Meaning
Statutory provision within the regional laws of Hong Kong that lists the exclusive grounds for refusing the enforcement of certain arbitral awards. The hong kong arbitration ordinance section 89 applies specifically to awards made in states that are parties to the New York Convention. This article prevents a court from re-examining the merits of a dispute while providing a clear list of procedural defects that can stop enforcement.
Judicial policy in the territory remains pro-arbitration by limiting the scope of interference in the finality of private dispute resolution.
Refusal Basis
Proof of a violation regarding the composition of the arbitral tribunal or the arbitral procedure is a common way to invoke this law. Under the hong kong arbitration ordinance section 89, the burden of proof rests entirely on the party resisting the enforcement. A court will only intervene if the procedure failed to follow the agreement of the parties or the law of the seat.
Jurisdictional Scope
Legal challenges involving the incapacity of a party at the time of the agreement fall under this specific regulation. The hong kong arbitration ordinance section 89 covers situations where the underlying arbitration agreement was not valid according to the law chosen by the parties. If the award deals with a dispute not contemplated by the submission to arbitration, the court has the power to refuse enforcement for that specific part of the ruling.
This boundary maintains the contractual nature of the process by ensuring parties are only bound by what they agreed to arbitrate.
Judicial Discretion
Public policy remains the ultimate ground for a court to refuse an award even if other procedural requirements are met. When applying the hong kong arbitration ordinance section 89, the High Court considers whether the enforcement would be contrary to the fundamental notions of morality and justice in the territory. This residual power is exercised sparingly to avoid undermining the international arbitration framework.
