Solidifying Hong Kong’s position as a pro-arbitration jurisdiction, the High Court has confirmed that interim orders granted in arbitration cannot be challenged on the statutory grounds available for final awards. This decision highlights the separate and restrictive regime applicable to interim orders under the AO. This is welcome confirmation of the finality of interim orders, and should discourage unmeritorious challenges to them.

[2024] HKCFI 721, G applied to set aside an anti-suit injunction granted by an arbitrator requiring G to discontinue PRC proceedings against subsidiaries of N who were non-parties to the arbitration agreement (“

 the ASI impermissibly required G to discontinue proceedings against non-parties to the arbitration clause; and 

 in making the ASI the arbitrator overlooked or failed to deal with G’s submission causing substantial injustice to G; and it would be either contrary to public policy to enforce the ASI, or it contained decisions on matters outside the scope of the submission to arbitration (“

”). The Grounds invoked the statutory grounds under s.81 AO, which incorporate UNCITRAL Model Law Art. 34(2)(b)(ii).

Mimmie Chan J held that the Grounds were not permissible grounds of setting aside the ASI at all, observing that the AO contained distinct and independent regimes for the setting aside of final awards and interim orders.

After analysing the legislative history leading to the enactment of Part 4 including s.44 AO which disapplies Model Law Art. 17I (which in turn sets out default grounds for setting aside interim orders narrower than those for final awards), the Court held that the legislature had made a deliberate policy choice not to provide any statutory grounds for refusing to enforce interim measures, or any right to appeal from such a decision, consistently with the AO’s principle and object i.e. facilitating fair and speedy dispute resolution by arbitration, which would be frustrated if parties could challenge interim orders and directions made in the course of arbitration. This was also supported by the restrictive approach taken in Singapore under the International Arbitration Act on interim measures (CXG v CXH [2023] SGHC 244).

Since the ASI was an interim order, s.81 AO had no application at all, and the Grounds did not amount to legally permissible grounds of setting aside under the Part 6 of the AO. G’s application was dismissed on that primary basis, in addition to the lack of substantive merit in the Grounds.

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Hong Kong’s Pro-Arbitration Approach - Interim Orders under the Arbitration Ordinance (“AO”) not Subject to Setting Aside on Grounds available for Final Awards

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