Citation: [2020] HKCA 830
The Hong Kong Court of Appeal was called upon to deal with an appeal on the question of contractual notices made under a construction contract as condition precedent to claims later being pursued in arbitration.
The Court of Appeal dismissed the appeal against the decision of the first instance judge who had held (on appeal from an arbitral award) that the sub-contractor was prevented from pursuing claims in the arbitration where it had not raised the particular contractual basis of the claim in its earlier notices as required by the terms of the sub contract. Specifically, the Court of Appeal (Kwan VP, Yuen and Barma JJA) dismissed the appeal on the following basis:
The first instance judge correctly interpreted and applied the clear and unambiguous language of the relevant notice provisions; and
The interpretation of the notice provisions was a question of law, not a mixed question of fact and law, which was properly identified and approached by the first instance judge.
The decision has important ramifications for the approach arbitrators are to take when interpreting and applying contractual mechanisms agreed between parties, especially where clear and mandatory language is used to allocate risk and limit entitlement.
Philip Boulding acted in this case. The judgment in Maeda v Bauer can be found here.
