(1) "Section" and "s" shall be to the Arbitration Ordinance, Cap 609 ("the Ordinance");
(2) "Art" shall be to the UNCITRAL Model Law ("the Model Law");
(3) "Clause" shall be to the Co-operation Agreement of the parties dated 15 December 2011 ("the Agreement").
"In the event [C] notifies [D] of a request from the relevant PRC Governmental Authority to cease the transmission of specific broadcast content on the [Thai Payload], then [D] shall forthwith cease transmission of such specific broadcast content or service."
"[14.1] Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of Hong Kong, without regard to the principles of conflicts of law of any jurisdiction.
[14.2] Dispute Resolution. The Parties agree that if any controversy, dispute or claim arises between the Parties out of or in relation to this Agreement, or the breach, interpretation or validity thereof, the Parties shall attempt in good faith promptly to resolve such dispute by negotiation. Either Party may, by written notice to the other, have such dispute referred to the Chief Executive Officers of the Parties for resolution. The Chief Executive Officers (or their authorized representatives) shall meet at a mutually acceptable time and place within ten (10) Business Days of the date of such request in writing, and thereafter as often as they reasonably deem necessary, to attempt to resolve the dispute through negotiation.
[14.3] Arbitration. If any dispute cannot be resolved amicably within sixty (60) Business days of the date of a Party's request in writing for such negotiation, or such other time period as may be agreed, then such dispute shall be referred by either Party for settlement exclusively and finally by arbitration in Hong Kong at the Hong Kong International Arbitration Centre … in accordance with the UNCITRAL Arbitration Rules in force at the time of commencement of the arbitration …
(e) Any award made by the arbitration tribunal shall be final and binding on each of the Parties that were parties to the dispute. To the extent permissible under the relevant laws, the Parties agree to waive any right of appeal against the arbitration award."
"Dear Chairman of the Board of Directors
Re: Cooperation Agreement between [C] and [D]
We write with regard to the recent serious breach of the Cooperation Agreement by [C], which now requires your urgent attention.
Our legal representatives have written separately to your lawyers on this issue, but have not received a satisfactory response. Given the longstanding cooperation between our two companies, [D] is raising its concerns directly with [C's] board in a final effort to resolve this issue and avoid further legal proceedings.
Breach of the Cooperation Agreement
… [D] has therefore received legal advice that [C]'s actions constitute a repudiatory breach of contract under Hong Kong law, and a material default under Section 8.2 of the Cooperation Agreement.
[D], through its lawyers, has already served a notice of material default under the Cooperation Agreement. It is therefore clear from the correspondence that a relevant dispute now exists for the purpose of Section 14 of the Cooperation Agreement.
In accordance with the contract, [D] now invites [C's] Board to reconsider its position and avoid further legal proceedings by taking all necessary steps to reinstate the relevant transponders and desist from any further interference with [D]'s portion of the payload.
[D] is willing to refer the dispute to the parties' respective senior management teams in accordance with Section 14.2 of the Cooperation Agreement if necessary. Unless the dispute can be resolved swiftly and amicably, however, [D] will take all relevant steps to safeguard its rights.
[D] reserves all of its legal rights accordingly."
Whilst reserving all of [C]'s rights in this regard, we would observe that the procedure laid out at sections 8.2 and 14 of the Cooperation Agreement, and the potential engagement of the respective Chief Executive Officers does not concern [C]'s Directors.
[D]'s direct communication with [C]'s Directors in all circumstances is neither appropriate nor productive.
We request that all further correspondence on this matter be directed to us or if pursuant to Clause 14.2 of the Agreement be addressed to the Chief Executive Officer of our client, copying us."
(1) In relation to the issue of jurisdiction, the Tribunal held that the first sentence in Clause 14.2 mandatorily required the parties to attempt in good faith to resolve any dispute by negotiation, but the reference of dispute to the respective Chief Executive Officers mentioned in the second sentence of Clause 14.2 was optional.
(2) The Tribunal further held that the condition in Clause 14.3, ie the dispute could not be resolved within 60 business days of a party's request in writing for such negotiation, referred to a request for negotiation under the first sentence of Clause 14.2, and that condition had been fulfilled by D by the December Letter.
(3) The Tribunal accordingly rejected C's objection on jurisdiction, and proceeded to find that C had breached Clause 4.7 and was liable to pay damages to D in an amount to be assessed.
"Article 34 of UNCITRAL model Law (Application for setting aside as exclusive recourse against arbitral award)
(1) Article 34 of the UNCITRAL Model Law, the text of which is set out below, has effect subject to section 13(5) -
'Article 34. Application for setting aside as exclusive recourse against arbitral award
(1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (3) of this article.
