Hong Kong: Proposed Amendments To Hong Kong’s Arbitration Ordinance—Macao: The Missing Piece

Last Updated: 22 May 2013
Article by Sonny Payne

The Arbitration (Amendment) Bill 2013 (the "Bill") was gazetted by the government of the Hong Kong Special Administrative Region ("Hong Kong") on March 28, 2013. The Bill contains a number of proposed amendments to the Hong Kong's Arbitration Ordinance (Cap. 609) (the "Arbitration Ordinance"), the most significant being the introduction of new provisions relating to the enforcement of arbitration awards made in the Macao Special Administrative Region of China ("Macao"). Another proposed amendment of great significance to arbitration practitioners is the introduction of provisions related to the enforcement of emergency relief granted by an emergency arbitrator. This Commentary discusses the purpose and key features of these two amendments proposed under the Bill. 

Enforcement of Macao Arbitration Awards 

Although Macao enacted a modern international arbitration law in 1998 (Decree-Law 55/98/M) based largely on the UNCITRAL model law, Macao has never been considered an attractive place for international arbitration. This is undoubtedly due to issues concerning the enforcement of Macao arbitration awards in other states and other regions of the People's Republic of China (the "PRC"). Before looking at the proposed amendments to the Arbitration Ordinance, it is worthwhile to review the background concerning these enforcement issues.

Enforcement of Macao Awards in Other States. The ability to enforce an arbitration award in a state other than where the award was made is a very important factor in choosing an appropriate place to hold an arbitration, particularly where the arbitration is of an international nature (for example, one or both of the parties, or their assets, are located in a state other than where the arbitration is held). In this regard, it is important that the award be rendered in a state that is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the "New York Convention"), which greatly facilitated the mutual enforcement of arbitration awards among its 148 member states. 

Although Portugal acceded to New York Convention in 1995, it was not until late 1999 that Portugal declared to the United Nations that the New York Convention would apply to Macao (which was at that time under Portuguese rule) and would take effect as of February 10, 2000. Macao was, however, returned to the PRC on December 20, 1999 (the "Handover"), and although the PRC was also a party to the New York Convention at that time, the PRC did not confirm to the United Nations that it would apply the New York Convention to Macau until July 19, 2005. 

Thus, it was not until mid-2005 that it could be said with certainty that the New York Convention applied to arbitration awards made in Macao. 

Enforcement of Macao Awards in Mainland China. The enforcement of Macao arbitration awards within other regions of the PRC is another important factor to consider in choosing Macao as a forum for arbitration. There are three separate legal regimes within the PRC, namely mainland China, Hong Kong, and Macao. The New York Convention applies only as between states and is therefore of no use to a party seeking to enforce an arbitration award made in one region of the PRC in another region of the PRC. 

As with the return of Hong Kong to the PRC in 1997, a legal vacuum was created upon the return of Macao to the PRC in 1999, in that an arbitration award made in Macao was no longer considered to be a "foreign award"when it came to enforcement in mainland China. Whereas Hong Kong was quick to fill this legal vacuum by way of the Arrangement for Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong SAR signed in June 1999 (the "Hong Kong Arrangement"), Macao did not fill this vacuum until January 1, 2008 upon the signing of the Arrangement between the Mainland and the Macau SAR on Reciprocal Recognition and Enforcement of Arbitral Awards (the "Macau Arrangement"). 

Therefore, until 2008, there was no effective mechanism for enforcing a Macao arbitration award in mainland China. 

Enforcement of Macao Awards in Hong Kong. Having rectified its enforcement deficiencies in respect of other states and mainland China, there still remained an obvious gap in the mutual recognition and enforcement of arbitral awards between Hong Kong and Macau. Finally, on January 7, 2013, an agreement called the Arrangement Concerning Reciprocal Recognition and Enforcement of Arbitral Awards between the Hong Kong SAR and the Macao SAR (the "HK-Macao Arrangement") was signed. The HK-Macao Arrangement is similar to the Hong Kong Arrangement and the Macau Arrangement and completes the missing piece of the puzzle for mutual recognition and enforcement of arbitral awards within all three legal regimes of the PRC. 

The HK-Macao Arrangement is in the spirit of the New York Convention and provides that the Hong Kong courts shall recognize and enforce arbitration awards made in Macao pursuant to the laws of arbitration of Macao, and, conversely, the courts of Macao shall recognize and enforce arbitration awards made in Hong Kong pursuant to the laws of arbitration of Hong Kong.  

The amendments proposed under the Bill serve to enshrine the HK-Macao Arrangement in the Arbitration Ordinance. In particular, a new section (Section 98A) will be added entitled "Enforcement of Macao Awards,"setting out the formal requirements for enforcing Macao awards in Hong Kong, along with grounds for refusing such enforcement. The grounds for refusing to enforce a Macao award are identical to those for refusing to enforce to an award covered by the New York Convention and for mainland China awards. Thus, for all practical purposes, arbitration awards made in Macao are placed on the same footing as awards made in a New York Convention state when it comes to enforcement. 

