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Butterworths Hong Kong Arbitration Law Handbook

Butterworths Hong Kong Arbitration Law Handbook

Author: Christopher TO; Damon SO
Publisher: LexisNexis Hong Kong
ISBN: 9789888146383
Published In: May 2012
Format: Paperback
Jurisdiction: Hong Kong ? Disclaimer:
Countri(es) stated herein are used as reference only

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Contents
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Butterworths Hong Kong Arbitration Law Handbook is a detailed work of reference containing the newly effective Arbitration Ordinance (Cap 609), which took effect on 1 June 2011. This new Ordinance replaces entirely the former major legislation (Cap 341) pertaining to arbitration law and practice in Hong Kong, crystallizing Hong Kong’s place as a Model Law jurisdiction by transforming the previous dual regime into a unitary regime that not only reflects but, to a large extent, replicates the Model Law.

This Handbook presents the consolidated text of the Ordinance in a convenient and up-to-date form with section-by-section annotations. Annotations include references to cases assisting in the interpretation of each section, relevant rules of court, definitions of words and phrases, discussion on practical aspects of application and contentious issues. Hong Kong and UK cases, related legislation and other authoritative materials are identified and discussed in detail. All annotations are fully cross-referenced with comprehensive tables of cases and legislation.

This Handbook is an invaluable source of information for arbitration practitioners, legal practitioners, in-house counsel, business leaders, entrepreneurs, students and anyone interested in the arbitration laws and practices governing Hong Kong.

ARRANGEMENT OF SECTIONS

PART 1
PRELIMINARY

1. Short title and commencement
2. Interpretation
3. Object and principles of this Ordinance
4. UNCITRAL Model Law to have force of law in Hong Kong
5. Arbitrations to which this Ordinance applies
6. Application PART 2 GENERAL PROVISIONS
7. Article 1 of UNCITRAL Model Law (Scope of application)
8. Article 2 of UNCITRAL Model Law (Definitions and rules of interpretation)
9. Article 2A of UNCITRAL Model Law (International origin and general principles)
10. Article 3 of UNCITRAL Model Law (Receipt of written communications)
11. Article 4 of UNCITRAL Model Law (Waiver of right to object)
12. Article 5 of UNCITRAL Model Law (Extent of court intervention)
13. Article 6 of UNCITRAL Model Law (Court or other authority for certain functions of arbitration assistance and supervision)
14. Application of Limitation Ordinance and other limitation enactments to arbitrations
15. Reference of interpleader issue to arbitration by court
16. Proceedings to be heard otherwise than in open court
17. Restrictions on reporting of proceedings heard otherwise than in open court
18. Disclosure of information relating to arbitral proceedings and awards prohibited

PART 3
ARBITRATION AGREEMENT

19. Article 7 of UNCITRAL Model Law (Definition and form of
arbitration agreement)
20. Article 8 of UNCITRAL Model Law (Arbitration agreement
and substantive claim before court)
21. Article 9 of UNCITRAL Model Law (Arbitration agreement
and interim measures by court)
22. Whether agreement discharged by death of a party

PART 4
COMPOSITION OF ARBITRAL TRIBUNAL
Division 1 - Arbitrators

23. Article 10 of UNCITRAL Model Law (Number of
arbitrators)
24. Article 11 of UNCITRAL Model Law (Appointment of
arbitrators)
25. Article 12 of UNCITRAL Model Law (Grounds for
challenge)
26. Article 13 of UNCITRAL Model Law (Challenge procedure)
27. Article 14 of UNCITRAL Model Law (Failure or
impossibility to act)
28. Article 15 of UNCITRAL Model Law (Appointment of
substitute arbitrator)
29. Death of arbitrator or person appointing arbitrator
30. Appointment of umpire
31. Functions of umpire in arbitral proceedings

Division 2 -Mediators

32. Appointment of mediator
33. Power of arbitrator to act as mediator

PART 5
JURISDICTION OF ARBITRAL TRIBUNAL

34. Article 16 of UNCITRAL Model Law (Competence of
arbitral tribunal to rule on its jurisdiction)

PART 6
INTERIM MEASURES AND PRELIMINARY ORDERS
Division 1 - Interim measures

35. Article 17 of UNCITRAL Model Law (Power of arbitral
tribunal to order interim measures)
36. Article 17A of UNCITRAL Model Law (Conditions for
granting interim measures)

Division 2 - Preliminary orders

37. Article 17B of UNCITRAL Model Law (Applications for
preliminary orders and conditions for granting preliminary
orders)
38. Article 17C of UNCITRAL Model Law (Specific regime for
preliminary orders)

Division 3 - Provisions applicable to interim measures and preliminary orders

39. Article 17D of UNCITRAL Model Law (Modification,
suspension, termination)
40. Article 17E of UNCITRAL Model Law (Provision of
security)
41. Article 17F of UNCITRAL Model Law (Disclosure)
42. Article 17G of UNCITRAL Model Law (Costs and damages)

Division 4 - Recognition and enforcement of interim measures

43. Article 17H of UNCITRAL Model Law (Recognition and
enforcement)
44. Article 17I of UNCITRAL Model Law (Grounds for refusing
recognition or enforcement)

