Arbitration is becoming increasingly popular as a means of alternative dispute resolution in both mainland China and in Hong Kong. Arbitration offers the advantage of privacy when compared with litigation in court. It also allows for more speedy resolution of disputes because the parties have more control over dates for hearings, as opposed to those for a trial which are subject to the court’s timetable.
When parties enter into an arbitration agreement, one of the key considerations is the venue for any arbitration. The choice of the venue will often have a wider implication that extends beyond the physical place where the arbitration is to be held, because the seat of the arbitration in question would normally follow the venue. The seat of arbitration impacts upon the jurisdiction that the arbitration is subject to and the underlying legal framework that administers the arbitration.
Hong Kong has long been regarded as a popular venue for arbitration for various reasons. First of all, it is a common law jurisdiction that values the importance of the rule of law and judicial independence. Hong Kong’s Arbitration Ordinance, the key piece of legislation governing arbitrations seated in the SAR, establishes a comprehensive and pro-arbitration regime that is largely based on the model law of the UN Commission on International Trade Law.
As such, leveraging its well-developed legal system, Hong Kong has been an international hub for commercial activities and also commercial dispute resolution. Also, because of its geographic location and close connection with mainland China as a Special Administrative Region (SAR), Hong Kong is often considered a convenient and attractive place for resolving disputes involving Chinese parties, or other China elements.
When deciding on the seat of an arbitration, another important factor is the enforceability of the arbitral award that will eventually be made after the arbitration process. Particularly when the dispute in question has cross-border implications, the parties would prefer the arbitral award to be widely recognised and enforceable in as many countries and jurisdictions as possible.
By virtue of the New York Arbitration Convention on the Recognition and Enforcement of Foreign Arbitral Award, an arbitral award made in Hong Kong is enforceable in more than 160 contracting states. As between Hong Kong and mainland China, the Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region also facilitates the mutual enforcement of arbitral awards between the two jurisdictions.
Recently, a significant step was taken to clarify and enhance the mutual recognition and enforceability of arbitral awards between the mainland and Hong Kong. On 27 November 2020, the Hong Kong secretary for justice and the vice president of the Supreme People’s Court of China signed the Supplemental Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region.
The supplemental arrangement introduces a number of amendments and clarifications to further refine the existing arrangement and to improve the judicial co-operation between mainland China and Hong Kong under this regime.
The supplemental arrangement mainly contains four articles. Articles 1 and 4 took effect immediately at the time the supplemental arrangement was signed, while articles 2 and 3 became effective following the corresponding amendments made to the Arbitration Ordinance on 19 May 2021. In gist, the significance of the four articles are:
- Article 1 clarifies that the procedures for enforcing arbitral awards of the mainland and Hong Kong under the existing arrangement shall be interpreted as procedures for both recognition and enforcement of such awards. Previously, the arrangement did not expressly mention the concept of recognition, so the interpretation of its provisions have now become clearer.
- Articles 2 introduces an amendment to the preamble and article 1 of the original arrangement, such that the arrangement now covers all arbitral awards that are “rendered pursuant to the Arbitration Law of the People’s Republic of China as enforced by the Courts of the HKSAR”. This is a positive step forward from the original arrangement, which only covered arbitral awards made by a specified list of recognised arbitral authorities in the m
- Under article 3, parties can now file applications to enforce an arbitral award in mainland China and in Hong Kong at the same time, although the total amount recovered from such proceedings must not exceed the amount determined in the award. This brings a very encouraging change to the existing regime where an applicant may only commence enforcement proceedings either in the mainland or in Hong Kong.
- Article 4 serves as another significant aid to parties seeking to enforce arbitral awards in the mainland and in Hong Kong. Now, the relevant mainland or Hong Kong courts may, before or after accepting an application for enforcement of an arbitral award, impose interim measures in aid of the enforcement proceedings to prevent recoverable assets from being dissipated.
In addition to these advantages, Hong Kong, as “Asia’s World City”, also offers good hospitality, flexibility in languages and a wealth of legal expertise to facilitate arbitrations seated and taking place in Hong Kong. It is expected that its status as an international arbitration hub would be further strengthened in view of the recent developments.
Nathan Wong is a partner at Haldanes. He can be contacted on +852 2230 2856 or by e-mail at email@example.com
Jacky Tsai is an associate at Haldanes. He can be contacted on +852 2230 2885 or by e-mail at firstname.lastname@example.org