Enforcement of Emergency Relief Granted by an Emergency Arbitrator 

The Need for Emergency Relief. The ability to obtain interim measures in arbitration proceedings, for example orders to preserve evidence or assets, or orders to obtain security for costs, is a very important aspect of arbitration and, as with enforcement issues, plays a key role in establishing the suitability of a place to hold an arbitration. Unlike litigation, where a judge is available to order interim relief as soon as a writ is served (or sometimes even before a writ is served), upon commencing arbitration proceedings it typically takes anywhere from two weeks to three months to establish the arbitral tribunal. In the meantime, the parties may be able to make applications to the courts for interim measures in support of the arbitration, such as the preservation of evidence and property; however, such court-ordered interim measures are not possible in every jurisdiction.

In view of the time lag between commencing arbitration proceedings and the establishment of the arbitral tribunal, there is a trend for international arbitration rules to incorporate emergency arbitrator procedures under which an arbitrator can be appointed at short notice by the relevant arbitration institution and can proceed to hear the parties and make orders for so-called "emergency relief." This applies to the 2010 Arbitration Rules of the Singapore International Arbitration Centre ("SIAC"), as well as the 2012 Rules of Arbitration of the International Chamber of Commerce ("ICC").  

Proposed Amendments to the HKIAC Administered Arbitration Rules. The recent proposed amendments to the Hong Kong International Arbitration Centre ("HKIAC") Administered Arbitration Rules (which are anticipated to come into effect in May 2013) also incorporate a provision for the appointment of an emergency arbitrator. Under these rules, an application for the appointment of an emergency arbitrator can be made concurrent with, or following, the filing of a Notice of Arbitration.  

An application for emergency relief under the proposed amendments to the HKIAC rules will need to include details such as the description of the circumstances giving rise to the application and the underlying dispute, why emergency relief is sought, and why the applicant cannot wait until the tribunal is constituted. An emergency arbitrator will normally be appointed within two days following the HKIAC's acceptance of the application, and a decision on the application will normally be made within 15 days from the date on which the emergency arbitrator received the file from the HKIAC. There are also new procedural measures, including those relating to an emergency arbitrator's power to conduct proceedings, the effect of his decision, his ability to act as an arbitrator in subsequent proceedings, and the availability of judicial remedies. 

Proposed Amendments to the Arbitration Ordinance. The Arbitration Ordinance is currently silent on the subject of emergency arbitrators, and it is debatable as to whether or not the definition of "arbitral tribunal"would include an emergency arbitrator. This is significant because under Section 61 of the Arbitration Ordinance, an order or direction of an "arbitral tribunal"is enforceable in the same manner as an order or direction of the Court. The amendments introduced by the Bill foreshadow any legal debate on this issue by introducing a new part entitled "Part 3A—Enforcement of Emergency Relief"that expressly provides that emergency relief granted by an "emergency arbitrator"(whether in or outside of Hong Kong) is enforceable in the same manner as an order or direction of the court. An "emergency arbitrator"is defined broadly—it not only covers emergency arbitrators appointed under the arbitration rules of a permanent arbitral institution (such as the ICC or the SIAC), but also under whatever arbitration rules have been agreed to or adopted by the parties. 

As with the enforcement of orders or directions of an arbitral tribunal, leave of the Hong Kong court is required to enforce emergency relief made by an emergency arbitrator. However, in contrast to the existing provisions concerning the enforcement of orders or directions of an arbitral tribunal, the proposed provisions for the enforcement of emergency relief provide that the Hong Kong court may refuse to grant leave for enforcement unless the party seeking to enforce the emergency relief can demonstrate that the temporary measures ordered by the emergency arbitrator do one or more of the following: 

"(a)      maintain or restore the status quo pending the determination of the dispute concerned;
(b)        take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself
(c)        provide a means of preserving assets out of which a subsequent award made by an arbitral tribunal may be satisfied;
(d)       preserve evidence that may be relevant and material to resolving the dispute;
(e)        give security in connection with anything to be done under paragraph (a), (b), (c) or (d);
(f)        give security for the costs of the arbitration." 

Thus the scope of emergency relief ordered by an emergency arbitrator that the Hong Kong court will enforce is somewhat more limited than that ordered by an arbitral tribunal, which has no such restrictions. This is perhaps a reflection that the measures ordered by an emergency arbitrator should actually be "emergency"in their nature and will prevent abuse of the emergency arbitrator procedure.  


The amendments to the Arbitration Ordinance proposed under the Bill complete the missing piece of the enforcement regime for arbitration awards made within different regions of the PRC by putting arbitration awards made in Macao on the same footing as those made in mainland China or New York Convention states for the purpose of enforcement. The amendments also reflect the growing use of emergency arbitrators and clarify that emergency relief ordered by an emergency arbitrator will be enforceable in Hong Kong in broadly the same way as orders and directions of an arbitral tribunal. 

The proposed amendments will be welcomed by the international arbitration community and demonstrate Hong Kong's proactiveness in maintaining itself as a leading regional arbitration center. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Singhania & Partners LLP, Solicitors and Advocates
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Singhania & Partners LLP, Solicitors and Advocates
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions