INTRODUCTION TO HONG KONG ARBITRATION AND THE HKIAC

Report
HKIAC in the Americas: Navigating Dispute Resolution in Asia
Chiann Bao, Secretary General, HKIAC
Asia – Latin America Trade
China’s Global Reach
• Chinese Outbound investment rose 14% to
US$77.2 billion in 2012.
• China now holds the no 3 spot in global
outbound investment rankings, behind the
US and Japan, up from 16 place in 2011
China’s Global Reach – United States
According to the Bureau of Economic
Analysis, annual outbound direct
investment from China to the U.S. has
grown by more than 300% since 2007
China’s Global Reach – Latin America
• In 2012, the value of bilateral trade
increased, amounting to USD$240 billion
• China - the third largest investor
• China is the major importer of Latin
American raw materials
HKIAC in the Americas
HKIAC in the Americas
Overview of Hong Kong and HKIAC
Overview
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Seat of Arbitration: Hong Kong
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Pro-Arbitration Legislative Framework
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Independent & Arbitration-Friendly Judicial System
Arbitral Institution & Rules: HKIAC
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About HKIAC
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HKIAC Administered Arbitration Rules
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HKIAC Arbitrators
Asia’s Prime Location for Dispute Resolution Services
www.hkiac.org
HK Arbitration Ordinance
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Effective 1 June 2011 (HK Ordinance Cap.609)
Previous statutes were based on a split regime – an
international regime, based on the UNCITRAL Model Law,
and a domestic regime
New Arbitration Ordinance unifies the two regimes
More user-friendly
Effectively extends the application of the UNCITRAL Model
Law to all arbitrations in Hong Kong
Asia’s Prime Location for Dispute Resolution Services
www.hkiac.org
HK Arbitration Ordinance
1.
Ease of Use
• Clear, certain and accessible arbitration law based on the Model Law
2.
Confidentiality
• Protection of confidentiality in arbitration proceedings and related
court hearing
3.
Discovery
•
4.
Interim Measures
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5.
Reasonable – no automatic right to discovery
Expanded provisions on interim measures
Costs
 Assessment and taxation of costs and review of fees and expenses by
courts
Asia’s Prime Location for Dispute Resolution Services
www.hkiac.org
HK Judicial System
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“One country, Two systems”
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Independent and based on Rule of Law
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Court of Final Appeal – an expatriate judge will sit as one of the 5
members of the Panel
•
No concerns of a PRC “home court advantage” as the HK Court of Final
Appeal has adjudication power fully independent of the PRC Supreme
Court.
•
Pro-Enforcement
Asia’s Prime Location for Dispute Resolution Services
www.hkiac.org
Enforcement of Arbitral Awards

New York Convention for the Recognition and Enforcement of
Arbitral Awards
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Arrangement Concerning Mutual Enforcement of Arbitral
Awards Between the Mainland and the Hong Kong SAR
HKIAC Overview
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Established in 1985, independent and non-profit organisation
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25 Council Members – Board of Directors
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20 full-time staff
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International and multilingual Secretariat representing both common law
and civil law traditions
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300+ arbitrators, 500+ mediators
Asia’s Prime Location for Dispute Resolution Services
www.hkiac.org
Role of the HKIAC
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•
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Administrator of arbitrations, mediations and domain name disputes
Appointing authority under the Hong Kong Arbitration Ordinance
• Determine number of arbitrators
• Appoint arbitrator(s)
• Appoint mediator
Hearing center for arbitrations and mediations
Fundholder for arbitrations
Administration center for arbitration institutes based in Hong Kong
• Chartered Institute of Arbitrators (East Asia Branch)
• Hong Kong Institute of Arbitrators
• Society of Construction Law
Asia’s Prime Location for Dispute Resolution Services
www.hkiac.org
HKIAC Arbitration: Institutional & Ad Hoc
Institutional Arbitration
 HKIAC Administered Arbitration Rules (2008, to be amended in 2013)
 Procedures for the Administration of International Arbitration (2005)
Ad Hoc Arbitration
 Form 1 & 2 applications (to determine number of arbitrators and
appointment of arbitrators)
Asia’s Prime Location for Dispute Resolution Services
www.hkiac.org
HKIAC Administered Arbitration Rules (2008)
Key Features
•Flexible Fees
•Competitive Costs
•“Light Touch” Approach
•Expedited Procedures
Asia’s Prime Location for Dispute Resolution Services
www.hkiac.org
HKIAC Administered Arbitration Rules: Fees and Costs
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Arbitrator’s Fees - parties have a choice of agreeing to either
(a) the Schedule of Fees attached to the Rules; or
(b) a separate fee arrangement.
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Registration Fee - US$1,000
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Administrative Fees - Schedule of Fees attached to the Rules
 Administered fees are based on the value of the claim(s)
and counterclaim(s) and capped at US$26,850.
Asia’s Prime Location for Dispute Resolution Services
www.hkiac.org
Cost Comparison: Administrative Fees
Disputed
Amount
(US$)
HKIAC
ICC
KCAB
KLRCA
SIAC
500,000
4,250
14,165
3,155
6,500
5,809
5,000,000
11,850
45,015
23,900
14,500
16,827
10,000,000
14,850
57,515
44,371
19,500
21,212
50,000,000
26,850
95,515
122,984
30,000
39,872
100,000,000
26,850
99,215
131,010
30,000
39,872
Asia’s Prime Location for Dispute Resolution Services
www.hkiac.org
HKIAC Statistics
In 2012, HKIAC handled a total of 456 dispute matters
•293 arbitration
•116 domain name disputes
•47 mediation disputes
Of the 293 arbitration cases handled by the HKIAC in 2012,
•68% were international
•32% were domestic
•68 cases were fully administered by the HKIAC in accordance with its Rules
The total amount in dispute for administered cases was approximately US$1.8
billion
Asia’s Prime Location for Dispute Resolution Services
www.hkiac.org
HKIAC: International Arbitration
212
173
199
175
178
139
Asia’s Prime Location for Dispute Resolution Services
www.hkiac.org
Panel/List of Arbitrators
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HKIAC Panel of Arbitrators -300+
HKIAC List of Arbitrators - 90+
http://www.hkiac.org/index.php/en/arbitrators
The HKIAC Online Searchable Database
allows parties to search for arbitrators
by way of nationality, professional
background and areas of expertise,
thereby ensuring the appropriate
appointment for their dispute.
HKIAC Administered Arbitration Rules (2013): Proposed Amendments
Key Changes:
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Emergency arbitrator provision
HKIAC’s prima facie power to join additional parties
HKIAC’s power to consolidate arbitrations
Enhanced system to determine number of arbitrators,
including aHK$6,500 cap on arbitrator’s hourly rate
• Robust expedited procedure
Asia’s Prime Location for Dispute Resolution Services
www.hkiac.org
THANK YOU
Website:
Address:
www.hkiac.org
38th Floor, Two Exchange Square Central, Hong Kong
Tel No. :
Fax No. :
Email:
(852) 2525 2381
(852) 2524 2171
[email protected]

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