Notice-ably Wrong: The Importance of Proper Notice in Arbitration Proceedings11Sep2023
What difference can a “t” make? Apparently, a lot. In a Hong Kong Arbitration Society arbitration, the Claimant served its Notice of Arbitration (NoA) on the Respondent using XYZ@CHINAT.HK instead of [email protected] (the Respondent’s email for service under the relevant contract).
That difference was sufficient for the Hong Kong Court of First Instance in G v P  HKCFI 2173 to
allow the Respondent to set aside the enforcement order for the arbitral award. The Court found notice to be inadequate because the NoA had not been sent to the email address “specified in the applicable arbitration agreement”.
This decision shows how a seemingly minor error might jeopardise an award entirely and has important takeaways for parties to an arbitration:
First, follow the service requirements in the contract. The Court emphasised that service – especially of the NoA, which initiates the legal proceedings – is important in bringing notice of the claims to the respondent.
Second, save proof of having made proper service, whether that is by email, post, courier or any other means. In this case, it was unfortunate, especially for the Applicant, that it did not or could not give evidence of email service. The only evidence of service (and specifically which email was used) was on the face of the Award itself, which the Court took to be correct and accurate in the absence of countervailing evidence. The best evidence would have been the email itself.
Third, the courts’ pro-arbitration approach will not save a failure to make proper service. As the Court explained, “Despite the pro-arbitration approach, an arbitral award is recognized and enforced by the Court only if the award and the arbitral process leading to the award is structurally intact and that there is due and fair process”.
The consequences of failure to give proper service can be significant. In this instance, the Applicant’s efforts to enforce an arbitration award have been thwarted by lack of proper service. It means that the Applicant may need to recommence the arbitration proceedings – all because of a failure to send to the contractually-provided email address!
Doug Clark and Elizabeth Chan
For more information, please contact:
Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.