HK Cap. 609 — Arbitration Ordinance

1 Short title (1) This Ordinance may be cited as the Arbitration Ordinance . (2) 2 Interpretation (1) In this Ordinance— arbitral tribunal ( 仲裁庭 ) means a sole arbitrator or a panel of arbitrators, and includes an umpire; arbitration ( 仲裁 ) means any arbitration, whether or not administered by a permanent arbitral institution; arbitration agreement ( 仲裁協議 ) has the same meaning as in section 19 ; arbitrator ( 仲裁員 ), except in sections 23 , 24 , 30 , 31 , 32 and 65 and section 1 of Schedule 2 , includes an umpire; claimant ( 申索人 ) means a person who makes a claim or a counter-claim in an arbitration; Commission ( 貿法委 ) means the United Nations Commission on International Trade Law; Convention award ( 公約裁決 ) means an arbitral award made in a State or the territory of a State, other than China or any part of China, which is a party to the New York Convention; Court ( 原訟法庭 ) means the Court of First Instance of the High Court; dispute ( 爭議 ) includes a difference; function ( 職能 ) includes a power and a duty; HKIAC ( 香港國際仲裁中心 ) means the Hong Kong International Arbitration Centre, a company incorporated in Hong Kong under the Companies Ordinance ( Cap. 32 ) as in force at the time of the incorporation and limited by guarantee; interim measure ( 臨時措施 )— (a) if it is granted by an arbitral tribunal, has the same meaning as in section 35(1) and (2); or (b) if it is granted by a court, has the same meaning as in section 45(9) , and interim measure of protection ( 臨時保全措施 ) is to be construed accordingly; Macao ( 澳門 ) means the Macao Special Administrative Region; Macao award ( 澳門裁決 ) means an arbitral award made in Macao in accordance with the arbitration law of Macao; Mainland ( 內地 ) means the part of China other than Hong Kong, Macao and Taiwan; Mainland award ( 內地裁決 ) means an arbitral award made in accordance with the Arbitration Law of the People’s Republic of China; mediation ( 調解 ) includes conciliation; New York Convention (《 紐約公約 》) means the Convention on the Recognition and Enforcement of Foreign Arbitral Awards done at New York on 10 June 1958; party ( 一方 、 方 )— (a) means a party to an arbitration agreement; or (b) in relation to any arbitral or court proceedings, means a party to the proceedings; repealed Ordinance (《 舊有條例 》) means the Arbitration Ordinance ( Cap. 341 ) repealed by section 109 ; respondent ( 被申請人 ) means a person against whom a claim or a counter-claim is made in an arbitration; UNCITRAL Model Law (《 貿法委示範法 》) means the UNCITRAL Model Law on International Commercial Arbitration as adopted by the Commission on 21 June 1985 and as amended by the Commission on 7 July 2006, the full text of which is set out in Schedule 1 . (2) If— (a) a provision of this Ordinance refers to the fact that the parties have agreed, or in any other way refers to an agreement of the parties, the agreement includes any arbitration rules referred to in that agreement; or (b) a provision of this Ordinance provides that the parties may agree, the agreement, if any, may include any arbitration rules by referring to those rules in that agreement. (3) If— (a) a provision of this Ordinance (other than sections 53 and 68 ) refers to a claim, that provision also applies to a counter-claim; or (b) a provision of this Ordinance (other than section 53 ) refers to a defence, that provision also applies to a defence to a counter-claim. (4) A note located in the text of this Ordinance, a section heading of any provision of this Ordinance or a heading of any provision of the UNCITRAL Model Law is for reference only and has no legislative effect. (5) If the Chinese equivalent of an English expression used in any provision of this Ordinance is different from the Chinese equivalent of the same English expression used in any provision of the UNCITRAL Model Law, those Chinese equivalents are to be treated as being identical in effect. 3 Object and principles of this Ordinance (1) The object of this Ordinance is to facilitate the fair and speedy resolution of disputes by arbitration without unnecessary expense. (2) This Ordinance is based on the principles— (a) that, subject to the observance of the safeguards that are necessary in the public interest, the parties to a dispute should be free to agree on how the dispute should be resolved; and (b) that the court should interfere in the arbitration of a dispute only as expressly provided for in this Ordinance. 4 UNCITRAL Model Law to have force of law in Hong Kong The provisions of the UNCITRAL Model Law that are expressly stated in this Ordinance as having effect have the force of law in Hong Kong subject to the modifications and supplements as expressly provided for in this Ordinance. 5 Arbitrations to which this Ordinance applies (1) Subject to subsection (2), this Ordinance applies to an arbitration under an arbitration agreement, whether or not the agreement is entered into in Hong Kong, if the place of arbitration is in Hong Kong. (2) If the place of arbitration is outside Hong Kong, only this Part, sections 20 and 21 , Part 3A , sections 45 , 60 and 61 , Part 10 and sections 103A , 103B , 103C , 103D , 103G and 103H apply to the arbitration. (3) If any other Ordinance provides that this Ordinance applies to an arbitration under that other Ordinance, this Ordinance (other than sections 20(2) , (3) and (4), 22(1), 58 and 74(8) and (9)) applies to an arbitration under that other Ordinance, subject to the following— (a) a reference in article 16(1) of the UNCITRAL Model Law, given effect to by section 34 , to any objections with respect to the existence or validity of the arbitration agreement is to be construed as any objections with respect to the application of that other Ordinance to the dispute in question; (b) that other Ordinance is deemed to have expressly provided that, subject to paragraph (c), all the provisions in Schedule 2 apply; and (c) section 2 of Schedule 2 (if applicable) only applies so as to authorize 2 or more arbitral proceedings under the same Ordinance to be consolidated or to be heard at the same time or one immediately after another. (4) Subsection (3) has effect, in relation to an arbitration under any other Ordinance, only in so far as this Ordinance is consistent with— (a) that other Ordinance; and (b) any rules or procedures authorized or recognized by that other Ordinance. 6 Application This Ordinance applies to the Government and the Offices set up by the Central People’s Government in the Hong Kong Special Administrative Region. 