Hong Kong's new Arbitration Ordinance (Cap. 609) will come into operation on 1 June 2011. Enacted last November, the new law will replace Hong Kong's current Arbitration Ordinance (Cap. 341). It represents an important step by the Hong Kong Government and the arbitration community in their continued efforts to promote Hong Kong as a major centre for international arbitration in Asia.
For the last 20 years, Hong Kong has been taking steps to make itself a more attractive venue for international arbitration. For example, Hong Kong's arbitration law was reformed in 1982 to include features desired by the international business and legal communities. The Hong Kong International Arbitration Centre (the "HKIAC") was established in 1985 to encourage the use of arbitration in Hong Kong.
The arbitration law was again amended in 1990 to apply the UNCITRAL Model Law (the "Model Law") to international arbitrations. The last major revisions to the current Arbitration Ordinance were made in 1997.
In 2003 a committee issued a report recommending that the current Arbitration Ordinance be redrawn and that the distinction between domestic and international arbitrations be abolished. The Department of Justice published a consultation paper and draft Arbitration Bill in 2007 adopting the proposals of the committee with certain modifications. Following public consultation, the new Arbitration Ordinance was enacted in November 2010.
Impact on Hong Kong Arbitrations
The rationale for introducing the new Arbitration Ordinance is to enhance Hong Kong's perception as a Model Law jurisdiction and to make its arbitration law more user-friendly and attractive for both local and international users. The new Arbitration Ordinance aims to simplify arbitration law by unifying the domestic and international arbitration regimes under a single regime based largely on the Model Law.
Key Provisions of the New Ordinance
The new Arbitration Ordinance also introduces a number of important changes to the current arbitration law, which include the following:
- It gives legal effect to provisions of the UNCITRAL Model Law, subject to the modifications and supplements that are expressly provided for in the new Arbitration Ordinance.
- It sets out procedural rules on the conduct of arbitral proceedings and provides that arbitral tribunals have the power to grant interim measures and preliminary orders.
- It contains "opt-in" provisions that allow parties to continue to apply certain provisions that are only applicable to domestic arbitration under the current Arbitration Ordinance.
- It limits the scope for court intervention and promotes greater parties' autonomy on the resolution of disputes.
- Unless the court orders otherwise, court proceedings commenced in aid of arbitration proceedings are not to be heard in open court.
- Unless otherwise agreed by the parties or under exceptional circumstances as provided for in the new Arbitration Ordinance, no party can publish, disclose or communicate any information relating to arbitral proceedings and awards.
- The new Arbitration Ordinance applies to all arbitrations that commence on or after the 1 June 2011.
The new Arbitration Ordinance will apply to all arbitrations in Hong Kong commencing on or after 1 June 2011. It will, among other things, facilitate the conduct of arbitration proceedings and further promote Hong Kong as a regional centre for dispute resolution.