1

IN THE MATTER OF ARBITRATION OF

2
3

PAMPANGA ENERGY COMPANY,

Claimant,

4
5
7
8

v.

Case No: xxxxxxxx

CONSTRUCTICON COMPANY,
Respondent.

9
10
11

SUBMISSION of CLAIMANT

12

and

13

REPLY to COUNTERCLAIM

14
15
16
17

1. Claimant, Pampanga Energy Company (PEC for brevity), by

18

counsel, unto this Honourable Arbitral Tribunal, in compliance

19

with the directives of this tribunal, most respectfully submits this

20

Submission (with Response to the Submission 1 of respondent,

21

Constructicon Company, which is designated by the respondent

22

as Motion to Dismiss on the Ground of Lack of Jurisdiction, and

23

is hereinafter referred to as CCs Motion for brevity) and Reply

24

to the Counterclaim contained in the same motion.

25
26
27
28

THE PARTIES
2. PEC, a Philippine company, is the owner of a power station in
the province of Pampanga, Philippines.

29
30

3. In October 2012, PEC employed another Philippine Company,

31

herein respondent, Constructicon Company (CC for brevity), to

32

design, construct, commission, test, complete and hand over

33

the power station to it.

11 Submission of the Respondent designated as: Motion to Dismiss on the

2Ground of Lack of Jurisdiction, dated 30 August 2015.

Page2

34
35
36

STATEMENT OF FACTS

37
38

4. For the convenience of the Honourable Arbitral Tribunal and,

39

hopefully, to hasten the disposition of the controversy at hand,

40

PEC hereinafter admits and adopts in toto the Statement of

41

Facts2 (from paragraphs 1 7) asserted by CC. Hence, all facts

42

should now be clear and undisputed.

43
44

5. However, to stress the significance of the arguments of PEC,

45

portions of the facts3 submitted by CC (and adopted, as

46

aforesaid, by PEC) are reproduced in the presentations of

47

arguments for emphasis.

48

STATEMENT OF ISSUES

49
50

6. The main issues to be raised in the instant case, as ordered by

51

this Honourable Arbitral Tribunal, are as follows:

52
53

I. Whether the HongKong International Arbitration Centre

54

(HKIAC) has exclusive jurisdiction to settle the matter;

55

and

56
57

II. Whether the Anti-suit Injunction issued by the Manila

58

Regional Trial Court (Manila Court for brevity) can

59

effect and stay the current proceedings conducted

60

before the Knowledgeable Sole Arbitrator.

61
42 I. Statement of Facts, id, pp. 1 5.
53 Id.

Page3

THE ARGUMENTS

62
63

I. JURISDICTION

64
65
66

7. It is most humbly submitted that, contrary to the assertion of

67

respondent, this case is within the ambit of this Honourable

68

Tribunals jurisdiction.

69
70A.

Capacity of

71

Parties

72

to Contract

73

74

8. PEC admits paragraphs 9 and 10 of CCs motion 4 regarding the

75

parties capacity to contract and their freedom to agree on

76

stipulations of said contract. PEC also admits paragraph 11

77

therein, in so far as Article 1306 of the New Civil Code of the

78

Philippines is made applicable in this matter.

79

80

9. However, claimant vehemently denies the erroneous allegation

81

of CC that the subject agreement between the parties is

82

contrary to law because the mandatory law invoked by CC, i.e.

83

Executive Order No. 1008 (a legislation in the Philippines), which

84

supposedly vested jurisdiction to the Construction Industry

85

Arbitration Commission, could never be applied in this matter

86

for the simple reason that the arbitration agreement entered

87

into by the parties is governed by Hong Kong Law. This topic will

88

be discussed extensively below.

89
74 II. Answer to the notice of Arbitration on the matter of: 1.) Jurisdiction,
8supra note 1, p. 6.

Page4

90

10.

Further, an act or a contract that is illegal per se (under

91

Philippine Law) is one that by universally recognized standards

92

is inherently or by its very nature, bad, improper, immoral or

93

contrary to good conscience.5 Certainly, the stipulations agreed

94

upon by the parties cannot be said to be inherently improper,

95

much less, universally recognized as being immoral or contrary

96

to good conscience.

97
98B.

Interpretation of

99

the

100
101
102

Contract
Between
The Parties

103
104

11.

The engineering procurement and construction contract

105

(EPC contract for brevity) is the main contract between the

106

parties in this controversy. Being the principal contract, it is also

107

referred to as matrix contract6 or container contract.7

108
109
110

12.

The EPC Contract is undoubtedly governed by Philippine

Law. As the facts narrate:

111
112

2.

The

substantive

law

of

the

engineering

113

procurement and construction contract is Philippine

114

law.

115
105 Tolentino, Commentaries and Jurisprudence on the Civil Code of the
11Philippines (2002), p.415.
126 See Habas Sinai Ve Tibbi Istihsal Endustrisi As v VSC Steel Company Ltd
13[2013] EWHC 4071
147 See Gonzales vs. Climax Mining Ltd., G.R. No. 161957, January 22, 2007.

Page5

15

116

13.

Since Philippine Law governs the EPC contract, the

117

guideline in interpreting this contract must come from the

118

Philippine legal system. Under Article 1370 of the New Civil

119

Code of the Philippines:

120
121

Art. 1370. If the terms of a contract are clear and

122

leave no doubt upon the intention of the contracting

123

parties, the literal meaning of its stipulations shall

124

control.

125

If the words appear to be contrary to the evident

126

intention of the parties, the latter shall prevail over

127

the former. (Underscoring supplied.)

128
129
130

14.

The Philippine Supreme Court, in the case of Adriatico

131

Consortium, Inc., et al. vs. Land Bank of the Philippines,8 has

132

discussed and explained the provision of law quoted in the

133

preceding paragraph, wit:

134
135

More importantly, a contract must be interpreted

136

from the language of the contract itself according to

137

its plain and ordinary meaning. This was elucidated

138

by this Court in Abad v. Goldloop Properties, Inc., to

139

wit:

140
141

The cardinal rule in the interpretation of

142

contracts is embodied in the first paragraph of

143

Article 1370 of the Civil Code: [i]f the terms of

144

a contract are clear and leave no doubt upon

145

the intention of the contracting parties, the

146

literal meaning of its stipulations shall control.

147

This provision is akin to the plain meaning rule

148

applied

149

assumes that the intent of the parties to an

150

instrument is embodied in the writing itself,

by Pennsylvania courts,

168 G.R. No. 187838, 23 December 2009.

which

Page6

17

151

and

when

152

unambiguous the intent is to be discovered

153

only

154

agreement. xxx A courts purpose in examining

155

a contract is to interpret the intent of the

156

contracting parties, as objectively manifested

157

by them. xxx Where the written terms of the

158

contract are not ambiguous and can only be

159

read one way, the court will interpret the

160

contract as a matter of law. If the contract is

161

determined

162

interpretation of the contract is left to the

163

court, to resolve the ambiguity in the light of

164

the

165

supplied.)

from

the

words

the

to

express

be

intrinsic

are

clear

language

ambiguous,

evidence.

of

then

and
the

the

(Underscoring

166
167
168
169

15.

