Consultation Paper on Reform of the Law of Arbitration and Draft Arbitration Bill PDF
Preview Consultation Paper on Reform of the Law of Arbitration and Draft Arbitration Bill
CCCooonnnsssuuullltttaaatttiiiooonnn PPPaaapppeeerrr RRReeefffooorrrmmm ooofff ttthhheee LLLaaawww ooofff AAArrrbbbiiitttrrraaatttiiiooonnn iiinnn HHHooonnnggg KKKooonnnggg aaannnddd DDDrrraaafffttt AAArrrbbbiiitttrrraaatttiiiooonnn BBBiiillllll DDDeeepppaaarrrtttmmmeeennnttt ooofff JJJuuussstttiiiccceee DDDeeeccceeemmmbbbeeerrr 222000000777 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: 2867 2189 Fax: 2180 9928 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
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