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The validity of service of a notice of arbitration by SMS will be considered by the Hong Kong Court of Appeal after a first instance judge granted leave to appeal against his decision upholding such service in an online consumer arbitration (CCC v. AAC [2025] HKCFI 5023).
In the original decision (reported In the original decision (reported here), Deputy High Court Judge Sir William Blair acknowledged the potential risks of service by SMS but held that the consumer had accepted this mode of service by agreeing to arbitrate under the Hong Kong Arbitration Society Online Arbitration Rules, Article 2.1(a) of which provides for the transmission and deemed receipt of written communications by electronic means, including SMS and instant message (CCC v. AAC [2025] HKCFI 2987). Having found as a matter of fact that an SMS message containing a user name and password to access the notice of arbitration had been received, he therefore dismissed the consumer's challenge to the enforcement of the award, which had been advanced on the due process ground that proper notice of the arbitration had not been provided.
In the latest decision, the judge granted leave to appeal on the ground that the validity of service by SMS raised questions not previously considered by the Hong Kong courts as to the balance between the benefits (access to justice) and risks (particularly service of notices of arbitration by SMS) of online arbitration. This was a question of general principle in respect of which a decision of the Court of Appeal would be to the public advantage. Accordingly, leave to appeal on that question was granted and enforcement of the award was stayed pending the determination of the appeal.
It is relatively rare for the current generation of institutional rules to expressly provide for service by SMS and instant message. The three most popular sets of rules globally (those of the ICC, HKIAC and SIAC) do not mention service by SMS and instant message, although they do expressly permit service by email (see for example Article 3.1 of the 2024 HKIAC Rules, Article 4.1 of the 2025 SIAC Rules and Article 3.2 of the 2021 ICC Rules). The ICC and SIAC Rules also permit service by other electronic means which provide a record of transmission (Article 4.1 of the 2025 SIAC Rules and Article 3.2 of the 2021 ICC Rules). In contrast, the 2024 HKIAC Rules permit communication by other electronic methods agreed by the parties if approved by the HKIAC and (once constituted) the tribunal (Article 3.1(f) of the 2024 HKIAC Rules).
Even where service by SMS and instant message is expressly permitted by the applicable rules, the arbitration agreement or subsequent party agreement, it will generally be prudent (especially pending any decision by the Court of Appeal in the present case) for parties to Hong Kong-seated arbitrations to exercise caution and serve notices of arbitration and other arbitration documents by additional or alternative means. It is also generally good practice for parties to take steps to verify receipt regardless of the manner of service.
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