Hong Kong - Part E - Arbitration in Asia - 2nd Edition
Christopher To holds qualifications in computing, engineering and law. He is a recognized authority on alternative dispute resolution techniques and has over twenty years of extensive experience in arbitration and alternative dispute resolution (“ADR”) including adjudication and mediation. He has acted as arbitrator, mediator and adjudicator in a variety of international business disputes ranging from construction, infrastructure projects, insurance, finance, aircraft maintenance, mining and energy transactions, investment, information technology, intellectual property, technology licensing, manufacturing of integrated circuit technology, and mergers and acquisitions and was previously the Secretary-General of the Hong Kong International Arbitration Centre. He is a chartered arbitrator, chartered engineer, chartered information technology professional, an accredited mediator and a barrister at law. Dr. To currently teaches at leading universities on the subjects of Alternative Dispute Resolution, International Construction Law, International Arbitration, Commercial Contracts and Mediation and has written extensively on the subject. He is the general editor of the textbook, “Wolters Kluwer Construction Arbitration in Hong Kong: A Practical Guide,” and the author of the leading textbooks “Butterworths Hong Kong Arbitration Law Handbook” and “Wolters Kluwer Mediation in Hong Kong: Law and Practice.” Dr. To is currently the Co-Chairperson of the Inter-Pacific Bar Association Corporate Council Committee and the Chairperson of the Hong Kong Institute of Directors.
Michael J. Moser is a leading foreign specialist in Chinese business law. A member of the New York Bar, he has practiced law in China for more than 30 years and has advised on a number of ground-breaking commercial transactions. As a leading expert on the resolution of Chinese-foreign business disputes, he frequently acts as arbitrator in disputes between Asian parties and multinational corporations. He was the first foreign national to be appointed as an arbitrator in China; he is Honorary Chairman of the Hong Kong International Arbitration Centre (HKIAC), Vice President of the Asia Pacific Regional Arbitration Group (APRAG), Co-Chair of the China Arbitration Forum and a former Vice Chair of the IBA Committee on Arbitration. He is also a Court Member of the London Court of International Arbitration, a Board Member of the Arbitration Institute of the Stockholm Chamber of Commerce and a Commission Member of CIETAC.
Prior to his retirement in 2006, Michael Moser was China Managing Partner of Freshfields Bruckhaus Deringer. His extensive publications include the following: Investor-State Arbitration—Lessons for Asia; Duelling with Dragons: Managing Business Disputes in Today’s China; Hong Kong Arbitration: A User’s Guide; Arbitration in Asia; Hong Kong and China Arbitration; and International Arbitration in the People’s Republic of China: Commentary, Cases and Materials. He is a graduate of the Harvard Law School and holds a Ph.D. from Columbia University. Michael Moser is an arbitrator member of 20 Essex Street Chambers in London and Singapore and is based in Hong Kong.
Originally from Arbitration in Asia - 2nd Edition
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[1] INTRODUCTION
Hong Kong plays an important role as both a leading regional international arbitration centre and as a preferred venue for the arbitration of China-related business disputes. Hong Kong has a modern UNCITRAL-based arbitration law, an independent judiciary, an English-law based legal system, and a large number of highly skilled local professionals from a variety of backgrounds. In addition, the Hong Kong International Arbitration Centre (the ‘HKIAC’), which was established in 1985, offers a range of services to parties to arbitrations, both international and domestic, including model arbitration clauses, appointment of arbitrators, arbitration rules, hearing rooms, and administrative support services.
Until 1997, Hong Kong was a colony and dependent territory of the United Kingdom. In July 1997, sovereignty over Hong Kong was resumed by the People’s Republic of China (‘PRC’) and the Hong Kong Special Administrative Region (‘HKSAR’) was established. Under the terms of China’s resumption of sovereignty, Hong Kong was granted a high degree of autonomy and was permitted to retain its own legal system distinct from that of China. Therefore, although Hong Kong is today a part of the PRC, its arbitration law and institutions remain separate from those of the mainland.
Concerns had been expressed over Hong Kong’s continued role as a centre for arbitration following the resumption of Chinese sovereignty in July 1997. However, these concerns have proved to be unfounded. More than twenty-five years after the transfer of sovereignty, Hong Kong remains a leading international arbitration and mediation centre and a popular venue for the resolution of international business disputes.
