Mrs Xiaomin Zhang（网信理财案） 2023.7.28……【Judge】【UK】The arbitration arose out of a personal Guarantee (Guarantee) given by Mrs Zhang for the benefit of Eternity Sky. The Guarantee related to a bond issue by Chong Sing Fin Tech Holdings Group Limited (Chong Sing), which was based in Hong Kong, although Mrs Zhang was resident in London. Eternity Sky subscribed for convertible bonds on the terms of a subscription agreement, which was governed by Hong Kong law and provided for HKIAC arbitration. Chong Sing was managed and controlled by Mrs Zhang’s husband, although Mrs Zhang had a 0.4% shareholding in in the company.
Chong Sing failed to redeem the bonds and defaulted. Mr Zhang also died shortly thereafter, which meant that Eternity Sky sought to recover its debt from Mrs Zhang under the Guarantee.
Mrs Zhang commenced arbitration proceedings in which she sought declarations that the arbitration agreement and/or the Guarantee were not binding or alternatively had been rescinded. Eternity Sky counterclaimed for its debt. The sole arbitrator rejected Mrs Zhang’s arguments and determined that the Guarantee was binding. Eternity Sky’s counterclaim also succeeded.
Eternity Sky subsequently commenced enforcement proceedings under s101 of the English Arbitration Act (Act) on a without notice basis, and permission was given for enforcement. Mrs Zhang applied for the enforcement order to be set aside on the grounds that enforcement would be contrary to English public policy within s103(3) of the English Consumer Rights Act 2015 (CRA) and CPR 62.18(9). She argued that she was a consumer within the meaning of the CRA and that certain terms of the Guarantee (in particular the arbitration clause, the governing law clause and clause 2 which was the core operative provision of the Guarantee) were unfair within the meaning of that Act. Eternity Sky opposed the application on the grounds that (i) Mrs Zhang was not a consumer within the meaning of the CRA because she had a real business interest in Chong Sing (ii) the CRA was not applicable because of the choice of Hong Kong law and because the Guarantee did not have a close connection with the UK within the meaning of s74(1)(b) of the CRA (iii) in any event, none of the impugned terms was unfair and (iv) even if they were unfair, enforcement should not be refused.
➤【英国】2023.8.7有自媒体发现已故网信大佬张振新的大老婆张晓敏因一件仲裁案纠纷上了英国《泰晤士报》
仲裁案双方分别是永恒天空投资有限公司和张晓敏女士
仲裁源于张女士为永恒天空的利益提供的个人保证（保证）。担保涉及中新科技控股集团有限公司（中新控股）发行的债券，该公司总部位于香港，尽管张女士居住在伦敦。永恒天空根据认购协议的条款认购可转换债券，该协议受香港法律管辖，并规定了香港国际仲裁中心的仲裁。中新控股由张太太的丈夫管理和控制，张太太拥有该公司0.4%的股份。
中新控股未能赎回债券并违约。张先生也在不久后去世，这意味着永恒天空寻求根据担保向张太太追讨债务。
张女士提起仲裁程序，要求声明仲裁协议和/或担保书不具有约束力或已被撤销。永恒天空反诉其债务。独任仲裁员驳回了张女士的论点，并裁定担保书具有约束力。永恒天空的反诉也成功了。

英格兰和威尔士高等法院（商事法院）判决书在这里：
England and Wales High Court (Commercial Court) Decisions
https://www.bailii.org/ew/cases/EWHC/Comm/2023/1964.html

B e f o r e :

MR JUSTICE BRIGHT

Between:
Eternity Sky Investments Ltd
Claimant

and –
Mrs Xiaomin Zhang

Receivers

David Lewis KC and Gemma Morgan (instructed by Clifford Chance LLP) for the Claimant
Philip Marshall KC, Jonathan Kirk KC, Wilson Leung and Lee Finch (instructed by McDermott Will & Emery LLP) for the Defendant

Hearing dates: 18, 19 July 2023

HTML VERSION OF HANDED DOWN JUDGMENT

Crown Copyright ©

Mr Justice Bright:

A: Introduction

1.This judgment concerns a New York Convention arbitration award, its enforcement under s. 101 of the Arbitration Act 1996, and the public policy exception under s. 101(3). The public policy exception was invoked by the losing party on the basis that she is a consumer, resident in the UK. She says that enforcement would infringe her rights under the Consumer Rights Act 2015.
2.It happens that, very shortly before this hearing, I gave judgment in another case involving some similar points: Payward Inc. v Chechetkin [2023] EWHC 1780 (Comm). That judgment featured prominently in some of the submissions made to me by the parties in this case.

B: Background

B1: Mrs Zhang, Mr Zhang, Chong Sing and Eternity Sky

3.On 8 May 2016, the Defendant (“Mrs Zhang”) put her signature to the signing-page of a personal guarantee (“the Personal Guarantee”). The beneficiary under the Personal Guarantee was the Claimant (“Eternity Sky”). The subject-matter of the guarantee comprised the obligations of Chong Sing Fin Tech Holdings Group Limited (“Chong Sing”, formerly named Credit China Holdings Limited) in relation to a bond issue.
4.The relationship between these parties can be summarised as follows:
i) Mrs Zhang was then and is now resident in London.
ii) Her late husband (“Mr Zhang”) was resident in Hong Kong (as she had been, until she moved to London in 2013).
iii) Mr Zhang managed and controlled Chong Sing and owned a significant shareholding.
iv) Mrs Zhang had no managerial involvement in or control over Chong Sing.
v) She held a shareholding in Chong Sing. Her case was that it was a small percentage which she held as a nominee for her husband.
vi) Chong Sing was incorporated in the Cayman Islands but was registered in and run from Hong Kong. It conducted its business in Hong Kong and in the PRC. It was listed on the Stock Exchange of Hong Kong (“SEHK”).
vii) Eternity Sky is incorporated in the BVI but is registered in Hong Kong, where it conducts its business.
viii) Mrs Zhang says that, prior to the 2016 bond issue, Chong Sing was already heavily indebted to the corporate group to which Eternity Sky belongs.
ix) In the course of the bond issue, Chong Sing issued and Eternity Sky subscribed HK$ 500,000,000 of convertible bonds under a subscription agreement dated 8 May 2016 (i.e., the same date as that of the Personal Guarantee) (“the Subscription Agreement”).

B2: The bond issue and the Personal Guarantee

5.The bond issue was held in Hong Kong, under the aegis of the SEHK and subject to its GEM Listing Rules. Cl. 3 of the Subscription Agreement provided for Chong Sing’s performance to be guaranteed by Mrs Zhang’s Personal Guarantee, as well as by a further personal guarantee from Mr Zhang. The formal public announcement of the bond issue on the SEHK also referred to both guarantees.
6.The Subscription Agreement provided for Hong Kong law and arbitration in Hong Kong.
7.The recitals to the Personal Guarantee referred to the Subscription Agreement, stated that the Personal Guarantee was entered into as security for the obligation of Chong Sing, and noted at (C) that it was a condition precedent to the Eternity Sky completing the transactions contemplated under the Subscription Agreement that Mrs Zhang should execute the Personal Guarantee. This made it clear that the consideration being provided to Mrs Zhang by Eternity Sky for the Personal Guarantee was completion under the Subscription Agreement – i.e., fundamentally, Eternity Sky’s payment of HK$ 500,000,000 to Chong Sing in Hong Kong.
8.The critical provisions of the Personal Guarantee for the purposes of the application before me were Clauses 2 and 17: