Arbitrators entitled to Immunity available to Judges in Arbitration

2024/3/22

Arbitration is a form of alternative dispute resolution. Generally speaking, an arbitral award is legally binding and may be enforced in the courts of Hong Kong even if it is awarded in another jurisdiction. If a party to arbitration opines the process of arbitration out of jurisdiction was unfair, is it possible for it to apply in Hong Kong to have the arbitral award overturned?

These matters were recently considered by the Hong Kong Court of First Instance in Song Lihua v Lee Chee Hon [2023] 4 HKLRD 162. The applicant was bound by a Mainland arbitral award and the Hong Kong court allowed enforcement of the arbitral award. The applicant considered that the arbitration had been conducted improperly, for instance, one of the arbitrators was not physically present at one of the hearings of the Mainland arbitration. The Applicant therefore requested the Hong Kong court to issue a Letter of Request to the Mainland judicial authority to obtain statements from the arbitrator and the secretary to a tribunal under the “Arrangement on Reciprocal Appointment of Evidence by the Courts of the Mainland and of the Hong Kong Special Administrative Region in Civil and Commercial Matters” (“the Arrangement”), so that the Court may consider such evidence in determining whether to set aside the enforcement order of the arbitral award.

The Arrangement has come into operation since 1st March 2017, which aims to assist litigants in both the Mainland China and Hong Kong in obtaining evidence in civil and commercial cases in a more efficient and definitive manner. To be specific, courts in the Mainland China and Hong Kong may issue letters of request to the liaison authorities of the other side to request the other side to assist in taking of evidence when necessary. It is worth noting that the scope of assistance that may be requested from each other is not identical.

The Hong Kong Court held that, even though the Mainland judiciary had authority to require the relevant arbitrators and arbitral tribunals to give evidence, this did not mean that the Hong Kong court had authority to require the arbitrators to give evidence regarding the process of arbitration. The court will apply Hong Kong law while considering whether to enforce an arbitral award in Hong Kong, and needs to weigh the relevance and admissibility of such evidence in the case concerned. In this case, the arbitrator did not agree to give evidence. More importantly, the arbitrators were exercising a judicial or similar function and should enjoy the same degree of immunity as judges in the absence of fraud or bad faith. To compel an arbitrator to give evidence would be contrary to the spirit of the court in encouraging the use of arbitration to resolve private dispute. Accordingly, the Court refused the application.

This Article has been published in our firm’s 14th issue of Newsletter. Please note that the information contained herein should be regarded for general reference only. If the readers do have enquiry on the related legal matters, please seek formal legal advice.