HKIAC 2017 CASE STATISTICS

The HKIAC has recently published its case statistics for 2017, showing a continued healthy demand for its services. The HKIAC saw a 15.7% increase in its caseload compared to 2016, with the total amount in dispute in HKIAC arbitrations doubling since last year. The statistics demonstrate that HKIAC maintains its position as one of the world’s leading arbitral institutions, serving parties throughout Asia and beyond. Continue reading

A new beginning for arbitration in mainland China: HKIAC opens in Shanghai

On 20 November 2015, the Hong Kong International Arbitration Centre (HKIAC) announced the opening of a representative office in Shanghai.

The HKIAC's on-the-ground presence in Shanghai is an important milestone for China-related arbitration, as it is the first time that an offshore institution has set up in the mainland. It is clear from the HKIAC's announcement that its ambitions in Shanghai are broad, including working with mainland arbitration commissions to promote international best practices and facilitating the development of PRC arbitration law. In connection with its office in Shanghai, the HKIAC also announced plans to work closely with courts and judges to enhance the understanding of arbitration in mainland China, and to provide professional training to Chinese arbitrators and practitioners. HKIAC's Shanghai office will also provide logistical support for arbitration hearings taking place in the mainland.

In a press release, HKIAC made clear that its Shanghai office does not provide case administration services, which will continue to be provided by the HKIAC Secretariat in Hong Kong. HKIAC's opening in Shanghai comes at a time of uncertainty around the administration of foreign-related arbitrations seated in mainland China by offshore arbitration institutions. The prevailing view, until recently, was that an agreement to arbitrate a foreign-related dispute in mainland China under the administration of an arbitral institution that is not a registered mainland arbitration commission – for example, the ICC or HKIAC – was invalid under Chinese law. However, in 2014, it was revealed that the Supreme People's Court decided in the "Longlide" case (covered by HSF Arbitration Notes here) that an arbitration clause providing for arbitration of a foreign-related dispute in Shanghai under the ICC Rules was valid.

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LCIA releases costs and duration data – the first of more to come?

Yesterday, 3 November 2015, the London Court of International Arbitration ("LCIA") released costs and duration data regarding actual cases administered by the LCIA under the LCIA Rules. It is thought that this is the first time an arbitral institution has released such information. This move is no doubt part of a growing trend of, and indeed demand for, increased transparency in international arbitration. It remains to be seen how other arbitral institutions – and even perhaps some less transparent domestic commercial courts competing for big ticket commercial disputes –  will react and whether they will follow suit.

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Hong Kong court dismisses claim against HKIAC

In yet another example of robust judicial support for arbitration in Hong Kong, the Hong Kong Court of First Instance has dismissed a claim brought against the HKIAC by a party to an HKIAC administered arbitration.

The plaintiff in the Court Proceeding, Mr Gong Benhai, the Claimant in an ongoing HKIAC arbitration, sought to ‘set aside’ a decision by the HKIAC under the 2008 HKIAC Challenge Rules, in which the HKIAC had rejected Gong’s challenge regarding two arbitrators.

The Court Proceeding was filed in February 2014 and promptly dismissed on 18 March 2014, with a judgment published in Chinese on 28 April 2014. Gong was ordered to pay the HKIAC’s costs of the hearing.

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Herbert Smith Freehills’ Justin D’Agostino appointed to the HKIAC Executive Committee

We are pleased to announce the appointment of Justin D’Agostino to the Hong Kong International Arbitration Centre (HKIAC) Executive Committee.
 
In advance of the HKIAC’s 30th anniversary and following the recent revision of the HKIAC Administered Arbitration Rules (see our blog post here), the HKIAC has undergone a reshuffle of its management structure. A newly formed Executive Committee of six highly respected Hong Kong and international arbitration practitioners has been chosen to direct and lead the centre in its on-going development and expansion.
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Hong Kong passes amendments to Arbitration Ordinance

On 10 July, the Legislative Council of Hong Kong passed the Arbitration (Amendment) Bill 2013 (click here for our earlier post on the Bill).

The Arbitration (Amendment) Ordinance 2013 introduces a number of changes to the 2011 Arbitration Ordinance (Cap. 609), aimed at ensuring Hong Kong remains at the forefront of modern arbitral practice.

The amendments to the Arbitration Ordinance include:

  • New provisions allowing Hong Kong courts to enforce relief granted by an emergency arbitrator, whether made in or outside Hong Kong.
  • Implementation of the Arrangement Concerning Reciprocal Recognition and Enforcement of Arbitral Awards between the Hong Kong SAR and the Macao SAR, signed in January 2013.
  • Amendments to the provisions for taxation of arbitration costs by the Hong Kong courts.
  • Inclusion of five new New York Convention signatories in the relevant Schedule

The amendments took effect on 19 July 2013, with the exception of the Hong Kong/Macao mutual enforcement arrangements, which will come into force at a later date, to be notified in the Hong Kong Government Gazette.

