Recent Hong Kong court decisions under the Arbitration Ordinance

Highlights

SD v. T [2026] HKCFI 4946 (28 August 2026)

• In SD v. T, the Court of First Instance reiterated the principles governing an application to stay legal proceedings in favour of arbitration under section 20 of the Arbitration Ordinance (Cap. 609) in PCCW Global Ltd v Interactive Communications Service Ltd [2007] 1 HKLRD 309: i.e., where there is a prima facie, or “plainly arguable,” case that the parties are bound by an arbitration agreement covering the dispute, the Court should stay the matter before it and leave the jurisdictional question to the arbitral tribunal. The Court further observed that, by virtue of Article 7(6) of the UNCITRAL Model Law on International Commercial Arbitration (incorporated into Hong Kong law by section 19 of the Arbitration Ordinance), the reference in a contract to a document containing an arbitration clause may constitute an arbitration agreement in writing where the reference is such as to make the clause part of the contract, and it is not necessary to refer specifically to the arbitration clause itself. 
• In this case, the arbitration clause was contained in a publicly available, standard form subcontract referred to in the tender documents. Although there was no evidence that the standard form itself had been provided to the plaintiff, the tender documents provided that the subcontract should be on that standard form. The Court considered it plainly arguable that there was a valid arbitration agreement and the arbitration agreement had been incorporated into the subcontract, and therefore stayed the proceedings in favour of arbitration.

O v. S [2026] HKCFI 4910  (31 August 2026)

• In O v. S, the Court of First Instance dismissed an application to set aside a partial award based on apparent bias arising from the presiding arbitrator’s prior involvement in another arbitration in which the same factual witness had given evidence.
• The Court applied the established test of whether a fair-minded and informed observer would conclude that there was a real possibility of bias, emphasizing that there must be a logical connection between the circumstances relied upon and a possible departure from impartial decision-making. The Court held that the arbitrator’s prior exposure to a witness did not, without more, give rise to a real possibility of bias. The Court observed in particular that while the witness’s credibility was challenged, the tribunal did not ultimately make any adverse finding as to his credibility or reliability, but instead relied on inherent probability and documentary evidence. The applicant therefore failed to establish a real possibility of bias. 
• The Court further held that, even if apparent bias had been established, the applicant had not shown the necessary prejudice, as the outcome would have been the same.

MB v. HB [2026] HKCFI 4437 (6 August 2026)

• In MB v. HB, the award debtor sought an adjournment of enforcement of an approximately US$70 million ICC award pending annulment proceedings before the Paris Court of Appeal, based on alleged issues concerning the tribunal’s composition and its failure to consider a key contractual document.
• Applying the principles governing adjournment and security under English and Hong Kong authorities, the Court of First Instance considered, among other matters, the apparent strength of the challenge, the likely delay and resulting prejudice, and the ease or difficulty of later enforcement. On a preliminary review, the Court had serious reservations about the merits of the grounds advanced by the appealing party before the French court. In particular, the Court considered that the alleged relationships between the arbitrators were insufficient to raise a real possibility of bias, and that the allegedly excluded material would not have affected the tribunal’s conclusions.
• Nevertheless, the Court considered that the French supervisory court was best placed to determine the annulment application, and therefore adjourned the Hong Kong enforcement proceedings to avoid potentially inconsistent results. The adjournment was made conditional on the award debtor providing security for 50% of the amount awarded within 21 days. In ordering substantial security, the Court took into account the size of the award, the approximately 11-month delay and the resulting prejudice to the award creditor, as well as concerns arising from the award debtor’s failure to disclose, and misleading disclosure of, its liability under the award.

K v. JX [2026] HKCFI 2854 (20 May 2026) and [2026] HKCFI 4344 (31 July 2026)

• In K v. JX, the Court of First Instance granted the award debtor JX’s application to set aside an order permitting enforcement of a Chinese Mainland arbitral award, holding, among other things, that enforcement would be contrary to public policy because the award gave effect to a settlement agreement made without authority and tainted by collusion and bribery. In making the decision, the Court considered post-award evidence concerning the lack of authority of the individual who entered into the underlying settlement agreement on behalf of JX, together with allegations of collusion and bribery which had not been before the tribunal.
• K, the party seeking to enforce the arbitral award, subsequently sought leave to appeal and argued, among other things, that the Court had impermissibly reopened findings made by the arbitral tribunal and substituted them with the Court’s own findings on public policy. The Court of First Instance disagreed, observing that the deciding factor in resolving whether illegality or corruption, or other serious wrongdoing universally recognized as abhorrent, can be “re-opened” by a court at the enforcement stage is whether the question had been put to, considered and determined by the tribunal. The judge held that it was appropriate for the Court to make findings on public policy in the present case, as evidence of collusion and bribery only surfaced after the arbitral award was made and was never put to or considered by the arbitral tribunal. The judge further observed that, whilst the Court never condones attempts by parties to reargue a case under the guise of public policy, the Court does not turn a blind eye when serious claims of fraud, corruption and bribery of witnesses are made, and the Court should at least consider such a claim on a preliminary inquiry before allowing or dismissing it.
• Despite finding that the proposed grounds of appeal had no reasonable prospect of success, the Court, in exercising its discretion, granted leave to K to appeal in the interests of justice, so that the Court of Appeal could consider the public policy issue and the Court of First Instance’s approach to the arbitral award. 

Commentary

The four cases show that the Hong Kong courts have maintained a pro-arbitration approach while preserving a meaningful role for judicial intervention where fairness so requires, both by upholding validity of arbitration agreements and the finality of arbitral awards as well as by refusing enforcement of awards procured by fraud or other conduct contrary to public policy.

• SD v. T reiterates that the well-established principle of a mandatory stay of legal proceedings in favour of arbitration under Section 20 of the Arbitration Ordinance and the relatively low threshold for finding a prima facie valid arbitration agreement pursuant to Article 7(6) of the Model Law.
• O v. S usefully recaps the existing principles for assessing whether there is a sufficient perception of bias and the requirement for prejudice, which is a fact sensitive exercise. While this decision indicates that prior exposure to the same witness in another arbitration is unlikely, without more, to support an apparent-bias challenge, as a matter of practical guidance, it is recommended that each witness be asked whether they have previously been, or are, involved in any other proceedings presided over by one of the arbitrators to mitigate the risk of a later award challenge.
• MB v. HB shows that an adjournment of enforcement of an arbitral award pending a foreign court challenge may still be granted even where the Hong Kong court has reservations about that challenge, but substantial security may be required to protect the interest of the award creditor.
• K v. JX shows that, in narrow circumstances, the courts may consider serious allegations of fraud, corruption or bribery at the enforcement stage where they are supported by post-award evidence that was not put forward before the arbitral tribunal which made the award. The decision illustrates the careful balance the Hong Kong courts have struck between the public policy favouring arbitral finality and the public policy against illegality, while upholding the integrity of the arbitral process.