Arbitration Ordinance (2010)

by Legislative Council of Hong Kong

Layout 2

ARBITRATION ORDINANCE

CONTENTS

Section

Page

PART 1 Interpretation, Application, etc.
1.	Short title and commencement ............................................................................................................................................................................................................................................................................................................	A591
2.	Interpretation ............................................................................................................................................................................................................................................................................................................	A591
3.	Object and principles of this Ordinance ............................................................................................................................................................................................................................................................................................................	A595
4.	UNCITRAL Model Law to have force of law in Hong Kong ............................................................................................................................................................................................................................................................................................................	A595
5.	Arbitrations to which this Ordinance applies ............................................................................................................................................................................................................................................................................................................	A597
6.	Application ............................................................................................................................................................................................................................................................................................................	A597
PART 2 General Provisions
7.	Article 1 of UNCITRAL Model Law (Scope of application) ............................................................................................................................................................................................................................................................................................................	A597
8.	Article 2 of UNCITRAL Model Law (Definitions and rules of interpretation) ............................................................................................................................................................................................................................................................................................................	A599
9.	Article 2A of UNCITRAL Model Law (International origin and general principles) ............................................................................................................................................................................................................................................................................................................	A599
10.	Article 3 of UNCITRAL Model Law (Receipt of written communications) ............................................................................................................................................................................................................................................................................................................	A599
11.	Article 4 of UNCITRAL Model Law (Waiver of right to object) ............................................................................................................................................................................................................................................................................................................	A601
12.	Article 5 of UNCITRAL Model Law (Extent of court intervention) ............................................................................................................................................................................................................................................................................................................	A601
13.	Article 6 of UNCITRAL Model Law (Court or other authority for certain functions of arbitration assistance and supervision) ............................................................................................................................................................................................................................................................................................................	A603
14.	Application of Limitation Ordinance and other limitation enactments to arbitrations ............................................................................................................................................................................................................................................................................................................	A603
15.	Reference of interpleader issue to arbitration by court ............................................................................................................................................................................................................................................................................................................	A605
16.	Proceedings to be heard otherwise than in open court ............................................................................................................................................................................................................................................................................................................	A605
17.	Restrictions on reporting of proceedings heard otherwise than in open court ............................................................................................................................................................................................................................................................................................................	A607
18.	Disclosure of information relating to arbitral proceedings and awards prohibited ............................................................................................................................................................................................................................................................................................................	A607
PART 3 Arbitration Agreement
19.	Article 7 of UNCITRAL Model Law (Definition and form of arbitration agreement) ............................................................................................................................................................................................................................................................................................................	A609
20.	Article 8 of UNCITRAL Model Law (Arbitration agreement and substantive claim before court) ............................................................................................................................................................................................................................................................................................................	A611
21.	Article 9 of UNCITRAL Model Law (Arbitration agreement and interim measures by court) ............................................................................................................................................................................................................................................................................................................	A615
22.	Whether agreement discharged by death of a party ............................................................................................................................................................................................................................................................................................................	A615
PART 4 Composition of Arbitral Tribunal
Division 1—Arbitrators
23.	Article 10 of UNCITRAL Model Law (Number of arbitrators) ............................................................................................................................................................................................................................................................................................................	A617
24.	Article 11 of UNCITRAL Model Law (Appointment of arbitrators) ............................................................................................................................................................................................................................................................................................................	A617
25.	Article 12 of UNCITRAL Model Law (Grounds for challenge) ............................................................................................................................................................................................................................................................................................................	A621
26.	Article 13 of UNCITRAL Model Law (Challenge procedure) ............................................................................................................................................................................................................................................................................................................	A623
27.	Article 14 of UNCITRAL Model Law (Failure or impossibility to act) ............................................................................................................................................................................................................................................................................................................	A625
28.	Article 15 of UNCITRAL Model Law (Appointment of substitute arbitrator) ............................................................................................................................................................................................................................................................................................................	A625
29.	Death of arbitrator or person appointing arbitrator ............................................................................................................................................................................................................................................................................................................	A627
30.	Appointment of umpire ............................................................................................................................................................................................................................................................................................................	A627
31.	Functions of umpire in arbitral proceedings ............................................................................................................................................................................................................................................................................................................	A627
Division 2—Mediators
32.	Appointment of mediator ............................................................................................................................................................................................................................................................................................................	A629
33.	Power of arbitrator to act as mediator ............................................................................................................................................................................................................................................................................................................	A631
PART 5 Jurisdiction of Arbitral Tribunal
34.	Article 16 of UNCITRAL Model Law (Competence of arbitral tribunal to rule on its jurisdiction) ............................................................................................................................................................................................................................................................................................................	A633
PART 6 Interim Measures and Preliminary Orders
Division 1—Interim measures
35.	Article 17 of UNCITRAL Model Law (Power of arbitral tribunal to order interim measures) ............................................................................................................................................................................................................................................................................................................	A635
36.	Article 17A of UNCITRAL Model Law (Conditions for granting interim measures) ............................................................................................................................................................................................................................................................................................................	A637
Division 2—Preliminary orders
37.	Article 17B of UNCITRAL Model Law (Applications for preliminary orders and conditions for granting preliminary orders) ............................................................................................................................................................................................................................................................................................................	A639
38.	Article 17C of UNCITRAL Model Law (Specific regime for preliminary orders) ............................................................................................................................................................................................................................................................................................................	A639
Division 3—Provisions applicable to interim measures and preliminary orders
39.	Article 17D of UNCITRAL Model Law (Modification, suspension, termination) ............................................................................................................................................................................................................................................................................................................	A641
40.	Article 17E of UNCITRAL Model Law (Provision of security) ............................................................................................................................................................................................................................................................................................................	A641
41.	Article 17F of UNCITRAL Model Law (Disclosure) ............................................................................................................................................................................................................................................................................................................	A643
42.	Article 17G of UNCITRAL Model Law (Costs and damages) ............................................................................................................................................................................................................................................................................................................	A643
Division 4—Recognition and enforcement of interim measures
43.	Article 17H of UNCITRAL Model Law (Recognition and enforcement) ............................................................................................................................................................................................................................................................................................................	A645
44.	Article 17I of UNCITRAL Model Law (Grounds for refusing recognition or enforcement) ............................................................................................................................................................................................................................................................................................................	A645
Division 5—Court-ordered interim measures
45.	Article 17J of UNCITRAL Model Law (Court-ordered interim measures) ............................................................................................................................................................................................................................................................................................................	A645
PART 7 Conduct of Arbitral Proceedings
46.	Article 18 of UNCITRAL Model Law (Equal treatment of parties) ............................................................................................................................................................................................................................................................................................................	A647
47.	Article 19 of UNCITRAL Model Law (Determination of rules of procedure) ............................................................................................................................................................................................................................................................................................................	A649
48.	Article 20 of UNCITRAL Model Law (Place of arbitration) ............................................................................................................................................................................................................................................................................................................	A649
49.	Article 21 of UNCITRAL Model Law (Commencement of arbitral proceedings) ............................................................................................................................................................................................................................................................................................................	A651
50.	Article 22 of UNCITRAL Model Law (Language) ............................................................................................................................................................................................................................................................................................................	A651
51.	Article 23 of UNCITRAL Model Law (Statements of claim and defence) ............................................................................................................................................................................................................................................................................................................	A653
52.	Article 24 of UNCITRAL Model Law (Hearings and written proceedings) ............................................................................................................................................................................................................................................................................................................	A653
53.	Article 25 of UNCITRAL Model Law (Default of a party) ............................................................................................................................................................................................................................................................................................................	A655
54.	Article 26 of UNCITRAL Model Law (Expert appointed by arbitral tribunal) ............................................................................................................................................................................................................................................................................................................	A657
55.	Article 27 of UNCITRAL Model Law (Court assistance in taking evidence) ............................................................................................................................................................................................................................................................................................................	A659
56.	General powers exercisable by arbitral tribunal ............................................................................................................................................................................................................................................................................................................	A659
57.	Arbitral tribunal may limit amount of recoverable costs ............................................................................................................................................................................................................................................................................................................	A663
58.	Power to extend time for arbitral proceedings ............................................................................................................................................................................................................................................................................................................	A663
59.	Order to be made in case of delay in pursuing claims in arbitral proceedings ............................................................................................................................................................................................................................................................................................................	A665
60.	Special powers of Court in relation to arbitral proceedings ............................................................................................................................................................................................................................................................................................................	A667
61.	Enforcement of orders and directions of arbitral tribunal ............................................................................................................................................................................................................................................................................................................	A669
62.	Power of Court to order recovery of arbitrator’s fees ............................................................................................................................................................................................................................................................................................................	A669
63.	Representation and preparation work ............................................................................................................................................................................................................................................................................................................	A671
PART 8 Making of Award and Termination of Proceedings
64.	Article 28 of UNCITRAL Model Law (Rules applicable to substance of dispute) ............................................................................................................................................................................................................................................................................................................	A671
65.	Article 29 of UNCITRAL Model Law (Decision-making by panel of arbitrators) ............................................................................................................................................................................................................................................................................................................	A673
66.	Article 30 of UNCITRAL Model Law (Settlement) ............................................................................................................................................................................................................................................................................................................	A673
67.	Article 31 of UNCITRAL Model Law (Form and contents of award) ............................................................................................................................................................................................................................................................................................................	A675
68.	Article 32 of UNCITRAL Model Law (Termination of proceedings) ............................................................................................................................................................................................................................................................................................................	A675
69.	Article 33 of UNCITRAL Model Law (Correction and interpretation of award; additional award) ............................................................................................................................................................................................................................................................................................................	A677
70.	Award of remedy or relief ............................................................................................................................................................................................................................................................................................................	A679
71.	Awards on different aspects of matters ............................................................................................................................................................................................................................................................................................................	A679
72.	Time for making award ............................................................................................................................................................................................................................................................................................................	A679
73.	Effect of award ............................................................................................................................................................................................................................................................................................................	A681
74.	Arbitral tribunal may award costs of arbitral proceedings ............................................................................................................................................................................................................................................................................................................	A681
75.	Taxation of costs of arbitral proceedings (other than fees and expenses of arbitral tribunal) ............................................................................................................................................................................................................................................................................................................	A683
76.	Costs in respect of unqualified person ............................................................................................................................................................................................................................................................................................................	A683
77.	Determination of arbitral tribunal’s fees and expenses in case of dispute ............................................................................................................................................................................................................................................................................................................	A683
78.	Liability to pay fees and expenses of arbitral tribunal ............................................................................................................................................................................................................................................................................................................	A687
79.	Arbitral tribunal may award interest ............................................................................................................................................................................................................................................................................................................	A687
80.	Interest on money or costs awarded or ordered in arbitral proceedings ............................................................................................................................................................................................................................................................................................................	A689
PART 9 Recourse against Award
81.	Article 34 of UNCITRAL Model Law (Application for setting aside as exclusive recourse against arbitral award) ............................................................................................................................................................................................................................................................................................................	A689
PART 10 Recognition and Enforcement of Awards
Division 1—Enforcement of arbitral awards
82.	Article 35 of UNCITRAL Model Law (Recognition and enforcement) ............................................................................................................................................................................................................................................................................................................	A693
83.	Article 36 of UNCITRAL Model Law (Grounds for refusing recognition or enforcement) ............................................................................................................................................................................................................................................................................................................	A693
84.	Enforcement of arbitral awards ............................................................................................................................................................................................................................................................................................................	A693
85.	Evidence to be produced for enforcement of arbitral awards ............................................................................................................................................................................................................................................................................................................	A695
86.	Refusal of enforcement of arbitral awards ............................................................................................................................................................................................................................................................................................................	A695
Division 2—Enforcement of Convention awards
87.	Enforcement of Convention awards ............................................................................................................................................................................................................................................................................................................	A697
88	Evidence to be produced for enforcement of Convention awards ............................................................................................................................................................................................................................................................................................................	A699
89.	Refusal of enforcement of Convention awards ............................................................................................................................................................................................................................................................................................................	A699
90.	Order for declaring party to New York Convention ............................................................................................................................................................................................................................................................................................................	A701
91.	Saving of rights to enforce Convention awards ............................................................................................................................................................................................................................................................................................................	A701
Division 3—Enforcement of Mainland awards
92.	Enforcement of Mainland awards ............................................................................................................................................................................................................................................................................................................	A703
93.	Restrictions on enforcement of Mainland awards ............................................................................................................................................................................................................................................................................................................	A703
94.	Evidence to be produced for enforcement of Mainland awards ............................................................................................................................................................................................................................................................................................................	A703
95.	Refusal of enforcement of Mainland awards ............................................................................................................................................................................................................................................................................................................	A705
96.	Mainland awards to which certain provisions of this Division do not apply ............................................................................................................................................................................................................................................................................................................	A707
97.	Publication of list of recognized Mainland arbitral authorities ............................................................................................................................................................................................................................................................................................................	A707
98.	Saving of certain Mainland awards ............................................................................................................................................................................................................................................................................................................	A707
PART 11 Provisions that may be Expressly Opted for or Automatically Apply
99.	Arbitration agreements may provide expressly for opt-in provisions ............................................................................................................................................................................................................................................................................................................	A709
100.	Opt-in provisions automatically apply in certain cases ............................................................................................................................................................................................................................................................................................................	A709
101.	Opt-in provisions that automatically apply under section 100 deemed to apply to Hong Kong construction subcontracting cases ............................................................................................................................................................................................................................................................................................................	A709
102.	Circumstances under which opt-in provisions not automatically apply ............................................................................................................................................................................................................................................................................................................	A713
103.	Application of provisions under this Part ............................................................................................................................................................................................................................................................................................................	A713
PART 12 Miscellaneous
104.	Arbitral tribunal or mediator to be liable for certain acts and omissions ............................................................................................................................................................................................................................................................................................................	A713
105.	Appointors and administrators to be liable only for certain acts and omissions ............................................................................................................................................................................................................................................................................................................	A715
106.	Rules of court ............................................................................................................................................................................................................................................................................................................	A717
107.	Making an application, etc. under this Ordinance ............................................................................................................................................................................................................................................................................................................	A717
108.	Decision, etc. of Court under this Ordinance ............................................................................................................................................................................................................................................................................................................	A717
PART 13 Repeal, Savings and Transitional Provisions
109.	Repeal ............................................................................................................................................................................................................................................................................................................	A717
110.	Effect of repeal on subsidiary legislation ............................................................................................................................................................................................................................................................................................................	A717
111.	Savings and transitional provisions ............................................................................................................................................................................................................................................................................................................	A719
PART 14 Consequential and Related Amendments
112.	Consequential and related amendments ............................................................................................................................................................................................................................................................................................................	A719

