(1) Introduction
In V v. M (HCCT 26/2025, judgment dated 16 March 2026),[1] the Court addressed the summons of the Respondent (“M”) to set aside an order granting leave to enforce an arbitral award (the “Award”) made in an arbitration at the Shanghai International Economic and Trade Arbitration Commission (“SHIAC”) (the “Arbitration”). M relied on four grounds: (i) the Award “will be set aside” pursuant to M’s intended application to the Shanghai First Intermediate People’s Court (“Shanghai Court”) to set aside the Award (“Ground 1”); (ii) M was unable to present its case in the Arbitration (“Ground 2”); (iii) the arbitral procedure was not in accordance with the parties’ agreement and/or the law of the Mainland (“Ground 3”); and (iv) it would be contrary to public policy to enforce the Award (“Ground 4”). Ultimately, the Court rejected all the grounds and dismissed M’s summons to set aside the enforcement order.
This case serves as an important reminder on the proper conduct of set aside applications. The Court underscored the requirements of Order 73, rule 10(6A) of the Rules of the High Court (“RHC”): (1) the supporting affidavit must be filed at the same time as the summons; and (2) both the summons and the affidavit must set out the grounds relied upon and all the facts supporting them. The Court held that it is “inadequate and an abuse” to assert public policy in general terms without specifying the facts showing how enforcement would be contrary to public policy, and that a party cannot later “comb through” the arbitral record to find defects. Such conduct is totally contrary to the aims of the Arbitration Ordinance to uphold arbitration agreements and awards, and against the RHC objectives of speedy resolution of disputes and avoiding the waste of judicial resources and costs.
(2) Facts
In 2018, the Applicant (“V”) and M entered into an asset purchase agreement concerning a mining project in Australia (the “Agreement”). [2] The Agreement was governed by Mainland law and contained an arbitration clause providing for arbitration at the SHIAC.
Pursuant to the Agreement, V paid M a total of over AUD 6.3 million, but M never transferred the assets. [3] Disputes arose as to whether M breached warranties regarding third-party consents and whether the failure to complete the transaction was due to V’s refusal to pay capital gains tax. [4]
V commenced SHIAC arbitration in March 2022. [5] A three-member tribunal (the “Tribunal”) was constituted and two oral hearings were held in 2022 and 2023. [6] Both parties filed written submissions and evidence.
During the Arbitration, M made various procedural applications: to suspend the proceedings pending an Australian court case concerning the consent of a third party; to hold a third hearing after a late valuation report was submitted; and to have experts appointed on foreign law and valuation. The Tribunal refused the applications, but allowed the parties to file written submissions on the new valuation report. [7]
On 2 December 2024, the Tribunal issued the Award in favour of V. [8] V obtained leave from the Hong Kong Court to enforce the Award as a judgment on 6 March 2025 (the “Enforcement Order”). [9] M applied to set aside the Enforcement Order on 19 March 2025 (the “Set Aside Summons”). [10]
On 22 April 2025, M applied to the Shanghai Court to set aside the award. That application was dismissed on 17 June 2025. [11] Subsequent supervision applications to the Shanghai procuratorate were also rejected. [12]
On 29 April 2025, V took out a summons to dismiss the Set Aside Summons or, alternatively, for payment of security. [13]
(3) Decision
Set Aside Summons
The Court dismissed the Set Aside Summons on the following grounds:
(1) Ground 1: The Court held that enforcement of a Mainland award may be refused only on the grounds expressly set out in Section 95 of the Arbitration Ordinance (the “Ordinance”). [14] Under Section 95(2)(f) of the Ordinance, refusal is permitted only if the award “has been set aside or suspended” by a competent Mainland authority. An intention to apply to set aside, or a pending application that is subsequently dismissed, does not satisfy this requirement. [15] Further, the Shanghai Court had already dismissed M’s application to set aside the Award. [16] The Court gave “due regard and weight” to that decision, treating it as evidence of the applicable Mainland law and of whether there had been any breach of the SHIAC Rules. [17] As such, there was no basis to refuse enforcement under Section 95(2)(f) of the Ordinance. [18]
