(A) Introduction
AMP Resources Ltd v. Indagro SA (HCMP 1487/2025, date of judgment: 6 February 2026) [1] addressed the interplay between arbitral awards and winding-up proceedings in cross-border disputes. It concerned: (1) the Plaintiff’s application to continue an ex parte injunction order which restrained the Defendant from presenting a winding up petition against it based on an arbitral award (the “Ex Parte Injunction Order”) and (2) the costs of the Defendant’s Summons to set aside the substituted service of the Concurrent Originating Summons (the “Concurrent OS”).
The main issue was whether the Plaintiff had raised a bona fide dispute over the validity of a Final Award issued by the China International Economic and Trade Arbitration Commission (“CIETAC”) on 22 July 2025 (the “Award”). The Plaintiff argued that no valid arbitration agreement existed under the PRC law as the underlying contract had not been signed by both parties. Ultimately, the Court granted the continuation of the injunction on the ground that a bona fide and substantial dispute existed over the validity of the Award. It also dismissed the Defendant’s Summons with costs in favour of the Plaintiff on an indemnity basis on the ground that the Defendant’s conduct amounted to procedural gamesmanship.
This case provides valuable guidelines on restraining winding-up petitions based on arbitral awards while such awards are under challenge in their supervisory jurisdiction. It further clarifies the Hong Kong Court’s approach to scrutinize expert evidence on foreign law and its robust approach to procedural conduct, particularly in relation to the scope of substituted service orders and the application of indemnity costs orders as a sanction for unmeritorious or obstructive litigation tactics.
(B) Facts
Ex Parte Injunction Order
On 22 July 2025, the Defendant obtained the Award. [2] Subsequently, it issued a statutory demand against the Plaintiff based on the Award on 14 August 2025. [3]
On 18 August 2025, the Plaintiff applied to set aside the Award in the supervisory court, namely, Beijing No. 4 Intermediate People’s Court (the “Beijing Court”) (the “Setting Aside Application”). [4] Despite having prevailed in the arbitration, the Defendant refused to engage with the Plaintiff on the merits on its Setting Aside Application before the Beijing Court. [5]
On 9 September 2025, the Plaintiff obtained the Ex Parte Injunction Order. [6] In its application to continue Ex Parte Injunction Order, the Plaintiff argued that there was a bona fide dispute over the Award, namely, the absence of a valid arbitration agreement. The Plaintiff never signed the underlying written contract that contained the arbitration clause. Given the parties’ live dispute on the PRC law, which was pending before the Beijing Court, the Plaintiff should not face the risk of a winding-up petition. [7]
The Defendant opposed the continuation of the Ex Parte Injunction Order on the following grounds:
(1) There was no bona fide and substantial dispute regarding the arbitral debt as the parties reached a final agreement on, inter alia, the CIETAC arbitration clause through their email correspondence on 12 July 2023; [8] and
(2) There was serious material non-disclosure in the Plaintiff’s ex parte application. [9]
Substituted service of the Concurrent OS
At the hearing on 14 November 2025, the Court indicated to the Defendant that (i) a substituted service order would be made against the Defendant if the Defendant’s solicitors (Tang & Co) did not accept service, and (ii) whilst Tang & Co’s acceptance of service would render the Defendant’s Summons academic, the parties were at liberty to make submissions on costs. [10]
On 17 November 2025, Tang & Co confirmed that they had instructions to accept service of the Concurrent OS. [11]
(C) Decision
Issue 1: Whether the Ex Parte Injunction Order Should Be Continued
(1) Reaffirmation of Legal Principles
The Court reaffirmed that a winding-up petition may be restrained where there is a bona fide dispute of the debt on substantial grounds. [12] This principle applies even when the petition is based on a debt arising from an arbitral award. The Court must still independently assess whether a bona fide dispute exists. [13]
The Court clarified that the mere existence of the Setting Aside Application did not automatically create a bona fide dispute. The Court has an independent duty to evaluate the nature and quality of the dispute being put forward as a defence to the awarded debt. [14]
(2) The Critical Role of Governing Law - PRC Law Made the Difference
The Court made an important observation regarding the choice of the governing law. It stated that “if Hong Kong laws apply, I will have no hesitation to come the view that there are no bona fide disputes to the Defendant’s claims under the Award and the application for the injunction application should be dismissed”. [15] Under Hong Kong law, the emails exchanged between the parties on 12 July 2023 showed that the parties had a consensus ad idem on all the terms in the contract, including the CIETAC arbitration clause. Contract formation can occur without a formal signature. The Defendant signing and sending the final version and the Plaintiff’s later attempt to renege due to supplier issues suggest that both parties believed a binding contract existed. In such circumstances, the Plaintiff’s “no signature” defence would unlikely to be a bona fide dispute on substantial grounds and the injunction application would be dismissed.
