3.01  This chapter introduces HKIAC, one of the longest-standing and most prominent providers of dispute resolution services in the Asia-Pacific region. According to a leading arbitration journal, ‘[i]f regional arbitration has a home, it is in Asia. More accurately, in Hong Kong. The growth of the Hong Kong International Arbitration Centre (HKIAC) proved that if a credible local alternative to the ICC and LCIA exists users will come, especially those on its doorstep. The HKIAC inspired similar efforts around the world. … Regional arbitration pretty much began with HKIAC. No regional institution has been running for so long, or with such success.’¹

3.02  HKIAC’s success is due to the following main strengths:

1. (1)  global reputation and recognition;

2. (2)  neutrality and independence from any external interference;

3. (3)  strong support from the courts of Hong Kong and mainland China;

4. (4)  a one-stop-shop providing arbitration, mediation, adjudication, and domain name dispute resolution services as well as provision of hearing facilities;

5. (5)  a multinational and multilingual secretariat overseen by governing bodies composed of leading legal and business professionals;

6. (6)  market-leading rules;

7. (7)  convenient location; and

8. (8)  extensive experience in disputes involving Chinese parties.

3.03  This chapter summarizes the history of HKIAC; provides an overview of its structure, services, and case statistics; and outlines the arbitration process under the HKIAC Rules. A summary of the key advantages of HKIAC arbitration is provided in Appendix 2.

3.04  In 1980, the Hong Kong Law Reform Commission (HKLRC) was constituted to review Hong Kong’s laws and to consider reforms necessary to meet the needs of the local and (p. 30) international community in Hong Kong.² The drive for law reform was partly motivated by Hong Kong’s interest in establishing itself as an international financial centre. Cross-border transactions flourished with the growth of the Asian economy during this period, and Hong Kong was already gaining a reputation as an important regional financial centre. China was also opening up at this time and becoming an important trading partner. The international contracting parties in the region preferred to use arbitration to resolve cross-border commercial disputes. However, no established international arbitration centre existed in the region at the time. The HKLRC found that Hong Kong had the potential to fill the gap in the market by developing into a leading centre in the region for resolving local and international commercial disputes.

3.05  The infrastructure required for a leading arbitration centre did not exist in Hong Kong at the time. As mentioned in Chapter 2, improving the arbitration legislative framework was a key component to developing Hong Kong into a regional arbitration hub. The second component was the availability of arbitration facilities. The HKLRC found that parties wishing to arbitrate in Hong Kong did not have the necessary premises and support services to host a hearing.³

3.06  Prompted by the recommendations made in the HKLRC’s report of 1982, the then Attorney General formed a Steering Committee in 1982 which was tasked to consider the feasibility of establishing an arbitral institution in Hong Kong.⁴ Led by Mr Justice David Hunter, the Steering Committee considered the financial viability of setting up an arbitral institution as well as the rules such an institution should adopt.

3.07  Upon request by members of the Steering Committee, the Hong Kong government agreed to support this initiative by pledging to match every dollar raised from the private sector to establish an arbitration institution as well as providing premises at the old Central Magistracy Building, which is now the site of the UNESCO recognized Tai Kwun Centre for Heritage and Arts.

3.08  In September 1985, HKIAC opened its doors. Established as a non-profit company limited by guarantee, HKIAC began its operations with the support of the business and legal communities. Mr Justice David Hunter was the first chairman and Mr Brian Tisdall was the first Secretary-General.

3.09  In October 1994, following an increase in demand for centralized hearing premises, the Hong Kong government granted HKIAC a lease on favourable terms for premises comprising half of the thirty-eighth floor of a prime office building, Two Exchange Square. HKIAC further expanded into the remainder of the thirty-eighth floor in 2012 to meet the need for additional facilities to host hearings. Ranked highly by the Global Arbitration Review’s Hearing Centres Survey,⁵ HKIAC is known as one of the most in-demand dispute resolution premises in the world today, including a fully equipped virtual hearing theatre.

