Winds of Change Blowing through Hong Kong
Posted дээр 11-20,2018, at 11:12 am.
James Gard Legal Specialist

The rules governing arbitrations held through the Hong Kong Arbitration Centre (“HKIAC”) have been given something of a makeover, with an amended version of its well-received 2013 Rules coming into force on November 1, 2018.

 

The reaction of the legal community of the review and consultation process that began back in August 2017 has been largely favourable.  The rules in part reflect changes in the law governing arbitrations in Hong Kong, and in part to broader changes in the legal environment.

 

For example, the passage of the Arbitration and Mediation Legislation (Third Party Funding) (Amendment) Ordinance 2017 by the Hong Kong Legislative Assembly in June 2017 allowed Third Party funding of Arbitrations in Hong Kong.  This has been recognized within the new rules, which allow third party funders, requires their identities to be disclosed, and enables the tribunals to take their presence into account when determining costs.

 

The electronic ubiquity of modern practice has also been catered for.  Documents may now be lodged through a secured online registry, and the effective use of technology has been added to the list of factors a tribunal must regard when adopting its procedures.

 

Other changes included:

  • allowing one party to begin arbitration proceedings under multiple contracts, even if not all the other parties are bound by all the arbitration clauses;
  • providing greater flexibility for running concurrent proceedings;
  • allowing early determination of issues that are manifestly without merit, outside its jurisdiction, or that would have no effect on the award – in effect introducing the arbitral equivalent of summary judgment;
  • allowing the tribunal to suspend proceedings while the parties pursue other paths to resolving their dispute such as mediation;
  • changing the emergency arbitrator procedure to give greater certainty to parties, including shortening time limits. Emergency applications are now allowed from seven days before the application for the standard arbitration up until the constitution of the main tribunal itself; and
  • changing the rules around closure of proceedings so that the tribunal must now notify the parties as to the date it intends to hand down its award.

 

HKIAC has also updated its practice note on the appointment of arbitrators.  It is pleasing to see that it has added a new section, section 4, which presents a statement of HKIAC’s intent to contribute to improving the diversity of arbitrators.  The sections reads:

 

“As part of HKIAC’s commitment to promoting diversity in arbitrator appointments, HKIAC will include, whenever possible, qualified female candidates and qualified candidates of any age, ethnic group, legal or cultural background among those it considers for arbitrator appointments.”

 

It is great to this this addition. However, how this update is going to transfer into actual action in the absence of targets or a settled affirmative-action policy remains to be seen.

 

(Photo credit: www.hk-lawyer.org)

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