Following the above quoted provision of Philippine Law

170

and judicial decision, hereunder are the rules in interpreting the

171

EPC contracts:

172

If the contract (or any stipulation therein) is clear, this

173

Honourable Tribunal must interpret the contract (or any of

174

its stipulation) as a matter of law, and the terms are to be

175

understood literally just as they appear on the face of the

176

contract;

177

If, on the other hand, the contract is determined to be

178

ambiguous, this Honourable Tribunal must resolve the

179

ambiguity in the light of the intrinsic evidence to interpret

180

the intent of the parties.

181
182C.
183

The Hierarchy of
Rules

Page7

18

184
185

16.

PEC admits paragraph 12 of CCs Motion, which provides:

186

12. In arbitration, there are various laws, rules, and

187

guidelines governing arbitral process and these are

188

observed in an order of hierarchy as follows:

189

A. Arbitration Agreement

190

B. Arbitration Rules

191

C. National Laws

192

D. International Arbitration Practice

193

E. International Treaties

194
195

These guidelines will help the arbitration tribunal to

196

determine the existence and validity of arbitration

197

agreements, jurisdiction, applicability of laws and

198

procedures and in awarding of monetary awards.

(Underscoring supplied.)

199
200
201

17.

As stated by CC, this list is not a mere enumeration of

202

laws and rules, but is actually a hierarchy of the governing laws,

203

rules and guidelines. The order in the above quoted paragraph

204

shows that the top of the hierarchy is the Arbitration Agreement,

205

followed by Arbitration Rules, then by the National Laws, the

206

International Arbitration Practice thereafter, and lastly, the

207

International Treaties.

208
209

18.

The respondent was trying to show that it was actually

210

applying the hierarchy in its submission/ motion. This is

211

evidenced

212

Agreement, B. Arbitration Rules and C. National Law) made

by

the

sequential

captioning

(A.

Arbitration

Page8

19

213

on pages 7 and 18 of CCs motion. However, a perusal of the

214

content of CCs motion will show that the respondent has

215

applied solely Philippine Law, which according to them, is the

216

only National Law that should govern this case. CC applied

217

Philippine legal system exclusively in the guise of the captioning

218

made. CC has totally disregarded the Arbitration Agreement and

219

the Arbitration Rules set out and agreed upon by the parties in

220

the subject contract.

221
222D.
223

The Arbitration
Agreement

224
225

19.

At the pinnacle of the hierarchy is the Arbitration

226

Agreement. An "Arbitration agreement" is an agreement by the

227

parties to submit to arbitration all or certain disputes which

228

have arisen or which may arise between them in respect of a

229

defined legal relationship, whether contractual or not. It may be

230

in the form of an arbitration clause in a contract or in the form of

231

a separate agreement.9 It is the underpinning for the regulatory

232

framework governing the private dispute resolution process 10

233

and it is the law between the parties. Since that agreement is

234

binding between them, they are expected to abide by it in good

235

faith.11 The Arbitration Agreement in the EPC contract between

236

the parties of this case is Clause 31.

237
238

D.1. Clause 31

209 Article 7, United Nations Commission on International Trade Law

21(UNCITRAL), as amended in 2006. The same is adopted in the legal systems
22of Hong Kong and the Philippines thru Section 19, Arbitration Ordinance 609
23and Section 19, R.A. 9285, respectively.
2410 Moses, The Principles and Practice of International Commercial
25Arbitration (2012), Second Ed., p. 6
2611 Fiesta World Mall Corporation vs. Lindberg Philippines, Inc. G.R. No.
27152471, 18 August 2006

Page9

28

239
240

20.

The undisputed facts provide:

241
242

By clause 31

of the engineering procurement and

243

construction contract, the parties agreed to the following:

244
245

"31.1 Any unresolved dispute shall be referred to

246

and finally resolved by arbitration administered

247

by the Hong Kong International Arbitration

248

Centre under the Rules, except as the Rules

249

may

250

proceedings shall be conducted, and the award shall

251

be rendered, in the English language. The seat of

252

arbitration shall be Hong Kong.

be

modified

herein.

The

arbitration

253
254

31.2 This clause and the parties agreement to

255

arbitrate herein shall be governed by the laws

256

of Hong

257

supplied.)

Kong

(Boldfacing and underscoring

258
259

21.

At the outset, several principles of law should be

260

expounded and used in determining the nature of Clause 31 and

261

the governing law for the same. These principles are:

262

a. Plain Meaning;

263

b. Admission;

264

c. Effective Interpretation:

265

d. Separability; and

266

e. Express Choice.

Page10

29

267
268

These principles will be discussed seriatim.

269

a. PLAIN MEANING RULE

270
271
272

22.

Using the rule of Philippine Construction of Contracts, as

273

discussed in A. Interpretation of the Contract Between the

274

Parties of this Submission, since the words of Clause 31 are

275

clear and unambiguous, it is humbly submitted that the

276

Honourable Tribunal must interpret said clause as a matter of

277

law, and the terms are to be understood literally just as they

278

appear on the face of the contract;

279
280
281

23.

In reading Clause 31 in its plain meaning, there could be

no doubt that the parties intended and agreed that

282

Clause 31 is the Arbitration Agreement because of the fact

283

that paragraph 31.1 therein provides for arbitration in

284

case of any unresolved dispute; and that

Paragraph 31.2 provide that the Arbitration Agreement is

285

governed by Hong Kong Law;

286
287

b. ADMISSION

288
289
290

24.

The content of paragraph 31.2, clause 31 (that the

291

Arbitration Agreement is governed by Hong Kong Law), is a fact

292

averred by the respondent and unquestionably admitted by

293

herein claimant in this Submission. The assertion of this fact

294

made by respondent comes with no other discussion, much less

Page11

30

295

a subsequent retraction from it. 12 Claimant would not hesitate

296

to admit and adopt the same unconditionally. Since this fact is

297

no longer disputed, it is submitted that paragraph 31.2, clause

298

31, no longer needs to be proven.

299

c. PRINCIPLE OF EFFECTIVE

300

INTERPRETATION

301
302

303

25.

In paragraph 32 of CCs Motion, 13 CC mentioned that the

304

parties specifically designated Philippine Law as the substantive

305

law governing the contract. PEC does not disagree with this

306

view.

307
308

26.

However, CC contended that E.O. 1008, CIAC Rules, and

309

CIAC Resolutions are all applicable in this case. In doing so, the

310

respondent has further applied Philippine Law to the extent of

311

making the same as the only governing decree over all

312

controversies that have been raised in this case. This contention

313

cannot persuade.

