The respondent argued that the action should be stayed in favour of arbitration, since there was at least prima facie evidence that the dispute fell within the scope of the arbitration clause, which remained binding on the parties. Accordingly, the Tribunal has no discretion other than to bring an action before an arbitral tribunal in accordance with Article 20(1) of the Arbitration Rules (cap 609) (AO). In the alternative, it was argued that if the tribunal found that the arbitration clause was no longer binding on the parties, the action should nevertheless be stayed in favour of the Guangzhou court, as Hong Kong was not the appropriate place of jurisdiction. In this situation, the application of the dispute settlement mechanism is similar to its application in the above-mentioned situation b. In the case mentioned in situation b, the supplementary agreement provided that “matters that were not dealt with would be governed by the original agreement”. However, the Supreme People`s Court of the PRC does not consider this term as a criterion for deciding on the severability of the original agreement and its complement. In addition, in accordance with Articles 4 and 16 of the Arbitration Act of the PRC, an arbitration agreement is concluded voluntarily by the parties to the dispute and is clear and precise. Article 11 of the Supreme People`s Court`s Interpretation of Certain Issues Relating to the Application of the Arbitration Law of the People`s Republic of China further provides: “If a contract stipulates that disputes shall be settled in another agreement or document, subject to an effective arbitration clause, the parties shall resort to arbitration in accordance with the said arbitration article, in the event of a contractual dispute”. However, Article 11 emphasized that the parties had to agree to apply the “arbitration clause” of another agreement, so that an ambiguous statement “all matters not mentioned are subject to the original agreement” is not sufficient. In general, there are four typical models by which arbitration clauses are signed by the parties in the original agreement and its supplement.

In arbitration, “adverse” claims may result in significant delays and unreasonably extend the investigation period. Such claims are usually based on lengthy pleadings and factual submissions and are usually dismissed after a long period of time and cost on the grounds that they raise questions of fact and are inconsistent with the spirit of arbitration. On the other hand, dispositive claims can sometimes increase the effectiveness of arbitration if they are directed to separate legal issues such as limitation periods or defenses based on clear contractual provisions. In such circumstances, an appropriately formulated device movement can eliminate the need for costly and time-consuming discovery. The issue of adverse claims can be effectively addressed in the dispute settlement clause by including the following wording: in this case, the parties agreed in the original agreement that in the event of a delay in the performance of one party, the other party will submit the case to the people`s court competent for the dispute. However, the addendum provides that disputes must be submitted to the Xiamen Arbitration Commission for arbitration. The Xiamen Intermediate People`s Court ruled that the arbitration clauses of the addendum should be considered an amendment to the dispute settlement clause of the original agreement. Therefore, the arbitration clause applies.

The most recent case of Bond Tak (Holdings) Ltd v. King Fame Trading Ltd, HCA 2129/2018, concerned a request by the defendant to dismiss or permanently stay the Supreme Court`s action on the grounds that the dispute was the subject of an arbitration agreement and should be arbitrated, or else the action should be stayed on grounds of forum non conveniens and in favour of the Guangzhou City Intermediate People`s Court on the continent. China (Guangzhou Court). The court dismissed the claim on the grounds that the arbitration clause of the original agreement concluded by the parties had been replaced by a jurisdiction clause in a subsequent settlement agreement between them which provided for the presentation of further disputes to the Hong Kong court, i.e. the defendant had not proved prima facie evidence or a contentious case, that the arbitration clause remained valid and binding on the parties. Since it had been established (in the absence of expert evidence to the contrary) that the jurisdiction clause was an exclusive jurisdiction clause in favour of the Hong Kong courts and that the plaintiff had brought the present action against the defendant as of right in Hong Kong (the defendant was a company registered in Hong Kong), there was no disputed basis for depriving the plaintiff of his contractual right, initiating and continuing the lawsuit in Hong Kong. .