Schedule 1	UNCITRAL Model Law on International Commercial Arbitration ............................................................................................................................................................................................................................................................................................................	A719
Schedule 2	Provisions that may be expressly opted for or automatically apply ............................................................................................................................................................................................................................................................................................................	A763
Schedule 3	Savings and transitional provisions ............................................................................................................................................................................................................................................................................................................	A777
Schedule 4	Consequential and related amendments ............................................................................................................................................................................................................................................................................................................	A779

HONG KONG SPECIAL ADMINISTRATIVE REGION

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Ordiance No. 17 of 2010

An Ordinance to reform the law relating to arbitration, and to provide for related and consequential matters.

[]

Enacted by the Legislative Council.

PART 1
Preliminary

1. Short title and commencement

(1) This Ordinance may be cited as the Arbitration Ordinance.

(2) This Ordinance comes into operation on a day to be appointed by the Secretary for Justice by notice published in the Gazette.

2. Interpretation

(1) In this Ordinance—

“arbitral tribunal” (仲裁庭) means a sole arbitrator or a panel of arbitrators, and includes an umpire;

“arbitration” (仲裁) means any arbitration, whether or not administered by a permanent arbitral institution;

“arbitration agreement” (仲裁協議) has the same meaning as in section 19;

“arbitrator” (仲裁員), except in sections 23, 24, 30, 31, 32 and 65 and section 1 of Schedule 2, includes an umpire;

“claimant” (申索人) means a person who makes a claim or a counter-claim in an arbitration;

“Commission” (貿法委) means the United Nations Commission on International Trade Law;

“Convention award” (公約裁決) means an arbitral award made in a State or the territory of a State, other than China or any part of China, which is a party to the New York Convention;

“Court” (原訟法庭) means the Court of First Instance of the High Court;

“dispute” (爭議) includes a difference;

“function” (職能) includes a power and a duty;

“HKIAC” (香港國際仲裁中心) means the Hong Kong International Arbitration Centre, a company incorporated in Hong Kong under the Companies Ordinance (Cap. 32) and limited by guarantee;

“interim measure” (臨時措施)—

(a) if it is granted by an arbitral tribunal, has the same meaning as in section 35(1) and (2); or

(b) if it is granted by a court, has the same meaning as in section 45(9),

and “interim measure of protection” (臨時保全措施) is to be construed accordingly;

“the Mainland” (內地) means any part of China other than Hong Kong, Macao and Taiwan;

“Mainland award” (內地裁決) means an arbitral award made in the Mainland by a recognized Mainland arbitral authority in accordance with the Arbitration Law of the People’s Republic of China;

“mediation” (調解) includes conciliation;

“New York Convention” (《紐約公約》) means the Convention on the Recognition and Enforcement of Foreign Arbitral Awards done at New York on 10 June 1958;

“party” (一方、方)—

(a) means a party to an arbitration agreement; or

(b) in relation to any arbitral or court proceedings, means a party to the proceedings;

“recognized Mainland arbitral authority” (認可內地仲裁當局) means an arbitral authority that is specified in the list of recognized Mainland arbitral authorities published by the Secretary for Justice under section 97;

“repealed Ordinance” (《舊有條例》) means the Arbitration Ordinance (Cap. 341) repealed by section 109;

“respondent” (被申請人) means a person against whom a claim or a counterclaim is made in an arbitration;

“UNCITRAL Model Law” (《貿法委示範法》) means the UNCITRAL Model Law on International Commercial Arbitration as adopted by the Commission on 21 June 1985 and as amended by the Commission on 7 July 2006, the full text of which is set out in Schedule 1.

(2) If—

(a) a provision of this Ordinance refers to the fact that the parties have agreed, or in any other way refers to an agreement of the parties, the agreement includes any arbitration rules referred to in that agreement; or

(b) a provision of this Ordinance provides that the parties may agree, the agreement, if any, may include any arbitration rules by referring to those rules in that agreement.

(3) If—

(a) a provision of this Ordinance (other than sections 53 and 68) refers to a claim, that provision also applies to a counter-claim; or

(b) a provision of this Ordinance (other than section 53) refers to a defence, that provision also applies to a defence to a counterclaim.

(4) A note located in the text of this Ordinance, a section heading of any provision of this Ordinance or a heading of any provision of the UNCITRAL Model Law is for reference only and has no legislative effect.

(5) If the Chinese equivalent of an English expression used in any provision of this Ordinance is different from the Chinese equivalent of the same English expression used in any provision of the UNCITRAL Model Law, those Chinese equivalents are to be treated as being identical in effect.

3. Object and principles of this Ordinance

(1) The object of this Ordinance is to facilitate the fair and speedy resolution of disputes by arbitration without unnecessary expense.

(2) This Ordinance is based on the principles—

(a) that, 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; and

(b) that the court should interfere in the arbitration of a dispute only as expressly provided for in this Ordinance.

4. UNCITRAL Model Law to have force of law in Hong Kong

The provisions of the UNCITRAL Model Law that are expressly stated in this Ordinance as having effect have the force of law in Hong Kong subject to the modifications and supplements as expressly provided for in this Ordinance.

5. Arbitrations to which this Ordinance applies

(1) Subject to subsection (2), this Ordinance applies to an arbitration under an arbitration agreement, whether or not the agreement is entered into in Hong Kong, if the place of arbitration is in Hong Kong.

(2) If the place of arbitration is outside Hong Kong, only sections 20, 21, 45, 60 and 61 and Part 10 apply to the arbitration.

(3) If any other Ordinance provides that this Ordinance applies to an arbitration under that other Ordinance, this Ordinance (other than sections 20(2), (3) and (4), 22(1), 58 and 74(8) and (9)) applies to an arbitration under that other Ordinance, subject to the following—

(a) a reference in article 16(1) of the UNCITRAL Model Law, given effect to by section 34, to any objections with respect to the existence or validity of the arbitration agreement is to be construed as any objections with respect to the application of that other Ordinance to the dispute in question;

(b) that other Ordinance is deemed to have expressly provided that, subject to paragraph (c), all the provisions in Schedule 2 apply; and

(c) section 2 of Schedule 2 (if applicable) only applies so as to authorize 2 or more arbitral proceedings under the same Ordinance to be consolidated or to be heard at the same time or one immediately after another.

(4) Subsection (3) has effect, in relation to an arbitration under any other Ordinance, only in so far as this Ordinance is consistent with—

(a) that other Ordinance; and

(b) any rules or procedures authorized or recognized by that other Ordinance.

6. Application

This Ordinance applies to the Government and the Offices set up by the Central People’s Government in the Hong Kong Special Administrative Region.

PART 2
General Provisions

7. Article 1 of UNCITRAL Model Law (Scope of application)

Section 5 has effect in substitution for article 1 of the UNCITRAL Model Law.

8. Article 2 of UNCITRAL Model Law (Definitions and rules of interpretation)

(1) Section 2 has effect in substitution for article 2 of the UNCITRAL Model Law.

(2) For the purposes of subsection (1), a reference to this Ordinance in section 2 (other than section 2(5)) is to be construed as including the UNCITRAL Model Law.

(3) In the provisions of the UNCITRAL Model Law—

(a) a reference to this State is to be construed as Hong Kong;

(b) a reference to a State is to be construed as including Hong Kong;

(c) a reference to different States is to be construed as including Hong Kong and any other place;

(d) a reference to an article is to be construed as an article of the UNCITRAL Model Law; and

(e) (other than in article 2A of the UNCITRAL Model Law, given effect to by section 9) a reference to this Law is to be construed as this Ordinance.

9. Article 2A of UNCITRAL Model Law (International origin and general principles)

Article 2A of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 2A. International origin and general principles

(1) In the interpretation of this Law, regard is to be had to its international origin and to the need to promote uniformity in its application and the observance of good faith.

(2) Questions concerning matters governed by this Law which are not expressly settled in it are to be settled in conformity with the general principles on which this Law is based.”.

10. Article 3 of UNCITRAL Model Law (Receipt of written communications)

(1) Article 3 of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 3. Receipt of written communications

(1) Unless otherwise agreed by the parties:

(a) any written communication is deemed to have been received if it is delivered to the addressee personally or if it is delivered at his place of business, habitual residence or mailing address; if none of these can be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addressee’s last-known place of business, habitual residence or mailing address by registered letter or any other means which provides a record of the attempt to deliver it;

(b) the communication is deemed to have been received on the day it is so delivered.

(2) The provisions of this article do not apply to communications in court proceedings.”.

(2) Without affecting subsection (1), if a written communication (other than communications in court proceedings) is sent by any means by which information can be recorded and transmitted to the addressee, the communication is deemed to have been received on the day it is so sent.

(3) Subsection (2) applies only if there is a record of receipt of the communication by the addressee.

11. Article 4 of UNCITRAL Model Law (Waiver of right to object)

Article 4 of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 4. Waiver of right to object

A party who knows that any provision of this Law from which the parties may derogate or any requirement under the arbitration agreement has not been complied with and yet proceeds with the arbitration without stating his objection to such non-compliance without undue delay or, if a time-limit is provided therefor, within such period of time, shall be deemed to have waived his right to object.”.

12. Article 5 of UNCITRAL Model Law (Extent of court intervention)

Article 5 of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 5. Extent of court intervention

In matters governed by this Law, no court shall intervene except where so provided in this Law.”.

13. Article 6 of UNCITRAL Model Law (Court or other authority for certain functions of arbitration assistance and supervision)

(1) Subsections (2) to (6) have effect in substitution for article 6 of the UNCITRAL Model Law.

(2) The functions of the court or other authority referred to in article 11(3) or (4) of the UNCITRAL Model Law, given effect to by section 24, are to be performed by the HKIAC.

(3) The HKIAC may, with the approval of the Chief Justice, make rules to facilitate the performance of its functions under section 23(3), 24 or 32(1).

(4) The functions of the court or other authority referred to in—

(a) article 13(3) of the UNCITRAL Model Law, given effect to by section 26; or

(b) article 14(1) of the UNCITRAL Model Law, given effect to by section 27,

are to be performed by the Court.

(5) The functions of the court referred to in—

(a) article 16(3) of the UNCITRAL Model Law, given effect to by section 34; or

(b) article 34(2) of the UNCITRAL Model Law, given effect to by section 81,

are to be performed by the Court.

(6) The functions of the competent court referred to in article 27 of the UNCITRAL Model Law, given effect to by section 55, are to be performed by the Court.

14. Application of Limitation Ordinance and other limitation enactments to arbitrations

(1) The Limitation Ordinance (Cap. 347) and any other Ordinance relating to the limitation of actions (“limitation enactments”) apply to arbitrations as they apply to actions in the court.

(2) For the purposes of subsection (1), a reference in a limitation enactment to bringing an action is to be construed as, in relation to an arbitration, commencing the arbitral proceedings.

(3) Despite any term in an arbitration agreement to the effect that no cause of action may accrue in respect of any matter required by the agreement to be submitted to arbitration until an award is made under the agreement, the cause of action is, for the purposes of the limitation enactments (whether in their application to arbitrations or to other proceedings), deemed to accrue in respect of that matter at the time when it would have accrued but for that term.

(4) If a court orders that an award is to be set aside, the period between—

(a) the commencement of the arbitral proceedings; and

(b) the date of the order of the court setting aside the award, must be excluded in computing the time prescribed by a limitation enactment for the commencement of proceedings (including arbitral proceedings) with respect to the matter submitted to arbitration.

