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CACV 172/2023
[2024] HKCA 882
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 172 OF 2023
(ON APPEAL FROM HCCT NO 34 OF 2022)
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IN THE MATTER OF a co-investment contract dated 17 March 2014 between CDH Fund V Limited Partnership plus CDH Grand Cattle Holdings Limited with CMBICDHAW Investments Limited, which incorporated the parties’ adoption of the laws of the Hong Kong SAR to govern their contract plus their arbitration agreement for disputes between them to be settled by ICC arbitration in Hong Kong
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and
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IN THE MATTER of the Arbitration Ordinance,
Cap 609
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________________________
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BETWEEN
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CMBICDHAW INVESTMENTS LIMITED
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Plaintiff
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and
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CDH FUND V LIMITED PARTNERSHIP
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1st Defendant
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CDH GRAND CATTLE HOLDINGS LIMITED
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2nd Defendant
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CDH INVESTMENTS MANAGEMENT (HONG KONG) LIMITED
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3rd Defendant
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________________________
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Before:
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Hon Kwan VP, Barma JA and Coleman J in Court
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Date of Submissions:
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16 and 30 August and 4 September 2024
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Date of Decision:
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20 September 2024
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D E C I S I O N
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Hon Coleman J (giving the Judgment of the Court):
A. Introduction
1.
By our Judgment dated 10 July 2024,
[2024] HKCA 516
, we dismissed the Defendants’ appeal from the decision of Mimmie Chan J setting aside various paragraphs of the Award (as defined in the Judgment). We adopt the definitions used in the Judgment.
2.
By Notice of Motion dated 7 August 2024, the Defendants Fund and Cattle seek leave to appeal to the Court of Final Appeal (“CFA”), based on the following suggested questions of great general or public importance (“GPI”):
(1) Is there a dispute arising out of or relating to an agreement, where one party to the agreement (“1
st
Party”) alleges, and the other party (“2
nd
Party”) denies, that the agreement was induced by misrepresentation allegedly made by the representatives of the 2
nd
Party who negotiated the agreement on behalf of the 2
nd
Party with the 1
st
Party, but where the 1
st
Party makes no claim and seeks no relief against the 2
nd
Party in respect of the agreement? (“Q1”)
(2) Assuming that the arbitral tribunal has jurisdiction, is the award of a negative declaration made in the circumstances outlined in Q1 above contrary to public policy due to abuse of process? (“Q2”)
3.
Following the exchange of written submissions, this is our Decision. In short, and for the reasons that follow, we decline to grant leave.
B. The Defendants’ Application
4.
The Defendants submit that the questions Q1 and Q2 are GPI questions and are reasonably arguable.
5.
The Defendants say that the scenario posited in Q1 arose in the present case, and suggest that the Judgment effectively endorsed the actions of the 1
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