314
315

27.

In applying Philippine Law in all aspects of this case, CC

316

has totally disregarded the clear intention of the parties and

317

their unambiguous agreement specifically that the Arbitration

318

Agreement is governed by Hong Kong Law. In effect, CC has

319

rendered

320

ineffective and futile.

salient

provisions

of

the

Arbitration

Agreement

321

3112 Averment of paragraph 31.2, clause 31 was made by CC in supra note

323, p.2. No other discussion or a following withdrawal was made in the whole
33document (CCs Motion).
3413 Page 18

Page12

35

322
323

28.

CCs assertion is palpably contradictory to the universally

accepted Principle of Effective Interpretation.

324
325

29.

This principle is inspired by provisions such as Article 1157

326

of the French Civil Code, according to which where a clause can

327

be interpreted in two different ways, the interpretation enabling

328

the clause to be effective should be adopted in preference to

329

that which prevents the clause from being effective. This

330

common-sense rule whereby, if in doubt, one should prefer the

331

interpretation which gives meaning to the words, rather than

332

that which renders them useless or nonsensical, is widely

333

accepted not only by the courts but also by arbitrators who

334

readily acknowledge it to be a universally recognized rule of

335

interpretation.14

336
337

30.

Even the Philippine legal system, which is the sole basis of

338

all the contentions of CC in this matter, indubitably adopts the

339

principle.

340
341
342

31.

Under Article 1374 of the New Civil Code of the

Philippines:

343

344

Article 1374. The various stipulations of a contract

345

shall be interpreted together, attributing to the

346

doubtful ones that sense which may result from all

347

of them taken jointly.

348
349
350

32.

As aptly declared by the Philippine Supreme Court in the

case of Saludo vs. Court of Appeals:15

3614 Insigma Technology Co Ltd v. Alstom Technology Ltd. [2009] 3 SLR 936;
37[2009] SGCA 24
3815 G.R. No. 95536, 23 March 1992

Page13

39

351

The horn book rule on interpretation of contracts

352

consecrates the primacy of the intention of the

353

parties, the same having the force of law between

354

them. When the terms of the agreement are clear

355

and explicit, that they do not justify an attempt to

356

read into any alleged intention of the parties, the

357

terms are to be understood literally just as they

358

appear on the face of the contract. The various

359

stipulations of a contract shall be interpreted

360

together and such a construction is to be adopted as

361

will give effect to all provisions thereof. A contract

362

cannot be construed by parts, but its clauses should

363

be interpreted in relation to one another. The whole

364

contract must be interpreted or read together in

365

order to arrive at its

366

stipulations cannot be segregated and then

367

made to control; neither do particular words nor

368

phrases necessarily determine the character of a

369

contract. The legal effect of the contract is not to be

370

determined

371

disconnected from all others, but in the ruling

372

intention of the parties as gathered from all the

373

language

374

contemporaneous

375

(Underscoring and boldfacing added.)

alone

they

by

true meaning. Certain

any

have
and

particular

used

and

provision

from

subsequent

their
acts.

376
377

33.

The contract must be construed in a way that would give

378

effect to all its provisions.16 In other words, the stipulations in a

379

contract should be interpreted together with the end in view of

380

giving effect to all.17

381
382

4016 Domingo Realty, Inc. vs. Court of Appeals, G.R. No. 126236, 26 January
412007.
4217 Manila International Airport Authority vs. Avia Filipinas International, Inc.,
43G.R. No. 180168, 27 February 2012

Page14

44

383

34.

Applying the legal bases enumerated and discussed

384

above, the EPC Contract must be interpreted as a whole. In

385

doing so, all of its stipulations must be given effect. Thus:

386

The stipulation that the EPC Contract is governed by

387

Philippine Law is valid; and

388
389

That paragraph 31.2 of Clause 31, which makes said

390

clause (which is the Arbitration Agreement between the

391

parties) ruled by Hong Kong Law is just as valid.

392
393

35.

There are therefore two different legal systems that should

394

be reckoned in interpreting and applying the stipulations of the

395

whole document, contrary to the assertion of CC, which focused

396

and applied Philippine Law exclusively.

397

d. DOCTRINE OF SEPARABILITY

398
399
400

36.

Technically speaking, notwithstanding the integrity of the

401

whole document in controversy, there are actually two distinct

402

contracts in the said document.

403
404

37.

The separation of these two contracts is in line with the

405

Doctrine of Separability, which treats an arbitration agreement

406

contained in a contract as a separate agreement from the

407

contract

408

containing

409

concluding two separate agreements.19 Both the Laws of

410

Philippine and Hong Kong recognize this doctrine and are

411

uniform in accepting and implementing this principle.

itself.18
an

When

the

arbitration

parties

agreement,

conclude
they

are

contract
in

effect

4518 Greenberg, et al. International Commercial Arbitration An Asia-Pacific

46Perspective (2010). First Ed. Par. 4.36, p. 155.
4719Id at Par. 4.47, p. 158.

Page15

48

412
413
414

38.

The Supreme Court of the Philippines in Gonzales

Climax Mining Ltd.20 held:

415
416

The doctrine of separability, or severability as other

417

writers

418

agreement is independent of the main contract. The

419

arbitration agreement is to be treated as a separate

420

agreement and the arbitration agreement does not

421

automatically terminate when the contract of which

422

it is part comes to an end.

call

it,

enunciates

that

an

arbitration

423
424

The separability of the arbitration agreement is

425

especially

426

whether the invalidity of the main contract also

427

nullifies the arbitration clause. Indeed, the doctrine

428

denotes that the invalidity of the main contract, also

429

referred

430

does not affect

431

agreement. Irrespective of the fact that the main

432

contract is invalid, the arbitration clause/agreement

433

still remains valid and enforceable.

significant

to

to

the

as

the

the

validity

determination

"container"
of

the

of

contract,
arbitration

434
435

The

separability

of

436

confirmed in Art. 16(1) of the UNCITRAL Model Law

437

and Art. 21(2) of the UNCITRAL Arbitration Rules.

438

(Underscoring supplied.)

439

4920 G.R. No. 161957, 22 January 2007.

the

arbitration

clause

is

vs.

Page16

50

440
441

39.

Similarly, in H Smal Ltd. v Goldroyce Garment Ltd.,21 the

High Court of Hong Kong held:

442
443

The problem with this argument is that it does not

444

take into account that the arbitration agreement

445

contained in another written agreement has a life of

446

its own. The doctrine of separability has now been

447

enshrined in the Model Law and has been fully

448

accepted in case law in England and Hong Kong.x x

449

x (Underscoring supplied.)

450

e. EXPRESS CHOICE OF THE PARTIES

451
452
453

40.