15. Reference of interpleader issue to arbitration by court

(1) If—

(a) relief by way of interpleader is granted by a court; and

(b) there is an arbitration agreement between the claimants in the interpleader proceedings in respect of any issue between those claimants,

the court granting the relief must, subject to subsection (2), direct that the issue is to be determined in accordance with the agreement.

(2) The court may refuse to make a direction under subsection (1) if the circumstances are such that legal proceedings brought by a claimant in respect of the issue would not be stayed.

(3) If the court refuses to make a direction under subsection (1), any provision of the arbitration agreement that an award is a condition precedent to the bringing of legal proceedings in respect of the issue does not affect the determination of the issue by the court.

(4) A direction of the court under subsection (1) is not subject to appeal.

(5) The leave of the court making a decision under subsection (2) is required for any appeal from that decision.

16. Proceedings to be heard otherwise than in open court

(1) Subject to subsection (2), proceedings under this Ordinance in the court are to be heard otherwise than in open court.

(2) The court may order those proceedings to be heard in open court—

(a) on the application of any party; or

(b) if, in any particular case, the court is satisfied that those proceedings ought to be heard in open court.

(3) An order of the court under subsection (2) is not subject to appeal.

17. Restrictions on reporting of proceedings heard otherwise than in open court

(1) This section applies to proceedings under this Ordinance in the court heard otherwise than in open court (“closed court proceedings”).

(2) A court in which closed court proceedings are being heard must, on the application of any party, make a direction as to what information, if any, relating to the proceedings may be published.

(3) A court must not make a direction permitting information to be published unless—

(a) all parties agree that the information may be published; or

(b) the court is satisfied that the information, if published, would not reveal any matter (including the identity of any party) that any party reasonably wishes to remain confidential.

(4) Despite subsection (3), if—

(a) a court gives a judgment in respect of closed court proceedings; and

(b) the court considers that judgment to be of major legal interest, the court must direct that reports of the judgment may be published in law reports and professional publications.

(5) If a court directs under subsection (4) that reports of a judgment may be published, but any party reasonably wishes to conceal any matter in those reports (including the fact that the party was such a party), the court must, on the application of the party—

(a) make a direction as to the action to be taken to conceal that matter in those reports; and

(b) if the court considers that a report published in accordance with the direction made under paragraph (a) would still be likely to reveal that matter, direct that the report may not be published until after the end of a period, not exceeding 10 years, that the court may direct.

(6) A direction of the court under this section is not subject to appeal.

18. Disclosure of information relating to arbitral proceedings and awards prohibited

(1) Unless otherwise agreed by the parties, no party may publish, disclose or communicate any information relating to—

(a) the arbitral proceedings under the arbitration agreement; or

(b) an award made in those arbitral proceedings.

(2) Nothing in subsection (1) prevents the publication, disclosure or communication of information referred to in that subsection by a party—

(a) if the publication, disclosure or communication is made—

(i) to protect or pursue a legal right or interest of the party; or

(ii) to enforce or challenge the award referred to in that subsection,

in legal proceedings before a court or other judicial authority in or outside Hong Kong;

(b) if the publication, disclosure or communication is made to any government body, regulatory body, court or tribunal and the party is obliged by law to make the publication, disclosure or communication; or

(c) if the publication, disclosure or communication is made to a professional or any other adviser of any of the parties.

PART 3
Arbitration Agreement

19. Article 7 of UNCITRAL Model Law (Definition and form of arbitration agreement)

(1) Option I of Article 7 of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Option I

Article 7. Definition and form of arbitration agreement

(1) “Arbitration agreement” is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

(2) The arbitration agreement shall be in writing.

(3) An arbitration agreement is in writing if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means.

(4) The requirement that an arbitration agreement be in writing is met by an electronic communication if the information contained therein is accessible so as to be useable for subsequent reference; “electronic communication” means any communication that the parties make by means of data messages; “data message” means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy.

(5) Furthermore, an arbitration agreement is in writing if it is contained in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other.

(6) The reference in a contract to any document containing an arbitration clause constitutes an arbitration agreement in writing, provided that the reference is such as to make that clause part of the contract.”.

(2) Without affecting subsection (1), an arbitration agreement is in writing if—

(a) the agreement is in a document, whether or not the document is signed by the parties to the agreement; or

(b) the agreement, although made otherwise than in writing, is recorded by one of the parties to the agreement, or by a third party, with the authority of each of the parties to the agreement.

(3) A reference in an agreement to a written form of arbitration clause constitutes an arbitration agreement if the reference is such as to make that clause part of the agreement.

20. Article 8 of UNCITRAL Model Law (Arbitration agreement and substantive claim before court)

(1) Article 8 of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 8. Arbitration agreement and substantive claim before court

(1) A court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.

(2) Where an action referred to in paragraph (1) of this article has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.”.

(2) If a dispute in the matter which is the subject of an arbitration agreement involves a claim or other dispute that is within the jurisdiction of the Labour Tribunal established by section 3 (Establishment of tribunal) of the Labour Tribunal Ordinance (Cap. 25), the court before which an action has been brought may, if a party so requests, refer the parties to arbitration if it is satisfied that—

(a) there is no sufficient reason why the parties should not be referred to arbitration in accordance with the arbitration agreement; and

(b) the party requesting arbitration was ready and willing at the time the action was brought to do all things necessary for the proper conduct of the arbitration, and remains so.

(3) Subsection (1) has effect subject to section 15 (Arbitration agreements) of the Control of Exemption Clauses Ordinance (Cap. 71).

(4) If the court refuses to refer the parties to arbitration, any provision of the arbitration agreement that an award is a condition precedent to the bringing of legal proceedings in respect of any matter is of no effect in relation to those proceedings.

(5) If the court refers the parties in an action to arbitration, it must make an order staying the legal proceedings in that action.

(6) In the case of Admiralty proceedings—

(a) the reference of the parties to arbitration and an order for the stay of those proceedings may, despite subsections (1) and (5), be made conditional on the giving of security for the satisfaction of any award made in the arbitration; or

(b) if the court makes an order under subsection (5) staying those proceedings, the court may (where property has been arrested, or bail or other security has been given to prevent or obtain release from arrest, in those proceedings) order that the property arrested, or the bail or security given, be retained as security for the satisfaction of any award made in the arbitration.

(7) Subject to any provision made by rules of court and to any necessary modifications, the same law and practice apply to the property, bail or security retained in pursuance of an order under subsection (6) as would apply if the property, bail or security retained were held for the purposes of proceedings in the court making the order.

(8) A decision of the court to refer the parties to arbitration under—

(a) article 8 of the UNCITRAL Model Law, given effect to by subsection (1); or

(b) subsection (2),

is not subject to appeal.

(9) The leave of the court making a decision to refuse to refer the parties to arbitration under—

(a) article 8 of the UNCITRAL Model Law, given effect to by subsection (1); or

(b) subsection (2),

is required for any appeal from that decision.

(10) A decision or order of the court under subsection (6) is not subject to appeal.

21. Article 9 of UNCITRAL Model Law (Arbitration agreement and interim measures by court)

Article 9 of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 9. Arbitration agreement and interim measures by court

It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure.”.

22. Whether agreement discharged by death of a party

(1) Unless otherwise agreed by the parties, an arbitration agreement is not discharged by the death of a party and may be enforced by or against the personal representatives of that party.

(2) Subsection (1) does not affect the operation of any enactment or rule of law by virtue of which a substantive right or obligation is extinguished by death.

PART 4
Composition of Arbitral Tribunal

Division 1—Arbitrators

23. Article 10 of UNCITRAL Model Law (Number of arbitrators)

(1) Article 10(1) of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 10. Number of arbitrators

(1) The parties are free to determine the number of arbitrators.

(2) [Not applicable.]”.

(2) For the purposes of subsection (1), the freedom of the parties to determine the number of arbitrators includes the right of the parties to authorize a third party, including an institution, to make that determination.

(3) Subject to section 1 of Schedule 2 (if applicable), if the parties fail to agree on the number of arbitrators, the number of arbitrators is to be either 1 or 3 as decided by the HKIAC in the particular case.

24. Article 11 of UNCITRAL Model Law (Appointment of arbitrators)

(1) Article 11 of the UNCITRAL Model Law, the text of which is set out below, has effect subject to section 13(2) and (3)—

“Article 11. Appointment of arbitrators

(1) No person shall be precluded by reason of his nationality from acting as an arbitrator, unless otherwise agreed by the parties.

(2) The parties are free to agree on a procedure of appointing the arbitrator or arbitrators, subject to the provisions of paragraphs (4) and (5) of this article.

(3) Failing such agreement,

(a) in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two arbitrators thus appointed shall appoint the third arbitrator; if a party fails to appoint the arbitrator within thirty days of receipt of a request to do so from the other party, or if the two arbitrators fail to agree on the third arbitrator within thirty days of their appointment, the appointment shall be made, upon request of a party, by the court or other authority specified in article 6;

(b) in an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator, he shall be appointed, upon request of a party, by the court or other authority specified in article 6.

(4) Where, under an appointment procedure agreed upon by the parties,

(a) a party fails to act as required under such procedure, or

(b) the parties, or two arbitrators, are unable to reach an agreement expected of them under such procedure, or

(c) a third party, including an institution, fails to perform any function entrusted to it under such procedure,

any party may request the court or other authority specified in article 6 to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.

(5) A decision on a matter entrusted by paragraph (3) or (4) of this article to the court or other authority specified in article 6 shall be subject to no appeal. The court or other authority, in appointing an arbitrator, shall have due regard to any qualifications required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and, in the case of a sole or third arbitrator, shall take into account as well the advisability of appointing an arbitrator of a nationality other than those of the parties.”.

(2) In an arbitration with an even number of arbitrators—

(a) if the parties have not agreed on a procedure for appointing the arbitrators under article 11(2) of the UNCITRAL Model Law, given effect to by subsection (1), each party is to appoint the same number of arbitrators; or

(b) if—

(i) a party fails to act as required under an appointment procedure agreed upon by the parties; or

(ii) in the case of paragraph (a), a party fails to appoint the appropriate number of arbitrators under that paragraph within 30 days of receipt of a request to do so from the other party,

the HKIAC must make the necessary appointment upon a request to do so from any party.

(3) In an arbitration with an uneven number of arbitrators greater than 3—

(a) if the parties have not agreed on a procedure for appointing the arbitrators under article 11(2) of the UNCITRAL Model Law, given effect to by subsection (1)—

(i) each party is to appoint the same number of arbitrators; and

(ii) unless otherwise agreed by the parties, the HKIAC must appoint the remaining arbitrator or arbitrators; or

(b) if—

(i) a party fails to act as required under an appointment procedure agreed upon by the parties; or

(ii) in the case of paragraph (a), a party fails to appoint the appropriate number of arbitrators under that paragraph within 30 days of receipt of a request to do so from the other party,

the HKIAC must make the necessary appointment upon a request to do so from any party.

(4) In any other case (in particular, if there are more than 2 parties) article 11(4) of the UNCITRAL Model Law, given effect to by subsection (1), applies as in the case of a failure to agree on an appointment procedure.

(5) If any appointment of an arbitrator is made by the HKIAC by virtue of this Ordinance, the appointment—

(a) has effect as if it were made with the agreement of all parties; and

(b) is subject to article 11(5) of the UNCITRAL Model Law, given effect to by subsection (1).

25. Article 12 of UNCITRAL Model Law (Grounds for challenge)

Article 12 of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 12. Grounds for challenge

(1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties unless they have already been informed of them by him.

(2) An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties. A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.”.

26. Article 13 of UNCITRAL Model Law (Challenge procedure)

(1) Article 13 of the UNCITRAL Model Law, the text of which is set out below, has effect subject to section 13(4)—

“Article 13. Challenge procedure

(1) The parties are free to agree on a procedure for challenging an arbitrator, subject to the provisions of paragraph (3) of this article.

(2) Failing such agreement, a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance referred to in article 12(2), send a written statement of the reasons for the challenge to the arbitral tribunal. Unless the challenged arbitrator withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.

(3) If a challenge under any procedure agreed upon by the parties or under the procedure of paragraph (2) of this article is not successful, the challenging party may request, within thirty days after having received notice of the decision rejecting the challenge, the court or other authority specified in article 6 to decide on the challenge, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award.”.

(2) During the period that a request for the Court to decide on a challenge is pending, the Court may refuse to grant leave under section 84 for the enforcement of any award made during that period by the arbitral tribunal that includes the challenged arbitrator.

(3) An arbitrator who is challenged under article 13(2) of the UNCITRAL Model Law, given effect to by subsection (1), is entitled, if the arbitrator considers it appropriate in the circumstances of the challenge, to withdraw from office as an arbitrator.

(4) The mandate of a challenged arbitrator terminates under article 13 of the UNCITRAL Model Law, given effect to by subsection (1), if—

(a) the arbitrator withdraws from office;

(b) the parties agree to the challenge;

(c) the arbitral tribunal upholds the challenge and no request is made for the Court to decide on the challenge; or

(d) the Court, upon request to decide on the challenge, upholds the challenge.