7 Article 1 of UNCITRAL Model Law (Scope of application) Section 5 has effect in substitution for article 1 of the UNCITRAL Model Law. 8 Article 2 of UNCITRAL Model Law (Definitions and rules of interpretation) (1) Section 2 has effect in substitution for article 2 of the UNCITRAL Model Law. (2) For the purposes of subsection (1), a reference to this Ordinance in section 2 (other than section 2(5) ) is to be construed as including the UNCITRAL Model Law. (3) In the provisions of the UNCITRAL Model Law— (a) a reference to this State is to be construed as Hong Kong; (b) a reference to a State is to be construed as including Hong Kong; (c) a reference to different States is to be construed as including Hong Kong and any other place; (d) a reference to an article is to be construed as an article of the UNCITRAL Model Law; and (e) (other than in article 2A of the UNCITRAL Model Law, given effect to by section 9 ) a reference to this Law is to be construed as this Ordinance. 9 Article 2A of UNCITRAL Model Law (International origin and general principles) Article 2A of the UNCITRAL Model Law, the text of which is set out below, has effect— “ Article 2A. International origin and general principles (1) In the interpretation of this Law, regard is to be had to its international origin and to the need to promote uniformity in its application and the observance of good faith. (2) Questions concerning matters governed by this Law which are not expressly settled in it are to be settled in conformity with the general principles on which this Law is based.”. 10 Article 3 of UNCITRAL Model Law (Receipt of written communications) (1) Article 3 of the UNCITRAL Model Law, the text of which is set out below, has effect— “ Article 3. Receipt of written communications (1) Unless otherwise agreed by the parties: (a) any written communication is deemed to have been received if it is delivered to the addressee personally or if it is delivered at his place of business, habitual residence or mailing address; if none of these can be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addressee’s last-known place of business, habitual residence or mailing address by registered letter or any other means which provides a record of the attempt to deliver it; (b) the communication is deemed to have been received on the day it is so delivered. (2) The provisions of this article do not apply to communications in court proceedings.”. (2) Without affecting subsection (1), if a written communication (other than communications in court proceedings) is sent by any means by which information can be recorded and transmitted to the addressee, the communication is deemed to have been received on the day it is so sent. (3) Subsection (2) applies only if there is a record of receipt of the communication by the addressee. 11 Article 4 of UNCITRAL Model Law (Waiver of right to object) Article 4 of the UNCITRAL Model Law, the text of which is set out below, has effect— “ Article 4. Waiver of right to object A party who knows that any provision of this Law from which the parties may derogate or any requirement under the arbitration agreement has not been complied with and yet proceeds with the arbitration without stating his objection to such non-compliance without undue delay or, if a time-limit is provided therefor, within such period of time, shall be deemed to have waived his right to object.”. 12 Article 5 of UNCITRAL Model Law (Extent of court intervention) Article 5 of the UNCITRAL Model Law, the text of which is set out below, has effect— “ Article 5. Extent of court intervention In matters governed by this Law, no court shall intervene except where so provided in this Law.”. 13 Article 6 of UNCITRAL Model Law (Court or other authority for certain functions of arbitration assistance and supervision) (1) Subsections (2) to (6) have effect in substitution for article 6 of the UNCITRAL Model Law. (2) The functions of the court or other authority referred to in article 11(3) or (4) of the UNCITRAL Model Law, given effect to by section 24 , are to be performed by the HKIAC. (3) The HKIAC may, with the approval of the Chief Justice, make rules to facilitate the performance of its functions under section 23(3) , 24 or 32(1) . (4) The functions of the court or other authority referred to in— (a) article 13(3) of the UNCITRAL Model Law, given effect to by section 26 ; or (b) article 14(1) of the UNCITRAL Model Law, given effect to by section 27 , are to be performed by the Court. (5) The functions of the court referred to in— (a) article 16(3) of the UNCITRAL Model Law, given effect to by section 34 ; or (b) article 34(2) of the UNCITRAL Model Law, given effect to by section 81 , are to be performed by the Court. (6) The functions of the competent court referred to in article 27 of the UNCITRAL Model Law, given effect to by section 55 , are to be performed by the Court. 14 Application of Limitation Ordinance and other limitation enactments to arbitrations (1) The Limitation Ordinance ( Cap. 347 ) and any other Ordinance relating to the limitation of actions ( limitation enactments ) apply to arbitrations as they apply to actions in the court. (2) For the purposes of subsection (1), a reference in a limitation enactment to bringing an action is to be construed as, in relation to an arbitration, commencing the arbitral proceedings. (3) Despite any term in an arbitration agreement to the effect that no cause of action may accrue in respect of any matter required by the agreement to be submitted to arbitration until an award is made under the agreement, the cause of action is, for the purposes of the limitation enactments (whether in their application to arbitrations or to other proceedings), deemed to accrue in respect of that matter at the time when it would have accrued but for that term. (4) If a court orders that an award is to be set aside, the period between— (a) the commencement of the arbitral proceedings; and (b) the date of the order of the court setting aside the award, must be excluded in computing the time prescribed by a limitation enactment for the commencement of proceedings (including arbitral proceedings) with respect to the matter submitted to arbitration. 15 Reference of interpleader issue to arbitration by court (1) If— (a) relief by way of interpleader is granted by a court; and (b) there is an arbitration agreement between the claimants in the interpleader proceedings in respect of any issue between those claimants, the court granting the relief must, subject to subsection (2), direct that the issue is to be determined in accordance with the agreement. (2) The court may refuse to make a direction under subsection (1) if the circumstances are such that legal proceedings brought by a claimant in respect of the issue would not be stayed. (3) If the court refuses to make a direction under subsection (1), any provision of the arbitration agreement that an award is a condition precedent to the bringing of legal proceedings in respect of the issue does not affect the determination of the issue by the court. (4) A direction of the court under subsection (1) is not subject to appeal. (5) The leave of the court making a decision under subsection (2) is required for any appeal from that decision. 