Consultation Paper on Reform of the Law of Arbitration and Draft Arbitration Bill

313 Pages·2008·1.11 MB·English

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CONSULTATION PAPER

REFORM OF THE
LAW OF ARBITRATION IN
HONG KONG
AND
DRAFT ARBITRATION BILL

This Consultation Paper can be found on the internet at:

http://www.doj.gov.hk/eng/public/pdf/2007/arbitration.pdf

and

http://www.gov.hk/en/residents/government/consultation/current.htm

December 2007
1. This Consultation Paper has been prepared by the
Department of Justice with the assistance of the Departmental Working
Group to implement the Report of the Committee on Hong Kong
Arbitration Law (“Working Group”) set up for the reform of the law of
arbitration in Hong Kong.

2. The members of the Working Group are:

Mr Ian Wingfield (Chairman)
Solicitor General
Department of Justice

Mr Robert Allcock (from September 2005 to January 2007)
Former Solicitor General
Department of Justice

Mr Stephen Wong (from September 2005 to March 2007)
Deputy Solicitor General
Department of Justice

Mr Frank Poon
Acting Deputy Solicitor General
Department of Justice

Mr Robin Peard
Senior Consultant
Johnson Stokes & Master
Hong Kong Institute of Arbitrators

Mr Raymond Leung
President
Hong Kong Institute of Arbitrators

Mr Samuel Wong (from September 2005 to May 2006)
Past President of Hong Kong Institute of Arbitrators

i
Ms Sylvia Siu, JP
Past President of Hong Kong Institute of Arbitrators

Mr Glenn Haley
Deacons
Immediate Past Chairman of
the Chartered Institute of Arbitrators (East Asia Branch)

Mr Anthony Houghton
Barrister at law of Des Voeux Chambers
Former Chairman of the East Asia Branch of the Chartered Institute of
Arbitrators

Mr Peter Caldwell
Council Member
The Hong Kong International Arbitration Centre

Mr Dean Lewis
Pinsent Masons
Legal Adviser to the Hong Kong Construction Association

Mr Andrew Jeffries
Council Member
The Law Society of Hong Kong

Mr Russell Coleman
Senior Counsel

Mr Edward Lee
Assistant Secretary (Works Policy) 2
Development Bureau (Works Branch)

Ms Phyllis Ko
Senior Assistant Law Draftsman
Department of Justice

ii
Mr Ken Somerville
Deputy Legal Advisor (Works)
Development Bureau
Legal Advisory Division (Works)

Miss Amy Chan Wai Cheung (Secretary)
Senior Government Counsel
Department of Justice

Mr Thomas Leung (Secretary, from September 2005 to May 2006)
Senior Government Counsel
Department of Justice

Mr Bernard Yue (Secretary, from May 2007 to July 2007)
Government Counsel
Department of Justice

3. The views and recommendations in this Consultation Paper
are published to facilitate comments and discussions. They are not to be
regarded as the final views of the Department of Justice or the Working
Group. The draft Arbitration Bill annexed to this Consultation Paper
will be subject to further revisions in the light of submissions and
representations received by the Department.

4. The Department would be grateful for views and comments
on the draft Arbitration Bill and any matters discussed in the
Consultation Paper by 30 April 2008. All correspondence (marked
“Arbitration Law Reform”) should be addressed to:

Legal Policy Division,
Department of Justice,
st
1 Floor,
High Block,
Queensway Government Offices,
66 Queensway, Hong Kong

iii
Telephone: [phone]

Fax: [phone]

E-Mail: [email protected]

5. It will be helpful for the Department and the Working
Group, either in discussion with others or in any subsequent documents,
to be able to refer to and attribute comments submitted in response to
this Consultation Paper. Any request to treat all or part of a response
in confidence will be respected but if no such request is made, it will be
assumed that the response is not intended to be confidential.

iv
CONSULTATION PAPER

REFORM OF THE LAW OF ARBITRATION IN HONG
KONG AND DRAFT ARBITRATION BILL
______________________________________________
CONTENTS