(2) An arbitral award may be set aside by the court specified in article 6 only if:
(a) the party making the application furnishes proof that:
(iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or
(iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Law …'"
(1) C contended that the condition referred to the giving of a written notice to have the dispute referred to the Chief Executive Officers for resolution, as referred to in the second sentence of Clause 14.2, and no such written notice was given.
(2) On the other hand, D contended that the condition was satisfied by a written request to negotiate in good faith, as referred to in the first sentence of Clause 14.2, and that it had made the requisite request by the December Letter.
(3) D further contended that the question of whether the condition precedent had been fulfilled was a question of "admissibility" rather than "jurisdiction", and as such the court should not interfere with the Tribunal's decision on that question.
(1) The primary question: is the question whether D complied with the dispute resolution procedure set out in Clause 14.2 of the Agreement a question of the admissibility of the claim, or a question of the tribunal's jurisdiction, and does that question fall within s 81(1)?
(2) The secondary question (only if the primary question is answered in C's favour): what is the condition precedent to arbitration on the proper construction of the Agreement, and was the condition fulfilled by the December Letter?
(1) The court may review the Tribunal's decision on the standard of "correctness" and decide the question de novo if the question of whether D complied with the dispute resolution procedure set out in Clause 14.2 is a true question of "jurisdiction" properly falling within Art 34 (§28 of the Judgment).
(2) The distinction between "jurisdiction" and "admissibility" is recognized both in court decisions in the United Kingdom, Singapore and United States, as well as in various academic works (§§30-36 and 37-42 of the Judgment).
(3) Although the Ordinance does not in terms draw a distinction between jurisdiction and admissibility, it may properly be relied upon to inform the construction and application of s 81 (§43 of the Judgment).
(4) C's objection in the present case is one going to the admissibility of the claim, rather than the jurisdiction of the arbitral tribunal (§53 of the Judgment).
(5) As such, the objection does not fall under Art 34(2)(a)(iii) (§54 of the Judgment).
(6) Neither is Art 34(2)(a)(iv) applicable to C's objection because that provision concerns the way in which the arbitration was conducted, but not contractual procedures preceding the arbitration, or pre-arbitration dispute resolution procedures such as those provided in the Agreement (§§55-57 of the Judgment).
(7) Having reached the conclusion that C's objection does not fall within either Art 34(2)(a)(iii) or (iv), it becomes unnecessary to deal with the secondary question (§58 of the Judgment).
(1) Under Ground 1, C contends that the Judge erred in holding that it had failed to show that the Partial Award dealt with a dispute not falling within the "terms of the submission to arbitration" under Art 34(2)(a)(iii).
(2) Under Ground 2, C contends that the Judge erred in holding that Art 34(2)(a)(iv) was apt to refer to the way in which the arbitration was conducted but not to the contractual procedures preceding the arbitration.
(1) Assuming that there exists a distinction between questions of "admissibility" and "jurisdiction" and that only the latter falls within Art 34(2)(a)(iii), C's challenge is jurisdictional in nature2.
(2) The distinction between "admissibility" and "jurisdiction" ought not to be adopted since it is not found in Art 34(2)(a)(iii) or (iv), and the question should simply be whether the Partial Award dealt with a dispute "not contemplated by or not falling within the terms of the submission to arbitration" (as Art 34(2)(a)(iii) states), and whether "the arbitral procedure was not in accordance with the agreement of the parties" (as Art 34(2)(a)(iv) states)3.
" The international authorities are plainly overwhelmingly in support of a case that a challenge such as the present does not go to jurisdiction, but at the end of the day the matter comes down at English law to an issue as to whether the question of prematurity falls within section 30(1)(c) of the 1996 Act. I do not accept Mr Lightfoot's case that much depends upon the precise wording of the clause. I do not see that there would be any difference between 'No arbitration shall be brought unless X' and 'In the event of X the parties may arbitrate'. As Mr Lightfoot himself submitted, sections 30(1)(a) and (b) give a binary choice, and on the face of it (c) does not. The subsection could have said 'whether [or not] the matters have been submitted to arbitration', which might have given more support for his argument.
 I consider that, to accord with the views of Paulsson, as approved in the Singapore Court of Appeal (at para 77 of BBA v BAZ  2 SLR 453), if the issue relates to whether a claim could not be brought to arbitration, the issue is ordinarily one of jurisdiction and subject to further recourse under section 67 of the 1996 Act, whereas if it relates to whether a claim should not be heard by the arbitrators at all, or at least not yet, the issue is ordinarily one of admissibility, the tribunal decision is final and section 30(1)(c) does not apply. The short passage in the Singapore Court of Appeal set out in para 15(ii) above is useful: 'Jurisdiction [and so susceptibility to a section 67 challenge] is commonly defined to refer to 'the power of the tribunal to hear a case', whereas admissibility refers to 'whether it is appropriate for the tribunal to hear it'.' The issue for (c) is, in my judgment, whether an issue is arbitrable. The issue here is not whether the claim is arbitrable, or whether there is another forum rather than arbitration in which it should be decided, but whether it has been presented too early. That is best decided by the arbitrators.
