
Arbitration in Hong Kong is governed by the Arbitration Ordinance. The ordinance is mainly based on the UNCITRAL Model Law on International Commercial Arbitration.
Mandatory laws
The Arbitration Ordinance contains only few provisions that cannot be excluded by the parties and is based on the following principles: "(a) subject to the observance of the safeguards that are necessary in the public interest, the parties to a dispute should be free to agree on how the dispute should be resolved; (b) the court should interfere in the arbitration of a dispute only as expressly provided for in this Ordinance." New York Convention Hong Kong is a signatory by virtue of China’s accession to the convention on January 22 1987. Reciprocal enforcement of arbitration awards with mainland China is now governed by the Arrangement Concerning Mutual Enforcements of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region. Like many other signatories to the convention, Hong Kong has adopted both the reciprocity reservation and the commercial reservation. The reciprocity reservation provides that Hong Kong will recognise and enforce only those arbitral awards made in other states which are also signatories to the convention. Treaties and conventions All the treaties that are in force and are applicable to Hong Kong are listed here: www.doj.gov.hk/eng/laws/interlaw.html. The Arbitration Ordinance almost entirely incorporates the provisions of the UNCITRAL Model Law, including the amendments to the UNCITRAL Model Arbitration Law. Hong Kong Law allows third-party funding for arbitrations that take place in Hong Kong.
Arbitration agreements
Validity An arbitration agreement must be recorded in any form and must include: electronic communications; an agreement in an exchange of statements of claim and defense in which the existence of an agreement is alleged by one party and not denied by the other; and a reference in a contract to any document containing an arbitration clause, provided that the reference is such as to make that clause part of the contract. Enforcement of agreements A party to the claim can request that the parties be referred to arbitration. The court will grant that request and stay the court proceedings unless the arbitration agreement is null and void, inoperative or incapable of being performed. Consolidation An arbitral tribunal has no power to consolidate arbitration proceedings. However, the Hong Kong International Arbitration Centre, which administers arbitrations in Hong Kong under its own sets of rules, has the power to do so under certain circumstances.Arbitral tribunal
Criteria for arbitrators The parties are allowed to determine the number of arbitrators or authorise a third party to make that determination, to agree on a procedure for appointing the arbitrator, and can essentially adopt whatever criteria they wish in selecting an arbitrator or arbitrators. Contractual stipulations The parties are free to determine the number of arbitrators or authorise a third party, including an institution, to make that determination. The parties may stipulate that an arbitrator must possess certain characteristics. An arbitrator may not be prohibited from being appointed by reason of his or her nationality, unless the parties agree otherwise. Default requirements If the parties do not succeed in agreeing on the number of arbitrators, the number of arbitrators must be either one or three, as decided by the HKIAC of the Arbitration Ordinance. The parties have the right to agree on the procedure for appointing the arbitrator. The tribunal must be independent, act fairly and impartially as between the parties, giving them a reasonable opportunity to present their case and deal with their opponent's case, use procedures that are appropriate to the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for resolving the dispute to which the arbitral proceedings relate. These requirements are mandatory and may not be varied by the parties. Powers and obligations Arbitrators have the powers conferred on them by the arbitration agreement and the applicable arbitration rules, as agreed by the parties. Liability of arbitrators An arbitrator is liable in law for an act done or omitted to be done by him or her in relation to the exercise or performance of his or her functions only if it is proved that the act was done or omitted to be done dishonestly. Communicating with the tribunal It is standard practice for the parties to communicate with the tribunal in writing. It is generally less formal than court proceedings, and email is commonly used. All statements, documents or other information supplied to the tribunal by one party must be communicated to the other party. Reaching decisions Unless otherwise agreed by the parties, in arbitration proceedings with more than one arbitrator, any decision of the tribunal must be made by a majority of the tribunal's members. Where there is a dissenting opinion, the signature of the dissenting arbitrator need not be included on the final award. This will not affect the award's validity, provided that the reason for the omitted signature is stated. Arbitrability The following categories of dispute may not be referred to arbitration: family law matters, including those relating to divorce and child custody; criminal law matters; actions in rem against vessels; and matters reserved for determination by the state, including taxation and immigration. The tribunal cannot make orders as to specific performance of any contract relating to land or any interest in land.