CMBICDHAW Investments Limited v CDH Fund V Limited Partnership & Ors 

[2024] HKCA 516, the plaintiff had commenced a High Court action (“

”) against individuals who were agents of the 1

 defendants, alleging that two individuals had by fraudulent misrepresentation induced the plaintiff to enter into a co-investment agreement (“

 defendants. The Agreement contained an arbitration clause. The 1

 defendants (together with another corporate entity, and the two individuals) commenced arbitration proceedings against the plaintiff, seeking 

a declaration of non-liability in respect of the allegations made in the HCA.

 whether, in the above circumstances, there existed a “dispute” between the contracting parties, falling within the scope of the arbitration clause, such as to engage the arbitrator’s jurisdiction.

Coleman J, giving the Judgment of the Court, reviewed the relevant principles in determining this issue. He noted that in the arbitration context, the term “dispute” should be construed inclusively and not overly legalistically. It is unnecessary for there to be a “claim” in the sense of a legal claim / cause of action, as long as there was an assertion by one party which was not accepted by the other. The time for determining when a “dispute” has arisen is at the commencement of the arbitration.

While the Court did not rule out the possibility that there could be a “dispute” even where non-contractual claims or assertions are made against a third party who is a stranger to the arbitration agreement, each case would turn on its own facts. On the circumstances of the present case, where the plaintiff had not made claims or assertions of wrongdoing against the 1

 defendants, the Court held that there was no relevant “dispute” to engage arbitral jurisdiction.

, instructed by Guantao and Chow Solicitors and Notaries, acted for the Defendants.

Members

Recruitment

Mentions

More on Recent Judgments

Two to Tango? Court of Appeal Considers Whether Declaration of Non-Liability in Arbitral Award Should Be Set Aside Due to Lack of “Dispute”

About

Members

Recruitment

What's New