The new Arbitration Ordinance. Prepared and Presented by Robin Peard F.C.I.Arb., F.H.K.I.Arb., F.S.I.Arb. Chartered Arbitrator and Senior Consultant. +852 2843 4433 Robin.Peard@mayerbrownjsm.com. 13th December 2010.
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Prepared and Presented
by Robin Peard
F.C.I.Arb., F.H.K.I.Arb., F.S.I.Arb.
Chartered Arbitrator and Senior Consultant
+852 2843 4433
13th December 2010
Up to 1990 Hong Kong arbitration law followed English law in most respects.
Law applied to all arbitrations (unitary regime)
Setting up of Hong Kong International Arbitration Centre ("HKIAC")
Some radical changes to attract international arbitrations to Hong Kong
HKIAC Committee Report recommended
Enact urgent amendments
Enact urgent amendments
(1) When conducting arbitration proceedings or exercising any of the powers conferred on it by this Ordinance or by the parties to any such proceedings, an arbitral tribunal is required
(a) to act fairly and impartially as between the parties, giving them a reasonable opportunity to present their cases and to deal with the cases of their opponents; and
(b) to use procedures that are appropriate to the particular case, avoiding unnecessary delay and expense, so as to provide a fair means for resolving the dispute to which the proceedings relate
(2) When conducting arbitration proceedings, an arbitral tribunal is not bound by the rules of evidence and can receive any evidence that it considers relevant to the proceedings, but must give such weight to the evidence adduced in the proceedings as it considers appropriate
(a) where the dispute is within the jurisdiction of the Labour Tribunal when the Court has a discretion; and
(b) where the dispute is in respect of a consumer contract when the stay is subject to Section 15 of the Control of Exemption Clauses Ordinance (Cap 71).
Conditional stay in Admiralty proceedings.
(See Section 20(2) - (9)).
(a) Definition of interim measures (preserving status quo, preserving assets, preserving evidence, preventing harm to arbitral proceedings).
(b) Conditions for granting interim measures;
(c) Preliminary orders ex parte (initially maximum 20 days);
(d) Security by applicant;
(e) Duty of disclosure;
(f) Costs and damages if interim measure or preliminary order should not have been granted.
- concept not familiar to overseas parties
- Calderbank offer can be taken into account without payment in at discretion of Tribunal (see Chinney Construction v Po Kwong Marble Factory 2005 (3) HKLRD 758).
- Present provisions (including special provisions for Mainland
awards) to continue.
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