In the recent Eton Properties case, the Hong Kong High Court granted a mainland Chinese company's application to enforce a CIETAC Beijing award against Eton, a Hong Kong company.
The award in question required Eton to pay compensation to the applicant and to "continue to perform the Agreement". Eton resisted enforcement on the ground that it would be contrary to public policy to order specific performance where on the facts such performance had been rendered impossible. It also argued that the court was bound to take an "all or nothing" approach to enforcement, so that its options were limited to enforcing or dismissing the award in its entirety.
In dismissing Eton's arguments as to public policy, Reyes J held that unless an award "is plainly incapable of performance such that it would be obviously oppressive" to order compliance, the court should not refuse enforcement on these grounds. In reaching this decision, he observed that for the Court to act otherwise would be to make a decision on the merits and usurp the exclusive jurisdiction of the tribunal and the courts of the seat of the arbitration (in this case, the Beijing courts).
Reyes J also dismissed Eton's "all or nothing" argument, holding that the court could where appropriate order partial enforcement of an award. Furthermore, he held that, in keeping with the flexible nature of equitable remedies, an order involving specific performance may be tailored to fit the facts and the parties are able to ask the Court for "further directions to make such an order work." (formerly known as v. Eton Properties Limited and another)