Since an arbitration clause is an agreement separate from

454

that in which it is contained, the determination of the law that

455

governs the arbitration clause and that which governs the

456

contract must also be separate.22 Even if the Arbitration

457

Agreement forms part of the matrix contract (as is commonly

458

the case), its proper law may not be the same as that of the

459

matrix contract.23 Since the two agreements have different

460

purposes, it is quite conceivable that a different law applies to

461

each.24

462
463

41.

With this regard, the case of Sulamerica CIA Nacional De

464

Seguros S.A. and others v. Enesa Engenharia S.A. and others 25 is

465

enlightening. In this case, Lord Justice Moore-Bick elucidated:

5121 [1994] 2 HKC 526

5222 Supra note 19 at Par. 4.50, p. 159.
5323 Habas Sinai Ve Tibbi Gazlar Istihsal Endustrisi As v. VSC Steel Company
54Ltd. [2013] EWHC 4071 (Comm)
5524Supra note 22 at Par. 4.50, pp. 159-160.
5625 [2012] EWCA Civ 638.

Page17

57

466
467

11. In Channel Tunnel Group Ltd v Balfour Beatty

468

Construction Ltd [1993] A.C. 334 Lord Mustill said (at

469

pages 357-8):

470
471

"It is by now firmly established that more than one

472

national

473

international arbitration. Thus, there is the proper

474

law which regulates the substantive rights and

475

duties of the parties to the contract from which the

476

dispute has arisen. Exceptionally, this may differ

477

from the national law governing the interpretation

478

of

479

arbitration. Less exceptionally it may also differ from

480

the national law which the parties have expressly or

481

by implication selected to govern the relationship

482

between themselves and the arbitrator in the

483

conduct of the arbitration: the "curial law" of the

484

arbitration, as it is often called."

the

system

of

agreement

law

to

may

submit

bear

the

upon

dispute

an

to

485

xxx

486

xxx

xxx

487
488

25. Although there is a wealth of dicta touching on

489

the problem, it is accepted that there is no decision

490

binding on this court. However, the authorities

491

establish

492

controversial but which provide the starting point for

493

any enquiry into the proper law of an arbitration

494

agreement. The first is that, even if the agreement

495

forms part of a substantive contract (as is commonly

496

the case), its proper law may not be the same as

497

that of the substantive contract. The second is that

498

the

499

undertaking a three-stage enquiry into (i) express

500

choice, (ii) implied choice and (iii) closest and most

501

real connection. xxx xxx xxx (Italicization by the

502

Court; boldfacing and underscoring PEC.)

two

proper

propositions

law

is

to

be

that

were

determined

not

by

Page18

58

503
504
505
506

42.

In line with the foregoing discussion, and the agreement

507

entered and expressly stipulated by the parties, it can be easily

508

deduced that the EPC Contract, which is the matrix contract, is

509

governed by the law of the Philippines; while Clause 31, another

510

separate contract, which is the arbitration agreement, is

511

governed by the law of Hong Kong.

512
513

D.2.

Construction

514

and

515

the

516

Agreement

Application

of

Arbitration

517
518

43.

As

discussed

above,

Hong

Kong

Law

governs

the

519

Arbitration Agreement (Clause 31). Ergo, the Hong Kong legal

520

system must be applied for the interpretation and application of

521

Clause 31. Most of Hong Kongs contract law cannot be found in

522

legislation.26 Very few ordinances deal with contract principles, 27

523

which can only be found in the reported decisions of the courts

524

in Hong Kong and other common law jurisdictions.28

525
526

44.

In Fully Profit (Asia) Ltd v. The Secretary for Justice,29 the

527

Hong Kong Court of Final Appeal discussed the fundamental rule

528

in interpreting a contract. In this case, Chief Justice Ma

529

explained:

5926 Chui and Roebuck, Hong Kong Contracts (Second Ed.), p. 5. (1991)
6027 Id.
6128 Id at p. 15
6229 [2013] HKCFA 40; 16 HKCFAR 351; 6 HKC 374.

Page19

63

530
531

15. xxx xxx xxx What emerges from these cases

532

and other authorities on contractual interpretation

533

is the overall importance of context when construing

534

contractual terms. The statements of principle

535

in Investors Compensation Scheme and in Jumbo

536

King refer

537

background against which the relevant contract and

538

contractual terms must be viewed. It is in my view

539

not particularly helpful in most cases to refer to the

540

ordinary and natural meaning of words because,

541

as very often experience tells us, there can be much

542

debate over exactly what is the ordinary or natural

543

meaning of words. The surer guide to interpretation

544

is context. Here, I would just add that in the area of

545

statutory and constitutional interpretation, it is

546

context that is key; context is the starting point

547

(together with purpose) rather than looking at what

548

may be the natural and ordinary meaning of words.

549

(Underscoring supplied.)

time

and

again

to

the

relevant

550
551

45.

As pointed out in the above Hong Kong Court of Final

552

Appeal ruling, context and purpose should be the main key in

553

interpreting contracts. Hence the same principle must be

554

applied in reading the other provisions of the Arbitration

555

Agreement.

556
557

D.3.

558

Agreement to make

559

EO

560

9285 Inapplicable is

561

Valid

562

Parties
1008

and

RA

Page20

64

563

46.

Paragraph 31.10 of Clause 31 provides:

564
565

31.10 For the avoidance of doubt, the parties

566

agree, to the extent permitted by applicable Laws

567

or international conventions, that the application

568

of:

569

(i)

570

Executive Order No. 1008, otherwise known as

the Construction Industry Arbitration Law;

571
572

(ii)

573

the provisions of Republic Act No. 9285,

574

otherwise

known

as

575

Resolution

Act

576

construction arbitration; and

of

Alternative
2004,

Dispute

relating

to

577

(iii)

578

any

other

Laws

prescribing

dispute

579

resolution mechanism contrary to or in any

580

manner inconsistent with that provided in this

581

Agreement, shall not be applicable to this

582

Agreement or to any dispute that may arise in

583

connection

584

irrevocably waived by the parties and

585

shall not be invoked by them . (Boldfacing

586

and underscoring supplied.)

therewith

and

are

hereby

587
588

47.

Applying the principle of Hong Kong Law in contract

589

construction, the intent of the parties is very clear. There could

590

be no question that the parties intend to make E.O. No. 1008,

591

R.A. 9285, etc. inapplicable, up to the extent that said laws

592

prescribe a dispute resolution mechanism inconsistent with that

Page21

65

593

provided in Clause 31. The purpose of this waiver is to avoid

594

doubt in applying the Arbitration Agreement.

595
596

48.

CC hypothesise that such waiver is invalid since the

597

aforesaid laws are mandatory in character due to the fact that

598

they vest jurisdiction in another forum, and that jurisdiction is

599

conferred by law and cannot be waived by agreement. 30

600

Respondent tried to find support from Philippine Supreme Court

601

cases by reproducing parts of these cases lengthily in numerous

602

pages of its submission / motion.31

603
604
605

49.

