Introduction

I have had the advantage of reading in draft Sir Anthony Mason NPJ’s judgment. As he has set out fully the background to this appeal, it is unnecessary for me to repeat it.

History of the proceedings

It is important at the outset to bear in mind that the court is here concerned with a Convention award: an award which, in this case, has been determined by a court in the supervisory jurisdiction to have been made in conformity with the rules governing the arbitral process.

It is not in dispute that every fact now relied upon by the seller for saying that there has been violation of the most basic notions of morality and justice in the arbitral process was known to the seller prior to its application to the Beijing Court to set aside the award and prior to the hearing before Findlay J in this jurisdiction. And yet, no point was taken before the Beijing Court to that effect, though points on breaches of arbitration rules were taken.

Before Findlay J, the seller did not rely on the public policy ground in s.44(3) of the Arbitration Ordinance, Cap. 341, to contest enforcement. What was invoked was s.44(2)(c) of the Arbitration Ordinance, on the ground that it was unable to present its case. The seller failed before the judge. After that, on appeal, it averred for the first time that a fundamental flaw in the arbitral process had occurred, rendering it expedient as a matter of public policy to deny enforcement. A court, and especially an appellate court, ought to view such a case with the utmost suspicion.