- (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.
