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Does a claim on a dishonoured cheque, which is drawn for the repayment of loans under a loan agreement containing an arbitration clause, fall within the arbitration clause?  According to the Hon. Madam Justice Mimmie Chan in T v. W [2020] HKCFI 2918, one should consider the basic principle that a cheque is a separate contract from the underlying agreement containing the arbitration clause and, in the absence of any “plain manifestation” to the contrary, there is a presumption that the arbitration clause will not be sufficiently broad to cover any claim on the cheque.

Authors: Lianjun Li Min Li Donald Sham Clara Fung

Summary of facts

On 22 March 2019, P and D entered into a loan agreement (the Loan Agreement) for a principal sum of HK$5 million (the Loan). In accordance with the Loan Agreement, D drew a postdated cheque for the repayment of the Loan without interest (the Cheque). The Cheque was dishonoured. P then brought the present proceedings at the Hong Kong Court of First Instance (CFI), claiming against D for the Loan as due and payable under the Cheque.

On 6 May 2020, D applied by summons (the Summons) to stay the proceedings in favour of arbitration in reliance upon the arbitration clause contained in the Loan Agreement. The key dispute between the parties was whether P’s claim fell within the ambit of such arbitration clause. The Summons was dismissed by the CFI.

Legal arguments

D argued that the well-known English House of Lords decision in Fiona Trust & Holding Corporation v. Privalov [2007] 4 All ER 951 should be followed. According to Fiona Trust, there is an assumption that the parties, as rational businesspeople, are likely to have intended any dispute arising out of their relationship to be decided by the same tribunal, unless there is clear language to exclude any particular dispute. D also argued that the Cheque and the Loan Agreement formed part of the same transaction and that P and D had intended disputes relating to the Loan Agreement and the Cheque to be determined by the same tribunal.  

P argued that the position under Hong Kong law (as adopted by the Hong Kong Court of Appeal (CA) in CA Pacific Forex Ltd v. Lei Kuan Ieong [1999] 1 HKLRD 462) was that there must be a “plain manifestation” in an arbitration clause that it would apply to bills of exchange before the presumption against taking bills of exchange into arbitration would be rebutted. Further, P submitted that, even if the construction of the arbitration clause was to start with a one-stop shop dispute resolution presumption in accordance with Fiona Trust, there were good commercial reasons for the parties to agree otherwise. As businesspeople, the parties must have realised and accepted that the quicker and easier procedure for P to recover the sum due under the Cheque was by instituting legal proceedings and seeking summary judgment, in exchange for waiving any interest that might be due under the Loan Agreement.