(p. 31) 3.10  In May 2013, HKIAC opened its first overseas office in Seoul to promote its services in South Korea. In November 2015, HKIAC opened its second overseas office in Shanghai, marking the first time that a non-mainland Chinese arbitral institution has set up a formal presence in mainland China.

3.11  In February 2014, HKIAC introduced an organizational structure to manage matters concerning its business operations and the functions entrusted to HKIAC under its rules and the Arbitration Ordinance.

3.12  HKIAC is governed by the HKIAC Council (Council), which comprises up to twenty-five members who are leading lawyers, industry professionals, and corporate executives from around the world.⁶ Council members are led by a Chairperson(s)⁷ and responsible for the corporate governance and overall management of HKIAC. Such responsibilities include establishing strategic directions for HKIAC’s business operations and dispute resolution services.

3.13  Council is supported by the International Advisory Board, an entity composed of leading figures in the local and international arbitration and business community.⁸ The International Advisory Board is consulted from time to time on matters relating to HKIAC’s policies and its future developments.

3.14  The Executive Committee (ExCo) serves as the principal body directing the activities of HKIAC in accordance with policies approved by Council. It is specifically mandated by Council to perform, or designate a separate body to perform, two main functions: (1) recommending policies for consideration and approval by Council; and (2) supervising the implementation of policies approved by Council. ExCo comprises the Chairperson(s) of HKIAC, the Vice Chairpersons of HKIAC, and the Chairpersons of the three Standing Committees described below.⁹ The term of office for ExCo members is three years.

3.15  Three Standing Committees have been established to perform certain functions on behalf of Council: (1) Finance and Administration Committee; (2) Appointments Committee; and (3) Proceedings Committee. These Standing Committees have been formed pursuant to a Constitution of the Standing Committees and execute their functions in accordance with (p. 32) their respective regulations. Each of these Standing Committees has a Chairperson and no more than eight other members, who are appointed by Council. HKIAC’s Chairperson(s) is an ex officio member of each Standing Committee. The Chairperson of each Standing Committee holds a term of three years which may be renewed for a period that shall not exceed eighteen months. The term of office of a Standing Committee member shall be two years which may be renewed for one further term of one year.

3.16  The Finance and Administration Committee oversees matters regarding finance, accounts, tax, human resources, general administration, and corporate governance of HKIAC. Members of the Finance and Administration Committee are listed on HKIAC’s website.¹⁰

3.17  The Appointments Committee is mandated by Council primarily to (1) appoint and confirm arbitrators, emergency arbitrators, mediators, and experts; (2) determine the number of arbitrators; (3) fix the costs of the arbitration; (4) review and admit members to HKIAC’s panels and list of arbitrators; and (5) deal with complaints in respect of arbitrators.

3.18  To streamline procedures, Council has devolved some of the Appointments Committee’s responsibilities to the Secretary-General of HKIAC in the following circumstances:

1. (1)  In cases where there is no objection by any party to the designation of an arbitrator whether by one or more parties or the co-arbitrators, the Secretary-General may confirm the arbitrator. Any such confirmation by the Secretary-General shall be reported immediately to the Appointments Committee.

2. (2)  In cases where (i) HKIAC is to determine an arbitrator’s hourly rate; (ii) there is no objection by any party to that arbitrator’s hourly rate; (iii) the proposed hourly rate does not exceed the maximum rate set by HKIAC, or exceeds such rate but all parties so agree, the Secretary-General may determine the arbitrator’s hourly rate. Any such determination by the Secretary-General shall be reported immediately to the Appointments Committee.

3.19  Appointments Committee members will not be appointed by HKIAC as arbitrator during their term. However, this does not preclude a member from being independently designated by one or more parties or co-arbitrators. Such a member is naturally excluded from the process on the confirmation of his or her designation. Appointment Committee members are also excluded from discussions in which they may have a conflict of interest.

3.20  Members of the Appointments Committee are listed on HKIAC’s website.¹¹

3.21  The Proceedings Committee is mandated by Council primarily to: (1) exercise all other powers vested in HKIAC by HKIAC’s arbitration rules to the extent that such powers are not exercised by the Appointments Committee or the Secretariat; (2) decide challenges to (p. 33) the appointment of an arbitrator or an emergency arbitrator; and (3) consider revisions of HKIAC’s existing arbitration rules and practice notes and propose the adoption of new rules and practice notes.

