The Hong Kong Courts recently dismissed challenge proceedings brought against the chair of the tribunal in an international arbitration seated in Hong Kong between ZTE, a mainland Chinese corporation, and JSIT, a South Korean company.
The challenge was brought by ZTE and was based primarily on the assertion that the chair, Mr Philip Yang, had failed to disclose his close professional and social relationship with JSIT's counsel, Freshfields and in particular Dr Michael Moser. Mr Yang maintained that that relationship was strictly professional and social in arbitration related matters, and that he had similar relationships with virtually all of the law firms in Hong Kong which handle arbitration cases consistently.
In preparation for its application, JSIT had sent a 15 point questionnaire to Mr. Yang regarding that relationship. Mr. Yang initially refused to answer the questionnaire, citing a difference between an arbitrator's duties of disclosure in relation to independence and impartiality and a party's right to cross-examine the arbitrator, but answered it once he was ordered to appear in the court proceedings.
In rejecting JSIT's challenge to Mr Yang, Wong J applied the test of whether an "objective fair minded and informed observer who had read the relevant correspondence in context" would consider Mr Yang to be biased. She held that Mr Yang's relationship with JSIT's counsel was not a "disqualifying relationship" and that he did not have an obligation to disclose that relationship. (Jung Science Information Technology Co Ltd b ZTE Corporation HCCT 14/2008).