Hong Kong Arbitration Week 2025: ADR in Asia Conference Keynote by the Honourable Madam Justice Mimmie Chan

The ADR in Asia Conference is the HKIAC's flagship arbitration conference during Hong Kong Arbitration Week. This year, the keynote was delivered by the Honourable Madam Justice Mimmie Chan, who has been a Judge in Hong Kong since 2007, and in charge of the Construction and Arbitration List of the High Court since 2013.

In her keynote, Justice Chan addressed the issue of due process and the courts’ role in preventing abuse and upholding fairness in the arbitral process. The crux of the keynote was to illustrate the courts’ role in balancing the need for finality of arbitral awards with the protection of the parties' fundamental rights.

While fairness, equality and due process must be apparent before the court can enforce an award, Justice Chan also cautioned that there are limits on what the court can do. She considered cases where set-aside was sought on the basis of lack of due process and fairness, with a view to shining some light on when the court can properly intervene.

Due Process

As a starting point, Justice Chan explained that the court accepts that the arbitral tribunal is entitled to exercise its case management powers, and that only serious breaches will give rise to grounds to set aside. An award may only be set aside on due process grounds if a real risk of prejudice is shown and rights have been violated in a material way. This is necessary to balance the parties' due process rights with the public policy bias towards enforcement.

Justice Chan referred to CNG v G & Another [2024] HKCFI 575. In this case, the applicant complained of a lack of due process arising from certain procedural decisions made by the arbitral tribunal on timetabling, the admission of evidence, and alleged hostility. In response to these complaints, Justice Chan explained that the arbitral tribunal is the master of its own procedure and is there to manage the arbitration. She further explained that it is not the role of the court to descend to the level of reviewing the minutiae of the procedure because the arbitral tribunal is best placed to make these decisions.

Justice Chan noted that unless the case management decisions can be shown to be a serious denial of justice, the court should not intervene, and in Hong Kong, arbitral tribunals are only required to give parties a reasonable opportunity to present their case (as opposed to a full opportunity under the original text of the Model Law — compare Section 46 of the Hong Kong Arbitration Ordinance (“AO”) and Article 18 of the Model Law). The court must have regard to the need to ensure an efficient and speedy resolution of disputes.

Justice Chan then considered Sky Power Construction Engineering Limited v Iraero Airlines JSC [2023] HKCFI 1558. She explained how in that case, the court refused an attempt to set aside an award on the basis that the procedure was not in accordance with the agreed procedure when the arbitral tribunal ordered a virtual hearing against the wishes of the respondent. The Court held that arbitrators must adopt procedures suitable to the circumstances of the particular case, and it is not for the court to question or to interfere with the arbitrator’s exercise of her discretionary and case management powers with regard to the flexibility of the arbitral process. There was no basis to claim that in reaching her decision on the form of the hearing, the arbitrator had failed to act fairly and impartially.

Justice Chan also referred to P v S [2015] HKEC 1707. In that case, a party sought to set aside an award on the basis that it had been unable to adduce witness evidence after the tribunal ordered that the arbitration be conducted on a documents only basis. The court held that it was within the powers of the arbitral tribunal to order a hearing on a documents-only basis. The respondent had not shown it was materially prejudiced by the decision.

The Critical Issue of Service

Justice Chan then noted that cases of set-aside have also involved issues of service, which is a critical issue. In Sun Tian Gang v Hong Kong & China Gas (Jilin) Ltd [2016] HKEC 2128, the court found that the Notice of Arbitration was not properly served. Also, in G v P [2023] 4 HKLRD 563, service of the Notice of Arbitration was effected on an email address different from the address for service in the contract and was found to be invalid. The award was set aside.

Justice Chan summarised that there is no due process without proper service and notice because there is no opportunity to present one's case absent service.

Justice Chan also noted that the Court of First Instance has recently come across complex cases on service and that guidance from the Court of Appeal may be required on this issue (see CCC v AAC [2025] HKCFI 5023).

Public Policy

Justice Chan concluded her keynote by looking at cases involving public policy. To engage the public policy ground, the circumstances said to give rise to a public policy breach must be so shocking to the court's conscience as to render enforcement repugnant.

In this respect, one case in which enforcement was successfully opposed on a public policy ground was Song Lihua v Lee Chee Hon [2023] HKCFI 2540 (“Song Lihua”), also known as “the case of the wandering arbitrator”. In this case, during a hearing, an arbitrator, attending by video, was seen moving between various locations, traveling in his car and using his phone. The court found that a fair and reasonable observer would have doubts about whether the arbitrator had already made up his mind and was not paying attention to the parties' submissions. There was no appearance of a fair hearing. Enforcement was refused as being contrary to the rules of natural justice. Justice Chan explained that this is because justice must not only be done but also be seen to be done. A hearing in this manner cannot inspire public confidence.

In this respect, Justice Chan noted that while arbitration may not have the solemnity of court proceedings, the arbitration hearing should give the appearance that there is a tribunal properly hearing the claims.

Justice Chan then considered CNG v G & Ors [2025] HKCFI 3598 (“CNG v G”), in which there was a challenge to an arbitrator, including on the basis of sleeping during a hearing. Justice Chan noted that some may compare the wandering arbitrator of Song Lihua to the sleeping arbitrator of CNG v G. Justice Chan explained that she did not accede to the arbitrator challenge in CNG v G because of the nature of the challenge. Unlike Song Lihua, CNG v G was not a set-aside application.

For a challenge to an arbitrator to succeed before the court, a party must show that circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality and independence. The test of the fair-minded observer applies. Justice Chan's conclusion in CNG v G was that, having regard to the particular facts and circumstances of the case, the fair-minded observer would not have concluded that the arbitrator was biased.

Justice Chan then questioned, “If wandering is impermissible, why is sleeping allowed?” Justice Chan explained that the reason is to be found in the different legal bases for a set-aside application and an arbitrator challenge.

Under Section 3(2)(b) of the AO, the court should only interfere as expressly provided for in the AO. In CNG v G, the challenge was under Article 13(3) of the Model Law (given effect by Section 26 of the AO) for doubts as to impartiality and independence, not on the ground of public policy, or the inability to present one's case, as would be available in a set-aside application under Section 81 of the AO. The court cannot accede to an arbitrator challenge under any other ground than those specified in the AO.

Conclusion

2025 marks the 40th anniversary of the HKIAC, which is reflected in the theme of the ADR in Asia Conference: “40 Years of Innovation and Excellence: Celebrating the Past, Embracing the Present, Shaping the Future of International Arbitration". Justice Chan’s keynote address underscores the strength and arbitration-friendly nature of Hong Kong’s jurisprudence. The courts have developed a robust body of case law that not only reinforces the efficiency and finality of the arbitral process, but also safeguards fundamental principles of justice and morality, thereby ensuring that parties’ rights are meaningfully protected and public confidence in arbitration upheld. This fundamental bedrock will safely carry Hong Kong arbitration for another 40 years and beyond!

The author and his firm, HSF Kramer, were involved in CNG v G & Ors [2025] HKCFI 3598, a case discussed in Justice Chan’s keynote.

 More coverage from Hong Kong Arbitration Week is available here.