Summary

David Lewis KC and Gemma Morgan (instructed by Clifford Chance LLP) for the Claimant Philip Marshall KC, Jonathan Kirk KC, Wilson Leung and Lee Finch (instructed by McDermott Will & Emery LLP) for the Defendant

This judgment concerns a New York Convention arbitration award, its enforcement under s. 101 of the Arbitration Act 1996, and the public policy exception under s. 101(3). The public policy exception was invoked by the losing party on the basis that she is a consumer, resident in the UK. She says that enforcement would infringe her rights under the Consumer Rights Act 2015.

It happens that, very shortly before this hearing, I gave judgment in another case involving some similar points: Payward Inc. v Chechetkin [2023] EWHC 1780 (Comm). That judgment featured prominently in some of the submissions made to me by the parties in this case.

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I received submissions from both sides as to whether Mrs Zhang could or should have commenced her investigations into illegality earlier than she did in the context of these proceedings (February 2023, when she commenced Norwich Pharmacal proceedings against Chong Sing in the Cayman Islands). In my judgment, that was certainly too late.

I also received submissions on the question whether any illegality points should have been investigated and run in the arbitration in Hong Kong, and whether the principle of Henderson v Henderson (1834) 3 Hare 100 means that it is too late for her to seek to raise them now, for the reasons discussed by Cockerill J in Alexander Bros Ltd (Hong Kong (SAR) v Alstom Transport SA [2020] EWHC 1583 (Comm), in the passage culminating at [150]. In fact, Mrs Zhang's legal team in the arbitration commenced Norwich Pharmacal proceedings in Hong Kong, in the hope of obtaining materials for use in the arbitration, which can only have been with a view to investigating fundamentally the same points that Mr Marshall KC now says are essential. Those Norwich Pharmacal proceedings were not pursued, apparently because to do so was not considered financially worthwhile. In my judgment, this is not a case where there was any good reason why the points could not have been taken in the arbitration in Hong Kong.

The time used at the hearing for the submissions outlined above was not inconsiderable, but I find this a simple question of case management. Mrs Zhang having issued her application on 14 November 2022, the dates for the hearing were fixed on 19 January 2023. It was up to her and her lawyers to get ready in time and (in Foxton J's phrase) to ensure that they could set out a non-demurrable case. No non-demurrable case in relation to illegality has emerged in the meantime. I am not prepared to postpone enforcement on the off-chance that one may emerge at some unknown date in the future.

I therefore will not adjourn the matter but will determine it.

K: Overall conclusion

Mrs Zhang's application that the Recognition Order be set aside is dismissed. Her other applications are also dismissed (in so far as there are other applications before me.)