The English and Hong Kong courts’ respective approaches to winding-up petitions where a dispute as to the alleged petition debt falls within the scope of an exclusive jurisdiction or arbitration clause seem to have diverged following the decision of the Privy Council in Sian Participation. The English courts have reverted to the traditional approach of examining whether there is a bona fide dispute as to the petition debt, whereas the Hong Kong courts adopt an approach whereby the winding- up petition is to be dismissed in favour of determination in the agreed forum unless the debtor’s defence borders on the frivolous or abuse of process. This article considers the development of Hong Kong law on this point, and examines the extent to which the two approaches may lead to different results. Finally, it suggests that there may be good reasons for adopting Sian Participation in Hong Kong, even though this seems unlikely in the near future.
Asian International Arbitration Journal