 Such a conclusion accords with the guidance given by the Chartered Institute of Arbitrators in its International Arbitration Practice Guideline: Jurisdictional Challenges, last revised in November 2016, and still in force, as setting out 'the current best practice in international commercial arbitration for handling jurisdictional challenges'. It reads as follows, in material part, at p 3:
'6. When considering challenges, arbitrators should take care to distinguish between challenges to the arbitrators' jurisdiction and challenges to the admissibility of claims. For example, a challenge on the basis that a claim, or part of claim, is time-barred or prohibited until some precondition has been fulfilled, is a challenge to the admissibility of that claim at that time, ie whether the arbitrators can hear the claim because it may be defective and/or procedurally inadmissible. It is not a challenge for the arbitrators' jurisdiction to decide the claim itself.'
And at p 15:
'After deciding upon the jurisdictional challenges, arbitrators may also be called upon to decide on the admissibility of the claim. This may include a determination as to whether a condition precedent to referring the dispute to arbitration exists and whether such a condition has been satisfied. It also involves challenges that the claim is time-barred.'
 The arbitrators are in any event, in my judgment, in the best position to decide questions relating to whether the conditions precedent has been satisfied, consistent with the views of Lord Hoffmann in Fiona Trust  Bus LR 1719 referred to in para 8 above.
 I consequently agree with the conclusions of the arbitrators (para 110 of the Award) that
'if reaching the end of the settlement period is to be viewed as a condition precedent at all, therefore, it could therefore only be a matter of procedure, that is, a question of admissibility of the claim, and not a matter of jurisdiction.'
In any event I am satisfied that sections 30(1)(c) and 67 of the 1996 Act are not engaged in respect of a challenge that the claim was made prematurely to the arbitrators."
"[31.1] Sub-Contract Disputes shall be settled in accordance with the provisions of this Clause 31.
[31.2] For the purpose of this Clause 31, a Sub-Contract Dispute shall be deemed to arise when either Party serves on the other a notice in writing (herein called a 'Notice of Dispute' which in any event shall only be raised after the completion certificate, or where there is more than one certificate, the last completion certificate, issued by the Relevant Persons under the Main Contract) stating the nature of such Sub-Contract Dispute...
[31.5] If … within twenty-eight (28) days of the service of the Notice of Dispute, and, in the case of the circumstances set out in Clauses 31.5(ii) or (iii), within a further twenty-eight (28) days of such refusal [to refer the dispute to certain ADR Procedure] or failure [to resolve the dispute under the ADR Procedure], either Party may refer the Sub-Contract Dispute to arbitration. Provide always that the Notice of Dispute under this Clause 31 shall only be raised after the completion certificate, or where there is more than one certificate, the last completion certificate issued by the Relevant Persons under the Main Contract."
"The objection in the present case seems to me to be one going to the admissibility of the claim. There is no dispute about the existence, scope and validity of the arbitration agreement. There is no dispute that [D's] claim, as far as its subject matter is concerned, 'arises out of or in relation to' the Agreement and falls within the scope of the arbitration agreement. The issue is not whether there was 'initial consent' to the submission of the dispute to arbitration and to the tribunal's determination: (S Co v B Co, §35). The parties' commitment to arbitrate is not in doubt; they intend the arbitral award to be final and binding. [C's] objection is that the particular reference to arbitration was invalid because the stipulated mechanism of negotiation between the CEOs had not been gone through. The objection is not that such a claim should not be arbitrated at all, but that the tribunal should reject the reference as premature. There is no indication in clauses 14.2 or 14.3 of the Agreement that the parties intended compliance with these provisions to be a matter of jurisdiction. It seems unlikely to be the parties' intention that despite a full hearing before and a decision by a tribunal of their choice the same issue should be re-opened in litigation in the courts. In my view the challenge is one of admissibility rather than jurisdiction."
(1) The characterization of a particular objection as one of "admissibility" or "jurisdiction" depends on the parties' intention and the proper construction of the arbitration agreement in question. There are two different situations. The first is where the parties intend that no obligation to arbitrate should arise unless the condition precedent has been satisfied. The second is where the parties intend the stipulation to be in the nature of procedural regulation of the arbitral process itself or a substantive limitation on the parties' ability to assert claims in the arbitration which the parties intended for the final decision to be made by the tribunal. The former would be a jurisdictional objection, whilst the latter would be one of admissibility.