On 19 October 2015, the Law Reform Commission of Hong Kong published a Consultation Paper recommending that the Arbitration Ordinance 2015 should be amended to expressly permit third party arbitration and mediation funding along with appropriate ethical and financial standards for funders. The Consultation Paper further signifies Hong Kong’s pro arbitration stance and its drive to attract the international community to use Hong Kong as their preferred seat for their resolving their disputes.
[1] INTRODUCTION
[2] LEGISLATION
[2.1] General
[2.2] Application of the UNCITRAL Model Law
[3] ARBITRATION AGREEMENTS
[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL
[4.1] Number of arbitrators
[4.2] Appointment of arbitrators
[4.3] Qualifications
[4.4] Challenge of arbitrators
[4.5] Liabilities of arbitrators and arbitral institutions
[4.6] Mediators
[5] ARBITRATION PROCEDURE
[5.1] Commencement of the arbitration
[5.2] Language
[5.3] Pleadings and submissions
[5.4] Evidence
[5.5] Hearings and written proceedings
[6] AWARDS
[6.1] Interest
[6.2] Costs
[7] JUDICIAL ASSISTANCE AND INTERVENTION
[7.1] Powers of court to grant interim measures of protection in relation to foreign arbitral proceedings
[7.2] Stay of Court of First Instance proceedings and referral to arbitration
[7.3] Arbitration clauses and insolvency proceedings
[8] RECOGNITION AND ENFORCEMENT OF ARBITRAL AWARDS
[8.1] Setting aside awards made in Hong Kong
[8.1.1] Arbitration awards
[8.2] Correction of arbitral awards, additional awards, security for costs, and applications to set-aside or resist enforcement of arbitral awards
[8.3] Enforcement of arbitral awards whether made in or outside Hong Kong
[8.4] New York Convention
[8.5] Enforcement of China awards in Hong Kong
[8.6] Enforcement of non New York Convention Awards
[8.7] Enforcement of a foreign arbitral award by bringing fresh
proceedings in the Hong Kong courts
[8.8] Enforcement of Macao awards in Hong Kong
[9] PRACTICAL INFORMATION
[9.1] Facilities in Hong Kong
[9.2] The Hong Kong International Arbitration Centre
[9.3] Chartered Institute of Arbitrators
[9.4] The Hong Kong Institute of Arbitrators
[9.5] Foreign counsel
[9.6] Visa requirements
[9.7] Tax
[10] APPENDICES (ON CD)
[10.1] Chapter 609 Arbitration Ordinance
[10.2] Order 73 of the Rules of the High Court
[10.3] UNCITRAL Arbitration Rules (2013)
[10.4] HKIAC Administered Arbitration Rules - 2018
[10.5(a)] Practice Note for the Challenge of an Arbitrator (effective 11 March 2019)
[10.5(b)] Practice Note on Consolidation of Arbitration (effective 1 January 2016)
[10.5(c)] Practice Note on Tribunal Fees, Expenses, Terms & Conditions - Schedule 2 (effective 1 November 2013)
[10.5(d)] Practice Note on Tribunal Fees, Expenses & Conditions - Schedule 3(effective 1 November 2013)
[10.5(e)] Practice Note on Appointment of Arbitrators (effective 1 November 2018)
[10.5(f)] Practice Note on Costs of Arbitration - Schedule 2 (effective 11 March 2019)
[10.5(g)] Practice Note on Costs of Arbitration - Schedule 3 (effective 11 March 2019)
[10.5(h)] Practice Note on Appointment of Arbitrators (effective 1 November 2018)
[10.6] HKIAC Domestic Arbitration Rules (2014)
[10.7] HKIAC Procedures for the Administratio of Arbitratio under the UNCITRAL Arbitration Rules - 2015
[10.8] Rules as Appointing Authority: Arbitration (Appointment of Arbitrators and Mediators and Decision on Number of Arbitrators) Rules - 2019
[10.9] Mediation Ordinance Chapter 620
[10.10] Apologies Ordinance Chapter 631
[10.11] Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region