3.22  The specific functions exercised by the Proceedings Committee under the HKIAC Rules are:

1. (1)  deciding whether an arbitration shall proceed where a jurisdictional question arises before the constitution of the arbitral tribunal;¹²

2. (2)  deciding whether to join an additional party to an arbitration before the constitution of the arbitral tribunal;¹³

3. (3)  deciding whether to consolidate two or more arbitrations;¹⁴

4. (4)  deciding whether an arbitration is to be conducted in accordance with the expedited procedure;¹⁵

5. (5)  deciding challenges to arbitrators or emergency arbitrators;¹⁶

6. (6)  where an arbitrator’s mandate is terminated, in exceptional circumstances, authorizing any remaining arbitrators to proceed with the arbitration and to make any decision or award;¹⁷

7. (7)  at the request of the Secretariat, interpreting all provisions of the HKIAC Rules;¹⁸ and

8. (8)  at the request of the Secretariat, exercising any other powers that have been conferred on HKIAC under the HKIAC Rules and associated practice notes, to the extent that such powers are not to be exercised by the Appointments Committee.

3.23  To streamline procedures, Council has devolved some of the Proceedings Committee’s responsibilities to the Secretary-General of HKIAC. Where the parties agree to the following matters pursuant to the HKIAC Administered Arbitration Rules, the Secretary-General will make the relevant determination:

1. (1)  joining an additional party to an arbitration before the constitution of the arbitral tribunal provided that the additional party also agrees;

2. (2)  consolidating two or more arbitrations; and

3. (3)  having an arbitration conducted in accordance with the expedited procedure.

As with the Appointments Committee, such determination shall be reported immediately to the Proceedings Committee.

3.24  Similar to members of the Appointments Committee, a Proceedings Committee member must not participate in discussions of any matter where that member has a conflict of interest.

3.25  Members of the Proceedings Committee are listed on HKIAC’s website.¹⁹

3.26  In July 2018, HKIAC established a Nominations Committee (NC) to identify, vet, and recommend new members to Council. The NC is composed of five individuals with the following profiles and each member shall serve a two-year term:

1. (1)  a prominent member of Hong Kong’s legal and/or arbitration community;

2. (2)  a prominent member of the international arbitration community;

3. (3)  an ex-Council Member or honorary Chairperson of HKIAC;

4. (4)  an individual of high standing within the local or international legal, arbitration, or business community; and

5. (5)  the current Chairperson of HKIAC.

3.27  The NC was established as part of HKIAC’s wider initiative to enhance transparency, diversity, and inclusion in respect of its corporate governance. Since its establishment, the NC has recommended numerous new individuals to join Council. Upon receipt of a recommendation from the NC, Council decides finally whether to appoint the recommended individual as Council Member.

3.28  The daily administration of dispute resolution services is carried out by the HKIAC Secretariat led by the Secretary-General. The Secretariat is comprised of legal and administrative staff of diverse nationalities who can work in multiple languages. The Secretariat provides administrative support in dispute resolution proceedings including arbitration, mediation, adjudication, and domain name disputes. HKIAC’s legal staff are highly qualified individuals admitted in both common and civil law jurisdictions with experience in commercial, investment, and inter-State arbitration. HKIAC’s legal staff are also available for appointment as tribunal secretaries. Members of the Secretariat are listed on HKIAC’s website.²⁰

3.29  The Secretariat has staff based in Shanghai and Seoul to manage HKIAC’s representative offices in those cities. These two offices are responsible primarily for promoting HKIAC and Hong Kong in their respective local jurisdictions through organizing events and collaborating with local authorities and business and legal communities.