16 Proceedings to be heard otherwise than in open court (1) Subject to subsection (2), proceedings under this Ordinance in the court are to be heard otherwise than in open court. (2) The court may order those proceedings to be heard in open court— (a) on the application of any party; or (b) if, in any particular case, the court is satisfied that those proceedings ought to be heard in open court. (3) An order of the court under subsection (2) is not subject to appeal. 17 Restrictions on reporting of proceedings heard otherwise than in open court (1) This section applies to proceedings under this Ordinance in the court heard otherwise than in open court ( closed court proceedings ). (2) A court in which closed court proceedings are being heard must, on the application of any party, make a direction as to what information, if any, relating to the proceedings may be published. (3) A court must not make a direction permitting information to be published unless— (a) all parties agree that the information may be published; or (b) the court is satisfied that the information, if published, would not reveal any matter (including the identity of any party) that any party reasonably wishes to remain confidential. (4) Despite subsection (3), if— (a) a court gives a judgment in respect of closed court proceedings; and (b) the court considers that judgment to be of major legal interest, the court must direct that reports of the judgment may be published in law reports and professional publications. (5) If a court directs under subsection (4) that reports of a judgment may be published, but any party reasonably wishes to conceal any matter in those reports (including the fact that the party was such a party), the court must, on the application of the party— (a) make a direction as to the action to be taken to conceal that matter in those reports; and (b) if the court considers that a report published in accordance with the direction made under paragraph (a) would still be likely to reveal that matter, direct that the report may not be published until after the end of a period, not exceeding 10 years, that the court may direct. (6) A direction of the court under this section is not subject to appeal. 18 Disclosure of information relating to arbitral proceedings and awards prohibited (1) Unless otherwise agreed by the parties, no party may publish, disclose or communicate any information relating to— (a) the arbitral proceedings under the arbitration agreement; or (b) an award made in those arbitral proceedings. (2) Nothing in subsection (1) prevents the publication, disclosure or communication of information referred to in that subsection by a party— (a) if the publication, disclosure or communication is made— (i) to protect or pursue a legal right or interest of the party; or (ii) to enforce or challenge the award referred to in that subsection, in legal proceedings before a court or other judicial authority in or outside Hong Kong; (b) if the publication, disclosure or communication is made to any government body, regulatory body, court or tribunal and the party is obliged by law to make the publication, disclosure or communication; or (c) if the publication, disclosure or communication is made to a professional or any other adviser of any of the parties. 19 Article 7 of UNCITRAL Model Law (Definition and form of arbitration agreement) (1) Option I of Article 7 of the UNCITRAL Model Law, the text of which is set out below, has effect— “ Option I Article 7. Definition and form of arbitration agreement (1) “ Arbitration agreement ” is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. (2) The arbitration agreement shall be in writing. (3) An arbitration agreement is in writing if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means. (4) The requirement that an arbitration agreement be in writing is met by an electronic communication if the information contained therein is accessible so as to be useable for subsequent reference; “ electronic communication ” means any communication that the parties make by means of data messages; “ data message ” means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy. (5) Furthermore, an arbitration agreement is in writing if it is contained in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other. (6) The reference in a contract to any document containing an arbitration clause constitutes an arbitration agreement in writing, provided that the reference is such as to make that clause part of the contract.”. (2) Without affecting subsection (1), an arbitration agreement is in writing if— (a) the agreement is in a document, whether or not the document is signed by the parties to the agreement; or (b) the agreement, although made otherwise than in writing, is recorded by one of the parties to the agreement, or by a third party, with the authority of each of the parties to the agreement. (3) A reference in an agreement to a written form of arbitration clause constitutes an arbitration agreement if the reference is such as to make that clause part of the agreement. 20 Article 8 of UNCITRAL Model Law (Arbitration agreement and substantive claim before court) (1) Article 8 of the UNCITRAL Model Law, the text of which is set out below, has effect— “ Article 8. Arbitration agreement and substantive claim before court (1) A court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed. (2) Where an action referred to in paragraph (1) of this article has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.”. (2) If a dispute in the matter which is the subject of an arbitration agreement involves a claim or other dispute that is within the jurisdiction of the Labour Tribunal established by section 3 (Establishment of tribunal) of the Labour Tribunal Ordinance ( Cap. 25 ), the court before which an action has been brought may, if a party so requests, refer the parties to arbitration if it is satisfied that— (a) there is no sufficient reason why the parties should not be referred to arbitration in accordance with the arbitration agreement; and (b) the party requesting arbitration was ready and willing at the time the action was brought to do all things necessary for the proper conduct of the arbitration, and remains so. (3) Subsection (1) has effect subject to section 15 (Arbitration agreements) of the Control of Exemption Clauses Ordinance ( Cap. 71 ). (4) If the court refuses to refer the parties to arbitration, any provision of the arbitration agreement that an award is a condition precedent to the bringing of legal proceedings in respect of any matter is of no effect in relation to those proceedings. (5) If the court refers the parties in an action to arbitration, it must make an order staying the legal proceedings in that action. (6) In the case of Admiralty proceedings— (a) the reference of the parties to arbitration and an order for the stay of those proceedings