Reed Smith Client Alerts

On 23 August 2023, the Hong Kong court issued a decision in G v. P [2023] HKCFI 2173 (per the Hon. Mimmie Chan J), where the court refused to enforce an arbitral award for invalid service of the notice of arbitration, which was sent to an incorrect email address that was also different from the one stated in the contract.

Background facts

A debt claim was made by the applicant as lender (Applicant) against the respondent as borrower (Respondent) under a loan agreement (Loan Agreement) as supplemented by a supplemental agreement (Supplemental Agreement).

The Supplemental Agreement contained an optional arbitration clause (Arbitration Clause):

“Any dispute or difference arising out of or in connection with the Loan Agreement and this Supplemental Loan Agreement shall, at the option of the Claimant (or the Plaintiff, as may be applicable), be referred to and finally resolved by arbitration administrated by the Hong Kong Arbitration Society and in accordance with the HKAS Online Arbitration Rules for the time being in force or by court proceedings in Hong Kong courts.” (emphasis added)

The Supplemental Agreement provided for the Respondent’s email address to be “”.

On 2 December 2022, the Hong Kong court granted the Applicant an order (Enforcement Order) for leave to enforce against the Respondent an arbitral award made by the Hong Kong Arbitration Society on 28 November 2022 (Award).

The Respondent applied to set aside both the Enforcement Order and the Award.

Preliminary procedural issues

Two procedural issues arose from the Respondent’s application. First, the Respondent only stated the grounds for the application to set aside in the affirmation but not the summons. Although the Hong Kong court proceeded to consider the grounds raised in the affirmation, the court commented that it was an abuse of process to issue a summons to set aside without properly setting out the grounds in the summons, and that parties should not expect the court to be indulgent towards such failures.

Second, the application for setting aside the Award was made out of time. As held in previous decisions (see our previous alert) the court had no power to extend the three-month period for applying to set aside an award as provided under Article 34(3) of the Model Law. The court therefore only proceeded to consider the application to set aside the Enforcement Order but not the Award.