3.30  The Secretariat works closely with the Appointments and Proceedings Committees and performs a number of functions under the HKIAC Rules, which include the following:

1. (1)  registering a new case and assigning a case reference number;

2. (2)  examining the compliance of a Notice of Arbitration with the HKIAC Rules and checking payment of the registration fee;²¹

3. (3)  amending the time limits provided for in the HKIAC Rules and any time limits set by HKIAC;²²

4. (p. 35) (4)  seeking decisions from the Appointments Committee to determine the number of arbitrators and to appoint or confirm arbitrators or emergency arbitrators;²³

5. (5)  seeking decisions from the Appointments Committee to fix the fees of the arbitral tribunal (if its fees are determined based on the amount in dispute);²⁴

6. (6)  seeking decisions from the Proceedings Committee in respect of its functions under the HKIAC Rules, such as deciding whether to proceed with an arbitration where a jurisdictional question arises before the constitution of the arbitral tribunal,²⁵ determining a challenge to an arbitrator or emergency arbitrator,²⁶ joining an additional party before the constitution of the arbitral tribunal,²⁷ and consolidating multiple arbitrations;²⁸

7. (7)  holding funds including deposits for the costs of the arbitration, security for costs, and security for the amount in dispute; processing payments to arbitrators and emergency arbitrators;²⁹

8. (8)  assisting in arranging hearing facilities;

9. (9)  acting as secretary to arbitrators or emergency arbitrators;³⁰ and

10. (10)  releasing arbitral awards to the parties.³¹

3.31  The Secretariat assigns a case manager to each arbitration submitted to HKIAC. The case manager serves as the primary HKIAC contact for the parties and arbitral tribunal during the arbitration.

3.32  The Users’ Council is a subdivision of HKIAC. It was established in 2009 in an effort to promote the growing interest of international dispute resolution in the Asia-Pacific region and to provide a platform for the exchange of information and experience among users of dispute settlement services. Membership is open to individuals and institutions, who wish to participate in shaping the future of dispute resolution services in Hong Kong and the region. There are two categories of membership available for a fee: Individual Membership and Institutional Membership. Individual Members enjoy several benefits such as publication and media subscriptions, access to the HKIAC Library, discounts on conferences and seminars organized by HKIAC, and HKIAC corporate rates on hotel accommodation in Hong Kong. Besides the benefits enjoyed by the Individual Members, Institutional Members also receive ten hard copies of the Asian Dispute Review Journal on a quarterly basis, and 20 per cent off on the rental of HKIAC meeting rooms subject to conditions.³²

3.33  Founded in 2010, HK45 is a group for young professionals interested in the practice of arbitration. The mission of the group is to promote the use of arbitration and Hong Kong as a seat, to provide a platform for members to learn from each other and leading professionals, and to ensure Hong Kong remains an inclusive and welcoming place for arbitration lawyers who practice in the region. HK45 is run by a committee, the Co-Chairs and members of which are listed on HKIAC’s website.³³ HK45 has also established an ambassador programme whereby young lawyers have been designated by HK45 to serve as an ambassador for the group and represent HK45 around the world. HK45’s Regional Ambassadors are listed on HKIAC’s website.³⁴

3.34  HK45 organizes regular seminars, training, career, and social events, including virtual fireside chats and an essay competition.³⁵ In collaboration with HKIAC, HK45 also publishes a newsletter to report on recent arbitration developments in the region with a readership of over 5,000 people. Membership of HK45 is free.³⁶

3.35  HKIAC’s primary functions are to administer arbitrations under its Administered Arbitration Rules, other rules issued by it or the UNCITRAL Rules and to serve as the statutory appointing authority pursuant to the Arbitration Ordinance. In addition, HKIAC processes applications for interim measures to the mainland Chinese courts under the Interim Measures Arrangement, administers disputes as a permanent arbitral institution in Russia, provides administrative services in investor-State arbitrations, and appoints experts upon the request of a party or an arbitral tribunal. This section explains each of these functions.

