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2 Asian Disp. Rev. 27 (2000)
Cases

handle is hein.kluwer/asidpurv0002 and id is 61 raw text is: CHUN WO BUILDING CONSTRUCTION LTD v CHINA MERCHANTS TOWER CO LTD & ORS Arbitration - Consolidation or concurrent hearing of arbitrations - Construction and building services contracts - Concurrent hearing of separate references arising from same project - Degree of commonality required in fact and in law to justify order - Factors establishing commonality - Other relevant factors - Arbitration Ordinance (Cap 341) s 6B Court of First Instance Construction and Arbitration List No 107 of 1999 Burrell J 13, 20 January 2000 Jason Pow (Lovell White Durrant) for the applicant Francis Ip of K F Wong & Co for the first respondent Geoffrey Show of Deacons Graham & James for the second and third respondents Facts The applicant sought an order that three arbitrations in which it was claimant be heard concurrently, pursuant to s 6B of the Arbitration Ordinance (Cap 341). The arbitrations arose out of three contracts between the applicant and three respondents which related to the same development: (i) a construction contract between the applicant as main contractor and China Merchants Tower Co Ltd (the first respondent as employer; (ii) an air-conditioning sub-contract with a nominated subcontractor (the second respondent), and (iii) a fire services installation subcontract with another nominated subcontractor (the third respondent). The first respondent opposed the application, contending that the applicant had failed to show sufficient commonality of issues. The second respondent opposed the application on the ground that the court was unable to determine whether or not there was sufficient commonality, because the application was premature and the issues had not sufficiently crystallized. The third respondent did not oppose the application and consented to a concurrent hearing. Held, granting the application: There was sufficient commonality of issues to persuade the court to exercise its discretion under s 6B of the Ordinance in favour of ordering a concurrent hearing. The principal factors relevant to the determination of the present case were as follows: (1) The terms as to payment in the sub-contracts were back to back with those in the main contract and the issues of delay, the consequential liability to pay liquidated damages and who should make indemnity were common to all three contracts. (2) The two subcontracts flowed from the main contract and the same architect was responsible for issuing certificates under all three contracts. The contracts should be regarded as one series of transactions about which it would be desirable for the architect to give evidence on one occasion only. (3) The second and third respondents were potentially liable for a number of alleged unspecified defects arising from a counterclaim by the first respondent. They should therefore be present when evidence as to the defects was led in the main contract arbitration. (4) It was convenient to order a concurrent hearing because an experienced and respected arbitrator was available and acceptable to all the parties, inconsistent findings of fact and law would be avoided and the making of consistent and practical interlocutory orders would inevitably follow. (5) The time for hearing the references together would be significantly shorter than the total time for hearing them separately and the arbitrator would be able to regulate proceedings so that each respondent would not need to be present throughout the entire hearing). Asian Dispute Review No 1, 2000 27 E

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