Comparative Guides
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Results: 4 Answers
International Arbitration
1.
Legal framework
1.1
What is the relevant legislation on arbitration in your jurisdiction? Are there any significant limitations on the scope of the statutory regime – for example, does it govern oral arbitration agreements?
 
Hong Kong
The Arbitration Ordinance (AO) (Cap 609) applies to arbitration under an arbitration agreement, regardless of whether the agreement is entered into in Hong Kong or the place of arbitration is in Hong Kong. In order for an arbitration to be valid, the AO adopts Option I of Article 7 of the UNCITRAL Model Law, which requires an arbitration agreement to be “in writing” (see question 10).

Pursuant to Section 6 of the AO, the AO applies to the government and the offices set up by the Central People’s Government in the Hong Kong Special Administrative Region. However, this is subject to the common law defence of crown immunity or sovereign immunity.

For more information about this answer please contact: Nick Gall from Gall
1.2
Does this legislation differentiate between domestic arbitration and international arbitration? If so, how is each defined?
 
Hong Kong
Before the AO came into effect, Hong Kong used to have rules for two distinct regimes – one for international arbitration and one for domestic arbitration. Since the current AO came into effect, parties may choose between application of provisions in the main body of the AO or application of Schedule 2 provisions. The provisions in the main body of the AO do not distinguish between international and domestic arbitration, whereas Schedule 2 of the AO allows parties to opt in certain provisions from the former domestic arbitration regime.

For more information about this answer please contact: Nick Gall from Gall
1.3
Is the arbitration legislation in your jurisdiction based on the UNCITRAL Model Law on International Commercial Arbitration?
 
Hong Kong
The AO largely replicates the UNCITRAL Model Law on International Commercial Arbitration and reflects Hong Kong’s position as a Model Law jurisdiction.

The AO makes numerous references to the UNITRAL Model Law. For instance, Section 4 of the AO stipulates that: “[t]he provisions of the UNCITRAL Model Law that are expressly stated in this Ordinance as having effect have the force of law in Hong Kong subject to the modifications and supplements as expressly provided for in this Ordinance.” In a number of sections that follow, the AO typically reproduces the exact wording of the Model Law article in the first subsection of each relevant AO section. The subsections that follow the quotation of the Model Law provision supplement, modify or otherwise qualify the application of that Model Law provision.

The drafting structure of the AO is designed to be self-contained and user friendly such that users of arbitration would not have to cross-refer to the Model Law if such needs arose. Therefore, Schedule 1 of the AO reproduces the full text of the UNITRAL Model Law, sets out cross-references to the relevant provisions in the AO and distinguishes the provisions that have not been adopted in the AO.

For more information about this answer please contact: Nick Gall from Gall
1.4
Are all provisions of the legislation in your jurisdiction mandatory?
 
Hong Kong
The AO contains relatively few provisions that cannot be excluded by the parties.

Certain mandatory rules apply, including the following:

  • The parties must be treated equally, and the tribunal must be independent and act fairly and impartially towards the parties (Section 46).
  • The arbitration agreement must be in writing (Section 19).
  • The tribunal has the power to make orders for security for costs, discovery, the collection of evidence and the preservation of property (Section 56).
  • The court has the power to order recovery of the tribunal’s fees (Section 62).
  • The tribunal has the power to withhold an award for non-payment of the arbitrators’ fees and expenses (Section 78).
  • The court has the power to set aside an award (Section 81).
For more information about this answer please contact: Nick Gall from Gall
1.5
Are there any current plans to amend the arbitration legislation in your jurisdiction?
 
Hong Kong
For issues on third-party funding, see question 37.

For more information about this answer please contact: Nick Gall from Gall
1.6
Is your jurisdiction a signatory to the New York Convention? If so, have any reservations been made?
 
Hong Kong
Hong Kong is a party to the New York Convention as a result of China extending the territorial application of this convention to Hong Kong.

Upon acceding to the New York Convention, China included two reservations: the reciprocity principle and the ‘commercial’ reservation.

The reciprocity principle means that China, and as a result Hong Kong, applies the convention only to the recognition and enforcement of awards made in the territory of states considered as contracting states under the New York Convention.

The commercial reservation means that only enforcement of arbitral awards arising out of commercial disputes, whether contractual or not, is permitted in China, and thus Hong Kong, under the New York Convention. Disputes between foreign investors and host states are expressly excluded.

For more information about this answer please contact: Nick Gall from Gall
1.7
Is your jurisdiction a signatory to any other treaties relevant to arbitration?
 
Hong Kong
The Hong Kong Department of Justice website lists all of the treaties that are in force and are applicable to Hong Kong (www.doj.gov.hk/eng/laws/interlaw.html).

In addition to the New York Convention, Hong Kong is a party to a number of other treaties and conventions relevant to arbitration, including:

  • the Hague Convention for the Pacific Settlement of International Disputes 1899;
  • the Hague Convention for the Pacific Settlement of International Disputes 1907;
  • the Statute of the Hague Conference on Private International Law 1951 (as amended 2007);
  • the Vienna Convention on the Law of Treaties 1969;
  • the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States 1965;
  • the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970; and
  • 16 bilateral investment treaties.
For more information about this answer please contact: Nick Gall from Gall
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