The parties agreed that the governing law was the laws of the PRC. [16] Therefore, the question became whether, as matter of PRC laws, the Plaintiff’s lack of signature on the draft contract gives rise to a bona fide dispute on the validity of the arbitration agreement in the draft contract. [17]
(3) The Expert Evidence
The Court rejected the Plaintiff’s submission that it need not delve into the substance of the experts’ opinions and substantively resolve the matter. It highlighted that it could not proceed on the basis that just because there is a difference in views between the two PRC law experts, therefore, ipso facto, there is a bona fide dispute. It was duty bound to study the respective legal opinions in detail and come to a view on whether there are serious and bona fide issues in dispute which have to be resolved in the Beijing Court. [18]
(4) Bona Fide Dispute
The Court identified a genuine legal ambiguity under the PRC law. There was a distinction between whether an arbitration agreement was negotiated by the parties through electronic data interchange simpliciter and whether an arbitration agreement was to be concluded in written form but the drafts of the written contract (intended to be signed by the parties) were communicated through electronic means. [19] This distinction was key to the applicability of Article 490 of the Civil Code, which requires signatures for contracts where parties adopt a “written contract” form (合同书形式). The Court found that there were bona fide differences on the constructions of the email exchanges and the applicability of Article 490 of the Civil Code. Both points cannot be determined summarily by this Court at this stage. [20] As such, a bona fide dispute was found to exist and the Ex Parte Injunction Order should be continued.
(5) Rejection of Material Non-Disclosure Allegation
The Court rejected the Defendant’s allegation of material non-disclosure on the following grounds:
(1) The Court found that the judge who granted the Ex-Parte Injunction Order was acutely aware of the need to test the Plaintiff’s position and was sufficiently apprised of the merits of the challenge. [21]
(2) The Court found that the Plaintiff had properly disclosed its financial position by exhibiting its latest audited financial statements. [22]
(6) Costs
The Court ordered that the costs of the Plaintiff’s injunction shall be paid by the Defendant to the Plaintiff on indemnity basis on the ground that the Defendant proceeded with winding-up proceedings despite being aware of a bona fide defence on substantial grounds. [23]
Issue 2: Who should bear the costs of the Defendant’s Summons
At the outset, the Court emphasized its duty to deal with substantial issues in dispute expeditiously and had no time for procedural gamesmanship. [24]
The Court dismissed the Defendant’s Summons with costs in favour of the Plaintiff on an indemnity basis on the following grounds:
(1) The Court found the Defendant's conduct, using Hong Kong solicitors to serve a statutory demand while refusing to accept service of the Concurrent OS, gave rise to a strong inference of “evading service, or game playing”. Had the Defendant acted sensibly in accepting service through its local representatives, the application for substituted service would have been unnecessary and no costs in relation to the application for substituted service order would have to be incurred. [25]
(2) The Court held that it was a complete waste of time and costs for the Defendant to take out the Summons to set aside the substituted service order when the Court would have granted the same in any event given the Defendant’s conduct. [26]
(3) The Court clarified that the substituted service order extended to all “legal documents” in these proceedings. The Concurrent OS fell within the ordinary and natural meaning of “legal documents” in these proceedings. The Court held that substituted service on the Defendant’s solicitors was appropriate in the circumstances and would have been granted irrespective of the Defendant’s procedural challenge. [27]
(D) Key Takeaways
This case is significant on the following grounds:
(1) Restraint of Winding-Up Petitions Based on Challenged Awards: The Court reaffirmed that a winding-up petition may be restrained where there exists a bona fide dispute on substantial grounds, even when the debt arises from an arbitral award. It further clarified that the mere existence of a setting-aside application in the supervisory court does not automatically create a bona fide dispute sufficient to restrain a winding-up petition. The Court retains an independent duty to assess the nature and quality of the challenge to determine whether it is bona fide.
(2) Importance of the Governing Law: This case underscores how the choice of governing law can affect the outcome. The Court stated that under Hong Kong law, it would have found no bona fide dispute on the facts and hence the application for the injunction application should be dismissed. In contrast, under the PRC law, the potential application of Article 490 of the Civil Code regarding contracts in written form created a genuine legal ambiguity that the Hong Kong court could not summarily resolve. As such, the Ex Parte Injunction Order should be continued.
(3) Active Scrutiny of Foreign Law Expert Evidence: The Court highlighted that it is duty bound to scrutinize the substance of the foreign law expert opinions to evaluate whether there is a serious and bona fide issue in dispute which has to be determined in the foreign court.
(4) Costs Consequence of Procedural Gamesmanship: The Court took a robust stance against obstructive procedural conduct. It found that a party who used a Hong Kong law firm to serve a statutory demand in Hong Kong but then refused to accept service of responding court documents through the same solicitors is engaged in “evading service, or game playing”. Such conduct is likely to attract an award of indemnity costs as a sanction.
[1] https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2025/HCMP001487_2025.docx
[2] AMP Resources Ltd v. Indagro SA (HCMP 1487/2025, date of judgment: 6 February 2026), §3
[3] Ibid, §5
[4] Ibid, §6
[5] Ibid, §7
[6] Ibid, §1
[7] Ibid, §12
[8] Ibid, §15
[9] Ibid, §16
[10] Ibid, §81
[11] Ibid, §82
[12] Ibid, §36
[13] Ibid, §39
[14] Ibid, §40
[15] Ibid, §31
[16] Ibid, §32
[17] Ibid, §42
[18] Ibid, §46
[19] Ibid, §56
[20] Ibid, §60
[21] Ibid, §72
[22] Ibid, §77
[23] Ibid, §103-§104
[24] Ibid, §81
[25] Ibid, §89-§91
[26] Ibid, §92
[27] Ibid, §93-§94
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