(2) Under Hong Kong law (being the Governing law of the arbitration agreement), where a contractual obligation is subject to a condition precedent, there is, prior to occurrence of the condition, no duty to render performance of that obligation. In relation to a condition precedent to arbitration, until the occurrence of the condition, there is no consent and no duty to arbitrate. An award made by an arbitral tribunal where a condition precedent has not been fulfilled has no validity, and is liable to be set aside for want of jurisdiction.
(3) In the present case, Clause 14.3 clearly imposes a condition precedent to arbitration (as is accepted by D). Hence, if the condition precedent was not fulfilled, it should be concluded that the Tribunal did not have jurisdiction to make the Partial Award.
(4) The distinction between admissibility and jurisdiction takes the matter no further. Once it is accepted (as D does) that Clause 14.3 imposes a condition precedent, then, as a matter of Hong Kong law, the parties have not agreed to arbitrate when the condition precedent has not been fulfilled.
(5) The difference between jurisdiction and admissibility is that the former is "targeted at the tribunal", whereas the latter is "targeted at the claim".
(6) C's objection that a condition precedent to arbitration was not satisfied was "targeted at the tribunal" and must be jurisdictional.
(7) In the premises, the court ought to conduct a de novo review of the question whether the condition precedent was satisfied. If it was not, the Partial Award is liable to be set aside under Art 34(2)(a)(iii).
(1) Lewison, The Interpretation of Contracts (7th ed), §16.71: "Conditions precedent are normally contingent conditions. In other words unless and until the condition is satisfied, no contract comes into existence, or liability under a contract is suspended."
(2) Russell on Arbitration (24th ed) -
(a) §2-022: "Conditions precedent to the operation of an arbitration agreement must be fulfilled before a tribunal will have jurisdiction to determine disputes under it … Where the disputes provision is a multi-tiered clause, the steps to be taken prior to commencing arbitration may constitute conditions precedent in which case they must be complied with."
(b) §2-307: "Many contracts containing arbitration clauses also provide for the parties first to try to settle the matter by negotiation or discussion between senior executives and, if that fails, the dispute must be referred to mediation or some other ADR process. Only when these steps have failed is the matter to be referred to arbitration … Where such preliminary steps are expressed in mandatory terms so as to constitute a condition precedent to the right to arbitrate they must be complied with. In many cases however they will not be mandatory and it may then be possible for the claimant to commence arbitration even without complying with them. Generally speaking, an obligation simply to negotiate is not binding. However, this is an area in which the law is currently unsettled in particular as regards a requirement to negotiate before commencing arbitration."
(3) Mustill and Boyd, The Law and Practice of Commercial Arbitration in England (2nd ed), p 114: "Just as an arbitrator cannot make a binding award as to the existence of a contract which, if it does exist, is the source of his authority to act, so also does he lack the power to make a binding decision as to the existence of the facts which are said to found his jurisdiction. Thus, where a building contract provided that an arbitration should not take place until after completion of the works, it was held that the parties were not bound by a decision of the arbitrator that the works had been completed. Similarly, if the jurisdiction of the tribunal depends upon the giving of a notice, the tribunal has no power to decide whether an appropriate notice has been given."
"But, as Longmore LJ said in para 21 of the Court of Appeal's judgment, this case is different from a dispute as to whether there was ever a contract at all. As everyone knows, an arbitral award possesses no binding force except that which is derived from the joint mandate of the contracting parties. Everything depends on their contract, and if there was no contract to go to arbitration at all an arbitrator's award can have no validity…"
(1) In the context of Article V(1)(d) of the New York Convention (which provides a ground for challenging an award where the "arbitral procedure was not in accordance with the agreement of the parties"), the phrase "arbitral procedure" can encompass pre-arbitration conditions precedent; and whether a condition precedent to arbitration is part of "arbitral procedure" within the meaning of that article depends on the intention of the parties, in particular whether they intended non-satisfaction of the condition precedent to bar arbitration altogether (Dr Reinmar Wolff, New York Convention - Article-by-Article Commentary (2nd ed 2019), at §§324-324a).
(2) The term "arbitral procedure" in Art 34(2)(a)(iv) should be similarly construed because such construction would be in accord with s 3(2)9 and Article 35 of the Basic Law.
(3) The parties here expressly subjected their consent to arbitration to a condition precedent, and they must have intended the condition precedent to be part of the "arbitral procedure" such that the failure to satisfy the condition precedent is a bar to arbitration and renders the Partial Award liable to be set aside.
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