may, despite subsections (1) and (5), be made conditional on the giving of security for the satisfaction of any award made in the arbitration; or (b) if the court makes an order under subsection (5) staying those proceedings, the court may (where property has been arrested, or bail or other security has been given to prevent or obtain release from arrest, in those proceedings) order that the property arrested, or the bail or security given, be retained as security for the satisfaction of any award made in the arbitration. (7) Subject to any provision made by rules of court and to any necessary modifications, the same law and practice apply to the property, bail or security retained in pursuance of an order under subsection (6) as would apply if the property, bail or security retained were held for the purposes of proceedings in the court making the order. (8) A decision of the court to refer the parties to arbitration under— (a) article 8 of the UNCITRAL Model Law, given effect to by subsection (1); or (b) subsection (2), is not subject to appeal. (9) The leave of the court making a decision to refuse to refer the parties to arbitration under— (a) article 8 of the UNCITRAL Model Law, given effect to by subsection (1); or (b) subsection (2), is required for any appeal from that decision. (10) A decision or order of the court under subsection (6) is not subject to appeal. 21 Article 9 of UNCITRAL Model Law (Arbitration agreement and interim measures by court) Article 9 of the UNCITRAL Model Law, the text of which is set out below, has effect— “ Article 9. Arbitration agreement and interim measures by court It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure.”. 22 Whether agreement discharged by death of a party (1) Unless otherwise agreed by the parties, an arbitration agreement is not discharged by the death of a party and may be enforced by or against the personal representatives of that party. (2) Subsection (1) does not affect the operation of any enactment or rule of law by virtue of which a substantive right or obligation is extinguished by death. 22A Interpretation In this Part— emergency arbitrator ( 緊急仲裁員 ) means an emergency arbitrator appointed under the arbitration rules (including the arbitration rules of a permanent arbitral institution) agreed to or adopted by the parties to deal with the parties’ applications for emergency relief before an arbitral tribunal is constituted. 22B Enforcement of emergency relief granted by emergency arbitrator (1) Any emergency relief granted, whether in or outside Hong Kong, by an emergency arbitrator under the relevant arbitration rules is enforceable in the same manner as an order or direction of the Court that has the same effect, but only with the leave of the Court. (2) The Court may not grant leave to enforce any emergency relief granted outside Hong Kong unless the party seeking to enforce it can demonstrate that it consists only of one or more temporary measures (including an injunction) by which the emergency arbitrator orders a party to do one or more of the following— (a) maintain or restore the status quo pending the determination of the dispute concerned; (b) take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself; (c) provide a means of preserving assets out of which a subsequent award made by an arbitral tribunal may be satisfied; (d) preserve evidence that may be relevant and material to resolving the dispute; (e) give security in connection with anything to be done under paragraph (a), (b), (c) or (d); (f) give security for the costs of the arbitration. (3) If leave is granted under subsection (1), the Court may enter judgment in terms of the emergency relief. (4) A decision of the Court to grant or refuse to grant leave under subsection (1) is not subject to appeal. 23 Article 10 of UNCITRAL Model Law (Number of arbitrators) (1) Article 10(1) of the UNCITRAL Model Law, the text of which is set out below, has effect— “ Article 10. Number of arbitrators (1) The parties are free to determine the number of arbitrators. (2) [ Not applicable. ]”. (2) For the purposes of subsection (1), the freedom of the parties to determine the number of arbitrators includes the right of the parties to authorize a third party, including an institution, to make that determination. (3) The number of arbitrators in an arbitration is to be either 1 or 3 as decided by the HKIAC in the particular case if— (a) the parties fail to agree on the number of arbitrators; and (b) section 1 of Schedule 2 does not apply. 24 Article 11 of UNCITRAL Model Law (Appointment of arbitrators) (1) Article 11 of the UNCITRAL Model Law, the text of which is set out below, has effect subject to section 13(2) and (3)— “ Article 11. Appointment of arbitrators (1) No person shall be precluded by reason of his nationality from acting as an arbitrator, unless otherwise agreed by the parties. (2) The parties are free to agree on a procedure of appointing the arbitrator or arbitrators, subject to the provisions of paragraphs (4) and (5) of this article. (3) Failing such agreement, (a) in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two arbitrators thus appointed shall appoint the third arbitrator; if a party fails to appoint the arbitrator within thirty days of receipt of a request to do so from the other party, or if the two arbitrators fail to agree on the third arbitrator within thirty days of their appointment, the appointment shall be made, upon request of a party, by the court or other authority specified in article 6; (b) in an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator, he shall be appointed, upon request of a party, by the court or other authority specified in article 6. (4) Where, under an appointment procedure agreed upon by the parties, (a) a party fails to act as required under such procedure, or (b) the parties, or two arbitrators, are unable to reach an agreement expected of them under such procedure, or (c) a third party, including an institution, fails to perform any function entrusted to it under such procedure, any party may request the court or other authority specified in article 6 to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment. (5) A decision on a matter entrusted by paragraph (3) or (4) of this article to the court or other authority specified in article 6 shall be subject to no appeal. The court or other authority, in appointing an arbitrator, shall have due regard to any qualifications required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and, in the case of a sole or third arbitrator, shall take into account as well the advisability of appointing an arbitrator of a nationality other than those of the parties.”