It is most respectfully submitted that CCs theory is

misplaced.

606
607

50.

CCs theory and the application of its lengthy reproduction

608

of Philippine court rulings presuppose that the law governing the

609

arbitration agreement is Philippine Law. It has already been said

610

that Hong Kong Law is the governing decree over the Arbitration

611

Agreement (Clause 31) and Philippine Law applies only to the

612

EPC Contract. Since the agreement not to apply EO 1008 and RA

613

9285 is contained in Clause 31, the Law of the Philippines

614

(including its judicial pronouncements) no longer controls it.

615
616

51.

Moreover, the Philippine cases insisted by CC are not

617

similar to facts and circumstances of the instant case. None of

618

these cases portray a fact wherein the parties have chosen two

619

different laws to separately govern their matrix contract and

620

their arbitration agreement.

621

6630 Please see CCs Motion, par. 20, pp. 10-11.

6731 Please see CCs Motion, pp. 12-17.

Page22

68

622

D.4. Other Laws and

623

Rules

624

Govern the Parties,

625

Per

626

Agreement

that
the

should
Latters

627
628

52.

The parties may make a choice of a law to govern their

629

commercial bargain, of a law to govern their arbitration

630

agreement, and of a law to govern the procedures in any

631

arbitration held under that agreement. In theory, at least, the

632

parties could choose a different law for each of these

633

purposes.32

634
635

53.

In this case, PEC and CC have chosen not only the

636

governing laws for the matrix contract and the arbitration

637

agreement.

638

applicable rules regarding the procedures of arbitration:

The

parties

also

expressly

provided

for

the

a. Paragraph 31.1 clearly provides that arbitration should be

639
640

administered

by

the

Hong

641

Arbitration Centre (HKIAC);

Kong

International

642

b. Paragraph 31.1 also provides that the arbitration rules

643

would be that of HKIAC, except as the Rules may be

644

modified (hereinafter HKIAC 2013 Rules for brevity.);

645

and
c. In the same paragraph 31.1, the seat of arbitration has

646

been agreed upon by the parties to be in Hong Kong.

647
648
649

54.

Clearly, the parties have intended to be governed by the

650

HKIAC. They also intended to be bound by the rules of HKIAC.

651

And, to clarify their intentions, they even agreed to submit their

652

selves to the domestic laws of Hong Kong, in case an arbitration

6932 Union of India v. Mc Donnell Douglas Corp [1993] 2 LLR 48, at 50

Page23

70

653

proceeding is commenced, as what actually happened in this

654

case.

655
656

55.

Premises and discussions considered, the averments

657

regarding the applicability of certain Philippine Laws supposedly

658

conferring jurisdiction to the CIAC does not have a leg to stand,

659

since it is Hong Kong Law, not Philippine Law, that governs the

660

Arbitration Agreement.

661
662

56.

Further, said laws (E.O. No. 1008 and R.A. 876) are

663

categorically made by the parties to be inapplicable in their

664

case.

665
666

57.

Moreover, the other stipulations of the Arbitration Clause

667

show unambiguous signs that the parties intended to do away

668

with Philippine Law and submit before the circle of Hong Kong

669

Law.

670
671

58.

Assuming, arguendo, that laws conferring jurisdiction to

672

CIAC cannot be waived, CIAC would still not have jurisdiction

673

because the Arbitration Agreement, as opposed to the EPC

674

Contract, is governed by Hong Kong Law. Therefore, there was

675

no waiver of jurisdiction because there never was any

676

conferment of jurisdiction. Clause 31, being a separate

677

contract, is not governed by Philippine Law. The contention

678

that

679

presupposes that there already is.

there

could

not

be

waiver

of

jurisdiction

680
681

59.

Wherefore, due to above reasons expounded, there could

682

be no doubt that the HKIAC has exclusive jurisdiction, being

683

selected and agreed upon by the parties, and such agreement is

684

the law binding both parties.

Page24

71

685

II. ANTI-SUIT INJUNCTION

686
687
688

60.

The Manila Court issued an Anti-Suit Injunction Order on

689

November 25, 2013. Be that as it may, herein claimant most

690

humbly submits that said order cannot stay, much less,

691

intervene with the proceedings of this Honourable Arbitral

692

Tribunal in determining jurisdiction and deciding upon the merits

693

of the case.

694
695A.
696

The Seat of Arbitration

is

Hong Kong

697
698

61.

The seat of arbitration is the jurisdiction in which an

699

arbitration takes place legally.33 The seat of arbitration in the

700

legal sense is the legal domicile of the arbitration. 34 It is the

701

court which has jurisdiction over the legal domicile that can

702

assist the arbitration proceedings and/ or provide provisional

703

relief.35

704
705

62.

The parties herein have chosen Hong Kong as the seat of

706

arbitration. Hence, the local courts of Hong Kong are the ones

707

that could provide interim measures, such as the issuance of an

708

anti-suit injunction.

709
710

63.

The moment the parties assigned Hong Kong as the seat

711

of arbitration, the Manila (or any Philippine) Court has no

712

jurisdiction

713

controversy. The manila court cannot therefore be deemed as a

714

competent judicial authority in the context of the HKIAC 2013

whatsoever

7233Supra note 24 at Par. 2.2, p.

over

the

subject

matter

of

54.

7334 Belohlavek, Importance of the Seat of Arbitration in International Arbitration:

74Delocalization and Denationalization of Arbitration as an Outdated Myth, 31 ASA
75BULLETIN 2/2013 (JUNE), at p. 263.
7635 Please see Salomon and Sivachenko, Choosing an arbitral seat in the United
77States, Lexis Nexis, p. 1.

the

Page25

78

715

Rules.36 To insist upon the existence of the Manila Courts

716

jurisdiction will inevitably result to an unlawful encroachment of

717

the sovereignty of Hong Kong. This was expressly admitted by

718

the respondents in paragraphs 40 and 41, pp. 20 and 21 of CCs

719

Motion:

720
721

40. When a court enjoins a party from proceeding

722

in a foreign court, even though the basis for the

723

injunction is the first courts jurisdiction over the

724

party, there is nonetheless an impact on the

725

jurisdiction of the foreign court.

41.

726

As the European Court of Justice noted with

727

respect to anti-suit injunction in litigation:

728

A prohibition imposed by a court, backed by a

729

penalty restraining a party from commencing or

730

continuing

731

undermines

732

determine the dispute. Any injunction prohibiting a

733

claimant from bringing such an action must be seen

734

as constituting interference with the jurisdiction of

735

the foreign court. (Underscoring supplied.)

proceedings
the

latter

before
courts

foreign

court

jurisdiction

to

736
737

64.

Further, the intervention of the Manila Court, if allowed to

738

stay these proceedings, would affect the merits of the case, by

739

patently disregarding the intent of the parties.

740
741B.

