Session 3 of the Central Asia Dispute Resolution Association - International Arbitration Summer School 2026 “Recognition, Enforcement, and Setting Aside of Arbitral Awards" with Simon Chapman KC from Herbert Smith Freehills Kramer.
Commentary:
In Hong Kong, section 81 of the Arbitration Ordinance gives effect to Article 34 of the UNCITRAL Model Law. For a Hong Kong-seated award, a setting-aside application is ordinarily the exclusive court recourse against the award itself, subject to any applicable Schedule 2 opt-in. Resisting enforcement is a distinct defensive route, with substantially overlapping but not identical grounds.
An award debtor may decide not to seek setting aside and instead resist enforcement if and when enforcement is pursued, but that is not a risk-free substitute. The appropriate forum, the seat, applicable time limits, prior conduct, and the nature of the objection all matter. The Court distinguishes between true jurisdictional objections and objections directed to the admissibility or merits of a claim; the classification depends on the substance of the objection and the parties’ agreement.
Subject to any applicable Schedule 2 opt-in, setting aside is confined to the limited grounds in Article 34 and is not an appeal on the merits. The Court will not ordinarily revisit the tribunal’s factual, legal or procedural determinations, although a true jurisdictional objection may be subject to de novo review. An unsuccessful setting-aside application will normally attract indemnity costs, absent special circumstances.
A court challenge does not automatically destroy confidentiality. It may, however, entail disclosure for the purposes of the proceedings and create the possibility that a judgment of major legal interest will be reported, potentially in anonymised or otherwise redacted form.
Public-policy and due-process challenges face a very high threshold. W v AW was an exceptional case involving parallel proceedings and a common arbitrator. The Court held that the later, inconsistent award was manifestly invalid because the arbitrator failed to address the first award or invite submissions on its effect, causing grave unfairness.
Finally, a party which knows that a provision of the Model Law from which the parties may derogate, or a requirement under the arbitration agreement, has not been complied with, but proceeds without stating its objection without undue delay or, where a time limit is provided, within that time limit, shall be deemed to have waived the right to object.
Good session. Thanks to CADRA and Simon.
On a side note. It was an extremely busy and outstanding day at THAC Thailand Arbitration Center.
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