. (2) In an arbitration with an even number of arbitrators— (a) if the parties have not agreed on a procedure for appointing the arbitrators under article 11(2) of the UNCITRAL Model Law, given effect to by subsection (1), each party is to appoint the same number of arbitrators; or (b) if— (i) a party fails to act as required under an appointment procedure agreed upon by the parties; or (ii) in the case of paragraph (a), a party fails to appoint the appropriate number of arbitrators under that paragraph within 30 days of receipt of a request to do so from the other party, the HKIAC must make the necessary appointment upon a request to do so from any party. (3) In an arbitration with an uneven number of arbitrators greater than 3— (a) if the parties have not agreed on a procedure for appointing the arbitrators under article 11(2) of the UNCITRAL Model Law, given effect to by subsection (1)— (i) each party is to appoint the same number of arbitrators; and (ii) unless otherwise agreed by the parties, the HKIAC must appoint the remaining arbitrator or arbitrators; or (b) if— (i) a party fails to act as required under an appointment procedure agreed upon by the parties; or (ii) in the case of paragraph (a), a party fails to appoint the appropriate number of arbitrators under that paragraph within 30 days of receipt of a request to do so from the other party, the HKIAC must make the necessary appointment upon a request to do so from any party. (4) In any other case (in particular, if there are more than 2 parties) article 11(4) of the UNCITRAL Model Law, given effect to by subsection (1), applies as in the case of a failure to agree on an appointment procedure. (5) If any appointment of an arbitrator is made by the HKIAC by virtue of this Ordinance, the appointment— (a) has effect as if it were made with the agreement of all parties; and (b) is subject to article 11(5) of the UNCITRAL Model Law, given effect to by subsection (1). 25 Article 12 of UNCITRAL Model Law (Grounds for challenge) Article 12 of the UNCITRAL Model Law, the text of which is set out below, has effect— “ Article 12. Grounds for challenge (1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties unless they have already been informed of them by him. (2) An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties. A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.”. 26 Article 13 of UNCITRAL Model Law (Challenge procedure) (1) Article 13 of the UNCITRAL Model Law, the text of which is set out below, has effect subject to section 13(4) — “ Article 13. Challenge procedure (1) The parties are free to agree on a procedure for challenging an arbitrator, subject to the provisions of paragraph (3) of this article. (2) Failing such agreement, a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance referred to in article 12(2), send a written statement of the reasons for the challenge to the arbitral tribunal. Unless the challenged arbitrator withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge. (3) If a challenge under any procedure agreed upon by the parties or under the procedure of paragraph (2) of this article is not successful, the challenging party may request, within thirty days after having received notice of the decision rejecting the challenge, the court or other authority specified in article 6 to decide on the challenge, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award.”. (2) During the period that a request for the Court to decide on a challenge is pending, the Court may refuse to grant leave under section 84 for the enforcement of any award made during that period by the arbitral tribunal that includes the challenged arbitrator. (3) An arbitrator who is challenged under article 13(2) of the UNCITRAL Model Law, given effect to by subsection (1), is entitled, if the arbitrator considers it appropriate in the circumstances of the challenge, to withdraw from office as an arbitrator. (4) The mandate of a challenged arbitrator terminates under article 13 of the UNCITRAL Model Law, given effect to by subsection (1), if— (a) the arbitrator withdraws from office; (b) the parties agree to the challenge; (c) the arbitral tribunal upholds the challenge and no request is made for the Court to decide on the challenge; or (d) the Court, upon request to decide on the challenge, upholds the challenge. (5) If the Court upholds the challenge, the Court may set aside the award referred to in subsection (2). 27 Article 14 of UNCITRAL Model Law (Failure or impossibility to act) Article 14 of the UNCITRAL Model Law, the text of which is set out below, has effect subject to section 13(4) — “ Article 14. Failure or impossibility to act (1) If an arbitrator becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay, his mandate terminates if he withdraws from his office or if the parties agree on the termination. Otherwise, if a controversy remains concerning any of these grounds, any party may request the court or other authority specified in article 6 to decide on the termination of the mandate, which decision shall be subject to no appeal. (2) If, under this article or article 13(2), an arbitrator withdraws from his office or a party agrees to the termination of the mandate of an arbitrator, this does not imply acceptance of the validity of any ground referred to in this article or article 12(2).”. 28 Article 15 of UNCITRAL Model Law (Appointment of substitute arbitrator) Article 15 of the UNCITRAL Model Law, the text of which is set out below, has effect— “ Article 15. Appointment of substitute arbitrator Where the mandate of an arbitrator terminates under article 13 or 14 or because of his withdrawal from office for any other reason or because of the revocation of his mandate by agreement of the parties or in any other case of termination of his mandate, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced.”. 29 Death of arbitrator or person appointing arbitrator (1) The authority of an arbitrator is personal and the mandate of the arbitrator terminates on the arbitrator’s death. (2) Unless otherwise agreed by the parties, the death of the person by whom an arbitrator was appointed does not revoke the arbitrator’s authority. 30 Appointment of umpire In an arbitration with an even number of arbitrators, the arbitrators may, unless otherwise agreed by the parties, appoint an umpire at any time after they are themselves appointed. 