(2) Ground 2: The Court found that M had been given ample reasonable opportunity to present its case through two oral hearings and multiple rounds of written submissions. [19] The number of hearings to be held, the admission of evidence and the refusal to suspend proceedings were matters of case management falling within the Tribunal’s broad discretion. [20] M had never applied for the appointment of experts or for witness cross‑examination during the Arbitration, and could not belatedly complain about the absence of such procedures. [21] As such, there was no basis to refuse enforcement under Section 95(2)(c)(ii) of the Ordinance. [22]
(3) Ground 3: M failed to identify any agreement of the parties or provision of Mainland law that mandated further hearings or the appointment of experts. [23] The Shanghai Court had already ruled that the Tribunal’s conduct was consistent with the SHIAC Rules, and the Hong Kong Court gave weight to that finding. [24]
(4) Ground 4: The Court reiterated that the public policy ground is narrow and must be “sparingly applied”. [25] It is not for a party or the Court at the enforcement stage to “plough through the bundles of documents” in the arbitration to search for defects that might support a public policy challenge. [26] The party invoking public policy bears the burden of clearly identifying the facts that allegedly render enforcement contrary to public policy. M’s invocation of public policy was merely a repackaging of its other complaints, none of which disclosed any egregious breach of due process. [27]
Rejection of M’s Late Affidavit
The Court disregarded M’s third affirmation (“Hung 3”) in its entirety on the following grounds:
(1) Hung 3 was filed after the issuance of the Set Aside Summons and therefore did not comply with the mandatory requirement of Order 73, rule 10(6A) of the RHC that the supporting affidavit be filed at the same time as the summons. [28]
(2) The Court ordered on 9 May 2025 that all affidavits to be filed shall be confined only to matters of fact. However, Hung 3 entirely of legal submissions and arguments, rather than facts or evidence relevant to the determination of the Set Aside Summons. [29]
(3) Hung 3 sought to introduce new facts and grounds, which were not set out in the Set Aside Summons or the supporting affidavit. [30]
(4) Key Takeaways
This case highlights the following significant principles for parties seeking to resist enforcement of an arbitral award in Hong Kong:
(1) Strict compliance with procedural requirements: An application to set aside an enforcement order must comply strictly with Order 73, rule 10(6A) of the RHC. All grounds relied upon and all supporting facts must be set out in the summons and the affidavit filed at the same time. New grounds or evidence cannot be introduced later. Failure to comply may result in the evidence being disregarded and the application being dismissed. The Court emphasized that it is “inadequate and an abuse” to later “comb through” the arbitral record to find defects, particularly under the guise of public policy.
(2) The public policy ground is narrow: The Court reiterated that public policy is a narrow ground,. A party cannot simply assert “public policy” in general terms without clearly specifying the facts that allegedly make enforcement contrary to public policy. Where the ground merely repackages other unsubstantiated complaints, it will not succeed.
(3) Parties must raise procedural objections during the arbitration: If a party wishes to call witnesses, appoint experts, or seek further hearings, it must do so during the arbitration. A party cannot remain silent on such matters and later argue that the tribunal denied it a fair opportunity to present its case. The Court held that matters which should have been raised with the tribunal but were not, should not be brought before the Court at the enforcement stage.
[1] https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=178619
[2] V v. M (HCCT 26/2025, judgment dated 16 March 2026), §8
[3] Ibid, §13
[4] Ibid, §14
[5] Ibid, §15
[6] Ibid, §17-§18
[7] Ibid, §23
[8] Ibid, §25
[9] Ibid, §1
[10] Ibid, §2
[11] Ibid, §26
[12] Ibid, §27
[13] Ibid, §4
[14] Ibid, §42
[15] Ibid, §47
[16] Ibid, §48
[17] Ibid, §50
[18] Ibid, §51
[19] Ibid, §52
[20] Ibid, §53
[21] Ibid, §60
[22] Ibid, §72
[23] Ibid, §73
[24] Ibid, §75
[25] Ibid, §38
[26] Ibid, §90
[27] Ibid, §91
[28] Ibid, §35
[29] Ibid, §36
[30] Ibid, §35
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