Division 5 - Court-ordered interim measures

45. Article 17J of UNCITRAL Model Law (Court-ordered
interim measures)

PART 7
CONDUCT OF ARBITRAL PROCEEDINGS

46. Article 18 of UNCITRAL Model Law (Equal treatment of
parties)
47. Article 19 of UNCITRAL Model Law (Determination of
rules of procedure)
48. Article 20 of UNCITRAL Model Law (Place of arbitration)
49. Article 21 of UNCITRAL Model Law (Commencement of
arbitral proceedings)
50. Article 22 of UNCITRAL Model Law (Language)
51. Article 23 of UNCITRAL Model Law (Statements of claim
and defence)
52. Article 24 of UNCITRAL Model Law (Hearings and written
proceedings)
53. Article 25 of UNCITRAL Model Law (Default of a party)
54. Article 26 of UNCITRAL Model Law (Expert appointed by
arbitral tribunal)
55. Article 27 of UNCITRAL Model Law (Court assistance in
taking evidence)
56. General powers exercisable by arbitral tribunal
57. Arbitral tribunal may limit amount of recoverable costs
58. Power to extend time for arbitral proceedings
59. Order to be made in case of delay in pursuing claims in
arbitral proceedings
60. Special powers of Court in relation to arbitral proceedings
61. Enforcement of orders and directions of arbitral tribunal
62. Power of Court to order recovery of arbitrator's fees
63. Representation and preparation work

PART 8
MAKING OF AWARD AND TERMINATION OF
PROCEEDINGS

64. Article 28 of UNCITRAL Model Law (Rules applicable to
substance of dispute)
65. Article 29 of UNCITRAL Model Law (Decision-making by
panel of arbitrators)
66. Article 30 of UNCITRAL Model Law (Settlement)
67. Article 31 of UNCITRAL Model Law (Form and contents of
award)
68. Article 32 of UNCITRAL Model Law (Termination of
proceedings)
69. Article 33 of UNCITRAL Model Law (Correction and
interpretation of award; additional award)
70. Award of remedy or relief
71. Awards on different aspects of matters
72. Time for making award
73. Effect of award
74. Arbitral tribunal may award costs of arbitral proceedings
75. Taxation of costs of arbitral proceedings (other than fees and
expenses of arbitral tribunal)
76. Costs in respect of unqualified person
77. Determination of arbitral tribunal's fees and expenses in case
of dispute
78. Liability to pay fees and expenses of arbitral tribunal
79. Arbitral tribunal may award interest
80. Interest on money or costs awarded or ordered in arbitral
proceedings

PART 9
RECOURSE AGAINST AWARD

81. Article 34 of UNCITRAL Model Law (Application for
setting aside as exclusive recourse against arbitral award)

PART 10
RECOGNITION AND ENFORCEMENT OF AWARDS
Division 1 - Enforcement of arbitral awards

82. Article 35 of UNCITRAL Model Law (Recognition and
enforcement)
83. Article 36 of UNCITRAL Model Law (Grounds for refusing
recognition or enforcement)
84. Enforcement of arbitral awards
85. Evidence to be produced for enforcement of arbitral awards
86. Refusal of enforcement of arbitral awards

Division 2 - Enforcement of Convention awards

87. Enforcement of Convention awards
88. Evidence to be produced for enforcement of Convention
awards
89. Refusal of enforcement of Convention awards
90. Order for declaring party to New York Convention
91. Saving of rights to enforce Convention awards
Division 3 - Enforcement of Mainland awards
92. Enforcement of Mainland awards
93. Restrictions on enforcement of Mainland awards
94. Evidence to be produced for enforcement of Mainland
awards
95. Refusal of enforcement of Mainland awards
96. Mainland awards to which certain provisions of this Division
do not apply
97. Publication of list of recognized Mainland arbitral authorities
98. Saving of certain Mainland awards

PART 11
PROVISIONS THAT MAY BE EXPRESSLY OPTED FOR
OR AUTOMATICALLY APPLY

99. Arbitration agreements may provide expressly for opt-in
provisions
100. Opt-in provisions automatically apply in certain cases
101. Opt-in provisions that automatically apply under section 100
deemed to apply to Hong Kong construction subcontracting cases
102. Circumstances under which opt-in provisions not automatically apply
103. Application of provisions under this Part

PART 12
MISCELLANEOUS

104. Arbitral tribunal or mediator to be liable for certain acts and
omissions
105. Appointors and administrators to be liable only for certain
acts and omissions
106. Rules of court
107. Making an application, etc. under this Ordinance
108. Decision, etc. of Court under this Ordinance

PART 13
REPEAL, SAVINGS AND TRANSITIONAL PROVISIONS

109. (Omitted as spent)
110. Effect of repeal on subsidiary legislation
111. Savings and transitional provisions

PART 14
CONSEQUENTIAL AND RELATED AMENDMENTS

112. (Omitted as spent)
Sch 1 UNCITRAL Model Law on International Commercial
Arbitration
Sch 2 Provisions that may be expressly opted for or automatically apply
Sch 3 Savings and Transitional Provisions
Sch 4 (Omitted as spent)

Christopher To

BEng(Hons), LLB (Hons), LLM, MA, PCLL, FHKIArb, FCIArb, FSIArb, FIET, FHKIOD, MHKIE, MBCS, CEng, CITP
Senior Teaching Fellow, School of Law, City University of Hong Kong

Damon So