31 Functions of umpire in arbitral proceedings (1) The parties are free to agree what the functions of an umpire are to be and, in particular— (a) whether the umpire is to attend the arbitral proceedings; and (b) when, and the extent to which, the umpire is to replace the arbitrators as the arbitral tribunal with the power to make orders, directions and awards. (2) If or to the extent that there is no such agreement of the parties, the arbitrators are free to agree on the functions of the umpire. (3) Subsections (4) to (11) apply subject to any agreement of the parties or the arbitrators. (4) After an umpire is appointed, the umpire must attend the arbitral proceedings. (5) The umpire must be supplied with the same documents and other materials as are supplied to the arbitrators. (6) Orders, directions and awards are to be made by the arbitrators unless, subject to subsection (9), the arbitrators cannot agree on a matter relating to the dispute submitted to arbitration. (7) If the arbitrators cannot agree on a matter relating to the dispute submitted to arbitration, they must forthwith give notice of that fact in writing to the parties and the umpire, in which case the umpire is to replace the arbitrators as the arbitral tribunal with the power to make orders, directions and awards, in respect of that matter only, subject to subsection (9)(b) , as if the umpire were the sole arbitrator. (8) If the arbitrators cannot agree on a matter relating to the dispute submitted to arbitration but— (a) they fail to give notice of that fact; or (b) any of them fails to join in the giving of notice, any party may apply to the Court which may decide that the umpire is to replace the arbitrators as the arbitral tribunal with the power to make orders, directions and awards, in respect of that matter only, as if the umpire were the sole arbitrator. (9) Despite the replacement by the umpire as the arbitral tribunal in respect of a matter, on which the arbitrators cannot agree, relating to the dispute submitted to arbitration, the arbitrators may— (a) still make orders, directions and awards in respect of the other matters relating to the dispute if they consider that it would save costs by doing so; or (b) refer the entirety of the dispute to the umpire for arbitration. (10) For the purposes of this section, the arbitrators cannot agree on a matter relating to the dispute submitted to arbitration if any one of the arbitrators, in that arbitrator’s view, disagrees with the other arbitrator or any of the other arbitrators over that matter. (11) A decision of the Court under subsection (8) is not subject to appeal. 32 Appointment of mediator (1) If— (a) any arbitration agreement provides for the appointment of a mediator by a person who is not one of the parties; and (b) that person— (i) refuses to make the appointment; or (ii) does not make the appointment within the time specified in the arbitration agreement or, if no time is so specified, within a reasonable time after being requested by any party to make the appointment, the HKIAC may, on the application of any party, appoint a mediator. (2) An appointment made by the HKIAC under subsection (1) is not subject to appeal. (3) If any arbitration agreement provides for the appointment of a mediator and further provides that the person so appointed is to act as an arbitrator in the event that no settlement acceptable to the parties can be reached in the mediation proceedings— (a) no objection may be made against the person’s acting as an arbitrator, or against the person’s conduct of the arbitral proceedings, solely on the ground that the person had acted previously as a mediator in connection with some or all of the matters relating to the dispute submitted to arbitration; or (b) if the person declines to act as an arbitrator, any other person appointed as an arbitrator is not required first to act as a mediator unless it is otherwise expressed in the arbitration agreement. 33 Power of arbitrator to act as mediator (1) If all parties consent in writing, and for so long as no party withdraws the party’s consent in writing, an arbitrator may act as a mediator after the arbitral proceedings have commenced. (2) If an arbitrator acts as a mediator, the arbitral proceedings must be stayed to facilitate the conduct of the mediation proceedings. (3) An arbitrator who is acting as a mediator— (a) may communicate with the parties collectively or separately; and (b) must treat the information obtained by the arbitrator from a party as confidential, unless otherwise agreed by that party or unless subsection (4) applies. (4) If— (a) confidential information is obtained by an arbitrator from a party during the mediation proceedings conducted by the arbitrator as a mediator; and (b) those mediation proceedings terminate without reaching a settlement acceptable to the parties, the arbitrator must, before resuming the arbitral proceedings, disclose to all other parties as much of that information as the arbitrator considers is material to the arbitral proceedings. (5) No objection may be made against the conduct of the arbitral proceedings by an arbitrator solely on the ground that the arbitrator had acted previously as a mediator in accordance with this section. 34 Article 16 of UNCITRAL Model Law (Competence of arbitral tribunal to rule on its jurisdiction) (1) Article 16 of the UNCITRAL Model Law, the text of which is set out below, has effect subject to section 13(5) — “ Article 16. Competence of arbitral tribunal to rule on its jurisdiction (1) The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. (2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence. A party is not precluded from raising such a plea by the fact that he has appointed, or participated in the appointment of, an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified. (3) The arbitral tribunal may rule on a plea referred to in paragraph (2) of this article either as a preliminary question or in an award on the merits. If the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party may request, within thirty days after having received notice of that ruling, the court specified in article 6 to decide the matter, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal may continue the arbitral proceedings and make an award.”. (2) The power of the arbitral tribunal to rule on its own jurisdiction under subsection (1) includes the power to decide as to— (a) whether the tribunal is properly constituted; or (b) what matters have been submitted to arbitration in accordance with the arbitration agreement. (3) If a dispute is submitted to arbitration in accordance with an arbitration agreement and a party— (a) makes a counter-claim arising out of the same dispute; or (b) relies on a claim arising out of that dispute for the purposes of a set-off, the arbitral tribunal has jurisdiction to decide on the counter-claim or the claim so relied on only to the extent that the subject matter of that counter-claim or that claim falls within the scope of the same arbitration agreement. (4) A ruling of the arbitral tribunal that it does not have jurisdiction to decide a dispute is not subject to appeal. (5) Despite section 20 , if the arbitral tribunal rules that it does not have jurisdiction to decide a dispute, the court must, if it has jurisdiction, decide that dispute. 