Reed Smith Client Alerts

In our previous alert on C v. D [2021] HKCFI 1474 , the Court of First Instance ruled that non-compliance with pre-conditions to arbitration in multi-tiered dispute resolution clauses would only affect the admissibility of a claim but not the arbitral tribunal’s jurisdiction. The ruling was upheld by the Court of Appeal (CA) in C v. D [2022] HKCA 729.

Grounds of appeal

The appellant argued on appeal, among other things, that the distinction between admissibility and jurisdiction should not be adopted, as the relevant statutory provisions did not draw such a distinction. Alternatively, its challenge regarding the non-compliance with pre-conditions to arbitration was jurisdictional in nature and therefore subject to the court’s review.

Decision of the Court of Appeal

CA dismissed the appeal and upheld the first instance decision.

CA relied on extensive case law and academic writings to highlight the important distinction between objections to admissibility and objections to jurisdiction. While arguments as to the existence, scope and validity of the arbitration agreement were jurisdictional in nature, issues regarding the claim, including compliance with pre-arbitration conditions, were issues of admissibility.