the new arbitration ordinance n.
Download
Skip this Video
Loading SlideShow in 5 Seconds..
The new Arbitration Ordinance PowerPoint Presentation
Download Presentation
The new Arbitration Ordinance

Loading in 2 Seconds...

play fullscreen
1 / 22

The new Arbitration Ordinance - PowerPoint PPT Presentation


  • 252 Views
  • Uploaded on

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.

loader
I am the owner, or an agent authorized to act on behalf of the owner, of the copyrighted work described.
capcha
Download Presentation

PowerPoint Slideshow about 'The new Arbitration Ordinance' - bernad


An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.


- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -
Presentation Transcript
the new arbitration ordinance

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

slide2
Mayer Brown is a global legal services organisation comprising legal practices that are separate entities ("Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; and JSM, a Hong Kong partnership, and its associated entities in Asia. The Mayer Brown Practices are known as Mayer Brown JSM in Asia.
overview
Overview

Up to 1990 Hong Kong arbitration law followed English law in most respects.

Law applied to all arbitrations (unitary regime)

  • New York Convention on the Recognition and Enforcement of Foreign Arbitration Awards applied to Hong Kong in 1975
  • Case stated procedure replaced by appeal on point of law in 1982. At the same time concept of arbitrator being able to act as mediator with consent of parties introduced.
evolution 1985
Evolution - 1985

Setting up of Hong Kong International Arbitration Centre ("HKIAC")

1985

evolution 1990
Evolution - 1990

1990

Some radical changes to attract international arbitrations to Hong Kong

  • Uncitral Model Law ("UML") applied to international arbitration. So two regimes (domestic and international).
  • Restrictions on legal representation in all arbitrations lifted
  • Costs of (e.g.) non-Hong Kong qualified lawyer recoverable
evolution 1996
Evolution - 1996

HKIAC Committee Report recommended

1996

  • Urgent amendments needed in light of experience of UML in practice and English Arbitration Act 1996
  • Long term changes

Enact urgent amendments

1997

evolution 1997
Evolution - 1997

Enact urgent amendments

1997

  • Default appointments by HKIAC
  • HKIAC decides number (one or three) of arbitrators in international arbitration in default of agreement
  • Objectives and principles set out in Section 2AA
objectives and principles of current ordinance
Objectives and principles of current Ordinance

Section 2AA

  • The object of this Ordinance is to facilitate the fair and speedy resolution of disputes by arbitration without unnecessary expense
  • This Ordinance is based on the principles that
  • subject to the observance of such safeguards as are necessary in the public interest, the parties to a dispute should be free to agree how the dispute should be resolved; and
  • the Court should interfere in the arbitration of a dispute only as expressly provided by this Ordinance
responsibilities of tribunal
Responsibilities of tribunal

Section 2GA

(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

responsibilities of tribunal1
Responsibilities of tribunal

Section 2GA

(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

slide11
Note
  • A number of provisions applicable to domestic and international arbitration (e.g. specific powers of tribunal (e.g. to order disclosure of documents), interest, costs, extension of time, delay)
  • Moving back to a unitary regime
long term changes
Long term changes
  • Ordinance to be redrawn to apply UML to both domestic and international arbitrations together with necessary additions to enable Hong Kong arbitration law to serve users' needs both domestically and internationally
hong kong institute of arbitrators hkiarb committee
Hong Kong Institute of Arbitrators (HKIArb) Committee
  • Supported by HKIAC and Secretary for Justice to carry forward long term changes recommended by HKIAC Committee
  • Consultation July 2002 to February 2003
  • Final Report 30 April 2003
main change to structure of arbitration ordinance
Main change to structure of Arbitration Ordinance

Present structure

Proposed structure

  • Part I Preliminary
  • Part IA Provisions applicable to domestic and international arbitration
  • Part II Domestic Arbitration
  • Part IIA International Arbitration
  • Part IIIA Enforcement of Mainland Awards
  • Part IV Enforcement of Convention Awards
  • Part V General
  • Part 1 Preliminary
  • Part 2 General Provisions
  • Part 3 Arbitration Agreement
  • Part 4 Composition of Arbitral Tribunal
  • Part 5 Jurisdiction of Arbitral Tribunal
  • Part 6 Interim Measures and Preliminary Orders
  • Part 7 Conduct of Arbitral Proceedings
  • Part 8 Making of Award and Termination of
  • Proceedings
  • Part 9 Recourse against Award
  • Part 10 Recognition and Enforcement of Awards
  • Part 11 Provisions which may be expressly opted for or automatically apply
  • Part 12 Miscellaneous
  • Part 13 Repeal, Savings and Transitional Provisions
  • Part 14 Consequential and Related Amendments
the bill
The Bill
  • It has 112 Sections and 4 Schedules.
  • It is not intended to be a codification of arbitration law but brings together in user friendly form the applicable UML provisions and required additions.
notable provisions
Notable provisions
  • Additions to UML in 2006 have been considered and generally applied.
  • Current provisions are reproduced e.g. Section 3 sets out present Section 2AA Arbitration Ordinance (Objectives and Principles). Section 12 applies Article 5 UML (limited Court intervention) and Section 46 deals with the arbitral tribunal's obligations but "reasonable" not "full" opportunity to present a party's case (cf Article 18 UML). Section 47(3) allows the tribunal a wide discretion as to receipt and assessment of evidence. Sections 74 to 78 deal with costs including the costs and expenses of the Tribunal. Sections 79 and 80 deal with interest.
  • Article 3 UML Receipt of Written Communications. Added to by including written communications sent by means by which information can be recorded and transmitted to the addressee subject to there being a record of receipt by the addressee. Relevant to Article 21 UML (Commencement of arbitral proceedings) - request "received" by the Respondent.
slide17
Article 7 - Option 1 UML adopted by Uncitral in 2006 applies (arbitration agreement in writing). Broad definition of writing.
  • Article 8 - Stay of proceedings

Compulsory except

(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)).

slide18
New 2006 UML additions on interim measures and preliminary orders granted by the tribunal (Articles 17 to 17G UML).

(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.

slide19
Court may order interim measures in aid of arbitrations in and outside Hong Kong. However Court can only grant interim measures in aid of arbitration outside Hong Kong where the award would be enforceable in Hong Kong and the interim measure is of a description granted by the Court in Hong Kong (see Section 45).
  • Sections 30 and 31 - Umpires - special provisions.
  • Section 53(3) & (4) - Peremptory orders.
  • Section 61 - Enforcement of orders and directions. Court can enforce but will only enforce orders and directions of foreign tribunal if the order or direction is of a type which could be made by a HK tribunal.
  • Section 62 - Entitlement of arbitrator to fees and expenses where his mandate terminates.
slide20
Section 74 - Tribunal will assess costs unless Court taxation agreed by parties (Section 75). No need to follow Court scales and practices.
  • Section 77 - Court will assess Tribunal's fees and expenses in case of dispute.
  • No payment into Court in arbitration (073 amended).

- 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).

  • Recourse against and enforcement of awards

- Present provisions (including special provisions for Mainland

awards) to continue.

disclaimer
Disclaimer

This materials are provided by JSM and reflect information as of 13th December 2010.

The contents are intended to provide a general guide to the subject matter only and should not be treated as a substitute for specific advice concerning individual situation.

You may not copy or modify the materials or use them for any commercial purpose without our express prior written permission.