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Under the Arbitration Ordinance, if one party to an arbitration agreement commences legal proceedings in any court against the other party, the latter may insist on arbitration and apply to that court to stay the court proceedings commenced. The Hong Kong court will only refuse to stay the proceedings in one of the following situations:
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- The Arbitration Agreement
- The Governing Law of The Dispute
- The Award
31. Is it necessary to have an arbitration agreement?
Yes. As arbitration is a consensual process, an arbitrator has no power to determine a dispute unless the parties have agreed to this and the requirements of the arbitration agreement have been complied with. The parties may agree to arbitrate before a dispute arises (most commonly by an arbitration clause in a contract), or after a dispute has arisen. back to top
32. What effect does an arbitration agreement have?
An arbitration agreement provides the basis for an arbitrator's jurisdiction. An arbitrator will not entertain a request for arbitration in the absence of an arbitration agreement. The parties may also modify or supplement the applicable arbitration rules by express provision in the arbitration agreement. back to top
33. Can an arbitration agreement cover claims in tort, as well as contract?
Yes. An arbitration agreement is usually drafted to include claims arising "out of or in connection with" a particular contract. This wording is broad enough to cover tort claims (such as misrepresentation) that relate to the parties' transaction, and generally enables related tort and contract claims to be determined together by the arbitral tribunal. back to top
44. If a contract provides for arbitration in Hong Kong, must it also be governed by Hong Kong law?
No. The governing law of the contract need not follow the place of the arbitration. back to top
45. Does the tribunal apply Hong Kong law or the governing law of the contract?
The tribunal will apply the governing law of the contract to determine the substantive issues in a contract claim. (Procedural issues are, however, governed by the Arbitration Ordinance and the applicable arbitration rules.) If the contract is governed by a foreign law and the tribunal has no expertise of that legal system, the parties will be required to call expert evidence to establish the applicable principles of the foreign law. back to top
46. What if the contract does not state its governing law?
If the contract is silent as to its governing law, the tribunal will be required to determine what its governing law is (typically as a preliminary issue). This will be the law of the jurisdiction with which the contract has the closest connection. If the contract provides for arbitration in Hong Kong, this may be a factor in favour of the tribunal applying Hong Kong law as the governing law of the contract. back to top
83. What remedies may an arbitral tribunal grant?
A tribunal has power to grant any remedy that may be granted by the Hong Kong courts, except to make any order that is binding on non-parties to the arbitration. back to top
84. What is the time limit for making an award?
There is no specified time limit. An arbitrator who fails to issue his award in a timely manner may be removed by the court. back to top
85. Does the tribunal have the power to award interest?
The tribunal has power to award simple or compound interest on the principal sum at such rate as it considers appropriate up to the date of the award. Once made, simple interest accrues on the award at the same rates as are payable on Hong Kong court judgments. back to top
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What happens when an arbitrator is removed or replaced? A substitute arbitrator will be appointed pursuant to the rules that were applicable to the appointment of the arbitrator being replaced.
The Hong Kong Arbitration Ordinance. Arbitration in Hong Kong is governed by the Hong Kong Arbitration Ordinance (Cap. 609 of the Laws of Hong Kong) effective from 1 June 2011. It replaces the previous arbitration statute (Arbitration Ordinance Cap. 341), originally enacted in 1963 and amended in 1982 and 1990, which was based on a split regime ...
If an appointment is made by Hong Kong Mediation and Arbitration Centre (HKMAAC), an arbitrator who has the appropriate experience and qualifications will be appointed. The number of arbitrators (normally one or three) is decided by such matters as the arbitration agreement, whether it is a domestic or international arbitration, and the ...
2020年2月11日 · After the completion of the above procedure, including the said declaration, the Institute shall notify its appointment of arbitrator(s) in writing to the parties, the party nominated arbitrator(s), and the default appointed arbitrator(s), where applicable.
The third parties, called arbitrators, are appointed by or on behalf of the parties in dispute. The arbitration is conducted in accordance with the terms of the parties' arbitration agreement which is usually found in the provisions of a commercial contract between the parties.