(5) If the Court upholds the challenge, the Court may set aside the award referred to in subsection (2).

27. Article 14 of UNCITRAL Model Law (Failure or impossibility to act)

Article 14 of the UNCITRAL Model Law, the text of which is set out below, has effect subject to section 13(4)—

“Article 14. Failure or impossibility to act

(1) If an arbitrator becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay, his mandate terminates if he withdraws from his office or if the parties agree on the termination. Otherwise, if a controversy remains concerning any of these grounds, any party may request the court or other authority specified in article 6 to decide on the termination of the mandate, which decision shall be subject to no appeal.

(2) If, under this article or article 13(2), an arbitrator withdraws from his office or a party agrees to the termination of the mandate of an arbitrator, this does not imply acceptance of the validity of any ground referred to in this article or article 12(2).”.

28. Article 15 of UNCITRAL Model Law (Appointment of substitute arbitrator)

Article 15 of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 15. Appointment of substitute arbitrator

Where the mandate of an arbitrator terminates under article 13 or 14 or because of his withdrawal from office for any other reason or because of the revocation of his mandate by agreement of the parties or in any other case of termination of his mandate, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced.”.

29. Death of arbitrator or person appointing arbitrator

(1) The authority of an arbitrator is personal and the mandate of the arbitrator terminates on the arbitrator’s death.

(2) Unless otherwise agreed by the parties, the death of the person by whom an arbitrator was appointed does not revoke the arbitrator’s authority.

30. Appointment of umpire

In an arbitration with an even number of arbitrators, the arbitrators may, unless otherwise agreed by the parties, appoint an umpire at any time after they are themselves appointed.

31. Functions of umpire in arbitral proceedings

(1) The parties are free to agree what the functions of an umpire are to be and, in particular—

(a) whether the umpire is to attend the arbitral proceedings; and

(b) when, and the extent to which, the umpire is to replace the arbitrators as the arbitral tribunal with the power to make orders, directions and awards.

(2) If or to the extent that there is no such agreement of the parties, the arbitrators are free to agree on the functions of the umpire.

(3) Subsections (4) to (11) apply subject to any agreement of the parties or the arbitrators.

(4) After an umpire is appointed, the umpire must attend the arbitral proceedings.

(5) The umpire must be supplied with the same documents and other materials as are supplied to the arbitrators.

(6) Orders, directions and awards are to be made by the arbitrators unless, subject to subsection (9), the arbitrators cannot agree on a matter relating to the dispute submitted to arbitration.

(7) If the arbitrators cannot agree on a matter relating to the dispute submitted to arbitration, they must forthwith give notice of that fact in writing to the parties and the umpire, in which case the umpire is to replace the arbitrators as the arbitral tribunal with the power to make orders, directions and awards, in respect of that matter only, subject to subsection (9)(b), as if the umpire were the sole arbitrator.

(8) If the arbitrators cannot agree on a matter relating to the dispute submitted to arbitration but—

(a) they fail to give notice of that fact; or

(b) any of them fails to join in the giving of notice,

any party may apply to the Court which may decide that the umpire is to replace the arbitrators as the arbitral tribunal with the power to make orders, directions and awards, in respect of that matter only, as if the umpire were the sole arbitrator.

(9) Despite the replacement by the umpire as the arbitral tribunal in respect of a matter, on which the arbitrators cannot agree, relating to the dispute submitted to arbitration, the arbitrators may—

(a) still make orders, directions and awards in respect of the other matters relating to the dispute if they consider that it would save costs by doing so; or

(b) refer the entirety of the dispute to the umpire for arbitration.

(10) For the purposes of this section, the arbitrators cannot agree on a matter relating to the dispute submitted to arbitration if any one of the arbitrators, in that arbitrator’s view, disagrees with the other arbitrator or any of the other arbitrators over that matter.

(11) A decision of the Court under subsection (8) is not subject to appeal.

Division 2—Mediators

32. Appointment of mediator

(1) If—

(a) any arbitration agreement provides for the appointment of a mediator by a person who is not one of the parties; and

(b) that person—

(i) refuses to make the appointment; or

(ii) does not make the appointment within the time specified in the arbitration agreement or, if no time is so specified, within a reasonable time after being requested by any party to make the appointment,

the HKIAC may, on the application of any party, appoint a mediator.

(2) An appointment made by the HKIAC under subsection (1) is not subject to appeal.

(3) If any arbitration agreement provides for the appointment of a mediator and further provides that the person so appointed is to act as an arbitrator in the event that no settlement acceptable to the parties can be reached in the mediation proceedings—

(a) no objection may be made against the person’s acting as an arbitrator, or against the person’s conduct of the arbitral proceedings, solely on the ground that the person had acted previously as a mediator in connection with some or all of the matters relating to the dispute submitted to arbitration; or

(b) if the person declines to act as an arbitrator, any other person appointed as an arbitrator is not required first to act as a mediator unless it is otherwise expressed in the arbitration agreement.

33. Power of arbitrator to act as mediator

(1) If all parties consent in writing, and for so long as no party withdraws the party’s consent in writing, an arbitrator may act as a mediator after the arbitral proceedings have commenced.

(2) If an arbitrator acts as a mediator, the arbitral proceedings must be stayed to facilitate the conduct of the mediation proceedings.

(3) An arbitrator who is acting as a mediator—

(a) may communicate with the parties collectively or separately; and

(b) must treat the information obtained by the arbitrator from a party as confidential, unless otherwise agreed by that party or unless subsection (4) applies.

(4) If—

(a) confidential information is obtained by an arbitrator from a party during the mediation proceedings conducted by the arbitrator as a mediator; and

(b) those mediation proceedings terminate without reaching a settlement acceptable to the parties,

the arbitrator must, before resuming the arbitral proceedings, disclose to all other parties as much of that information as the arbitrator considers is material to the arbitral proceedings.

(5) No objection may be made against the conduct of the arbitral proceedings by an arbitrator solely on the ground that the arbitrator had acted previously as a mediator in accordance with this section.

PART 5
Jurisdiction of Arbitral Tribunal

34. Article 16 of UNCITRAL Model Law (Competence of arbitral tribunal to rule on its jurisdiction)

(1) Article 16 of the UNCITRAL Model Law, the text of which is set out below, has effect subject to section 13(5)—

“Article 16. Competence of arbitral tribunal to rule on its jurisdiction

(1) The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence. A party is not precluded from raising such a plea by the fact that he has appointed, or participated in the appointment of, an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified.

(3) The arbitral tribunal may rule on a plea referred to in paragraph (2) of this article either as a preliminary question or in an award on the merits. If the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party may request, within thirty days after having received notice of that ruling, the court specified in article 6 to decide the matter, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal may continue the arbitral proceedings and make an award.”.

(2) The power of the arbitral tribunal to rule on its own jurisdiction under subsection (1) includes the power to decide as to—

(a) whether the tribunal is properly constituted; or

(b) what matters have been submitted to arbitration in accordance with the arbitration agreement.

(3) If a dispute is submitted to arbitration in accordance with an arbitration agreement and a party—

(a) makes a counter-claim arising out of the same dispute; or

(b) relies on a claim arising out of that dispute for the purposes of a set-off,

the arbitral tribunal has jurisdiction to decide on the counter-claim or the claim so relied on only to the extent that the subject matter of that counterclaim or that claim falls within the scope of the same arbitration agreement.

(4) A ruling of the arbitral tribunal that it does not have jurisdiction to decide a dispute is not subject to appeal.

(5) Despite section 20, if the arbitral tribunal rules that it does not have jurisdiction to decide a dispute, the court must, if it has jurisdiction, decide that dispute.

PART 6
Interim Measures and Preliminary Orders

Division 1—Interim measures

35. Article 17 of UNCITRAL Model Law (Power of arbitral tribunal to order interim measures)

(1) Article 17 of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 17. Power of arbitral tribunal to order interim measures

(1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, grant interim measures.

(2) An interim measure is any temporary measure, whether in the form of an award or in another form, by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party to:

(a) Maintain or restore the status quo pending determination of the dispute;

(b) Take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself;

(c) Provide a means of preserving assets out of which a subsequent award may be satisfied; or

(d) Preserve evidence that may be relevant and material to the resolution of the dispute.”.

(2) An interim measure referred to in article 17 of the UNCITRAL Model Law, given effect to by subsection (1), is to be construed as including an injunction but not including an order under section 56.

(3) If an arbitral tribunal has granted an interim measure, the tribunal may, on the application of any party, make an award to the same effect as the interim measure.

36. Article 17A of UNCITRAL Model Law (Conditions for granting interim measures)

Article 17A of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 17A. Conditions for granting interim measures

(1) The party requesting an interim measure under article 17(2)(a), (b) and (c) shall satisfy the arbitral tribunal that:

(a) Harm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted; and

(b) There is a reasonable possibility that the requesting party will succeed on the merits of the claim. The determination on this possibility shall not affect the discretion of the arbitral tribunal in making any subsequent determination.

(2) With regard to a request for an interim measure under article 17(2)(d), the requirements in paragraphs (1)(a) and (b) of this article shall apply only to the extent the arbitral tribunal considers appropriate.”.

Division 2—Preliminary orders

37. Article 17B of UNCITRAL Model Law (Applications for preliminary orders and conditions for granting preliminary orders)

Article 17B of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 17B. Applications for preliminary orders and conditions for granting preliminary orders

(1) Unless otherwise agreed by the parties, a party may, without notice to any other party, make a request for an interim measure together with an application for a preliminary order directing a party not to frustrate the purpose of the interim measure requested.

(2) The arbitral tribunal may grant a preliminary order provided it considers that prior disclosure of the request for the interim measure to the party against whom it is directed risks frustrating the purpose of the measure.

(3) The conditions defined under article 17A apply to any preliminary order, provided that the harm to be assessed under article 17A(1)(a), is the harm likely to result from the order being granted or not.”.

38. Article 17C of UNCITRAL Model Law (Specific regime for preliminary orders)

Article 17C of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 17C. Specific regime for preliminary orders

(1) Immediately after the arbitral tribunal has made a determination in respect of an application for a preliminary order, the arbitral tribunal shall give notice to all parties of the request for the interim measure, the application for the preliminary order, the preliminary order, if any, and all other communications, including by indicating the content of any oral communication, between any party and the arbitral tribunal in relation thereto.

(2) At the same time, the arbitral tribunal shall give an opportunity to any party against whom a preliminary order is directed to present its case at the earliest practicable time.

(3) The arbitral tribunal shall decide promptly on any objection to the preliminary order.

(4) A preliminary order shall expire after twenty days from the date on which it was issued by the arbitral tribunal. However, the arbitral tribunal may issue an interim measure adopting or modifying the preliminary order, after the party against whom the preliminary order is directed has been given notice and an opportunity to present its case.

(5) A preliminary order shall be binding on the parties but shall not be subject to enforcement by a court. Such a preliminary order does not constitute an award.”.

Division 3—Provisions applicable to interim measures and preliminary orders

39. Article 17D of UNCITRAL Model Law (Modification, suspension, termination)

Article 17D of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 17D. Modification, suspension, termination

The arbitral tribunal may modify, suspend or terminate an interim measure or a preliminary order it has granted, upon application of any party or, in exceptional circumstances and upon prior notice to the parties, on the arbitral tribunal’s own initiative.”.

40. Article 17E of UNCITRAL Model Law (Provision of security)

Article 17E of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 17E. Provision of security

(1) The arbitral tribunal may require the party requesting an interim measure to provide appropriate security in connection with the measure.

(2) The arbitral tribunal shall require the party applying for a preliminary order to provide security in connection with the order unless the arbitral tribunal considers it inappropriate or unnecessary to do so.”.

41. Article 17F of UNCITRAL Model Law (Disclosure)

Article 17F of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 17F. Disclosure

(1) The arbitral tribunal may require any party promptly to disclose any material change in the circumstances on the basis of which the measure was requested or granted.

(2) The party applying for a preliminary order shall disclose to the arbitral tribunal all circumstances that are likely to be relevant to the arbitral tribunal’s determination whether to grant or maintain the order, and such obligation shall continue until the party against whom the order has been requested has had an opportunity to present its case. Thereafter, paragraph (1) of this article shall apply.”.

42. Article 17G of UNCITRAL Model Law (Costs and damages)

Article 17G of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 17G. Costs and damages

The party requesting an interim measure or applying for a preliminary order shall be liable for any costs and damages caused by the measure or the order to any party if the arbitral tribunal later determines that, in the circumstances, the measure or the order should not have been granted. The arbitral tribunal may award such costs and damages at any point during the proceedings.”.

Division 4—Recognition and enforcement of interim measures

43. Article 17H of UNCITRAL Model Law (Recognition and enforcement)

Section 61 has effect in substitution for article 17H of the UNCITRAL Model Law.

44. Article 17I of UNCITRAL Model Law (Grounds for refusing recognition or enforcement)

Article 17I of the UNCITRAL Model Law does not have effect.