35 Article 17 of UNCITRAL Model Law (Power of arbitral tribunal to order interim measures) (1) Article 17 of the UNCITRAL Model Law, the text of which is set out below, has effect— “ Article 17. Power of arbitral tribunal to order interim measures (1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, grant interim measures. (2) An interim measure is any temporary measure, whether in the form of an award or in another form, by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party to: (a) Maintain or restore the status quo pending determination of the dispute; (b) Take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself; (c) Provide a means of preserving assets out of which a subsequent award may be satisfied; or (d) Preserve evidence that may be relevant and material to the resolution of the dispute.”. (2) An interim measure referred to in article 17 of the UNCITRAL Model Law, given effect to by subsection (1), is to be construed as including an injunction but not including an order under section 56 . (3) If an arbitral tribunal has granted an interim measure, the tribunal may, on the application of any party, make an award to the same effect as the interim measure. 36 Article 17A of UNCITRAL Model Law (Conditions for granting interim measures) Article 17A of the UNCITRAL Model Law, the text of which is set out below, has effect— “ Article 17A. Conditions for granting interim measures (1) The party requesting an interim measure under article 17(2) (a) , (b) and (c) shall satisfy the arbitral tribunal that: (a) Harm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted; and (b) There is a reasonable possibility that the requesting party will succeed on the merits of the claim. The determination on this possibility shall not affect the discretion of the arbitral tribunal in making any subsequent determination. (2) With regard to a request for an interim measure under article 17(2) (d) , the requirements in paragraphs (1) (a) and (b) of this article shall apply only to the extent the arbitral tribunal considers appropriate.”. 37 Article 17B of UNCITRAL Model Law (Applications for preliminary orders and conditions for granting preliminary orders) Article 17B of the UNCITRAL Model Law, the text of which is set out below, has effect— “ Article 17B. Applications for preliminary orders and conditions for granting preliminary orders (1) Unless otherwise agreed by the parties, a party may, without notice to any other party, make a request for an interim measure together with an application for a preliminary order directing a party not to frustrate the purpose of the interim measure requested. (2) The arbitral tribunal may grant a preliminary order provided it considers that prior disclosure of the request for the interim measure to the party against whom it is directed risks frustrating the purpose of the measure. (3) The conditions defined under article 17A apply to any preliminary order, provided that the harm to be assessed under article 17A(1) (a) , is the harm likely to result from the order being granted or not.”. 38 Article 17C of UNCITRAL Model Law (Specific regime for preliminary orders) Article 17C of the UNCITRAL Model Law, the text of which is set out below, has effect— “ Article 17C. Specific regime for preliminary orders (1) Immediately after the arbitral tribunal has made a determination in respect of an application for a preliminary order, the arbitral tribunal shall give notice to all parties of the request for the interim measure, the application for the preliminary order, the preliminary order, if any, and all other communications, including by indicating the content of any oral communication, between any party and the arbitral tribunal in relation thereto. (2) At the same time, the arbitral tribunal shall give an opportunity to any party against whom a preliminary order is directed to present its case at the earliest practicable time. (3) The arbitral tribunal shall decide promptly on any objection to the preliminary order. (4) A preliminary order shall expire after twenty days from the date on which it was issued by the arbitral tribunal. However, the arbitral tribunal may issue an interim measure adopting or modifying the preliminary order, after the party against whom the preliminary order is directed has been given notice and an opportunity to present its case. (5) A preliminary order shall be binding on the parties but shall not be subject to enforcement by a court. Such a preliminary order does not constitute an award.”. 39 Article 17D of UNCITRAL Model Law (Modification, suspension, termination) Article 17D of the UNCITRAL Model Law, the text of which is set out below, has effect— “ Article 17D. Modification, suspension, termination The arbitral tribunal may modify, suspend or terminate an interim measure or a preliminary order it has granted, upon application of any party or, in exceptional circumstances and upon prior notice to the parties, on the arbitral tribunal’s own initiative.”. 40 Article 17E of UNCITRAL Model Law (Provision of security) Article 17E of the UNCITRAL Model Law, the text of which is set out below, has effect— “ Article 17E. Provision of security (1) The arbitral tribunal may require the party requesting an interim measure to provide appropriate security in connection with the measure. (2) The arbitral tribunal shall require the party applying for a preliminary order to provide security in connection with the order unless the arbitral tribunal considers it inappropriate or unnecessary to do so.”. 41 Article 17F of UNCITRAL Model Law (Disclosure) Article 17F of the UNCITRAL Model Law, the text of which is set out below, has effect— “ Article 17F. Disclosure (1) The arbitral tribunal may require any party promptly to disclose any material change in the circumstances on the basis of which the measure was requested or granted. (2) The party applying for a preliminary order shall disclose to the arbitral tribunal all circumstances that are likely to be relevant to the arbitral tribunal’s determination whether to grant or maintain the order, and such obligation shall continue until the party against whom the order has been requested has had an opportunity to present its case. Thereafter, paragraph (1) of this article shall apply.”. 42 Article 17G of UNCITRAL Model Law (Costs and damages) Article 17G of the UNCITRAL Model Law, the text of which is set out below, has effect— “ Article 17G. Costs and damages The party requesting an interim measure or applying for a preliminary order shall be liable for any costs and damages caused by the measure or the order to any party if the arbitral tribunal later determines that, in the circumstances, the measure or the order should not have been granted. The arbitral tribunal may award such costs and damages at any point during the proceedings.”. 43 Article 17H of UNCITRAL Model Law (Recognition and enforcement) Section 61 has effect in substitution for article 17H of the UNCITRAL Model Law. 44 Article 17I of UNCITRAL Model Law (Grounds for refusing recognition or enforcement) Article 17I of the UNCITRAL Model Law does not have effect. 