Swire Properties Revisited: Appeal on a Question of Law Arising out of an Arbitration Award in Hong Kong

Abstract

THE PURPOSE of this article is twofold: (a) to consider and review whether the guidelines in The Nema 1 and The Antaios 2 (‘ Nema-Antaios guidelines’) on how the courts should approach the exercise of the discretion by which leave to appeal from a domestic arbitral award on a question of law is granted or refused, applied by the Hong Kong Court of Appeal in the Technic Construction case3 and the PT Dover case,4 have been changed by the recent Swire Properties decision5 of the Hong Kong Court of Final Appeal (CFA); and (b) to consider and review the implications of the Swire Properties decision and the way forward to clarify the law relating to leave to appeal from a domestic arbitral award on a question of law after the Swire Properties decision. ### (a) Domestic Arbitration The Hong Kong court's jurisdiction to deal with appeal from a domestic arbitral award on a question of law is set out in s. 23 of the Arbitration Ordinance.6 Subject to any exclusion agreement,7 the Court of First Instance of the High Court (CFI) has a discretion to grant leave to appeal to it from a domestic award on any question of law that ‘could substantially affect the rights of one or more of the parties to the arbitration agreement’.8 Section 23 forms part of Part II (Domestic Arbitration) of the Arbitration Ordinance which, by virtue of s. 2L, applies to ‘a domestic arbitration agreement and to an arbitration pursuant to a domestic arbitration agreement’.9 Following the English Arbitration Act 1979, s. 1, the Arbitration Ordinance does not stipulate the principles to be applied or criteria to be considered by the court when exercising its discretion whether to grant or refuse leave to appeal on a point of law arising …