Division 5—Court-ordered interim measures

45. Article 17J of UNCITRAL Model Law (Court-ordered interim measures)

(1) Article 17J of the UNCITRAL Model Law does not have effect.

(2) On the application of any party, the Court may, in relation to any arbitral proceedings which have been or are to be commenced in or outside Hong Kong, grant an interim measure.

(3) The powers conferred by this section may be exercised by the Court irrespective of whether or not similar powers may be exercised by an arbitral tribunal under section 35 in relation to the same dispute.

(4) The Court may decline to grant an interim measure under subsection (2) on the ground that—

(a) the interim measure sought is currently the subject of arbitral proceedings; and

(b) the Court considers it more appropriate for the interim measure sought to be dealt with by the arbitral tribunal.

(5) In relation to arbitral proceedings which have been or are to be commenced outside Hong Kong, the Court may grant an interim measure under subsection (2) only if—

(a) the arbitral proceedings are capable of giving rise to an arbitral award (whether interim or final) that may be enforced in Hong Kong under this Ordinance or any other Ordinance; and

(b) the interim measure sought belongs to a type or description of interim measure that may be granted in Hong Kong in relation to arbitral proceedings by the Court.

(6) Subsection (5) applies even if—

(a) the subject matter of the arbitral proceedings would not, apart from that subsection, give rise to a cause of action over which the Court would have jurisdiction; or

(b) the order sought is not ancillary or incidental to any arbitral proceedings in Hong Kong.

(7) In exercising the power under subsection (2) in relation to arbitral proceedings outside Hong Kong, the Court must have regard to the fact that the power is—

(a) ancillary to the arbitral proceedings outside Hong Kong; and

(b) for the purposes of facilitating the process of a court or arbitral tribunal outside Hong Kong that has primary jurisdiction over the arbitral proceedings.

(8) The Court has the same power to make any incidental order or direction for the purposes of ensuring the effectiveness of an interim measure granted in relation to arbitral proceedings outside Hong Kong as if the interim measure were granted in relation to arbitral proceedings in Hong Kong.

(9) An interim measure referred to in subsection (2) means an interim measure referred to in article 17(2) of the UNCITRAL Model Law, given effect to by section 35(1), as if—

(a) a reference to the arbitral tribunal in that article were the court; and

(b) a reference to arbitral proceedings in that article were court proceedings,

and is to be construed as including an injunction but not including an order under section 60.

(10) A decision, order or direction of the Court under this section is not subject to appeal.

PART 7
Conduct of Arbitral Proceedings

46. Article 18 of UNCITRAL Model Law (Equal treatment of parties)

(1) Subsections (2) and (3) have effect in substitution for article 18 of the UNCITRAL Model Law.

(2) The parties must be treated with equality.

(3) When conducting arbitral proceedings or exercising any of the powers conferred on an arbitral tribunal by this Ordinance or by the parties to any of those arbitral proceedings, the arbitral tribunal is required—

(a) to be independent;

(b) 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

(c) to 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.

47. Article 19 of UNCITRAL Model Law (Determination of rules of procedure)

(1) Article 19(1) of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 19. Determination of rules of procedure

(1) Subject to the provisions of this Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.

(2) [Not applicable.]”.

(2) If or to the extent that there is no such agreement of the parties, the arbitral tribunal may, subject to the provisions of this Ordinance, conduct the arbitration in the manner that it considers appropriate.

(3) When conducting arbitral proceedings, an arbitral tribunal is not bound by the rules of evidence and may receive any evidence that it considers relevant to the arbitral proceedings, but it must give the weight that it considers appropriate to the evidence adduced in the arbitral proceedings.

48. Article 20 of UNCITRAL Model Law (Place of arbitration)

Article 20 of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 20. Place of arbitration

(1) The parties are free to agree on the place of arbitration. Failing such agreement, the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.

(2) Notwithstanding the provisions of paragraph (1) of this article, the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of goods, other property or documents.”.

49. Article 21 of UNCITRAL Model Law (Commencement of arbitral proceedings)

(1) Article 21 of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 21. Commencement of arbitral proceedings

Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.”.

(2) A request referred to in article 21 of the UNCITRAL Model Law, given effect to by subsection (1), has to be made by way of a written communication as referred to in section 10.

50. Article 22 of UNCITRAL Model Law (Language)

Article 22 of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 22. Language

(1) The parties are free to agree on the language or languages to be used in the arbitral proceedings. Failing such agreement, the arbitral tribunal shall determine the language or languages to be used in the proceedings. This agreement or determination, unless otherwise specified therein, shall apply to any written <noinlcude>::</noinlcude>statement by a party, any hearing and any award, decision or other communication by the arbitral tribunal.

(2) The arbitral tribunal may order that any documentary evidence shall be accompanied by a translation into the language or languages agreed upon by the parties or determined by the arbitral tribunal.”.

51. Article 23 of UNCITRAL Model Law (Statements of claim and defence)

Article 23 of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 23. Statements of claim and defence

(1) Within the period of time agreed by the parties or determined by the arbitral tribunal, the claimant shall state the facts supporting his claim, the points at issue and the relief or remedy sought, and the respondent shall state his defence in respect of these particulars, unless the parties have otherwise agreed as to the required elements of such statements. The parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit.

(2) Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow such amendment having regard to the delay in making it.”.

52. Article 24 of UNCITRAL Model Law (Hearings and written proceedings)

Article 24 of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 24. Hearings and written proceedings

(1) Subject to any contrary agreement by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials. However, unless the parties have agreed <noinlcude>::</noinlcude>that no hearings shall be held, the arbitral tribunal shall hold such hearings at an appropriate stage of the proceedings, if so requested by a party.

(2) The parties shall be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purposes of inspection of goods, other property or documents.

(3) All statements, documents or other information supplied to the arbitral tribunal by one party shall be communicated to the other party. Also any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be communicated to the parties.”.

53. Article 25 of UNCITRAL Model Law (Default of a party)

(1) Article 25 of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 25. Default of a party

Unless otherwise agreed by the parties, if, without showing sufficient cause,

(a) the claimant fails to communicate his statement of claim in accordance with article 23(1), the arbitral tribunal shall terminate the proceedings;

(b) the respondent fails to communicate his statement of defence in accordance with article 23(1), the arbitral tribunal shall continue the proceedings without treating such failure in itself as an admission of the claimant’s allegations;

(c) any party fails to appear at a hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the award on the evidence before it.”.

(2) Unless otherwise agreed by the parties, subsections (3) and (4) apply except in relation to an application for security for costs.

(3) If, without showing sufficient cause, a party fails to comply with any order or direction of the arbitral tribunal, the tribunal may make a peremptory order to the same effect, prescribing the time for compliance with it that the arbitral tribunal considers appropriate.

(4) If a party fails to comply with a peremptory order, then without affecting section 61, the arbitral tribunal may—

(a) direct that the party is not entitled to rely on any allegation or material which was the subject matter of the peremptory order;

(b) draw any adverse inferences that the circumstances may justify from the non-compliance;

(c) make an award on the basis of any materials which have been properly provided to the arbitral tribunal; or

(d) make any order that the arbitral tribunal thinks fit as to the payment of the costs of the arbitration incurred in consequence of the non-compliance.

54. Article 26 of UNCITRAL Model Law (Expert appointed by arbitral tribunal)

(1) Article 26 of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 26. Expert appointed by arbitral tribunal

(1) Unless otherwise agreed by the parties, the arbitral tribunal

(a) may appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal;

(b) may require a party to give the expert any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for his inspection.

(2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert shall, after delivery of his written or oral report, participate in a hearing where the parties have the opportunity to put questions to him and to present expert witnesses in order to testify on the points at issue.”.

(2) Without affecting article 26 of the UNCITRAL Model Law, given effect to by subsection (1), in assessing the amount of the costs of arbitral proceedings (other than the fees and expenses of the tribunal) under section 74—

(a) the arbitral tribunal may appoint assessors to assist it on technical matters, and may allow any of those assessors to attend the proceedings; and

(b) the parties must be given a reasonable opportunity to comment on any information, opinion or advice offered by any of those assessors.

55. Article 27 of UNCITRAL Model Law (Court assistance in taking evidence)

(1) Article 27 of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 27. Court assistance in taking evidence

The arbitral tribunal or a party with the approval of the arbitral tribunal may request from a competent court of this State assistance in taking evidence. The court may execute the request within its competence and according to its rules on taking evidence.”.

(2) The Court may order a person to attend proceedings before an arbitral tribunal to give evidence or to produce documents or other evidence.

(3) The powers conferred by this section may be exercised by the Court irrespective of whether or not similar powers may be exercised by an arbitral tribunal under section 56 in relation to the same dispute.

(4) A decision or order of the Court made in the exercise of its power under this section is not subject to appeal.

(5) Section 81 (Warrant or order to bring up prisoner to give evidence) of the Evidence Ordinance (Cap. 8) applies as if a reference to any proceedings, either criminal or civil, in that section were any arbitral proceedings.

56. General powers exercisable by arbitral tribunal

(1) Unless otherwise agreed by the parties, when conducting arbitral proceedings, an arbitral tribunal may make an order—

(a) requiring a claimant to give security for the costs of the

arbitration;

(b) directing the discovery of documents or the delivery of interrogatories;

(c) directing evidence to be given by affidavit; or

(d) in relation to any relevant property—

(i) directing the inspection, photographing, preservation, custody, detention or sale of the relevant property by the arbitral tribunal, a party to the arbitral proceedings or an expert; or

(ii) directing samples to be taken from, observations to be made of, or experiments to be conducted on the relevant property.

(2) An arbitral tribunal must not make an order under subsection (1)(a) only on the ground that the claimant is—

(a) a natural person who is ordinarily resident outside Hong Kong;

(b) a body corporate—

(i) incorporated under the law of a place outside Hong Kong; or

(ii) the central management and control of which is exercised outside Hong Kong; or

(c) an association—

(i) formed under the law of a place outside Hong Kong; or

(ii) the central management and control of which is exercised outside Hong Kong.

(3) An arbitral tribunal—

(a) must, when making an order under subsection (1)(a), specify the period within which the order has to be complied with; and

(b) may extend that period or an extended period.

(4) An arbitral tribunal may make an award dismissing a claim or stay a claim if it has made an order under subsection (1)(a) but the order has not been complied with within the period specified under subsection (3)(a) or extended under subsection (3)(b).

(5) Despite section 35(2), sections 39 to 42 apply, if appropriate, to an order under subsection (1)(d) as if a reference to an interim measure in those sections were an order under that subsection.

(6) Property is a relevant property for the purposes of subsection (1)(d) if—

(a) the property is owned by or is in the possession of a party to the arbitral proceedings; and

(b) the property is the subject of the arbitral proceedings, or any question relating to the property has arisen in the arbitral proceedings.

(7) Unless otherwise agreed by the parties, an arbitral tribunal may, when conducting arbitral proceedings, decide whether and to what extent it should itself take the initiative in ascertaining the facts and the law relevant to those arbitral proceedings.

(8) Unless otherwise agreed by the parties, an arbitral tribunal may—

(a) administer oaths to, or take the affirmations of, witnesses and parties;

(b) examine witnesses and parties on oath or affirmation; or

(c) direct the attendance before the arbitral tribunal of witnesses in order to give evidence or to produce documents or other evidence.

(9) A person is not required to produce in arbitral proceedings any document or other evidence that the person could not be required to produce in civil proceedings before a court.

57. Arbitral tribunal may limit amount of recoverable costs

(1) Unless otherwise agreed by the parties, an arbitral tribunal may direct that the recoverable costs of arbitral proceedings before it are limited to a specified amount.

(2) Subject to subsection (3), the arbitral tribunal may make or vary a direction either—

(a) on its own initiative; or

(b) on the application of any party.

(3) A direction may be made or varied at any stage of the arbitral proceedings but, for the limit of the recoverable costs to be taken into account, this must be done sufficiently in advance of—

(a) the incurring of the costs to which the direction or the variation relates; or

(b) the taking of the steps in the arbitral proceedings which may be affected by the direction or the variation.

(4) In this section—

(a) a reference to costs is to be construed as the parties’ own costs; and

(b) a reference to arbitral proceedings includes any part of those arbitral proceedings.

58. Power to extend time for arbitral proceedings

(1) This section applies to an arbitration agreement that provides for a claim to be barred or for a claimant’s right to be extinguished unless the claimant, before the time or within the period specified in the agreement, takes a step—

(a) to commence arbitral proceedings; or

(b) to commence any other dispute resolution procedure that must be exhausted before arbitral proceedings may be commenced.

(2) On the application of any party to such an arbitration agreement, an arbitral tribunal may make an order extending the time or period referred to in subsection (1).

(3) An application may be made only after a claim has arisen and after exhausting any available arbitral procedures for obtaining an extension of time.