HKIAC

742

to

is

Empowered

743

Determine its Own

744

Jurisdiction

745
746

65.

The HKIAC 2013 Rules provide:

7936 Par. 23.9, Article 23 of the HKIAC 2013 Rules provide:Article 23 Interim
80Measures of Protection and Emergency Relief
81xxxxxxxxx
8223.9 A request for interim measures addressed by any party to a competent judicial
83authority shall not be deemed incompatible with the arbitration agreement(s), or as
84a waiver thereof. (Underscoring added.)
85

Page26

86

747

19.1 The arbitral tribunal may rule on its own

748

jurisdiction

749

objections with respect to the existence, validity or

750

scope of the arbitration agreement(s).

under

these

Rules,

including

any

751

This provision clearly gives this Honourable Arbitral Tribunal the

752

power to determine its own jurisdiction over the controversy.

753
754

66.

At present, there is a wide consensus that the arbitral

755

tribunal has the power to rule on all aspects of its own

756

jurisdiction. Reported decisions have showed that the courts

757

recognise the right of the arbitral tribunal to determine:

758

whether arbitration agreement exists between

759

the parties;

760

whether the matter in dispute comes within the

761

scope of the arbitration agreement;

762

what is the proper interpretation of the arbitration

763

agreement;

764

whether the arbitration agreement is valid or was

765

terminated.37

766

B.1. Doctrine of

767

Kompetenz-

768

Kompetenz

769
770

67.

The right of the arbitrators to rule on their own jurisdiction

771

is an almost fully uncontroversial part of the well-established

772

doctrine and practice in international arbitration. This reflects

773

the globally harmonised approach to the issue universally called

774

Kompetenz-Kompetenz.38

775
776

68.

The doctrine of Kompetenz-Kompetenz, at its simplest

777

sense, empowers an arbitral tribunal to decide on any and all

778

objections as to its own jurisdiction.39 This doctrine, which is

8737 Uzelac, Jurisdiction of the Arbitral Tribunal: Current Jurisprudence and

88Problem Areas Under the UNCITRAL Model Law, [2005] Int.A.L.R., p. 156.
8938 Id at 155.

Page27

90

779

followed in most jurisdictions, provides that arbitrators are

780

competent to determine their own competence.40

781
782

69.

In the case of Channel Tunnel Group Limited and others v.

783

Baflour Beatty Construction and others, the UK House of Lords

784

while holding that the court has the power to stay proceedings

785

brought in breach of an alleged agreed method of resolving

786

disputes, such as arbitration, it also held that such a step would

787

largely pre-empt any decision to be made in the arbitration and

788

thus it was not appropriate for the court to do so.41

789
790

70.

Any intervention from any court, especially from an

791

incompetent one, would gravely diminish and impair the said

792

power belonging to this Honourable Tribunal.

793
794

B.2.

795

Approach

Prima

Facie

796
797

71.

The above discussion regarding the competence of HKIAC

798

to determine its own jurisdiction does not divest a competent

799

court the power to make a finding if the arbitration agreement is

800

null and void, inoperative or incapable of being performed. 42

801

However, as most commentators opine, the court should go no

802

further than checking prima facie that there is an arbitration

9139 Greenberg, et al. International Commercial Arbitration An Asia-Pacific

92Perspective (2010). First Ed. Par. 5.46, p. 214.
9340 Supra note at p. 91.
9441 Parlade, Alternative Dispute Resolution Act of 2004 (R. A. 9285) Annotated, p.
95112. (Citations omitted.)
9642 Please see Article 8(1) of the UNCITRAL Model Law, wit:Article 8. Arbitration
97agreement and substantive claim before court
98(1) A court before which an action is brought in a matter which is the subject of an
99arbitration agreement shall, if a party so requests not later than when submitting his
100first statement on the substance of the dispute, refer the parties to arbitration
101unless it finds that the agreement is null and void, inoperative or incapable of being
102performed.xxx
xxx
xxx (Underscoring supplied.)
103

Page28

104

803

agreement, leaving the jurisdictional issues to be decided by the

804

arbitral tribunal.43

805
806

72.

Hong Kong Law is now settled in adopting the prima facie

807

approach. The case of Ocean Park Corporation v. Proud Sky Co.

808

Ltd.44 ruled:

809
810

42. In terms of the benchmark for the existence of

811

an arbitration agreement, Burrell J held that it had to

812

be demonstrated that there was a good prima facie,

813

or a plainly arguable case, that an arbitration

814

agreement existed and bound the parties, and that

815

the onus of so doing lay upon the defendant

816

applicant for the stay, and that in determining

817

whether such a case had been made out, the court

818

should look first at the evidence in support of the

819

defendants contention, the relevant test being

820

satisfied

821

cumulatively the evidence was cogent and arguable

822

and not dubious or fanciful. The learned judge also

823

held that it was for the arbitrator, and not the court

824

itself on a stay application, to make a detailed final

825

determination as to the existence or otherwise of an

826

arbitration agreement, a matter upon which the

827

arbitrator would have the benefit of oral testimony

828

from both sides.

if

the

court

was

of

the

view

that

829
830

43. The decision x x x was approved and followed

831

in

832

Interactive Communications Service Ltd, CACV 18 of

833

2006 (unrep.), x

834

approach in the much earlier Court of Appeal

835

decision, (also cited by Burrell J in Pacific Crown)of

836

Private Company Triple V Inc. v. Star (Universal)

837

Co. Ltd and anor [1995] 3 HKC 129, wherein Litton

the

Court

of

Appeal
x

in PCCW

Limited

v.

x , which also followed the

10543 Greenberg, et al. International Commercial Arbitration An Asia-Pacific

106Perspective (2010). First Ed. Par. 5.46, p. 219.
10744 [2007] HKCU 1974.

Page29

108

838

VP (as he then was) held that it was for the court to

839

determine on a prima facie basis whether there was

840

a valid arbitration agreement.

841
842

44. The law on this point in this jurisdiction thus

843

appears settled. The question for the court in this

844

application thus boils down to whether, on the

845

evidence read as a whole, and bearing in mind the

846

burden upon the applicant for the desired stay, it

847

can be said to be plainly arguable that an

848

arbitration agreement existed on the basis of the

849

documentation before the court? (Underscoring

850

added.)

851
852

73.

Ergo, the action of the Manila Court in issuing an anti-suit

853

injunction, which issuance was way beyond the power of said

854

court to inquire whether there exists an arbitration agreement,

855

is violative of the above discussed principles of international

856

law, and therefore should not be allowed to prevent this

857

Honourable Tribunal from hearing this case.

858
859C.

Rule of Comity
Cannot Apply

860
861
862

74.

Comity is the courtesy one jurisdiction gives by enforcing

the laws of another jurisdiction.45

863
864
865

75.

