Hong Kong`s judiciary has developed significant expertise in arbitration. The standard recommendation is to ensure that all related agreements contain identical or at least compatible arbitration clauses. The compatibility of arbitration agreements depends on whether the relevant conventions designate the same administrative body, provide for the application of the same rules of procedure and determine the same seat; and whether the agreements contain a functional mechanism for the formation of a tribunal that would determine how the tribunal is to be interpreted in the case of multi-contractual and multi-party proceedings. As a general rule, such a functional tribunal constitutional mechanism would include in the relevant arbitration agreements a provision setting out “framework arbitration” in which other disputes may be consolidated, how the tribunal is to be constituted as a “framework arbitration” and, often, whether the same arbitrators may be appointed under the relevant treaties. Yes, arbitration clauses are severable from the main contract in accordance with § 34 HKAO (which adopts article 16 of the UNCITRAL Model Law subject to § 13 paragraph 5). However, arbitration agreements may be extended to that party in accordance with other contractual or equitable principles (see question 9 (third party)). Article 81 of the HKAO (incorporating article 34 of the UNCITRAL Model Law) allows parties to seek the setting aside of an arbitral award, even on the ground that the award concerns a dispute that is not being considered or does not fall within the scope of the arbitration`s filing conditions, or contains decisions on matters that are beyond the scope of the filing of the arbitration. The Hong Kong court has extensive jurisdiction under Sections 21L and 21M of the High Court Order to provide interim measures in support of arbitration in Hong Kong or abroad, provided that such proceeding results in an arbitral award that is ultimately enforceable in Hong Kong. There is no specialized arbitral tribunal in Hong Kong. However, Practice Direction 6.1 “Construction and Arbitration List” established a list of Hong Kong judges who have control over the matters on the list, including “claims for arbitration, whether arising out of the arbitration order, the rules of the tribunal, order 73 or otherwise.” First, arbitral tribunals in mainland China do not have the power to impose interim measures.
In the case of arbitrations based in mainland China, a party making a request for an interim measure (usually referred to as a request for interim measures) must first file it with the Arbitration Commission that administers the arbitration, which then forwards the request to the competent court (see Articles 28 and 68 of the Arbitration Law of the PRC). Prior to the arrangement, the domestic laws of the PRC did not provide a mechanism by which a court could provide the same assistance to a foreign arbitration, nor a mechanism for the enforcement of an interim measure issued by a court in a foreign arbitration or by a foreign court. Hong Kong courts also issue injunctions against parties who initiate legal proceedings elsewhere in violation of an arbitration agreement (see e.B GM 1 and GM 2 v KC [2019] HKCFI 2793). These powers are also consistent with Article 45(2) of the HKAO, which gives the court jurisdiction to issue interim measures, including injunctions, in relation to arbitration proceedings initiated or to be initiated in Hong Kong or abroad. Parties to an existing dispute in which there is no arbitration clause or prior agreement regarding arbitration who wish to refer such a dispute to defamation under the arbitration rules administered by HKIAC may agree on the following: In Hong Kong, the “corporate group doctrine”, which is largely the product of civil jurisprudence, has not yet been used by Hong Kong courts, according to Professor Anselmo Reyes. accepted or even reviewed, and it is not clear whether the scope of the arbitration agreement can be extended in this way to a non-signatory. Article 27 of the 2018 hkiac-administered Arbitration Rules includes a liaison mechanism that allows HKIAC tribunals to allow other parties to join the arbitration, provided that those parties are bound by an arbitration agreement, as well as other requirements set out in the rules. Institutional arbitration is a vast and growing area of litigation in Hong Kong. There is no source of statistics that would capture the number of Hong Kong-based ad hoc arbitrations, as these are ad hoc arbitrations (not institutional participation) and inherent confidentiality. Most agreements contain a clause that expressly establishes the law that governs the substantive contract. In the absence of such a clause, the court applies conflict-of-laws rules to determine the substantive law of the dispute.
With regard to the first question, many have already pointed out that the term “Hong Kong arbitration” should mean Hong Kong-based arbitration (Article 2 of the Arrangement). The same requirement does not apply to continental arbitration, which must only be administered by a continental arbitration institution. The seat of arbitration in this case could be outside mainland China (see ASP Interpretation, Section II(III)). Without the consent of the party to the challenge procedure of an arbitrator (ad hoc or institutional), the HKAO provides as follows: For Hong Kong-based arbitration (Article 2), only those administered by institutions confirmed by both courts are admissible. This presupposes that ad hoc arbitration cannot take advantage of the arrangement. Conversely, Article 6 of the Convention does not require the confirmation of a list of arbitral tribunals authorized on the continent. According to Article 10 of the Arbitration Law of the PRC, an arbitration institution on the mainland is an institution that is “registered with the Department of Administrative Justice of the province, autonomous region or municipality concerned directly with the central government” (see the relevant list here). § 58 HKAO authorizes the court to extend the time limit for bringing an action if an arbitration agreement provides that an action is time-barred, unless it is submitted to arbitration within a specified period of time if the court is satisfied that (i) the circumstances of the claim at the time of the conclusion of the contract were not within the reasonable consideration of the parties and that it is only: extend the deadline; or (ii) the conduct of one party renders unfair the other party`s compliance with the strict terms of the Agreement.
Future prospects: The outcome of the agreement on interim measures over the past 18 months provides a compelling reason for the parties to consider Hong Kong as the seat of arbitration, as the parties are clearly in a position to seek and obtain interim measures in the courts of the PRC. Hong Kong courts adhere to the principle of the presumed validity of arbitration agreements and generally strive to maintain the validity of an arbitration clause. However, in order to avoid procedural difficulties, parties drafting Hong Kong-based arbitration clauses should endeavour to determine the seat, administrative institution (if any), applicable procedural rules (if not those of the administering institution), the law applicable to the arbitration clause, the number of arbitrators, the scope of submission to arbitration and other matters typical of a valid arbitration agreement; to be uniquely identified. operational and efficient. It would also be useful to identify the language of the arbitration and the number of arbitrators. A claimant may contact the IPC before the award is made or even before the commencement of the arbitration proceedings. If the request for interim measures is filed before the commencement of the arbitration, the parties must submit a letter of acceptance from the Board of Arbitration to the IPC within 30 days of the issuance of the interim orders; otherwise, the IPC will adopt the provisional measures. If interim measures are applied after the commencement of arbitration proceedings, the Arbitration Commission is required to forward the request to the competent IPC. The second question is which arbitration institutions can use this arrangement. The answer to this question can be found in Articles 2 and 6 of the Convention. A defendant may not be compelled to participate in the arbitration. If the defendant does not present his defence or does not appear at a hearing without sufficient reason, the court may continue the proceedings and make an arbitral award on the evidence before it (Article 53 of the HKAO).
Following the relevant amendments to the HKAO, which came into force in February 2019, funding of a Hong Kong-based arbitration proceeding is expressly permitted. If the transaction has a Mainland Chinese appearance, the parties may wish to keep open the prospect of seeking an interim measure in mainland Chinese courts in support of the arbitration. If so, they should indicate managed arbitration and not ad hoc arbitration. This will allow them to benefit from the Provisional Remediation Agreement between the PRC and Hong Kong, which applies only to arbitration. In addition, Article 19(1)(5) provides that an arbitration agreement is to be concluded `in writing` if it is contained in an exchange of claims and defence statements in which the existence of an agreement is alleged by one party and not contested by the other party ….
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