(4) An arbitral tribunal may make an order under this section extending the time or period referred to in subsection (1) only if it is satisfied—

(a) that—

(i) the circumstances were such as to be outside the reasonable contemplation of the parties when they entered into the arbitration agreement; and

(ii) it would be just to extend the time or period; or

(b) that the conduct of any party makes it unjust to hold the other party to the strict terms of the agreement.

(5) An arbitral tribunal may extend the time or period referred to in subsection (1), or the time or period extended under subsection (4), for a further period and on the terms that it thinks fit, and the tribunal may do so even though that time or period or the extended time or period has expired.

(6) This section does not affect the operation of section 14 or any other enactment that limits the period for commencing arbitral proceedings.

(7) The power conferred on an arbitral tribunal by this section is exercisable by the Court if at the relevant time there is not in existence an arbitral tribunal that is capable of exercising that power.

(8) An order of the Court made in exercise of its power conferred by subsection (7) is not subject to appeal.

59. Order to be made in case of delay in pursuing claims in arbitral proceedings

(1) Unless otherwise expressed in an arbitration agreement, a party who has a claim under the agreement must, after the commencement of the arbitral proceedings, pursue that claim without unreasonable delay.

(2) Without affecting article 25 of the UNCITRAL Model Law, given effect to by section 53(1), the arbitral tribunal—

(a) may make an award dismissing a party’s claim; and

(b) may make an order prohibiting the party from commencing further arbitral proceedings in respect of the claim,

if it is satisfied that the party has unreasonably delayed in pursuing the claim in the arbitral proceedings.

(3) The arbitral tribunal may make an award or order either—

(a) on its own initiative; or

(b) on the application of any other party.

(4) For the purposes of subsection (2), delay is unreasonable if—

(a) it gives rise, or is likely to give rise, to a substantial risk that the issues in the claim will not be resolved fairly; or

(b) it has caused, or is likely to cause, serious prejudice to any other party.

(5) The power conferred on an arbitral tribunal by this section is exercisable by the Court if there is not in existence an arbitral tribunal that is capable of exercising that power.

(6) An award or order made by the Court in exercise of its power conferred by subsection (5) is not subject to appeal.

60. Special powers of Court in relation to arbitral proceedings

(1) On the application of any party, the Court may, in relation to any arbitral proceedings which have been or are to be commenced in or outside Hong Kong, make an order—

(a) directing the inspection, photographing, preservation, custody, detention or sale of any relevant property by the arbitral tribunal, a party to the arbitral proceedings or an expert; or

(b) directing samples to be taken from, observations to be made of, or experiments to be conducted on any relevant property.

(2) Property is a relevant property for the purposes of subsection (1) if the property is the subject of the arbitral proceedings, or any question relating to the property has arisen in the arbitral proceedings.

(3) The powers conferred by this section may be exercised by the Court irrespective of whether or not similar powers may be exercised by an arbitral tribunal under section 56 in relation to the same dispute.

(4) The Court may decline to make an order under this section in relation to a matter referred to in subsection (1) on the ground that—

(a) the matter is currently the subject of arbitral proceedings; and

(b) the Court considers it more appropriate for the matter to be dealt with by the arbitral tribunal.

(5) An order made by the Court under this section may provide for the cessation of that order, in whole or in part, when the arbitral tribunal makes an order for the cessation.

(6) In relation to arbitral proceedings which have been or are to be commenced outside Hong Kong, the Court may make an order under subsection (1) only if the arbitral proceedings are capable of giving rise to an arbitral award (whether interim or final) that may be enforced in Hong Kong under this Ordinance or any other Ordinance.

(7) Subsection (6) applies even if—

(a) the subject matter of the arbitral proceedings would not, apart from that subsection, give rise to a cause of action over which the Court would have jurisdiction; or

(b) the order sought is not ancillary or incidental to any arbitral proceedings in Hong Kong.

(8) In exercising the power under subsection (1) in relation to arbitral proceedings outside Hong Kong, the Court must have regard to the fact that the power is—

(a) ancillary to the arbitral proceedings outside Hong Kong; and

(b) for the purposes of facilitating the process of a court or arbitral tribunal outside Hong Kong that has primary jurisdiction over the arbitral proceedings.

(9) Subject to subsection (10), an order or decision of the Court under this section is not subject to appeal.

(10) The leave of the Court is required for any appeal from an order of the Court under subsection (1) for the sale of any relevant property.

61. Enforcement of orders and directions of arbitral tribunal

(1) An order or direction made, whether in or outside Hong Kong, in relation to arbitral proceedings by an arbitral tribunal is enforceable in the same manner as an order or direction of the Court that has the same effect, but only with the leave of the Court.

(2) Leave to enforce an order or direction made outside Hong Kong is not to be granted, unless the party seeking to enforce it can demonstrate that it belongs to a type or description of order or direction that may be made in Hong Kong in relation to arbitral proceedings by an arbitral tribunal.

(3) If leave is granted under subsection (1), the Court may enter judgment in terms of the order or direction.

(4) A decision of the Court to grant or refuse to grant leave under subsection (1) is not subject to appeal.

(5) An order or direction referred to in this section includes an interim measure.

62. Power of Court to order recovery of arbitrator’s fees

(1) Where an arbitrator’s mandate terminates under article 13 of the UNCITRAL Model Law, given effect to by section 26, or under article 14 of the UNCITRAL Model Law, given effect to by section 27, then on the application of any party, the Court, in its discretion and having regard to the conduct of the arbitrator and any other relevant circumstances—

(a) may order that the arbitrator is not entitled to receive the whole or part of the arbitrator’s fees or expenses; and

(b) may order that the arbitrator must repay the whole or part of the fees or expenses already paid to the arbitrator.

(2) An order of the Court under subsection (1) is not subject to appeal.

63. Representation and preparation work

Section 44 (Penalty for unlawfully practising as a barrister or notary public), section 45 (Unqualified person not to act as solicitor) and section 47 (Unqualified person not to prepare certain instruments, etc.) of the Legal Practitioners Ordinance (Cap. 159) do not apply to—

(a) arbitral proceedings;

(b) the giving of advice and the preparation of documents for the purposes of arbitral proceedings; or

(c) any other thing done in relation to arbitral proceedings, except where it is done in connection with court proceedings—

(i) arising out of an arbitration agreement; or

(ii) arising in the course of, or resulting from, arbitral proceedings.

PART 8
Making of Award and Termination of Proceedings

64. Article 28 of UNCITRAL Model Law (Rules applicable to substance of dispute)

Article 28 of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 28. Rules applicable to substance of dispute

(1) The arbitral tribunal shall decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute. Any designation of the law or legal system of a given State shall be construed, unless otherwise expressed, as directly referring to the substantive law of that State and not to its conflict of laws rules.

(2) Failing any designation by the parties, the arbitral tribunal shall apply the law determined by the conflict of laws rules which it considers applicable.

(3) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only if the parties have expressly authorized it to do so.

(4) In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction.”.

65. Article 29 of UNCITRAL Model Law (Decision-making by panel of arbitrators)

Article 29 of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 29. Decision-making by panel of arbitrators

In arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal shall be made, unless otherwise agreed by the parties, by a majority of all its members. However, questions of procedure may be decided by a presiding arbitrator, if so authorized by the parties or all members of the arbitral tribunal.”.

66. Article 30 of UNCITRAL Model Law (Settlement)

(1) Article 30 of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 30. Settlement

(1) If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and, if requested by the parties and not objected to by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms.

(2) An award on agreed terms shall be made in accordance with the provisions of article 31 and shall state that it is an award. Such an award has the same status and effect as any other award on the merits of the case.”.

(2) If, in a case other than that referred to in article 30 of the UNCITRAL Model Law, given effect to by subsection (1), the parties to an arbitration agreement settle their dispute and enter into an agreement in writing containing the terms of settlement (“settlement agreement”), the settlement agreement is, for the purposes of its enforcement, to be treated as an arbitral award.

67. Article 31 of UNCITRAL Model Law (Form and contents of award)

(1) Article 31 of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 31. Form and contents of award

(1) The award shall be made in writing and shall be signed by the arbitrator or arbitrators. In arbitral proceedings with more than one arbitrator, the signatures of the majority of all members of the arbitral tribunal shall suffice, provided that the reason for any omitted signature is stated.

(2) The award shall state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms under article 30.

(3) The award shall state its date and the place of arbitration as determined in accordance with article 20(1). The award shall be deemed to have been made at that place.

(4) After the award is made, a copy signed by the arbitrators in accordance with paragraph (1) of this article shall be delivered to each party.”.

(2) Article 31(4) of the UNCITRAL Model Law, given effect to by subsection (1), has effect subject to section 77.

68. Article 32 of UNCITRAL Model Law (Termination of proceedings)

Article 32 of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 32. Termination of proceedings

(1) The arbitral proceedings are terminated by the final award or by an order of the arbitral tribunal in accordance with paragraph (2) of this article.

(2) The arbitral tribunal shall issue an order for the termination of the arbitral proceedings when:

(a) the claimant withdraws his claim, unless the respondent objects thereto and the arbitral tribunal recognizes a legitimate interest on his part in obtaining a final settlement of the dispute;

(b) the parties agree on the termination of the proceedings;

(c) the arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.

(3) The mandate of the arbitral tribunal terminates with the termination of the arbitral proceedings, subject to the provisions of articles 33 and 34(4).”.

69. Article 33 of UNCITRAL Model Law (Correction and interpretation of award; additional award)

(1) Article 33 of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 33. Correction and interpretation of award; additional award

(1) Within thirty days of receipt of the award, unless another period of time has been agreed upon by the parties:

(a) a party, with notice to the other party, may request the arbitral tribunal to correct in the award any errors in computation, any clerical or typographical errors or any errors of similar nature;

(b) if so agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal to give an interpretation of a specific point or part of the award.

If the arbitral tribunal considers the request to be justified, it shall make the correction or give the interpretation within thirty days of receipt of the request. The interpretation shall form part of the award.

(2) The arbitral tribunal may correct any error of the type referred to in paragraph (1)(a) of this article on its own initiative within thirty days of the date of the award.

(3) Unless otherwise agreed by the parties, a party, with notice to the other party, may request, within thirty days of receipt of the award, the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but omitted from the award. If the arbitral tribunal considers the request to be justified, it shall make the additional award within sixty days.

(4) The arbitral tribunal may extend, if necessary, the period of time within which it shall make a correction, interpretation or an additional award under paragraph (1) or (3) of this article.

(5) The provisions of article 31 shall apply to a correction or interpretation of the award or to an additional award.”.

(2) The arbitral tribunal has the power to make other changes to an arbitral award which are necessitated by or consequential on—

(a) the correction of any error in the award; or

(b) the interpretation of any point or part of the award,

under article 33 of the UNCITRAL Model Law, given effect to by subsection (1).

(3) The arbitral tribunal may review an award of costs within 30 days of the date of the award if, when making the award, the tribunal was not aware of any information relating to costs (including any offer for settlement) which it should have taken into account.

(4) On a review under subsection (3), the arbitral tribunal may confirm, vary or correct the award of costs.

70. Award of remedy or relief

(1) Subject to subsection (2), an arbitral tribunal may, in deciding a dispute, award any remedy or relief that could have been ordered by the Court if the dispute had been the subject of civil proceedings in the Court.

(2) Unless otherwise agreed by the parties, the arbitral tribunal has the same power as the Court to order specific performance of any contract, other than a contract relating to land or any interest in land.

71. Awards on different aspects of matters

Unless otherwise agreed by the parties, an arbitral tribunal may make more than one award at different times on different aspects of the matters to be determined.

72. Time for making award

(1) Unless otherwise agreed by the parties, an arbitral tribunal has the power to make an award at any time.

(2) The time, if any, limited for making an award, whether under this Ordinance or otherwise, may from time to time be extended by order of the Court on the application of any party, whether that time has expired or not.

(3) An order of the Court under subsection (2) is not subject to appeal.

73. Effect of award

(1) Unless otherwise agreed by the parties, an award made by an arbitral tribunal pursuant to an arbitration agreement is final and binding both on—

(a) the parties; and

(b) any person claiming through or under any of the parties.

(2) Subsection (1) does not affect the right of a person to challenge the award—

(a) as provided for in section 26 or 81, section 4 or 5 of Schedule 2, or any other provision of this Ordinance; or

(b) otherwise by any available arbitral process of appeal or review.

74. Arbitral tribunal may award costs of arbitral proceedings

(1) An arbitral tribunal may include in an award directions with respect to the costs of arbitral proceedings (including the fees and expenses of the tribunal).

(2) The arbitral tribunal may, having regard to all relevant circumstances (including the fact, if appropriate, that a written offer of settlement of the dispute concerned has been made), direct in the award under subsection (1) to whom and by whom and in what manner the costs are to be paid.

(3) The arbitral tribunal may also, in its discretion, order costs (including the fees and expenses of the tribunal) to be paid by a party in respect of a request made by any of the parties for an order or direction (including an interim measure).

(4) The arbitral tribunal may direct that the costs ordered under subsection (3) are to be paid forthwith or at the time that the tribunal may otherwise specify.

