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　　(b)This case shows that time under the Limitation Ordinance still runs despite the fact that an award creditor must have failed to recover the total amount due under an award in one place before seeking enforcement in respect of outstanding liabilities in another, as provided for under Article 2 of the  Arrangement.   The unfair consequences that this may give rise to, such as the hardship the Applicant in the present case faces, highlights the defects in the original Arrangement and the necessity of reform with respect to the prohibition against concurrent enforcement in both places under Article 2 of the  Arrangement.

　　CASE No.2：Gao Haiyan & Anor v. Keeneye Holdings Ltd & Anor

　　[2012] 1 HKLRD 627

　　CACV 79/2011

　　I.Brief Facts

　　By way of a share transfer agreement and a supplemental share transfer agreement (“the Agreements”), the Applicants transferred the shares in a Hong Kong company to the Respondents, which held beneficial interest in a joint venture coal business in Mainland China. The Agreements were governed by PRC law and provided for arbitration of disputes at an arbitral body in the Mainland.

　　Pursuant to Article 37 of the Arbitration Rules of the arbitral body, mediation-arbitration is to be conducted either by the tribunal or presiding arbitrator, or provided that the parties agree, by any third party. The tribunal held two sittings. After the first sitting, the tribunal on its own initiative suggested to the parties that the Respondents pay the Applicants RMB 250 million to settle the case.

　　Before the second sitting, in the absence of the Respondents’ appointee and the Chief Arbitrator, the Applicants’ appointed arbitrator, and a person related to the Respondents upon the invitation of the Secretary General of the arbitral body, attended a purported mediation-arbitration in the form of a private meeting. The Secretary General of the arbitral body who was not appointed by the parties’ was alleged to be the host of the private meeting. It was alleged that the Secretary General of the arbitral body asked the person related to the Respondents to persuade the Respondents into accepting the suggestion put forward by the tribunal.

　　The parties could not settle. The tribunal found in favour of the Applicants and recommended (yet did not require) a compensation of RMB 50 million. At no point did the Respondents complain about the tribunal’s conduct, fearing that to do so might antagonise the tribunal. The Respondents appealed against the award of the tribunal to the Intermediate People’s Court where the arbitral body situates (“Xi’an Court”) contending that the Secretary General of the arbitral body had manipulated the outcome of the arbitration in contravention of the law and the arbitration rules. The appeal was dismissed.

　　Subsequently, pursuant to sections 2GG and 40B of the Arbitration Ordinance (Cap. 341) (repealed) (“Arbitration Ordinance”), the Applicants obtained leave to enforce the award. The Respondents, in applying to set aside the leave, contended that it would be contrary to public policy to enforce the award because it was tainted by bias or apparent bias. The Respondents argued that the private meeting over dinner among the Applicants’ appointed arbitrator, the Secretary General of the arbitral body and the person related to the Respondents, was an attempt to pressurise the Respondents to pay RMB 250 million to the Applicants in return for a decision in the Respondents’ favour. The first instance judge held that the award was tainted by apparent bias. He further held that the Respondents did not waive their entitlement to complain about bias in proceeding with a second sitting after the private meeting. The Applicants appealed.

　　II.Issues

　　1.Whether the public policy ground applicable to the enforcement of a Convention award are applicable to a Mainland award and how high is the relevant threshold? (“Issue 1”)

　　2.Whether the Respondents waived their rights to complain about the non-compliance with the Arbitration Rules of the arbitral body? (“Issue 2”)

　　3.Whether apparent bias (as opposed to actual bias) may be sufficient to constitute the public policy ground for refusing enforcement of the award? (“Issue 3”)

　　4.Whether, on facts, the alleged apparent bias constituted the public policy ground for refusing enforcement of the award? (“Issue 4”)

　　III.Analysis

　　Issue 1

　　It was held that the jurisprudence on refusal to enforce an award on the public policy ground applicable to a Convention award is also applicable to a Mainland award. The relevant threshold is a very high one, since comity, which was held to be “woven” into the concept of public policy, has to be given effect where a foreign (including a Mainland) award is concerned. On this point, the court cited Hebei Import & Export Corp v Polytek Engineering Co Ltd (1999) 2 HKCFAR 111, in which the court remarked that, to give effect to comity, enforcement of foreign awards would not be refused unless such enforcement would be contrary to the fundamental concepts of morality and justice of Hong Kong, of which conclusion would take a very strong case to reach.

　　Issue 2