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DMC/SandT/10/26
'''Parakou Shipping Pte Ltd v Jinhui Shipping and Transportation Ltd and others'''
The answer seems to be that common law principles on abuse of process would apply in the same manner, whether one is concerned with a collateral attack against a court decision or an arbitral decision. The test of abuse of process would also remain the same whether or not related parties to the decisions are involved. It may also be useful to look at the court’s approach in granting an anti-suit injunction against a party intending to mount collateral attacks on an arbitral award in foreign jurisdictions. In particular, the requirement of “unconscionability” is said to be analogous to “abuse of process” (see Turner v Grovit [2001] UKHL 65, [2002] 1 WLR 107). As the distinction between this case and Sun Life shows, it would generally be harder to hold a stranger to be in abuse of process by departing from the previous decision. This seems the more so, given the difference in nature between litigation and arbitration. A stranger may not be aware of the arbitration decision and, even if he is aware of it, it would seem difficult to hold him to that decision, as he did not consent to the arbitral process.
Update:
The Plaintiff’s action in this case was secured by a bank guarantee and by a payment into court. After the Plaintiff’s claim was struck out, the trial judge, Reyes J, refused to stay the payment to the Defendant of the money in court, subject to a retention of US$1.5 million in court and the Defendant’s undertaking to pay into court any sum recovered from the Plaintiff. On 17 November 2010, the Hong Kong Court of Appeal (Tang Ag CJHC and Andrew Cheung J; CACV225/2010) dismissed an appeal by the Plaintiffs of the refusal to stay. The Court was of the view that the order of Reyes J provided sufficient security protection for the Plaintiff when the case was under appeal. Further, it commented that so far, the Plaintiff had not shown a good prospect of success.