3.36  On 1 September 2008, HKIAC established its first set of administered arbitration rules. The 2008 HKIAC Administered Arbitration Rules (HKIAC Rules (2008)) were largely based on the UNCITRAL Arbitration Rules (1976) (UNCITRAL Rules (1976)) as well as the then-proposed amendments which led to the UNCITRAL Rules (2010).³⁷ In devising the HKIAC Rules (2008), the HKIAC Rules Revision Committee also drew inspiration from the ‘light touch’ administration approach of the Swiss Rules of International Arbitration. The ‘light touch’ approach was intended to facilitate the arbitral process without unnecessary bureaucratic interference.

(p. 37) 3.37  Following the popularity of the HKIAC Rules (2008), HKIAC introduced the 2013 Administered Arbitration Rules (HKIAC Rules (2013)) on 1 November 2013.³⁸ In drafting the HKIAC Rules (2013), the Rules Revision Committee³⁹ drew upon HKIAC’s experience of administering arbitrations under the HKIAC Rules (2008) and the recommendations of its users. The HKIAC Rules (2013) maintained the ‘light touch’ approach but introduced several new mechanisms such as the emergency arbitrator procedure, consolidation, and single arbitration under multiple contracts.

3.38  In August 2017, the Rules Revision Committee⁴⁰ considered it opportune to update the HKIAC Rules (2013) having taken into account HKIAC’s experience implementing those rules, users’ feedback and the latest arbitration developments in Hong Kong and globally. Following an extensive public consultation with users, stakeholders, and interest groups in Hong Kong and around the world, the Rules Revision Committee produced the HKIAC Rules (2018) which came into force on 1 November 2018. The HKIAC Rules (2018) introduce amendments relevant to the use of technology, third party funding, multi-party and multi-contract arbitrations, the early determination of disputes, alternative means of dispute resolution, emergency arbitrator proceedings, and time limits for the delivery of arbitral awards. The key features of the HKIAC Rules (2018) are summarized below.

3.39  The HKIAC Rules (2018) encourage the use of technology to facilitate an efficient, cost-effective, and environment-friendly arbitral process, and identify the effective use of technology as a factor to be considered by an arbitral tribunal when determining suitable procedures for the conduct of an arbitration.⁴¹

3.40  The parties may agree to deliver documents through the use of a secured online repository as an alternative or additional method of delivery.⁴² Where a document is uploaded onto an online repository, the date of receipt shall be determined according to the time at the place of receiving a notice of the upload.⁴³ The parties may also agree to use their own repositories or a dedicated repository provided by HKIAC.⁴⁴

3.41  The HKIAC Rules (2018) are highly flexible and allow the parties and the arbitral tribunal to use advanced technology for multiple purposes, such as online storage, e-discovery, and multimedia presentations. HKIAC also partners with legal technology specialists to offer users a comprehensive range of integrated virtual hearing services named ‘e-Hearings’, which include video-conferencing systems, audio-conferencing systems, electronic bundles services, electronic presentation of evidence, transcription, and interpretation services.⁴⁵ Since its introduction, e-Hearing services have been in high demand and used successfully in (p. 38) numerous cases under HKIAC’s auspices. In 2020, HKIAC also established a fully equipped virtual hearing room at its Hong Kong premises.

3.42  HKIAC is the first arbitral institution to offer parties an ability to choose how to determine an arbitral tribunal’s fees, either based on the amount in dispute or hourly rate, with the latter being the default option.⁴⁶ Where parties choose the hourly rate system, an arbitrator’s hourly rate shall not exceed the maximum amount set by HKIAC on its website,⁴⁷ barring any contrary agreement by the parties or determination by HKIAC in exceptional circumstances.⁴⁸

3.43  The HKIAC Rules (2018) also include standard terms of appointment (subject to variations by party agreement or HKIAC) in Schedule 2 (where the arbitral tribunal’s fees are determined by hourly rate) and Schedule 3 (where the arbitral tribunal’s fees are determined based on the amount in dispute). These terms must be agreed by all arbitrators appointed or confirmed in accordance with the HKIAC Rules (2018). The uniformity created by the standard terms facilitates a transparent and efficient appointment process which may result in an arbitral tribunal being formed quickly.⁴⁹