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The 2013 HKIAC Administered Arbitration Rules Released

The Hong Kong International Arbitration Centre (“HKIAC“) has published the 2013 revisions to the HKIAC Administered Arbitration Rules (“2013 HKIAC Rules“). Justin D’Agostino and Briana Young of Herbert Smith Freehills in Hong Kong have been on the HKIAC Rules Revision Committee and involved in the revision process from beginning to end. The new 2013 HKIAC Rules will come into force on 1 November 2013.

After a major review of its Administered Arbitration Rules, the HKIAC has introduced significant changes aimed at creating greater efficiency and bringing the HKIAC to the forefront of modern arbitral practice. Many of the changes clarify, but do not modify, the substance of HKIAC administered arbitration. Some of the key changes in the 2013 HKIAC Rules include:

  • Improved provision for joinder by expanding the Tribunal’s ability to join additional parties to an arbitration upon the request of one of the existing parties and also allowing third parties to submit requests to join an arbitration. In both cases the additional parties must be bound by a valid arbitration agreement under the 2013 HKIAC Rules giving rise to the arbitration. The HKIAC also obtains a prima facie power to join an additional party if a request for joinder is submitted prior to the Tribunal’s constitution. Under the current Administered Arbitration Rules, there is a limited joinder provision, where the Tribunal could join an additional party to an arbitration only with the consent of both parties.
  • New provisions to allow the HKIAC, in certain circumstances, to consolidate two or more arbitrations at a party’s request or to allow claims arising out of or in relation to multiple contracts to be raised in a single proceeding. Under the current Administered Arbitration Rules, there is no express provision on consolidation.
  • New provisions on emergency arbitrators.
  • An arbitrator’s agreed hourly rate shall not exceed a fee cap (HKD 6,500 per hour) established in the Rules, subject to a contrary agreement by the parties.

By building upon the success of the current Administered Arbitration Rules, the 2013 revisions ensure that they continue to be modern and reflective of best practice in international arbitration, in keeping with HKIAC’s status as one of the world’s pre-eminent arbitration institutions. Along with the continued support of parties and professionals, the 2013 HKIAC Rules should also ensure that arbitration in Hong Kong continues to thrive.

A copy of the 2013 HKIAC Rules are now available on the HKIAC’s website (click here for a copy).

Herbert Smith Freehills is also hosting a breakfast briefing in Hong Kong on the 2013 HKIAC Rules on Thursday, 3rd October 2013 (click here for an invitation).

Justin D'Agostino
Justin D'Agostino
Partner, head of Greater China international arbitration
+852 2101 4010
Briana Young
Briana Young
Registered Foreign Lawyer, Professional Support Lawyer
+852 2101 4214

Hong Kong Court of Final Appeal refuses leave to appeal in the Grand Pacific v. Pacific China case

The Hong Kong Court of Final Appeal (“CFA“) has today refused to interfere with a judgment of the Hong Kong Court of Appeal (“CA“) on the setting aside of arbitral Awards in Hong Kong.

The CA’s unanimous judgment of 9 May 2012 in Grand Pacific Holdings Ltd. v. Pacific China Holdings Ltd. (click here for a copy of the judgment) had been positively received in the arbitration community as demonstrating the arbitration-friendly and non-interventionist approach of the Hong Kong courts. The judgment, which was concerned with alleged violations of Article 34(2) of the UNCITRAL Model Law, highlighted the wide case management powers of arbitral Tribunals. Whilst the CA held that the arbitral Tribunal which rendered the Award had not breached Article 34(2), the Court made clear that, in order for an arbitral Award to be set aside on due process grounds, it must be shown that any breaches of Article 34(2) were of a “serious” or even “egregious” nature. Click here for our previous blog entry on the CA’s judgment.

In refusing Pacific China leave to appeal, today’s decision by the CFA means that the CA’s judgment now stands as the authoritative statement of the law in relation to the setting aside of arbitral Awards in Hong Kong (and is likely to be influential in other UNCITRAL Model Law jurisdictions as well). It therefore provides welcome confirmation that the Hong Kong courts will be slow to interfere with the procedural decisions of arbitral tribunals, in line with international standards.

Herbert Smith Freehills partner Justin D’Agostino and a team of associates in Hong Kong acted for Grand Pacific in the CA and CFA proceedings, along with Teresa Cheng SC and Adrian Lai of Des Voeux Chambers in Hong Kong.

The CA’s judgment was recently shortlisted by Global Arbitration Review for an award as the “Most important published decision of 2012 in jurisprudential terms (award or judgment)”. Click here for more details.