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　　CASE No.3：  Application for Recognition and Enforcement of a Hong Kong Arbitration Award by the Applicants David Dein Consultancy Limited and Bramley Corporation Ltd

　　(2020) Jing 04 Ren Gang No. 5 

　　I.Basic facts

　　On 24 August 2018, David Dein Consultancy Limited (hereinafter referred to as “David Dein) and Bramley Corporation Ltd (hereinafter referred to as “Bramley”) each signed with Beijing SinoboGuoan Football Club (hereinafter referred to as “Guoan”) a copy of the same Consultancy Agreement agreeing that any disputes should be submitted to the Hong Kong International Arbitration Centre (hereinafter referred to as “HKIAC”) for settlement by arbitration, with English law as the applicable law. Accordingly, Guoan submitted a notice of arbitration to the HKIAC on 21 November 2018.  Subsequently, David Dein and Bramley filed a counterclaim.  On 5 March 2020, the HKIAC made an award (case number: HKIAC/A18211) ruling that Guoan had committed a repudiatory breach of the Consultancy Agreement and should pay the relevant fees and interest to David Dein and Bramley.

　　After the arbitration award had taken effect, David Dein and Bramley applied to the Beijing Fourth Intermediate People’s Court for recognition and enforcement of the award.  The respondent Guoan contended that the People’s Court should rule against recognition and enforcement of the arbitration award.  The reasons stated included invalidity of the arbitration agreement involved, composition of the arbitral tribunal being contrary to the agreement between the parties and the law of the Hong Kong Special Administrative Region, arbitral proceedings not being in accordance with the agreement between the parties, violation of social and public interests, and that recognition of the amount awarded should be refused.

　　II. Rulings

　　The Beijing Fourth Intermediate People’s Court held upon examination that first, the parties in the present case agreed only on the application of substantive English law as the governing law of the agreement, without stating explicitly the law to be applied in confirming the validity of the foreign-related arbitration agreement. As both the location of the arbitration institution and the seat of arbitration were in Hong Kong SAR, the Arbitration Ordinance of Hong Kong should apply in the conduct of the examination, and the agreement was valid under the relevant provisions.  Second, according to the 2018 HKIAC Administered Arbitration Rules in force during the arbitration, the composition of the arbitral tribunal was not in breach of the rules. The fact that the arbitrator and the directors of the two companies held office in the English Football Association did not necessarily mean that the arbitrator had conflict of interest with the two companies. As the parties had knowledge of the public information held by the arbitral tribunal, no disclosure was needed and no procedural impunity was involved.  Third, some copies of the arbitration documents produced by the applicant and the amount of expenses in his bill did not serve to prove that the arbitral proceedings were inconsistent with the agreement.  Such information was public information of the arbitral proceedings and was not in breach of the confidentiality clause.  Fourth, public interests, which concerned the interests of the entire community, should be enjoyed by the general public and were different from the interests of the contract parties.  Although part of Guoan’s assets were state-owned, it did not follow that all matters relating to those assets should be deemed as public interests.  In light of the above, it was held that the arbitration award HKIAC/AC18211 made by the HKIAC of the Hong Kong Special Administrative Region should be recognised and enforced.

　　III. Significance

　　1. The present case clarifies that where a party relies on the clause “[t]he composition of the arbitral tribunal or the arbitral proceedings was not in accordance with the agreement between the parties” in Article 7 of the Arrangement to contend that there are procedural issues of disclosure and withdrawal on the part of an arbitrator, the Court should make a reasonable judgment on the basis of both the arbitration rules and life experience in examining whether the issues are sufficient to affect the impartiality and independence of the arbitration.  In the present case, the arbitrator’s connection and interaction with others for the purposes of work, daily living, study and other social activities, and his holding of office in the same organisation with the people concerned did not necessarily constitute any conflict of interest affecting the impartiality of the arbitration procedure under the withdrawal rules.  Arbitrators may choose not to disclose matters not relating to their independence or the impartiality of the arbitration.