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FACV No. 1 of 2023

[2023] HKCFA 16

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2023 (CIVIL)

(ON APPEAL FROM CACV NO. 387 OF 2021)

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J U D G M E N T

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Chief Justice Cheung:

1. I have had the benefit of reading in draft the judgments of Mr Justice Ribeiro PJ and Mr Justice Gummow NPJ and agree with their conclusion in common that the appeal should be dismissed. As regards whether the jurisdiction/admissibility distinction discussed in their respective judgments is helpful to the construction and application of the relevant provisions in the Arbitration Ordinance, [1] I respectfully agree with Mr Justice Ribeiro PJ that it is. Given the difference in views, I would like to say a few words of my own.

2. Section 34(1) of the Ordinance (incorporating article 16 of the Model Law [2] ) provides for the arbitral tribunal’s competence to rule on its own “jurisdiction”. [3] More importantly for our present purpose, it provides for the court’s power to intervene by reviewing the tribunal’s ruling as a preliminary question “that it has jurisdiction”. [4] (A ruling of the tribunal that it does not have jurisdiction to decide a dispute is not subject to appeal. [5] )

3. Thus, section 34 by itself requires one to construe the word “jurisdiction” and decide what objections would go to “jurisdiction”, and what would not.

4. If the tribunal does not make a ruling on its jurisdiction as a preliminary question, but leaves it to be decided together with the substantive dispute between the parties in its arbitral award [6] (which is what happened in the present case), the matter will fall squarely within section 81 of the Ordinance (incorporating article 34 of the Model Law) when an application to set aside the arbitral award is made on the basis that the tribunal lacks jurisdiction. Although the word “jurisdiction” is not used as such in section 81, it is plain that construing the two sections (and the two articles in the Model Law) consistently, section 81 must cover an award made by the tribunal without “jurisdiction” in the section 34 sense. [7] In other words, there is a substantial overlap between sections 34 and 81 insofar as an objection based on the tribunal’s “jurisdiction” is concerned.

5. This being the case, although section 81 does not use the word “jurisdiction”, the construction of that word under section 34 necessarily informs the construction and application of section 81 where, relevantly, the question is whether an arbitral award is liable to be set aside for want of jurisdiction.

6. What then does “jurisdiction” mean? This is where