Reed Smith Client Alerts

Key takeaways

  • On 29 December 2023, the Court of First Instance in G v. N [2023] HKCFI 3366 suspended the setting aside proceedings regarding two partial awards and remitted the matter to the arbitrator.
  • The Court held that in setting aside or enforcement proceedings, issues of illegality might be reviewed in the context of public policy.
  • The general position remains that an error of law is not subject to the Court’s review unless the relevant opt-in regime under the Arbitration Ordinance is triggered.

Summary of facts

G commenced an arbitration in Hong Kong to seek restitution of a sum paid by G (Sum) for a placement under a securities purchase agreement between G and N (Agreement). This followed the British Virgin Islands Court’s determination that the placement under the Agreement was made for an improper purpose and that the allotment of shares under the placement was void.

In response, N claimed, inter alia, illegality of the placement and relied on the principle of illegality and the principle of unclean hands, respectively, as defence to G’s personal claim and proprietary claim. N further counterclaimed for costs and damages it sustained in relation to the placement and the Agreement.

In his first partial award, the arbitrator applied Tinsley v. Milligan [1994] 1 AC 340 in concluding that the placement was illegal and in dismissing G’s personal claim, and further dismissed G’s proprietary claim by virtue of the principle of unclean hands. He further upheld N’s counterclaim and subsequently made a second partial award on the quantum of damages to be paid by G to N.

However, a few days prior to the handing down of the first partial award, the Hong Kong Court of Appeal held that the “range of factors” test under Patel v. Mirza [2017] AC 467 rather than the “reliance” test under Tinsley (which had been applied in Hong Kong until then) represented Hong Kong law on illegality.