4 十月 2018 Sadie Buls ArbitrationLinks

HKIAC 2018 Rules – where are we now?

As we reported last year, the Hong Kong International Arbitration Centre (“HKIAC”) is consulting on amendments to its 2013 version of the Rules in an effort to respond to the needs of HKIAC users and technological advances in dispute resolution. The ongoing rules revision process is overseen by the HKIAC Rules Revision Committee. The first draft of the new rules was published back in August 2017 and highlighted major amendments proposed by the Committee for public consultation.

This summer, HKIAC released a second draft of the new Administered Arbitration Rules (“Rules”) and a draft Practice Note on Appointment of Arbitrators (“Practice Note”) for further public consultation. In July, HKIAC hosted a public working group session to discuss the application of some of the new provisions against a case scenario.

There are now nine key areas where change is proposed, those being:

  • Online Document Repository – To include provisions which recognise the upload of documents to a secured online repository as a valid means of service. The repository may be one agreed by the parties or provided by HKIAC.
  • Use of Alternative Means of Dispute Settlement (e.g. "Arb-Med-Arb") – To include a new provision to allow parties to pursue alternative means of settlement after the commencement of the arbitration and to resume arbitration upon a party’s request.
  • Expanded Provisions for Joinder and Single Arbitration under Multiple Contracts – To expand of the tests for joinder of additional parties and commencement of a single arbitration under multiple contracts and bring them in line with the test for consolidation.
  • Concurrent Proceedings – To include a new provision which allows the same arbitral tribunal to conduct multiple arbitrations at the same time, or one immediately after another, or suspend any of the arbitrations until the determination of any other of them, where a common question of law or fact arises in all the arbitrations. 
  • Anticipated Date of Delivering Awards – To add a requirement that, after the arbitral proceedings are declared closed, the arbitral tribunal must notify the parties and HKIAC of the anticipated date of delivering an arbitral award. The Committee has sought views on whether a default time limit for rendering an arbitral award should be included and if so, what time limit would be appropriate. 
  • Early Determination Procedure – To offer express permission for an arbitral tribunal to determine a point of law or fact in a summary fashion, provided that certain conditions are met. The arbitral tribunal will need to decide whether to proceed with a request for early determination within 15 days from the date of filing the request. If the request is allowed to proceed, the tribunal must issue an order or award on the point of law or fact within 45 days from the date of its decision to proceed. The time limits may be extended by HKIAC or party agreement.
  • Third Party Funding – To include new provisions on disclosure of third party funding (“TPF”) and amend the confidentiality provisions to permit a funded party to disclose arbitration-related information to its existing or potential funder. There is also a proposal to add a new provision to confer discretion on the arbitral tribunal to take into account any TPF arrangement when apportioning costs of arbitration. 
  • Emergency Arbitrator Procedure – To allow an applicant to file an application for the appointment of an emergency arbitrator prior to the submission of a Notice of Arbitration, provided that the Notice of Arbitration is submitted to HKIAC within 7 days of HKIAC’s receipt of the application unless the emergency arbitrator extends the time limit.  Additionally, new provisions would clarify the test for issuing emergency arbitrator relief and would set the maximum total fees payable to an emergency arbitrator unless the parties agree or HKIAC determines otherwise.
  • Multilingual Procedure – To introduce a default procedure on the conduct of proceedings where the parties have agreed to multiple languages of arbitration. If there is any language in which all parties and members of the arbitral tribunal are proficient, the parties, arbitral tribunal, HKIAC and any other participants in the arbitration may use that language alone in all written communications, hearings and conference calls to save time and costs of translation. Notwithstanding this, all interim measures, arbitral awards and termination orders must be issued in all languages of arbitration.   

A copy of the draft Rules is available here. The Practice Note sets out HKIAC’s general approach to the appointment of arbitrators and includes the key steps taken by HKIAC during the appointment process, key practice points relating to the nationality of arbitrators and HKIAC’s commitment to promoting diversity in arbitrator appointments. The draft Practice Note is available here.

HKIAC says it will publish an overview of the key amendments shortly and it intends to launch the new rules in November 2018.