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The New Arbitration Ordinance of the Hong Kong Special Administrative Region: Hong Kong Arbitration Ordinance

  • Lee Tin Yan (a1)

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Because of the unique position that Hong Kong occupies in China and its separate legal system based on the common law, it is a well-established policy of the Hong Kong Special Administrative Region (‘‘HKSAR’’) Government to develop and enhance Hong Kong’s status as a major dispute resolution centre in the Asia Pacific region. One significant initiative in this regard is the recent introduction of a new Arbitration Ordinance to further improve the legal environment for arbitration in Hong Kong.

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* This text was reproduced and reformatted from the text available at the Government of Hong Kong Special Administrative Region of the People’s Republic of China Department of Justice website (visited Jan. 26, 2012) http://www.legislation.gov.hk/blis_pdf.nsf/6799165D2FEE3FA94825755E0033E532/C05151C760F783AD482577D900541075?OpenDocument&bt=0.

1 References in this note to ‘‘Model Law’’ and the ‘‘Article’’ mean, unless otherwise stated, the UNCITRAL Model Law on International Commercial Arbitration, including the amendments made by the United Nations Commission on International Trade Law in 2006, and articles thereof.

2 The text of the Arbitration Ordinance (Cap. 609) is available at http://www.legislation.gov.hk/blis_pdf.nsf/6799165D2FE E3FA94825755E0033E532/C05151C760F783AD482577D9 00541075?OpenDocument&bt=0 [hereinafter New Ordinance]. In 2003, the Committee on Hong Kong Arbitration Law, which was established by the Hong Kong Institute of Arbitrators in co-operation with the Hong Kong International Arbitration Center, issued a Report of Committee on Hong Kong Arbitration Law (‘‘Report’’). It recommended that the arbitration law of Hong Kong should be revamped and a unitary regime with the Model Law governing both domestic and international arbitrations should be created. This is followed up by the setting up of the Departmental Working Group (‘‘Working Group’’) to implement the recommendation of the Report by the Department of Justice of HKSAR Government. A Consultation Paper was issued in December 2007 by the Working Group for public consultation. A draft Arbitration Bill was annexed to the Consultation Paper, and the text of the Consultation Paper provides brief explanations on the provisions of the draft bill. The text of the Consultation Paper is available at http://www.doj.gov.hk/eng/public/pdf/2007/arbitration. pdf.

3 Some of the provisions of the domestic regime in the repealed Arbitration Ordinance are still available for opting-in by way of express provision or reference in the arbitration agreement (Sections 99 and 100 of the New Ordinance). Under the domestic regime, the courts have more powers than those provided in the Model Law. In certain sub-contracts in the construction industry, where the main contract is subject to the domestic regime, the deemed provisions of the domestic regime may automatically apply even in the absence of an express reference in the sub-contract to the ‘‘domestic regime’’ (Section 101(1) of the New Ordinance). These deeming provisions do not, however, apply where the sub-contractor has no place of business in Hong Kong or does not perform a substantial part of the relevant operations which is subcontracted under the subcontract in Hong Kong (Section 101(2) of the New Ordinance).

4 For details of the provisions of the New Ordinance which involve changes to the Model Law, please refer to Peter Caldwell, The New Hong Kong Arbitration Ordinance, Asian Disp. Rev. 14 (Jan. 2011).

5 New Ordinance, supra note 2, §3.

6 The importance of confidentiality in arbitrations was highlighted by the findings of the 2010 International Arbitration Survey: Choices in International Arbitration conducted by the School of International Arbitration at Queen Mary, University of London. Over 130 general counsel and heads of legal departments around the world participated in the survey. 62% of the respondents said confidentiality is ‘‘very important’’ to them in international arbitration. However, half of the participants in the survey wrongly thought that arbitration is confidential even when there is no confidentiality clause in the arbitration agreement or the chosen rules. 12% did not know whether arbitration is confidential in those circumstances.

7 New Ordinance, supra note 2, § 16.

8 Id. § 18.

9 Id. § 3.

10 Article 5 of the Model Law (as given effect by Section 12 of the New Ordinance) provides that: ‘‘In matters governed by this Law, no court shall intervene except where so provided in this Law.’’

11 Article 11 (3), (4) and (5) of the Model Law (as given effect by Section 24 of the New Ordinance), but note that a default power of appointment is conferred on the Hong Kong International Arbitration Centre by Section 13(2) of the New Ordinance.

12 Article 13(3) of the Model Law (as given effect by Section 26 of the New Ordinance). 13 Article 14 of the Model Law (as given effect by Section 27 of the New Ordinance). 14 Article 17 of the Model Law (as given effect by Section 35 of the New Ordinance). 15 See Article 17B of the Model Law (as given effect by Section 37 of the New Ordinance) for the nature of preliminary orders and the specific regime under Article 17C of the Model Law (as given effect by Section 38 of the New Ordinance).

16 New Ordinance, supra note 2, § 45.

17 According to Section 61(1) of the New Ordinance, an order or direction made, whether in or outside Hong Kong, in relation to arbitral proceedings by an arbitral tribunal is enforceable in the same manner as an order or direction of the Court that has the same effect, but only with the leave of the Court. Section 61(5) provides that an order or direction referred to above includes an interim measure.

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The New Arbitration Ordinance of the Hong Kong Special Administrative Region: Hong Kong Arbitration Ordinance

  • Lee Tin Yan (a1)

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