(5) Subject to section 75, the arbitral tribunal must—

(a) assess the amount of costs to be awarded or ordered to be paid under this section (other than the fees and expenses of the tribunal); and

(b) award or order those costs (including the fees and expenses of the tribunal).

(6) Subject to subsection (7), the arbitral tribunal is not obliged to follow the scales and practices adopted by the court on taxation when assessing the amount of costs (other than the fees and expenses of the tribunal) under subsection (5).

(7) The arbitral tribunal—

(a) must only allow costs that are reasonable having regard to all the circumstances; and

(b) unless otherwise agreed by the parties, may allow costs incurred in the preparation of the arbitral proceedings prior to the commencement of the arbitration.

(8) A provision of an arbitration agreement to the effect that the parties, or any of the parties, must pay their own costs in respect of arbitral proceedings arising under the agreement is void.

(9) A provision referred to in subsection (8) is not void if it is part of an agreement to submit to arbitration a dispute that had arisen before the agreement was made.

75. Taxation of costs of arbitral proceedings (other than fees and expenses of arbitral tribunal)

(1) Without affecting section 74(1) and (2), if the parties have agreed that the costs of arbitral proceedings are to be taxed by the court, then unless the arbitral tribunal otherwise directs in an award, the award is deemed to have included the tribunal’s directions that the costs (other than the fees and expenses of the tribunal) are—

(a) to be taxed by the court; and

(b) to be paid on any basis on which the court can award costs in civil proceedings before the court.

(2) On taxation by the court, the arbitral tribunal must make an additional award of costs reflecting the result of such taxation.

(3) A decision of the court on taxation is not subject to appeal.

(4) This section does not apply to costs ordered to be paid under section 74(3).

76. Costs in respect of unqualified person

Section 50 (No costs for unqualified person) of the Legal Practitioners Ordinance (Cap. 159) does not apply to the recovery of costs in an arbitration.

77. Determination of arbitral tribunal’s fees and expenses in case of dispute

(1) An arbitral tribunal may refuse to deliver an award to the parties unless full payment of the fees and expenses of the tribunal is made.

(2) If the arbitral tribunal refuses to deliver an award to the parties under subsection (1), a party may apply to the Court, which—

(a) may order the tribunal to deliver the award on the payment into the Court by the applicant of—

(i) the fees and expenses demanded; or

(ii) a lesser amount that the Court may specify;

(b) may order that the amount of the fees and expenses payable to the tribunal is to be determined by the means and on the terms that the Court may direct; and

(c) may order that—

(i) the fees and expenses as determined under paragraph (b) to be payable are to be paid to the tribunal out of the money paid into the Court; and

(ii) the balance of the money paid into the Court, if any, is to be paid out to the applicant.

(3) For the purposes of subsection (2)—

(a) the amount of the fees and expenses payable is the amount which the applicant is liable to pay—

(i) under section 78; or

(ii) under any agreement relating to the payment of the arbitrators; and

(b) the fees and expenses of—

(i) an expert appointed under article 26 of the UNCITRAL Model Law, given effect to by section 54(1); or

(ii) an assessor appointed under section 54(2), are to be treated as the fees and expenses of the arbitral tribunal.

(4) No application under subsection (2) may be made if—

(a) there is any available arbitral process for appeal or review of the amount of the fees or expenses demanded; or

(b) the total amount of the fees and expenses demanded has been fixed by a written agreement between a party and the arbitrators.

(5) Subsections (1) to (4) also apply to any arbitral or other institution or person vested by the parties with powers in relation to the delivery of the arbitral tribunal’s award.

(6) If subsections (1) to (4) so apply under subsection (5), the references to the fees and expenses of the arbitral tribunal are to be construed as including the fees and expenses of that institution or person.

(7) If an application is made to the Court under subsection (2), enforcement of the award (when delivered to the parties), but only in so far as it relates to the fees or expenses of the arbitral tribunal, must be stayed until the application has been disposed of under this section.

(8) An arbitrator is entitled to appear and be heard on any determination under this section.

(9) If the amount of the fees and expenses determined under subsection (2)(b) is different from the amount previously awarded by the arbitral tribunal, the tribunal must amend the previous award to reflect the result of the determination.

(10) An order of the Court under this section is not subject to appeal.

78. Liability to pay fees and expenses of arbitral tribunal

(1) The parties to proceedings before an arbitral tribunal are jointly and severally liable to pay to the tribunal reasonable fees and expenses, if any, of the tribunal that are appropriate in the circumstances.

(2) Subsection (1) has effect subject to any order of the Court made under section 62 or any other relevant provision of this Ordinance.

(3) This section does not affect—

(a) the liability of the parties as among themselves to pay the costs of the arbitral proceedings; or

(b) any contractual right or obligation relating to payment of the fees and expenses of the arbitral tribunal.

(4) In this section, a reference to an arbitral tribunal includes—

(a) a member of the tribunal who has ceased to act; and

(b) an umpire who has not yet replaced members of the tribunal.

79. Arbitral tribunal may award interest

(1) Unless otherwise agreed by the parties, an arbitral tribunal may, in the arbitral proceedings before it, award simple or compound interest from the dates, at the rates, and with the rests that the tribunal considers appropriate, subject to section 80, for any period ending not later than the date of payment—

(a) on money awarded by the tribunal in the arbitral proceedings;

(b) on money claimed in, and outstanding at the commencement of, the arbitral proceedings but paid before the award is made; or

(c) on costs awarded or ordered by the tribunal in the arbitral proceedings.

(2) Subsection (1) does not affect any other power of an arbitral tribunal to award interest.

(3) A reference in subsection (1)(a) to money awarded by the tribunal includes an amount payable in consequence of a declaratory award by the tribunal.

80. Interest on money or costs awarded or ordered in arbitral proceedings

(1) Interest is payable on money awarded by an arbitral tribunal from the date of the award at the judgment rate, except when the award otherwise provides.

(2) Interest is payable on costs awarded or ordered by an arbitral tribunal from—

(a) the date of the award or order on costs; or

(b) the date on which costs ordered are directed to be paid forthwith,

at the judgment rate, except when the award or order on costs otherwise provides.

(3) In this section, “judgment rate” (判定利率) means the rate of interest determined by the Chief Justice under section 49(1)(b) (Interest on judgments) of the High Court Ordinance (Cap. 4).

PART 9
Recourse against Award

81. Article 34 of UNCITRAL Model Law (Application for setting aside as exclusive recourse against arbitral award)

(1) Article 34 of the UNCITRAL Model Law, the text of which is set out below, has effect subject to section 13(5)—

“Article 34. Application for setting aside as exclusive recourse against arbitral award

(1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (3) of this article.

(2) An arbitral award may be set aside by the court specified in article 6 only if:

(a) the party making the application furnishes proof that:

(i) a party to the arbitration agreement referred to in article 7 was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of this State; or

(ii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or

(iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Law; or

(b) the court finds that:

(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of this State; or

(ii) the award is in conflict with the public policy of this State.

(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the award or, if a request had been made under article 33, from the date on which that request had been disposed of by the arbitral tribunal.

(4) The court, when asked to set aside an award, may, where appropriate and so requested by a party, suspend the setting aside proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal’s opinion will eliminate the grounds for setting aside.”.

(2) Subsection (1) does not affect—

(a) the power of the Court to set aside an arbitral award under section 26(5);

(b) the right to challenge an arbitral award under section 4 of Schedule 2 (if applicable); or

(c) the right to appeal against an arbitral award on a question of law under section 5 of Schedule 2 (if applicable).

(3) Subject to subsection (2)(c), the Court does not have jurisdiction to set aside or remit an arbitral award on the ground of errors of fact or law on the face of the award.

(4) The leave of the Court is required for any appeal from a decision of the Court under article 34 of the UNCITRAL Model Law, given effect to by subsection (1).

PART 10
Recognition and Enforcement of Awards

Division 1—Enforcement of arbitral awards

82. Article 35 of UNCITRAL Model Law (Recognition and enforcement)

Article 35 of the UNCITRAL Model Law does not have effect.

83. Article 36 of UNCITRAL Model Law (Grounds for refusing recognition or enforcement)

Article 36 of the UNCITRAL Model Law does not have effect.

84. Enforcement of arbitral awards

(1) Subject to section 26(2), an award, whether made in or outside Hong Kong, in arbitral proceedings by an arbitral tribunal is enforceable in the same manner as a judgment of the Court that has the same effect, but only with the leave of the Court.

(2) If leave is granted under subsection (1), the Court may enter judgment in terms of the award.

(3) The leave of the Court is required for any appeal from a decision of the Court to grant or refuse leave to enforce an award under subsection (1).

85. Evidence to be produced for enforcement of arbitral awards

The party seeking to enforce an arbitral award, whether made in or outside Hong Kong, which is neither a Convention award nor a Mainland award, must produce—

(a) the duly authenticated original award or a duly certified copy of it;

(b) the original arbitration agreement or a duly certified copy of it; and

(c) if the award or agreement is in a language or languages other than either or both of the official languages, a translation of it in either of the official languages certified by an official or sworn translator or by a diplomatic or consular agent.

86. Refusal of enforcement of arbitral awards

(1) Enforcement of an award referred to in section 85 may be refused if the person against whom it is invoked proves—

(a) that a party to the arbitration agreement was (under the law applicable to that party) under some incapacity;

(b) that the arbitration agreement was not valid—

(i) under the law to which the parties subjected it; or

(ii) (if there was no indication of the law to which the arbitration agreement was subjected) under the law of the country where the award was made;

(c) that the person—

(i) was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings; or

(ii) was otherwise unable to present the person’s case;

(d) subject to subsection (3), that the award—

(i) deals with a difference not contemplated by or not falling within the terms of the submission to arbitration; or

(ii) contains decisions on matters beyond the scope of the submission to arbitration;

(e) that the composition of the arbitral authority or the arbitral

procedure was not in accordance with—

(i) the agreement of the parties; or

(ii) (if there was no agreement) the law of the country where the arbitration took place; or

(f) that the award—

(i) has not yet become binding on the parties; or

(ii) has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made.

(2) Enforcement of an award referred to in section 85 may also be refused if—

(a) the award is in respect of a matter which is not capable of settlement by arbitration under the law of Hong Kong;

(b) it would be contrary to public policy to enforce the award; or

(c) for any other reason the court considers it just to do so.

(3) An award referred to in section 85 which contains decisions on matters not submitted to arbitration may be enforced to the extent that it contains decisions on matters submitted to arbitration which can be separated from those on matters not so submitted.

(4) If an application for the setting aside or suspension of an award referred to in section 85 has been made to a competent authority as mentioned in subsection (1)(f), the court before which enforcement of the award is sought—

(a) may, if it thinks fit, adjourn the proceedings for the enforcement of the award; and

(b) may, on the application of the party seeking to enforce the award, order the person against whom the enforcement is invoked to give security.

(5) A decision or order of the court under subsection (4) is not subject to appeal.

Division 2—Enforcement of Convention awards

87. Enforcement of Convention awards

(1) A Convention award is, subject to this Division, enforceable in Hong Kong either—

(a) by action in the Court; or

(b) in the same manner as an arbitral award, and section 84 applies accordingly as if a reference in that section to an award were a Convention award.

(2) Any Convention award which is enforceable as mentioned in subsection (1) is to be treated as binding for all purposes on the persons between whom it was made, and may accordingly be relied on by any of those persons by way of defence, set off or otherwise in any legal proceedings in Hong Kong.

(3) A reference in this Division to enforcement of a Convention award is to be construed as including reliance on a Convention award.

88. Evidence to be produced for enforcement of Convention awards

The party seeking to enforce a Convention award must produce—

(a) the duly authenticated original award or a duly certified copy of it;

(b) the original arbitration agreement or a duly certified copy of it; and

(c) if the award or agreement is in a language or languages other than either or both of the official languages, a translation of it in either of the official languages certified by an official or sworn translator or by a diplomatic or consular agent.

89. Refusal of enforcement of Convention awards

(1) Enforcement of a Convention award may not be refused except in the cases mentioned in this section.

(2) Enforcement of a Convention award may be refused if the person against whom it is invoked proves—

(a) that a party to the arbitration agreement was (under the law applicable to that party) under some incapacity;

(b) that the arbitration agreement was not valid—

(i) under the law to which the parties subjected it; or

(ii) (if there was no indication of the law to which the arbitration agreement was subjected) under the law of the country where the award was made;

(c) that the person—

(i) was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings; or

(ii) was otherwise unable to present the person’s case;

(d) subject to subsection (4), that the award—

(i) deals with a difference not contemplated by or not falling within the terms of the submission to arbitration; or

(ii) contains decisions on matters beyond the scope of the submission to arbitration;

(e) that the composition of the arbitral authority or the arbitral procedure was not in accordance with—

(i) the agreement of the parties; or

(ii) (if there was no agreement) the law of the country where the arbitration took place; or

(f) that the award—

(i) has not yet become binding on the parties; or

(ii) has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made.

