Summary

Background

1. On 12 January 2023, this Court granted leave to the Applicant to enforce in Hong Kong an arbitral award of the Chengdu Arbitration Commission ("Commission") dated 11 October 2021 (" Award "). Under the Award, the Respondent is to pay to the Applicant a sum of RMB 337,222, 219.90, interest and costs.

2. On 26 January 2023, the Respondent applied to set aside the order of 12 January 2023 ("Enforcement Order"), on the ground that the arbitration agreement relied upon by the Applicant was not valid, the Respondent was unable to present his case in the Mainland arbitration ("Arbitration"), the composition of the tribunal or the arbitral procedure was not in accordance with the parties' agreement, and/or it would be contrary to public policy to enforce the Award ("Setting Aside Application"). In support of the Setting Aside Application, the Respondent filed his 2nd affirmation made on 26 January 2023, in which he claimed (inter alia) that he had not been validly served with documents in the Arbitration, was not given the opportunity to nominate an arbitrator of his choice, that he could only appoint a lawyer to attend the second (but not the first) hearing of the Arbitration on 26 May 2021, and that submissions had been made on behalf of the Applicant and submitted to the tribunal, which had not been served on him nor produced at the hearing. He claimed that he had already applied to the Chengdu Intermediate People's Court to set aside the Award.

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31. In this overall context, my judgment is that arbitrators should be entitled to the same immunity available to judges in respect of their decision- making in the process of arbitration, absent fraud or bad faith. The purpose and rationale for such immunity is the protection of the discretionary and independent decision-making process of the arbitrator who performs a judicial function. It is also in line with the public policy and the Court's interest in encouraging private dispute arbitration and to protect the autonomy of the arbitral process. Such arbitral immunity and autonomy will be illusory if the Court is to compel, or enable the parties to compel, an arbitrator to give evidence as to his decision-making, which includes the arbitrator's exercise of his powers and discretion in the arbitral process, or to explain and justify the manner of exercise of such powers and discretion.

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