## Facts

- A PRC company (award creditor) and a Hong Kong company (award debtor) entered a contract dated February 12, 1988 with an arbitration clause referring disputes to arbitration before the Foreign Trade Arbitration Commission in Beijing (CIETAC) under its rules.
- A dispute arose and the creditor commenced arbitration before the CIETAC Shenzhen Sub-Commission rather than Beijing.
- The Shenzhen Sub-Commission used a different arbitrator list than Beijing; the debtor did not appoint an arbitrator and one was appointed for it.
- Debtor’s counsel informally raised that arbitration should be in Beijing; the objection was not pursued as a formal jurisdictional challenge and no formal jurisdiction submissions were filed.
- After the tribunal rejected the objection, both parties participated in the Shenzhen arbitration for a substantial period without reserving rights or stating participation was “without prejudice.”
- On February 10, 1990, the Shenzhen Sub-Commission issued an award in favor of the creditor.
- The creditor sought enforcement in Hong Kong as a New York Convention award under the Arbitration Ordinance (Cap. 341).
- The debtor opposed enforcement under the Ordinance’s ground paralleling New York Convention Article V(1)(d), alleging the tribunal’s composition/procedure was not in accordance with the parties’ agreement.

## Issues

1. Whether conducting the arbitration before the CIETAC Shenzhen Sub-Commission (with a different arbitrator list) amounted to a composition/procedure not in accordance with the parties’ agreement, permitting refusal of enforcement under the Hong Kong Convention-award regime.
2. Whether the debtor was estopped (or had waived the point) from relying on that irregularity at the enforcement stage because it participated without reserving its rights or maintaining a timely objection.
3. Whether, even if a refusal ground was established, the court should exercise residual discretion to enforce the award.

## Decision

- The court granted enforcement of the award.
- The court accepted there was at least a technical departure from the agreed arbitral arrangement (Beijing contemplated by the clause and rules at the time, versus arbitration administered in Shenzhen with a different arbitrator list).
- The court held the debtor was estopped from resisting enforcement on that basis because it proceeded with the arbitration after the tribunal’s ruling without reserving rights or continuing a formal objection.
- The court further held that, even if the debtor had technically proved a refusal ground, the court retained discretion and would enforce in the circumstances.

## Legal Principles

- Under Hong Kong’s Convention-award provisions, refusal of enforcement is limited to specified statutory grounds, and the resisting party bears the burden of proving a ground.
- A departure from the parties’ agreed arbitral composition or procedure can fall within the Convention ground mirrored by New York Convention Article V(1)(d).
- A party that participates in an arbitration without a clear and timely reservation of rights, after an asserted jurisdictional/procedural defect is known and ruled upon, may be estopped from later relying on that defect to resist enforcement.
- Estoppel/waiver principles may operate within the New York Convention enforcement framework, including beyond challenges to the arbitration agreement itself.
- Even where a refusal ground is established, enforcement remains discretionary; courts may enforce where the circumstances (including lack of prejudice and the resisting party’s conduct) support enforcement.

## Conclusion

The Hong Kong court enforced a CIETAC Shenzhen award despite a technical mismatch with the contract’s Beijing-referenced arbitral arrangement, because the award debtor participated without preserving its objection and was estopped from raising the point at enforcement; the court also confirmed it retained discretion to enforce even if a refusal ground were otherwise shown.


China Nanhai Oil Joint Serv. Corp., Shenzhen Branch v. Gee Tai Holdings Co. Ltd., [1995] 2 H.K.L.R. 215 (H.C. H.K. 1994)