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# When an Arbitral Tribunal Answers the Wrong Question
- URL: https://internationalarbitrationobserver.com/when-an-arbitral-tribunal-answers-the-wrong-question/
- Published: 2026-10-04T20:30:05.000Z
- Updated: 2026-10-04T20:30:05.000Z
- Author: Pierluigi Salvati
- Tags: Commercial Arbitration

**An arbitral tribunal can reject your argument. It cannot decide a different one.**

That is the rather elegant lesson from the Hong Kong High Court’s recent decision in **\[2026\] HKCFI 373**. The case concerned an **estoppel defence** to the exercise of a contractual repurchase right.

The distinction was decisive. The respondents’ case was not that the claimant had **permanently waived** its right. Their case was that the claimant had represented that it would **not exercise the right for the time being**, while alternative exit options were being explored — a **suspensory estoppel**.

The tribunal rejected the defence. But, in doing so, the High Court considered that the tribunal had effectively addressed a different question: whether the claimant had **given up the right altogether**.

The court emphasised the familiar principle of **minimal curial intervention**: an award should be read generously and commercially, and a tribunal is not required to answer every argument in the manner suggested by the parties. But there is a line. A tribunal may **reject an argument**. It may even reject it without expressly addressing every step in the parties’ reasoning.

What it cannot do is fail to engage with the **essential issue actually placed before it**.

Here, the difference between a permanent waiver and a temporary, suspensory representation was not semantic. The two carried materially different legal consequences. The court therefore found that the tribunal had failed to deal with a central aspect of the defence and **set the award aside**.

There is a useful drafting lesson here for tribunals — and an equally useful advocacy lesson for counsel. **The more nuanced the defence, the more dangerous it is to collapse it into a broader (and different) proposition.**