation, the parties were required to resolve the dispute through arbitration (the condition precedent). Letters were sent between the parties/their lawyers but did not result in any progress in resolving the dispute. The matter was finally adjudicated by an arbitral tribunal appointed under the Hong Kong International Arbitration Centre (HKIAC) Arbitration Rules (the tribunal) which granted an award in favour of the defendant (the award). The plaintiff sought to set aside the award on the basis that the tribunal had no jurisdiction as the defendant had failed to comply with the condition precedent. The defendant argued that the question of compliance with the condition precedent did not go to the jurisdiction of the tribunal, rather it went to whether the claim should be admitted by the tribunal. The Hong Kong court agreed and ruled that the question of compliance with the condition precedent was properly for the tribunal to answer. Written by Andrew Rigden Green, partner, head of International Arbitration, Greater China, Stephenson Harwood, Hong Kong.

Construction analysis: The Hong Kong Court of Appeal, in a judgment dated 16 October 2020, upheld a decision of the Court of First Instance, finding that a contractual provision for the notification of claims required the subcontractor to state the contractual basis for its claim, and the claim could only succeed on the basis stated. The clause did not allow the subcontractor to state any possible basis for the claim, or to later change the basis as its understanding of the facts of the claim developed.

ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note was originally written for LexisAdvance® Practical Guidance Hong Kong. Existence Copyright subsists under section 2 of the Copyright Ordinance (Cap 528) (CO) in: • original literary, dramatic, musical and artistic works • sound recordings, films, broadcasts or cable programmes, and • typographical arrangements of published editions Different copyrights may exist in the same work, eg in a book, and in a play or a film based on the book. Copyright exists in works only: • once recorded, in writing or otherwise • if they satisfy the subsistence tests, and • if they are original Writing includes any form of notation or code, eg storage on computer drives or disks. Copyright subsists in a work as a whole, not in individual parts. Copying of parts may constitute infringement as a whole if it is substantial enough. Literary works Literary works are those, other than musical or dramatic works, which are written, spoken or sung (CO, s 4(1)). They

ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note was originally written for LexisAdvance® Practical Guidance Hong Kong. Legal principles Although Hong Kong is a part of the People’s Republic of China, it runs a separate legal system and thus a separate intellectual property (IP) regime from that of the Mainland China. The high degree of autonomy and continuation of laws previously in force in Hong Kong is guaranteed by the Basic Law of Hong Kong, which serves as its mini constitution. Copyright is regarded as a property right in Hong Kong, which is recognised and protected by both ordinances made specifically for the protection of copyright as well as the Basic Law. In 1997, the Copyright Ordinance (Cap 528) (CO) which is generally modelled after the Copyright, Designs and Patents Act 1988 of the UK, came into effect. However, for copyright created prior to the enactment of CO, the Copyright Act 1956 continues to apply for the determination of copyright ownership. On

Arbitration analysis: The Hong Kong Court of First Instance in Lau Lan Ying v Top Hill Co granted a stay of third-party proceedings between a defendant and its liability insurer because there was a valid arbitration clause between the two parties. In doing so, the court held that a dispute between an insured and its insurer regarding whether the insured is entitled to indemnification is clearly a difference ‘arising out of’ the insurance policy. The court rejected the public policy arguments brought by the defendant, noting that English and Hong Kong case law establishes that arbitration clauses are to be respected even as to claims that can be brought under a domestic statute, unless the clause explicitly carves out certain types of relief. Written by Matthew Secomb, partner, and Clemency Wang, associate, at White & Case LLP.

Arbitration analysis: the Hong Kong Court of First Instance granted a stay of Hong Kong court proceedings in favour of Singapore International Arbitration Centre (SIAC) arbitration. In the decision, the Honourable Madam Justice Mimmie Chan (Judge) considered that the requirements for a stay of proceedings under section 20 of the Arbitration Ordinance (Cap. 609) had been satisfied, as there was a prima facie case that the non-signatory defendant concerned was entitled to rely on the relevant arbitration agreements on the basis of the principles of agency and equitable estoppel under Delaware law, which was the governing law of the arbitration agreements. Written by Min Li, partner at Reed Smith Richards Butler LLP, and Patrick Chong, associate at Reed Smith Richards Butler LLP.

Note: Hong Kong judgments below are not reported by LexisNexis®. General principle—minimal interference The primary aim of the Arbitration Ordinance (Cap 609) (AO) is to ensure party autonomy in the arbitral process with minimum court intervention. One of the principles of AO is that the court should interfere in the arbitration of a dispute only as expressly provided for in the ordinance. The AO gives effect to Article 5 of the UNCITRAL Model Law on International Commercial Arbitration (UNCITRAL Model Law), which provides that the court shall not intervene in arbitration proceedings except where so provided in the law. Under the AO, the Hong Kong courts have been granted certain powers which they can use to support the arbitral process. In particular, under AO, ss 45 and 60, the Hong Kong courts have independent jurisdictions to order interim measures of protection and to make orders in relation to property for arbitrations seated in or outside Hong Kong. The parties to an arbitration agreement may also expressly opt for the provisions under AO, Sch