ABBREVIATIONS vii

EXECUTIVE ix
SUMMARY

INTRODUCTION The Background to the Reform 1

PART 1 Preliminary 5

PART 2 General Provisions 11

PART 3 Arbitration Agreement 20

PART 4 Composition of Arbitral Tribunal 25

PART 5 Jurisdiction of Arbitral Tribunal 33

PART 6 Interim Measures and Preliminary Orders 35

PART 7 Conduct of Arbitral Proceedings 40

PART 8 Making of Award and Termination of 50
Proceedings

PART 9 Recourse against Award 62

PART 10 Recognition and Enforcement of Awards 63

v
PART 11 Provisions that may be Expressly Opted for 68
or Automatically Apply

PART 12 Miscellaneous 71

PART 13 Repeal, Savings and Transitional Provisions 73

PART 14 Consequential and Related Amendments 74

SCHEDULE 1 UNCITRAL Model Law on International 75
Commercial Arbitration

SCHEDULE 2 Application of Ordinance to Judge- 76
Arbitrators and Judge-Umpires

SCHEDULE 3 Provisions that may be Expressly Opted for 77
or Automatically Apply

SCHEDULE 4 Savings and Transitional Provisions 85

SCHEDULE 5 Consequential and Related Amendments 87

Annex A Consultation draft of Arbitration Bill

Annex B The Hong Kong Arbitration Ordinance –
A Commentary, Robert Morgan, paragraphs
[S528.14] – [S528.15]

vi
ABBREVIATIONS

AJLS Panel Legislative Council Panel on Administration of
Justice and Legal Services

CJMA Bill Civil Justice (Miscellaneous Amendments) Bill
2007

current Ordinance Arbitration Ordinance (Cap 341)

Convention award Award made in a State or territory (other than
China) which is a party to the New York
Convention

draft Bill Consultation draft of Arbitration Bill

HKIAC Hong Kong International Arbitration Centre

HKIAC Committee A committee of the Hong Kong International
Arbitration Centre

Mainland award Award made on the Mainland by a recognized
Mainland arbitral authority

Model Law UNCITRAL Model Law on International
Commercial Arbitration adopted by the United
Nations Commission on International Trade Law
on 21 June 1985 and amended on 7 July 2006

new Ordinance New Arbitration Ordinance

New York Convention Convention on the Recognition and Enforcement
of Foreign Arbitral Awards done at New York on
10 June 1958

UNCITRAL United Nations Commission on International
Trade Law

vii
UNCITRAL report Report of the United Nations Commission on
2006 International Trade Law on the work of its thirty-
ninth session (19 June – 7 July 2006) accessible at
http://www.uncitral.org/uncitral/en/commission/sessions/39th.html
(View Report : http://daccess-ods.un.org/TMP/4439278.html)

Working Group Departmental Working Group set up by the
Department of Justice to implement the Report of
the Committee on Hong Kong Arbitration Law

1987 report Report on the Adoption of the UNCITRAL Model
Law of Arbitration [Topic 17] issued by the Law
Reform Commission of Hong Kong in 1987
accessible at
http://www.hkreform.gov.hk/en/publications/runcitral.htm
(View Report :
http://www.hkreform.gov.hk/en/docs/runcitral-e.pdf)

1996 report Report of the Committee on Arbitration Law
issued in April 1996 by the HKIAC Committee

Report Report of Committee on Hong Kong Arbitration
Law issued in 2003 by the Committee on Hong
Kong Arbitration Law established by the Hong
Kong Institute of Arbitrators in co-operation with
the Hong Kong International Arbitration Centre
accessible at
http://www.hkiac.org/HKIAC/HKIAC_English/main.html
(View Report :
http://www.hkiac.org/HKIAC/pdf/Announcement/REPORT%20OF%
20COMMITTEE%20ON%20HK%20ARBITRATION%20LAW.pdf)

viii