The Keeneye Case: Rethinking the Content of Public Policy in Cross-border Arbitration between Hong Kong and Mainland China

Abstract

A recent decision of the Hong Kong Court of Appeal in Gao Haiyan v. Keeneye Holdings Ltd considers public policy-based procedural objections in the context of enforcement of a mainland China arbitration award that was made following the hybrid process of mediation and arbitration (med-arb). This article attempts to decipher what this case means to Hong Kong and the cross-border arbitral relations. What has changed in the playing field of public policy in the enforcement of arbitral awards in Hong Kong and what can parties expect of Hong Kong courts on public policy issues in treating Mainland arbitral awards after the Keeneye case? In light of the rising use of med-arb procedures, this article studies particularly the novel issue of public policy of enforcing med-arb awards, and analyses how the different legal practices in Hong Kong and mainland China may cause much uncertainty in the cross-border enforcement arena. It is revealed that even after unification for more than 15 years there are legal as well as ideological conflicts between the two sides. Although the Keeneye case may have, on the one hand, lowered the predictability of outcome in cases which involve a cross-border clash in ideology in the enforcement of arbitral awards, it has simultaneously acted as a catalyst in reducing such differences, as seen from the rapid Mainland reform to the rules on med-arb. In the long run, a potentially more credible Chinese arbitration system is expected to be built upon and in the course of its improvement, understanding from the Hong Kong side will be helpful for the healthy development of a cross-border arbitration scheme.