When an Arbitral Tribunal Answers the Wrong Question

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.

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