45 Article 17J of UNCITRAL Model Law (Court-ordered interim measures) (1) Article 17J of the UNCITRAL Model Law does not have effect. (2) On the application of any party, the Court may, in relation to any arbitral proceedings which have been or are to be commenced in or outside Hong Kong, grant an interim measure. (3) The powers conferred by this section may be exercised by the Court irrespective of whether or not similar powers may be exercised by an arbitral tribunal under section 35 in relation to the same dispute. (4) The Court may decline to grant an interim measure under subsection (2) on the ground that— (a) the interim measure sought is currently the subject of arbitral proceedings; and (b) the Court considers it more appropriate for the interim measure sought to be dealt with by the arbitral tribunal. (5) In relation to arbitral proceedings which have been or are to be commenced outside Hong Kong, the Court may grant an interim measure under subsection (2) only if— (a) the arbitral proceedings are capable of giving rise to an arbitral award (whether interim or final) that may be enforced in Hong Kong under this Ordinance or any other Ordinance; and (b) the interim measure sought belongs to a type or description of interim measure that may be granted in Hong Kong in relation to arbitral proceedings by the Court. (6) Subsection (5) applies even if— (a) the subject matter of the arbitral proceedings would not, apart from that subsection, give rise to a cause of action over which the Court would have jurisdiction; or (b) the order sought is not ancillary or incidental to any arbitral proceedings in Hong Kong. (7) In exercising the power under subsection (2) in relation to arbitral proceedings outside Hong Kong, the Court must have regard to the fact that the power is— (a) ancillary to the arbitral proceedings outside Hong Kong; and (b) for the purposes of facilitating the process of a court or arbitral tribunal outside Hong Kong that has primary jurisdiction over the arbitral proceedings. (8) The Court has the same power to make any incidental order or direction for the purposes of ensuring the effectiveness of an interim measure granted in relation to arbitral proceedings outside Hong Kong as if the interim measure were granted in relation to arbitral proceedings in Hong Kong. (9) An interim measure referred to in subsection (2) means an interim measure referred to in article 17(2) of the UNCITRAL Model Law, given effect to by section 35(1) , as if— (a) a reference to the arbitral tribunal in that article were the court; and (b) a reference to arbitral proceedings in that article were court proceedings, and is to be construed as including an injunction but not including an order under section 60 . (10) A decision, order or direction of the Court under this section is not subject to appeal. 46 Article 18 of UNCITRAL Model Law (Equal treatment of parties) (1) Subsections (2) and (3) have effect in substitution for article 18 of the UNCITRAL Model Law. (2) The parties must be treated with equality. (3) When conducting arbitral proceedings or exercising any of the powers conferred on an arbitral tribunal by this Ordinance or by the parties to any of those arbitral proceedings, the arbitral tribunal is required— (a) to be independent; (b) to act fairly and impartially as between the parties, giving them a reasonable opportunity to present their cases and to deal with the cases of their opponents; and (c) to use procedures that are appropriate to the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for resolving the dispute to which the arbitral proceedings relate. 47 Article 19 of UNCITRAL Model Law (Determination of rules of procedure) (1) Article 19(1) of the UNCITRAL Model Law, the text of which is set out below, has effect— “ Article 19. Determination of rules of procedure (1) Subject to the provisions of this Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings. (2) [ Not applicable ]”. (2) If or to the extent that there is no such agreement of the parties, the arbitral tribunal may, subject to the provisions of this Ordinance, conduct the arbitration in the manner that it considers appropriate. (3) When conducting arbitral proceedings, an arbitral tribunal is not bound by the rules of evidence and may receive any evidence that it considers relevant to the arbitral proceedings, but it must give the weight that it considers appropriate to the evidence adduced in the arbitral proceedings. 48 Article 20 of UNCITRAL Model Law (Place of arbitration) Article 20 of the UNCITRAL Model Law, the text of which is set out below, has effect— “ Article 20. Place of arbitration (1) The parties are free to agree on the place of arbitration. Failing such agreement, the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties. (2) Notwithstanding the provisions of paragraph (1) of this article, the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of goods, other property or documents.”. 49 Article 21 of UNCITRAL Model Law (Commencement of arbitral proceedings) (1) Article 21 of the UNCITRAL Model Law, the text of which is set out below, has effect— “ Article 21. Commencement of arbitral proceedings Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.”. (2) A request referred to in article 21 of the UNCITRAL Model Law, given effect to by subsection (1), has to be made by way of a written communication as referred to in section 10 . 50 Article 22 of UNCITRAL Model Law (Language) Article 22 of the UNCITRAL Model Law, the text of which is set out below, has effect— “ Article 22. Language (1) The parties are free to agree on the language or languages to be used in the arbitral proceedings. Failing such agreement, the arbitral tribunal shall determine the language or languages to be used in the proceedings. This agreement or determination, unless otherwise specified therein, shall apply to any written statement by a party, any hearing and any award, decision or other communication by the arbitral tribunal. (2) The arbitral tribunal may order that any documentary evidence shall be accompanied by a translation into the language or languages agreed upon by the parties or determined by the arbitral tribunal.”. 51 Article 23 of UNCITRAL Model Law (Statements of claim and defence) Article 23 of the UNCITRAL Model Law, the text of which is set out below, has effect— “ Article 23. Statements of claim and defence (1) Within the period of time agreed by the parties or determined by the arbitral tribunal, the claimant shall state the facts supporting his claim, the points at issue and the relief or remedy sought, and the respondent shall state his defence in respect of these particulars, unless the parties have otherwise agreed as to the required elements of such statements. The parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit. (2) Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow such