Hong Kong - Chapter 4 - International Commercial Arbitration in Asia - 3rd Edition

David Sandborg is a Chartered Arbitrator and Fellow of the Chartered Institute of Arbitrators (UK), a Fellow of the Hong Kong Institute of Arbitrators, and an Accredited Mediator on the HKIAC Panel.

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Originally from: International Commercial Arbitration in Asia - 3rd Edition

I. INTRODUCTION

Hong Kong has a new arbitration law. On 11 November 2010, the Hong Kong legislature (Legislative Council) enacted the new legislation (Arbitration Ordinance of 2011 (Cap.609)) to be effective on 1 June 2011. The new Arbitration Ordinance (“the new AO”) replaced the existing arbitration ordinance (“the Repealed AO”), which had initially been enacted in 1963 (Arbitration Ordinance 1963, Cap.341) but amended a number of times thereafter. During the ensuing years, until the new Ordinance of 2011, arbitration law and practice in Hong Kong followed an evolutionary path with numerous amendments to the 1963 Ordinance to meet the changing economic, legal, and political circumstances of Hong Kong as it went from being a colony of Great Britain for roughly 150 years to becoming a Special Administrative Region of the People’s Republic of China in 1997.

In 1990, Hong Kong became one of the first jurisdictions in the world to adopt the UNCITRAL Model Law on International Commercial Arbitration (“the UML”). The UML was added as the Fifth Schedule of the principal Ordinance by way of the Arbitration (Amendment) Ordinance 1989, but made applicable only to international arbitrations conducted in Hong Kong. Because a separate legal regime was retained for “domestic” arbitrations, the enactment of the UML for international arbitrations had the effect of creating a “dual legal regime” for arbitrations in Hong Kong—one part of the Ordinance being applicable to “domestic” arbitrations,” the other part to “international” arbitrations.

Table of Contents:

Chapter 4
Arbitration in Hong Kong
I. Introduction
II. The New Arbitration Ordinance of 2011—Major Changes
III. The UNCITRAL Model Law
IV. Historical Evolution of Arbitration Law in Hong Kong
V. Structure of the New Arbitration Ordinance of 2011
VI. Key Provisions of the New Arbitration Ordinance of 2011
A. Object and Principles of the Ordinance
B. Representation and Preparation of Work—Foreign Lawyers
C. Scope of Permissible Relief
D. Confidentiality
1. Proceedings to Be Heard Other Than in Open Court
2. Duty of Non-disclosure
E. The Arbitration Agreement—“The Writing Requirement”
F. Composition of the Arbitral Tribunal
1. Arbitrators
2. Mediators
G. Jurisdiction of the Arbitral Tribunal—Kompetenz-Kompetenz
H. Interim Measures and Preliminary Orders—Ex Parte Applications
I. Court-Ordered Interim Measures
J. Conduct of the Arbitral Proceedings
K. Peremptory Orders
L. Enforcement of Orders and Directions of the Arbitral Tribunal
M. Making of the Arbitral Award
N. Recourse against the Award
O. Enforcement of Awards
1. Enforcement of Arbitral Awards That Are Neither Convention Awards Nor Mainland Awards
2. Enforcement of Convention Awards
3. Enforcement of Mainland Awards
P. Provisions Expressly Opted-for or Automatically Applied
1. Sole Arbitrator
2. Consolidation of Arbitrations
3. Decision by the Court on a Preliminary Question of Law
4. Challenging the Award on the Ground of “Serious Irregularity”
5. Appeal against Arbitral Award on Question of Law
Q. Costs of the Arbitral Proceedings
VII. Enforcement of Awards between Hong Kong And Mainland China
VIII. Arbitral Institutions in Hong Kong
A. Hong Kong International Arbitration Centre
B. International Chamber of Commerce Arbitrations
IX. Arbitral Organizations in Hong Kong
A. Chartered Institute of Arbitrators (East Asia Branch)
B. Hong Kong Institute of Arbitrators
X. Conclusion