On 1 September 2008, the HKIAC introduced its new "Administered Arbitration Rules" (the "New Rules").
Prior to the introduction of the New Rules, HKIAC arbitrations were generally conducted in accordance with the UNCITRAL Rules, supplemented by the HKIAC Procedures for the Administration of International Arbitration (the "Procedures"), which largely dealt with logistical issues. The New Rules, which are available on the HKIA's website, represent a departure from this regime in that they are a standalone set of rules. Interestingly, they were strongly influenced by the Swiss Rules which are derived from the UNCITRAL Rules. This illustrates the HKIAC's decision to adopt a "light touch" institutional approach (with a view, amongst other things, to keeping fees low), rather than follow the model of more intensive institutional involvement favoured by (for example) SIAC, the ICC and CIETAC.
The transitional provisions are set out in Article 1 of the New Rules. This provides that the New Rules will apply (unless the parties have agreed otherwise and irrespective of the date of the arbitration agreement) to any arbitrations initiated pursuant to an arbitration clause which specifically refers to the New Rules, provides for arbitration "administered by the HKIAC" or contains words to the same effect.
The New Rules also provide that they supersede the Procedures save where the parties agreed before 1 September 2008 to adopt the Procedures. The position in relation to arbitration agreements which provide for UNCITRAL Rules arbitration administered by the HKIAC is therefore somewhat complex:
- where the arbitration agreement was entered into before 1 September 2008, the Procedures will apply;
- where, however, the arbitration agreement is dated after 1 September 2008, the New Rules provide that the HKIAC shall be the appointing authority and shall "invite" the parties to agree to the application of the New Rules (without specifying what will happen if the parties decline that invitation).
Whilst it of course remains possible to provide for arbitration pursuant to the UNCITRAL Rules with the HKIAC as the appointing authority, it is therefore unclear whether the compromise option of UNCITRAL Rules arbitration administered by the HKIAC (without the application of the New Rules) remains available. Parties drafting HKIAC arbitration clauses would therefore be well advised to be clear as to whether they are seeking to achieve: (i) arbitration conducted pursuant to the New Rules and administered by the HKIAC; or (ii) UNCITRAL Rules arbitration with the HKIAC as the appointing authority.