In paragraph 38 of CCs Motion, 46 respondent introduced

866

the principle of Comity. In paragraph 39,47 CC urged this

867

Honourable Arbitral Tribunal to apply the same and pacify itself

868

from continuing the instant proceedings. PEC here

869

10945 Comity, Conflict of Laws, (http://conflictoflaws.uslegal.com/comity/) last

110accessed 12 September 2015.
11146 P. 20
11247 Id.

Page30

113

870
871

76.

Firstly, the Principle of Comity is a theory used in Conflict

of Laws,48 and the HKIAC 2013 Rules specifically provide:

872
873

Article

35

Applicable

Law,

Amiable

874

Compositeur

875

35.1 The arbitral tribunal shall decide the substance

876

of the dispute in accordance with the rules of law

877

agreed upon by the parties. Any designation of the

878

law or legal system of a given jurisdiction shall be

879

construed, unless otherwise expressed, as directly

880

referring to the substantive law of that jurisdiction

881

and not to its conflict of laws rules. Failing such

882

designation by the parties, the arbitral tribunal shall

883

apply the rules of law which it determines to be

884

appropriate. (Underscoring supplied.)

885
886

77.

The aforequoted rule is clear. The Honourable

887

Tribunal

must

construe

and

apply

only

the

law(s)

888

designated by the parties. Said rule also categorically

889

prohibits the use of Conflict of Laws rules.

890
891
892

78.

Secondly, the Theory of Comity is bombarded with

893

criticisms. To begin with, the theory presupposes the existence

894

of an international duty. There is no such duty. Theoretically,

895

every State may apply its own internal law exclusively.49

896
897

11448 Please see Childress III, Comity as Conflict: Resituating International

115Comity as Conflict of Laws, University of California, Davis (2010) [Vol.44:01,
116p.11
11749 Paras, Philippine Conflict of Laws (1996), p.65.

Page31

118

898

79.

Further, the theory assumes, although in a minimal sense,

899

a desire to show courtesy to other states. This is not true. The

900

real reason for the application of the proper foreign law is the

901

avoidance of gross inconvenience and injustice to litigants. 50

902

However, in this case, the anti-suit injunction would only delay

903

the service of justice to the claimant, if the Honourable

904

Arbitrator decides to bow before it.

905
906
907

80.

Furthermore, the theory apparently leaves the application

908

of the foreign law to the discretion of the forum. Clearly, this will

909

prevent the adoption of definite rules and principles for Conflict

910

of Laws.51

911
912
913

81.

In judicial context, comity should not be misinterpreted as

914

implying that all laws are of universal jurisdiction.

In many

915

countries, comity is effective only to the extent that foreign laws

916

or judgments do not directly conflict with the forum countrys

917

public policy.52

918
919
920

82.

So not to impede the administration and service of justice,

921

bearing in mind the renowned legal quotation: Justice delayed

922

is justice denied, and to protect the jurisdiction conferred unto

923

this Honourable Arbitral Tribunal, herein claimant most humbly

924

submits that this tribunal should not be prevented and disturbed

925

by the Manila Court. Taking also into consideration the fact that

926

this tribunal is outside the jurisdiction of the Manila Court, and

927

that said court has no means to obligate this respected arbitral

928

tribunal to follow its injunction order.

929
930

11950 Id.
12051 Id.
12152 Supra note 44.

Reply to the Counterclaim

Page32

122

931

83.

Claimant categorically denies the allegation of harassment

932

of CC in its counterclaim.53 It seems very clear that the PEC is

933

the one who is being maliciously harassed by CC by its

934

deliberate act of invoking the jurisdiction of another forum, in

935

effect delaying the proceedings of this case and breaching the

936

agreement between the parties, by totally ignoring the same

937

this, notwithstanding the fact that CC has full knowledge of the

938

existence of the stipulations and consciously agreed to the

939

same.

940
941

84.

Also, the ambitious counterclaim demanded by CC is

942

obviously a mere afterthought, which should have been included

943

and raised in its Answer, dated 29 November 2013, as

944

mandated by paragraph 5.4 of Article 5, HKIAC 2013 Rules.54

945
946

85.

Moreover, the stand of CC in questioning the jurisdiction of

947

this Honourable Arbitral Tribunal is totally incompatible with its

948

irrational counterclaim. For a court (or in this case, a tribunal) to

949

grant a claim, it is elementary that it should first have

950

jurisdiction, not only to entertain the suit, but also to grant the

951

relief sought.

952
953
954

86.

Articles 21 and 22 of the UNCITRAL Arbitration Rules 55

would highlight this bold incompatibility:

955
956

Article 21. (3.) In its statement of defence, or at a

957

later stage in the arbitral proceedings if the arbitral

958

tribunal decides that the delay was justified under

959

the circumstances, the respondent may make a

960

counterclaim or rely on a claim for the purpose of a

961

set-off

962

jurisdiction over it.

provided

that

the

arbitral

tribunal

has

963
12353 Paragraph 43, CCs Motion, pp. 21 and 22.
12454 5.4 Any counterclaim or set-off defence shall to the extent possible be raised
125with the Respondent's Answer to the Notice of Arbitration, x x x (Underscoring
126supplied.)
127
12855 2013.

Page33

129

xxxxxx

964

xxx

965
966

Article

22.

During

the

course

of

the

arbitral

967

proceedings, a party may amend or supplement its

968

claim or defence, including a counterclaim or a claim

969

for the purpose of a set-off, unless the arbitral

970

tribunal considers it inappropriate to allow such

971

amendment or supplement having regard to the

972

delay in making it or prejudice to other parties or

973

any other circumstances. However, a claim or

974

defence, including a counterclaim or a claim for the

975

purpose of a set-off, may not be amended or

976

supplemented in such a manner that the amended

977

or supplemented claim or defence falls outside the

978

jurisdiction of the arbitral tribunal. (Underscoring

979

added.)

980

RELIEF SOUGHT

981
982
983

87.

In light of the foregoing, herein claimant most humbly and

984

respectfully asks, moves and prays before the Honourable

985

Arbitrator that:

986
987
988
989

a. This tribunal declares that it has jurisdiction to take

cognizance of the case;
b. This tribunal should not yield before the injunction
issued by the Manila court;

990

c. The proceedings will continue at the soonest possible

991

time, to cover all the unnecessary delays brought by

992

the improper actions of the respondent;

993
994

d. The respondents counterclaim be dismissed for lack of

merit; and

995

e. The respondents be made liable to all the necessary

996

and legal fees arising out of and / or related to these

997

arbitration proceedings.