(3) Enforcement of a Convention award may also be refused if—

(a) the award is in respect of a matter which is not capable of settlement by arbitration under the law of Hong Kong; or

(b) it would be contrary to public policy to enforce the award.

(4) A Convention award which contains decisions on matters not submitted to arbitration may be enforced to the extent that it contains decisions on matters submitted to arbitration which can be separated from those on matters not so submitted.

(5) If an application for the setting aside or suspension of a Convention award has been made to a competent authority as mentioned in subsection (2)(f), the court before which enforcement of the award is sought—

(a) may, if it thinks fit, adjourn the proceedings for the enforcement of the award; and

(b) may, on the application of the party seeking to enforce the award, order the person against whom the enforcement is invoked to give security.

(6) A decision or order of the court under subsection (5) is not subject to appeal.

90. Order for declaring party to New York Convention

(1) The Chief Executive in Council may, by order in the Gazette, declare that any State or territory that—

(a) is a party to the New York Convention; and

(b) is specified in the order,

is a party to that Convention.

(2) An order under subsection (1), while in force, is conclusive evidence that the State or territory specified in it is a party to the New York Convention.

(3) Subsections (1) and (2) do not affect any other method of proving that a State or territory is a party to the New York Convention.

91. Saving of rights to enforce Convention awards

This Division does not affect any right to enforce or rely on a Convention award otherwise than under this Division.

Division 3—Enforcement of Mainland awards

92. Enforcement of Mainland awards

(1) A Mainland award is, subject to this Division, enforceable in Hong Kong either—

(a) by action in the Court; or

(b) in the same manner as an arbitral award, and section 84 applies accordingly as if a reference in that section to an award were a Mainland award.

(2) Any Mainland award which is enforceable as mentioned in subsection (1) is to be treated as binding for all purposes on the persons between whom it was made, and may accordingly be relied on by any of those persons by way of defence, set off or otherwise in any legal proceedings in Hong Kong.

(3) A reference in this Division to enforcement of a Mainland award is to be construed as including reliance on a Mainland award.

93. Restrictions on enforcement of Mainland awards

(1) A Mainland award is not, subject to subsection (2), enforceable under this Division if an application has been made on the Mainland for enforcement of the award.

(2) If—

(a) an application has been made on the Mainland for enforcement of a Mainland award; and

(b) the award has not been fully satisfied by way of that enforcement,

then, to the extent that the award has not been so satisfied, the award is enforceable under this Division.

94. Evidence to be produced for enforcement of Mainland awards

The party seeking to enforce a Mainland award must produce—

(a) the duly authenticated original award or a duly certified copy of it;

(b) the original arbitration agreement or a duly certified copy of it; and

(c) if the award or agreement is in a language or languages other than either or both of the official languages, a translation of it in either of the official languages certified by an official or sworn translator or by a diplomatic or consular agent.

95. Refusal of enforcement of Mainland awards

(1) Enforcement of a Mainland award may not be refused except in the cases mentioned in this section.

(2) Enforcement of a Mainland award may be refused if the person against whom it is invoked proves—

(a) that a party to the arbitration agreement was (under the law applicable to that party) under some incapacity;

(b) that the arbitration agreement was not valid—

(i) under the law to which the parties subjected it; or

(ii) (if there was no indication of the law to which the arbitration agreement was subjected) under the law of the Mainland;

(c) that the person—

(i) was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings; or

(ii) was otherwise unable to present the person’s case;

(d) subject to subsection (4), that the award—

(i) deals with a difference not contemplated by or not falling within the terms of the submission to arbitration; or

(ii) contains decisions on matters beyond the scope of the submission to arbitration;

(e) that the composition of the arbitral authority or the arbitral procedure was not in accordance with—

(i) the agreement of the parties; or

(ii) (if there was no agreement) the law of the Mainland; or

(f) that the award—

(i) has not yet become binding on the parties; or

(ii) has been set aside or suspended by a competent authority of the Mainland or under the law of the Mainland.

(3) Enforcement of a Mainland award may also be refused if—

(a) the award is in respect of a matter which is not capable of settlement by arbitration under the law of Hong Kong; or

(b) it would be contrary to public policy to enforce the award.

(4) A Mainland award which contains decisions on matters not submitted to arbitration may be enforced to the extent that it contains decisions on matters submitted to arbitration which can be separated from those on matters not so submitted.

96. Mainland awards to which certain provisions of this Division do not apply

(1) Subject to subsection (2), this Division has effect with respect to the enforcement of Mainland awards.

(2) If—

(a) a Mainland award was at any time before 1 July 1997 a Convention award within the meaning of Part IV of the repealed Ordinance as then in force; and

(b) the enforcement of that award had been refused at any time before the commencement of section 5 of the Arbitration (Amendment) Ordinance 2000 (2 of 2000) under section 44 of the repealed Ordinance as then in force,

then sections 92 to 95 have no effect with respect to the enforcement of that award.

97. Publication of list of recognized Mainland arbitral authorities

(1) The Secretary for Justice must, by notice in the Gazette, publish a list of recognized Mainland arbitral authorities supplied from time to time to the Government by the Legislative Affairs Office of the State Council of the People’s Republic of China through the Hong Kong and Macao Affairs Office of the State Council.

(2) A list published under subsection (1) is not subsidiary legislation.

98. Saving of certain Mainland awards

Despite the fact that enforcement of a Mainland award had been refused in Hong Kong at any time during the period between 1 July 1997 and the commencement of section 5 of the Arbitration (Amendment) Ordinance 2000 (2 of 2000) under the repealed Ordinance as then in force, the award is, subject to section 96(2), enforceable under this Division as if enforcement of the award had not previously been so refused.

PART 11
Provisions that may be Expressly Opted for or Automatically Apply

99. Arbitration agreements may provide expressly for opt-in provisions

An arbitration agreement may provide expressly that any or all of the following provisions are to apply—

(a) section 1 of Schedule 2;

(b) section 2 of Schedule 2;

(c) section 3 of Schedule 2;

(d) sections 4 and 7 of Schedule 2;

(e) sections 5, 6 and 7 of Schedule 2.

100. Opt-in provisions automatically apply in certain cases

All the provisions in Schedule 2 apply, subject to section 102, to—

(a) an arbitration agreement entered into before the commencement of this Ordinance which has provided that arbitration under the agreement is a domestic arbitration; or

(b) an arbitration agreement entered into at any time within a period of 6 years after the commencement of this Ordinance which provides that arbitration under the agreement is a domestic arbitration.

101. Opt-in provisions that automatically apply under section 100 deemed to apply to Hong Kong construction subcontracting cases

(1) If—

(a) all the provisions in Schedule 2 apply under section 100(a) or (b) to an arbitration agreement, in any form referred to in section 19, included in a construction contract;

(b) the whole or any part of the construction operations to be carried out under the construction contract (“relevant operation”) is subcontracted to any person under another construction contract (“subcontract”); and

(c) that subcontract also includes an arbitration agreement (“subcontracting parties’ arbitration agreement”) in any form referred to in section 19,

then all the provisions in Schedule 2 also apply, subject to section 102, to the subcontracting parties’ arbitration agreement.

(2) Unless the subcontracting parties’ arbitration agreement is an arbitration agreement referred to in section 100(a) or (b), subsection (1) does not apply if—

(a) the person to whom the whole or any part of the relevant operation is subcontracted under the subcontract is—

(i) a natural person who is ordinarily resident outside Hong Kong;

(ii) a body corporate—

(A) incorporated under the law of a place outside Hong Kong; or

(B) the central management and control of which is exercised outside Hong Kong; or

(iii) an association—

(A) formed under the law of a place outside Hong Kong; or

(B) the central management and control of which is exercised outside Hong Kong;

(b) the person to whom the whole or any part of the relevant operation is subcontracted under the subcontract has no place of business in Hong Kong; or

(c) a substantial part of the relevant operation which is subcontracted under the subcontract is to be performed outside Hong Kong.

(3) If—

(a) all the provisions in Schedule 2 apply to a subcontracting parties’ arbitration agreement under subsection (1);

(b) the whole or any part of the relevant operation that is subcontracted under the subcontract is further subcontracted to another person under a further construction contract (“further subcontract”); and

(c) that further subcontract also includes an arbitration agreement in any form referred to in section 19,

subsection (1) has effect subject to subsection (2), and all the provisions in Schedule 2 apply, subject to section 102, to the arbitration agreement so included in that further subcontract as if that further subcontract were a subcontract under subsection (1).

(4) In this section—

“construction contract” (建造合約) has the meaning given to it by section 2(1) of the Construction Industry Council Ordinance (Cap. 587);

“construction operations” (建造工程) has the meaning given to it by Schedule 1 to the Construction Industry Council Ordinance (Cap. 587).

102. Circumstances under which opt-in provisions not automatically apply

Sections 100 and 101 do not apply if—

(a) the parties to the arbitration agreement concerned so agree in writing; or

(b) the arbitration agreement concerned has provided expressly that—

(i) section 100 or 101 does not apply; or

(ii) any of the provisions in Schedule 2 applies or does not apply.

103. Application of provisions under this Part

If there is any conflict or inconsistency between any provision that applies under this Part and any other provision of this Ordinance, the first-mentioned provision prevails, to the extent of the conflict or inconsistency, over that other provision.

PART 12
Miscellaneous

104. Arbitral tribunal or mediator to be liable for certain acts and omissions'

(1) An arbitral tribunal or mediator is liable in law for an act done or omitted to be done by—

(a) the tribunal or mediator; or

(b) an employee or agent of the tribunal or mediator,

in relation to the exercise or performance, or the purported exercise or performance, of the tribunal’s arbitral functions or the mediator’s functions only if it is proved that the act was done or omitted to be done dishonestly.

(2) An employee or agent of an arbitral tribunal or mediator is liable in law for an act done or omitted to be done by the employee or agent in relation to the exercise or performance, or the purported exercise or performance, of the tribunal’s arbitral functions or the mediator’s functions only if it is proved that the act was done or omitted to be done dishonestly.

(3) In this section, “mediator” (調解員) means a mediator appointed under section 32 or referred to in section 33.

105. Appointors and administrators to be liable only for certain acts and omissions

(1) A person—

(a) who appoints an arbitral tribunal or mediator; or

(b) who exercises or performs any other function of an administrative nature in connection with arbitral or mediation proceedings,

is liable in law for the consequences of doing or omitting to do an act in the exercise or performance, or the purported exercise or performance, of the function only if it is proved that the act was done or omitted to be done dishonestly.

(2) Subsection (1) does not apply to an act done or omitted to be done by—

(a) a party to the arbitral or mediation proceedings; or

(b) a legal representative or adviser of the party,

in the exercise or performance, or the purported exercise or performance, of a function of an administrative nature in connection with those proceedings.

(3) An employee or agent of a person who has done or omitted to do an act referred to in subsection (1) is liable in law for the consequence of the act done or omission made only if it is proved that—

(a) the act was done or omission was made dishonestly; and

(b) the employee or agent was a party to the dishonesty.

(4) Neither a person referred to in subsection (1) nor an employee or agent of the person is liable in law for the consequences of any act done or omission made by—

(a) the arbitral tribunal or mediator concerned; or

(b) an employee or agent of the tribunal or mediator,

in the exercise or performance, or the purported exercise or performance, of the tribunal’s arbitral functions or the mediator’s functions merely because the person, employee or agent has exercised or performed a function referred to in that subsection.

(5) In this section—

“appoint” (委任) includes nominate and designate;

“mediator” (調解員) has the same meaning as in section 104, and “mediation proceedings” (調解程序) is to be construed accordingly.

106. Rules of court

(1) The power to make rules of court under section 54 (Rules of court) of the High Court Ordinance (Cap. 4) includes power to make rules of court for—

(a) the making of an application for an interim measure under section 45(2) or an order under section 60(1); or

(b) the service out of the jurisdiction of an application for the interim measure or order.

(2) Any rules made by virtue of this section may include the incidental, supplementary and consequential provisions that the authority making the rules considers necessary or expedient.

107. Making an application, etc. under this Ordinance

An application, request or appeal to the court under this Ordinance is, unless otherwise expressed, to be made in accordance with the Rules of the High Court (Cap. 4 sub. leg. A).

108. Decision, etc. of Court under this Ordinance

A decision, determination, direction or award of the Court under this Ordinance is to be treated as a judgment of the Court for the purposes of section 14 (Appeals in civil matters) of the High Court Ordinance (Cap. 4).

PART 13
Repeal, Savings and Transitional Provisions

109. Repeal

The Arbitration Ordinance (Cap. 341) is repealed.

110. Effect of repeal on subsidiary legislation

Any subsidiary legislation made under the repealed Ordinance and in force at the commencement of this Ordinance, so far as it is not inconsistent with this Ordinance, continues in force and has the like effect for all purposes as if made under this Ordinance.

111. Savings and transitional provisions

Schedule 3 provides for the savings and transitional arrangements that apply on, or relate to, the commencement of this Ordinance.

PART 14
Consequential and Related Amendments

112. Consequential and related amendments

The enactments specified in Schedule 4 are amended as set out in that Schedule.