The Improvement of Arbitration in Hong Kong

On this article, impartial arbitrator Joe Liu explores these developments and extra distinctive sides of dispute decision in Hong Kong.

Are you able to please give an summary of the authorized framework governing arbitration in Hong Kong?

Arbitrations seated in Hong Kong are ruled by the Hong Kong Arbitration Ordinance (Cap 609) (‘Ordinance’). The Ordinance supplies a contemporary and complicated authorized framework for arbitration that’s primarily based on the most recent model of the UNCITRAL Mannequin Regulation and has been up to date often to mirror worldwide finest observe.

The Ordinance comprises 112 articles and 4 schedules. These provisions deal comprehensively with issues from the graduation of an arbitration to the issuance of the arbitral award, and limits court docket interference to areas expressly supplied for within the Ordinance.

The Ordinance adopts a unitary regime that applies to each worldwide and home arbitrations. The Hong Kong Worldwide Arbitration Centre (‘HKIAC’) is the default appointing authority underneath the Ordinance. Until the events have designated one other appointing authority, HKIAC determines the variety of arbitrators and appoints arbitrators or mediators within the circumstances specified within the Ordinance. The Ordinance additionally consists of specific provisions on the confidentiality of arbitration and associated court docket proceedings, the enforceability of emergency arbitrator aid, the usage of third-party funding in eligible proceedings, the arbitrability of mental property disputes, and several other opt-in provisions that allow higher involvement of the Hong Kong courts.

Are there any current developments in Hong Kong arbitration which might be value noting?

There have been a number of necessary developments concerning Hong Kong arbitration in recent times. I’ll spotlight three developments in relation to the supply of interim aid from Mainland Chinese language courts in Hong Kong arbitration, the mutual enforcement of arbitral awards between Hong Kong and Mainland China, and outcome-related charge constructions for arbitration in Hong Kong.

By advantage of the interim measures association between Hong Kong and Mainland China that got here into pressure on 1 October 2019 (‘Interim Measures Association’), Hong Kong has grow to be the primary jurisdiction exterior of Mainland China by which events to eligible arbitral proceedings could search interim aid from Mainland Chinese language courts. The Interim Measures Association is a strategically and virtually necessary mechanism that can be utilized to protect belongings, proof or conduct of the counterparty in Mainland China. This was beforehand solely doable in respect of arbitration on the Mainland however has now been made accessible to arbitration in Hong Kong. The Interim Measures Association has usually labored nicely in observe. On the time of this text, the HKIAC has processed 82 purposes made to 26 completely different Mainland courts and seen 52 orders made in respect of these purposes. 48 of these orders granted the purposes preserving belongings valued roughly $2.1 billion in complete.

There have been a number of necessary developments concerning Hong Kong arbitration in recent times.

The authorized framework governing the mutual recognition and enforcement of arbitral awards between Hong Kong and Mainland China has additionally been up to date. On 19 Might 2021, the supplemental association on mutual enforcement of awards between Hong Kong and Mainland China (‘Supplemental Enforcement Association’) totally got here into impact. The Supplemental Enforcement Association introduces a number of clarifications and amendments to reinforce the earlier enforcement regime. For instance, underneath the improved regime, a profitable celebration in an arbitration could pursue enforcement proceedings in Hong Kong and Mainland China concurrently, supplied that the overall quantity recovered doesn’t exceed the quantity decided within the award. A celebration may search interim aid from the enforcement court docket after the issuance of the award. The Supplemental Enforcement Association, along with the Interim Measures Association, empowers Mainland courts to subject interim aid in assist of all phases of a Hong Kong arbitration.

One other vital growth is the enactment of legislative amendments to permit outcome-related charge constructions (‘ORFS’) in arbitration and associated proceedings in Hong Kong. These amendments provide higher funding flexibility for customers of arbitration by legalising three sorts of ORFSs, specifically conditional charge agreements, damages-based agreements and hybrid damages-based agreements, with acceptable safeguards. The amendments are anticipated to come back into pressure later this 12 months and additional particulars of the brand new OFRS regime might be fleshed out by subsidiary laws. Hong Kong’s OFRS regime enhances its third-party funding regime, which has been totally efficient since February 2019 and permits Hong Kong to supply a variety of funding choices to customers of arbitration.

You may have labored in arbitral establishments and personal observe earlier than and also you are actually an impartial arbitrator. What has been your expertise with Hong Kong arbitration in these roles?

I’ve been concerned in Hong Kong arbitration as counsel, tribunal secretary, case administration supervisor on the HKIAC and in different roles. My total expertise is that arbitration in Hong Kong is a extremely versatile course of with a number of procedural choices for managing and streamlining the proceedings. The size and prices of a Hong Kong arbitration rely largely in your use of counsel, alternative of arbitrator, administration of authorized charges, and adoption of correct technique, procedural mechanisms, know-how and funding choices for the method. Some arbitrators and counsel are inclined to run all arbitral proceedings in a specific method. I feel it will be important for arbitrators and counsel to assume innovatively and devise the method for figuring out points in a fashion that’s best suited and cost-saving for every case.

Hong Kong has grow to be the primary jurisdiction exterior of Mainland China by which events to eligible arbitral proceedings could search interim aid from Mainland Chinese language courts.

You lately left the HKIAC to grow to be an impartial arbitrator. Inform us about your new position and what kinds of disputes you might be most suited to dealing with.

I’ve arrange my very own observe as an impartial arbitrator and I’m accessible for appointments in arbitrations seated in any jurisdictions and underneath any arbitration guidelines. I’ve expertise in sale of products, commodity, company, funding, banking, power and know-how disputes underneath a wide range of governing legal guidelines, together with Chinese language, English, Hong Kong, Indian, Singapore and New York legal guidelines. I’m additionally accessible for appointments in area title disputes and have expertise in proceedings underneath the Uniform Area Title Dispute Decision Coverage and the CNNIC Area Title Dispute Decision Coverage. I’m able to conduct proceedings in English, Chinese language or each languages.

How have your personal previous skilled experiences outfitted you to work as an arbitrator?

My previous expertise in arbitral establishments and personal observe give me the talents and confidence to work as a full-time arbitrator. Throughout my time at HKIAC, I gained insights on the institutional guidelines and observe, oversaw the administration of a considerable amount of instances, labored with quite a few arbitrators together with among the world’s most outstanding arbitrators, and noticed how they labored and decided instances. Equally, my expertise on the Singapore Worldwide Arbitration Centre (‘SIAC’) was additionally worthwhile as I used to be intently concerned in case administration and handled procedural issues each day. As well as, I labored on a number of complicated and high-value arbitrations at Allen & Overy. These experiences honed my abilities to assume, write and communicate as a lawyer who is ready to run instances in an environment friendly, competent {and professional} method.

I imagine the mixture of my institutional and personal observe experiences in a number of jurisdictions and my language abilities might be useful to my arbitrator profession.

Joe Liu, Unbiased Arbitrator

JLIU Dispute Decision

12/F, One Peking, 1 Peking Highway, Tsim Sha Tsui, Hong Kong

E: [email protected]

Joe Liu is an impartial arbitrator and area title panelist with a wealth of expertise in worldwide dispute decision. He’s in a position to attract upon insights gained from work in a worldwide legislation agency and several other main arbitral establishments, together with experiences gained because the Performing Secretary-Normal and Deputy Secretary-Normal on the Hong Kong Worldwide Arbitration Centre (HKIAC). Capable of conduct proceedings in English, Cantonese or Mandarin, Joe has explicit experience in representing events in high-value and complicated disputes.