998
999
1000

Yanga Barrion & Arceo

LLP

Page34

130
1001
13 September
1002Claimant, PEC)
1003
1004
1005
1006
1007
1008
1009
1010
1011
1012
1013
1014
1015
1016

2015

(Counsel for

(SGD.)
Daryl Yanga y Rivera
(SGD.)
Lorene Tadena Barrion
(SGD.)
Francis Arceo
Herbert Smith Freehills,
22nd Floor, Gloucester
Tower, 15 Queen's Road
Central, Hong Kong
Telephone: (007) 26-11-

1017
1018
1019
1020
1021
1022

2015
Email:
yba.llp@icloud.com
REFERENCES
FOOTNOTE

KINDLY REFER TO:

1. Submission of the Respondent

designated as: Motion to Dismiss on
the Ground of Lack of Jurisdiction,
dated 30 August 2015

Annex A

2. I. Statement of Facts, id, pp. 1 - 5

Annex A

3. Id.

Annex A

4. II. Answer to the notice of Arbitration on

the matter of: 1.) Jurisdiction, supra note
1, p. 6.
5. Tolentino, Commentaries and
Jurisprudence on the Civil Code of the
Philippines (2002), p.415.
6. Please see Habas Sinai Ve Tibbi Istihsal
Endustrisi As v VSC Steel Company Ltd
[2013] EWHC 4071
7. Please see Gonzales vs. Climax Mining
Ltd., G.R. No. 161957, January 22, 2007
8. G.R. No. 187838, 23 December 2009
9. Article 7, United Nations Commission
on International Trade Law
(UNCITRAL), as amended in 2006. The
same is adopted in the legal systems of
Hong Kong and the Philippines thru
Section 19, Arbitration Ordinance 609
and Section 19, R.A. 9285, respectively
10. Moses, M. L., The Principles and
Practice of International Commercial
Arbitration (2012),2nd Ed., p. 6

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11. Fiesta World Mall Corporation vs.

Lindberg Philippines, Inc. G.R. No.
152471, 18 August 2006
12. Averment of paragraph 31.2, clause 31
was made by CC in supra note 3, p.2.
No other discussion or a following
withdrawal was made in the whole
document (CCs Motion)

Annex H

Annex A

13. Please see CCs Motion, p. 18

Annex A

14. Insigma Technology Co Ltd v. Alstom

Technology Ltd. [2009] 3 SLR 936;
[2009] SGCA 24

Annex I

15. G.R. No. 95536, 23 March 1992

Annex J

16. Domingo Realty, Inc. vs. Court of

Appeals, G.R. No. 126236, 26 January
2007
17. Manila International Airport Authority
vs. Avia Filipinas International, Inc.,
G.R. No. 180168, 27 February 2012
18. Greenberg, et al. International
Commercial Arbitration An AsiaPacific Perspective (2010). First Ed. Par.
4.36, p. 155
19. Greenberg, et al. International
Commercial Arbitration An AsiaPacific Perspective (2010). First Ed.,
par. 4.47, p. 158

Annex K
Annex L

Annex M

Annex M

20. G.R. No. 161957, 22 January 2007

Annex D

21. [1994] 2 HKC 526

Annex N

22. Greenberg, et al. International

Commercial Arbitration An AsiaPacific Perspective (2010). First Ed. Par.
4.50, p. 159
23. Habas Sinai Ve Tibbi Gazlar Istihsal
Endustrisi As v. VSC Steel Company
Ltd. [2013] EWHC 4071 (Comm)
24. Greenberg, et al. International
Commercial Arbitration An AsiaPacific Perspective (2010). First Ed. Par.
4.50, pp. 159-160

Annex M

Annex C

Annex M

25. [2012] EWCA Civ 638

Annex O

26. Chui and Roebuck, Hong Kong

Contracts, p. 5. (1991)

Annex P

27. Id.

Annex P

28. Id at p. 15

Annex P

29. [2013] HKCFA 40; 16 HKCFAR 351; 6

HKC 374
30. Please see CCs Motion, par. 20, pp. 1011.

Annex Q

31. Please see CCs Motion, pp. 12-17

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32. Union of India v. Mc Donnell Douglas

Corp [1993] 2 LLR 48, p. 50
33. Greenberg, et al. International
Commercial Arbitration An AsiaPacific Perspective (2010). First Ed. Par.
2.2, p. 54.
34. Belohlavek, Importance of the Seat of
Arbitration in International Arbitration:
Delocalization and Denationalization of
Arbitration as an Outdated Myth, 31
ASA BULLETIN 2/2013 (JUNE), at p.
263.
35. Please see Salomon, C. and Sivachenko,
I., Choosing an Arbitral Seat in the
United States, Lexis Nexis, p. 1.
36. Par. 23.9, Article 23 of the HKIAC 2013
Rules provide:
Article 23 Interim Measures of
Protection and Emergency Relief
xxx xxx
xxx
23.9 A request for interim measures
addressed by any party to a competent
judicial authority shall not be deemed
incompatible with the arbitration
agreement(s), or as a waiver
thereof. (Underscoring added.)
37. Uzelac, Jurisdiction of the Arbitral
Tribunal: Current Jurisprudence and
Problem Areas Under the UNCITRAL
Model Law, [2005] Int.A.L.R., p. 156.
38. Id at 155.
39. Greenberg, et al. International
Commercial Arbitration An AsiaPacific Perspective (2010). First Ed. Par.
5.46, p. 214.
40. Moses, The Principles and Practice of
International Commercial Arbitration
(2012), Second Ed., p. 91.
41. Parlade, Alternative Dispute
Resolution Act of 2004 (R. A.
9285) Annotated, p. 112.
42. Please see Article 8(1) of the
UNCITRAL Model Law, wit:
Article 8. Arbitration agreement and
substantive claim before court
(1) A court before which an action is
brought in a matter which is the subject of
an arbitration agreement shall, if a party so
requests not later than when submitting his
first statement on the substance of the

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Annex U

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Annex V
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dispute, refer the parties to arbitration unless

it finds that the agreement is null and void,
inoperative or incapable of being performed.
xxx
xxx
xxx (Underscoring
supplied.)
43. Greenberg, et al. International
Commercial Arbitration An AsiaPacific Perspective (2010). First Ed. Par.
5.46, p. 219.
44. [2007] HKCU 1974.
45. Comity, Conflict of Laws,
(http://conflictoflaws.uslegal.com/comit
y/) last accessed 12 September 2015.
46. Please see CCs Motion, p. 20
47. Please see Childress III, Comity as
Conflict: Resituating International
Comity as Conflict of Laws, University
of California, Davis (2010) [Vol.44:01,
p.11
48. Paras, Philippine Conflict of Laws
(1996), p.65.

Annex W
http://conflictoflaws.uslegal.com/comit
y/
Annex A

Annex X

Annex Y

49. Id.

Annex Y

50. Id.

Annex Y

51. Supra note 44.

Annex W

52. Paragraph 43, CCs Motion, pp. 21 and

22.

Annex A

53. 5.4 Any counterclaim or setoff defence shall to the extent

possible be raised with the
Respondent's Answer to the
Notice of Arbitration, x x x
(Underscoring supplied.)

54.
1023

Annex M

2013

Annex U

Annex Z