Interpretation Of Arbitration Clauses: Does "may" Arbitrate Actually Mean You "must" Arbitrate? Are "no Arbitration Until Completion/termination" Clauses Valid?

Where an arbitration clause provides that parties "may" submit their disputes to arbitration, does this mean that arbitration is mandatory or merely permissive? What is the effect of a proviso in an arbitration clause which provides that arbitration cannot be conducted until the construction works have been completed or contract has been terminated?

These two issues – which arise often – were dealt with by Mimmie Chan J of the Court of First Instance (the "Court") in Kinli Civil Engineering Limited v Geotech Engineering Limited [2021] HKCFI 2503 (Date of Decision: 26 August 2021).

Background

The plaintiff ("K") was the subcontractor of the defendant ("G") in a public housing development project. K commenced court proceedings against G to claim for alleged unpaid contract sums.