Hong Kong - Chapter III.3 - Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition

Author(s):

Peter Scott Caldwell

Page Count:

34 pages

Media Description:

PDF from "Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition"

Published:

April, 2012

Jurisdictions:

Hong Kong

Author Detail:

Peter S. Caldwell is a Principal in Caldwell Ltd in Hong Kong. He has been regularly appointed as a mediator and as an arbitrator in Hong Kong, China and in other countries in Asia since 1983. Mr. Caldwell is a Chartered Arbitrator and Fellow of the Chartered Institute of Arbitrators, Fellow of the Hong Kong Institute of Arbitrators and of the Singapore Institute of Arbitrators. He was Secretary General of the Hong Kong International Arbitration Centre (HKIAC) from 1990-98 and currently serves as a member of the governing council. He also serves on the Council of the Chartered Institute of Arbitrators UK and is an alternate member for Hong Kong of the Commission on International Arbitration of the ICC in Paris. He was Branch Chairman of the Hong Kong Branch of the Chartered Institute of Arbitrators from 1992 to 1994. He advised the City University of Hong Kong when it introduced its Master of Arts Degree in Arbitration and Dispute Resolution in the early 1990s. He was a member of the working party that drafted the 1999 IBA Rules for the Taking of Evidence in International Commercial Arbitration.

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Description:

Originally from Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition

Hong Kong was one of the earliest jurisdictions to apply the UNCITRAL Model Law to international arbitrations having adopted it in 1990. On 1st June 2011 Hong Kong brought into effect a new arbitration law. This law extends the UNCITRAL Model Law to all arbitrations. The Basic Law of Hong Kong governs the relationship between Hong Kong and the Mainland of China. That law confirms that laws, in force under British administration, except for any that were inconsistent with the Basic Law, remain in place. Hong Kong is a common law jurisdiction with a court system independent of the court system of Mainland China. Hong Kong is a party to the New York Convention. Awards rendered in Mainland China are also enforceable in Hong Kong under provisions closely modeled on the New York Convention.

Introduction

[1] The Constitutional Framework

Hong Kong is a special administrative region of China and has been part of the sovereign state of The People’s Republic of China since July 1, 1997. China’s constitutional framework allows Hong Kong a high degree of autonomy under the concept of “one country- two systems.”

The Basic Law governs the relationship between Hong Kong and the Mainland of China. The National People’s Congress adopted that law as part of the law of the People’s Republic on April 4, 1990, effective as of July 1, 1997. The law provides the constitutional link between Hong Kong and the central government in Beijing and forms a part of both the law of the People’s Republic and Hong Kong Law. The Basic Law states at Article 2:

Table of Contents:

§ 3.01 Introduction

[1] The Constitutional Framework
[2] The Hong Kong Legal System
[3] Enforceability of Awards
[4] Extent of Judicial Interference

§ 3.02 Arbitration Law in Hong Kong and Conventions
[1] The Arbitration Ordinance (Cap 609)
[2] International Arbitration Conventions to which Hong Kong is a Party
[a] The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards
[b] Washington Convention on the Settlement of Investment Disputes
[c] Bilateral Investment Treaties
[3] Opt-in Provisions in Hong Kong
[a] Consolidation of Arbitrations
[b] Decisions of Preliminary Question of Law by the Court and Appeal to the Courts against Arbitral Award on Questions of Law
[c] Challenging Arbitral Award before the Courts on Ground of Serious Irregularity

§ 3.03 Institutional Arbitration Institutions and Ad Hoc Arbitration in Hong Kong
[1] Hong Kong International Arbitration Centre
[2] Other Institutions Operating in Hong Kong
[a] The International Chamber of Commerce
[b] The Chartered Institute of Arbitrators East Asia Branch
[c] The Hong Kong Institute of Arbitrators
[d] The Hong Kong Mediation Council
[e] Hong Kong Maritime Arbitration Group
[3] Bodies Appointing Arbitrators in Hong Kong
[4] Ad Hoc Arbitration in Hong Kong

§ 3.04 Counsel in Arbitration in Hong Kong

§ 3.05 Commencing an Arbitration
[1] Commencement of Arbitration
[2] Problems Arising from Arbitration Agreements
[a] Jurisdiction
[b] Arbitrability
[3] Language of the Arbitration
[4] Number of Arbitrators
[5] Nationality of the Arbitrators
[6] Appointment of Arbitrators
[a] One Arbitrator
[b] Three Arbitrators
[i] Selection under the UNCITRAL Arbitration Rules
[ii] Selection under the ICC Arbitration Rules
[7] Challenge of Arbitrators
[8] Discovery
[9] Other Preliminary Matters

§ 3.06 Practical Considerations for Conducting the Hearing
[1] Nature of the Evidence: Oral or Written
[2] Witness Testimony and Documentary Evidence
[a] Live Witness Testimony or Declarations
[b] Compelling Testimony
[c] Impeachment
[3] Presentation of Documents
[4] Experts
[5] Procedure at Hearing

§ 3.07 Conciliation and Mediation
[1] Conciliation or Mediation as Part of the Arbitration Process
[2] Conciliation and Mediation as a Separate Process

§ 3.08 Costs

§ 3.09 Arbitration Awards
[1] Types of Award
[2] Form and Content of the Award
[a] General Requirements
[b] Format
[i] Heading
[ii] Recitals
[iii] Findings and Reasons
[iv] Directions
[v] Signature
[3] Correction and Interpretation of Awards

§ 3.10 Recourse against Awards

§ 3.11 Recognition and Enforcement of Awards
[1] Recognition and Enforcement of Hong Kong Awards in Hong Kong
[2] Recognition and Enforcement of Awards Made in the Mainland of China
[3] Recognition and Enforcement of Convention Awards
[4] Recognition and Enforcement of Other Foreign Awards