3.44  The HKIAC Rules (2018) empower HKIAC to decide whether an arbitration shall proceed where a jurisdictional question arises before the constitution of the arbitral tribunal.⁵⁰ An arbitration shall proceed if HKIAC is prima facie satisfied that an arbitration agreement under the HKIAC Rules (2018) may exist or a single arbitration has been properly commenced under multiple contracts pursuant to Article 29 of the HKIAC Rules (2018).⁵¹ Any question as to the jurisdiction of the arbitral tribunal shall be decided by the arbitral tribunal once constituted.⁵²

3.45  The ability of HKIAC to make a prima facie decision to proceed allows HKIAC to move an arbitration forward where a party raises a jurisdictional objection or seeks disruption of the arbitration at an early stage.⁵³

3.46  The HKIAC Rules (2018) include comprehensive and robust provisions to manage disputes involving multiple parties and/or contracts, which often account for a significant proportion of HKIAC’s caseload.⁵⁴ There are four mechanisms that can be used to streamline arbitration proceedings involving multiple parties and/or contracts. They include the following:

(p. 39)

1. (1)  Joinder of additional parties.⁵⁵ The arbitral tribunal or, where the arbitral tribunal is not yet constituted, HKIAC has the power to allow an additional party to be joined to an arbitration under the HKIAC Rules, provided that a certain condition is satisfied. An existing party to the arbitration or a party that is not yet in the arbitration can apply for joinder. The joinder provisions also set out expressly, among other things, the test for joining an additional party, the contents required to be included in a request for joinder and its response, the manner in which the arbitral tribunal shall be constituted, and the parties’ waiver of their right to designate an arbitrator after joinder is ordered.⁵⁶

2. (2)  Consolidation.⁵⁷ HKIAC has the power to consolidate two or more arbitrations where (i) the parties agree to consolidate; (ii) all of the claims are made under the same arbitration agreement; or (iii) the claims are made under compatible arbitration agreements in respect of the same transaction or a series of related transactions and a common question of law or fact arises in all of the arbitrations. A notable feature is that there is no requirement regarding the identity of the parties to each of the arbitrations, thereby broadening the scope of application of the consolidation provisions. This addresses the need for consolidation in situations where related contracts are concluded by different parties, for example, in the situation of a chain or network of contracts in supply of goods, banking, insurance/reinsurance, construction, and M&A transactions. Like the joinder provisions, the consolidation provisions also set out in detail the contents required to be included in a request for consolidation and its response, the constitution of the arbitral tribunal, and the parties’ waiver of their right to designate an arbitrator if HKIAC considers consolidation.⁵⁸

3. (3)  Single arbitration under multiple contracts.⁵⁹ A party may bring claims arising out of multiple contracts in a single arbitration from the outset under the conditions that are materially the same as those for consolidation.⁶⁰ Notably, the HKIAC Rules (2018) remove the requirement in the HKIAC Rules (2013) that all parties must be bound by each arbitration agreement giving rise to the arbitration.⁶¹ Any question as to whether a single arbitration has been properly commenced shall be decided by the arbitral tribunal or, where the arbitral tribunal is not yet constituted, by HKIAC, on a prima facie basis, when deciding whether to proceed.⁶²

4. (4)  Concurrent proceedings.⁶³ The HKIAC Rules (2018) provide an express basis for an arbitral tribunal, after consulting the parties, to conduct multiple arbitrations at the same time, one immediately after another, or suspend any of the arbitrations until the determination of any other of them, where: (i) the same arbitral tribunal is constituted in each arbitration; and (ii) a common question of law or fact arises in all the arbitrations. Concurrent proceedings may be conducted in situations where consolidation is not possible or desirable.⁶⁴

3.47  A party may apply for urgent interim relief prior to the constitution of the arbitral tribunal.⁶⁵ To that end, a party may file an application for the appointment of an emergency arbitrator before, concurrent with, or following, the commencement of an arbitration.⁶⁶ After receipt of the application and the required deposit, HKIAC will seek to appoint an emergency arbitrator within twenty-four hours.⁶⁷ The emergency arbitrator will apply the same test for interim measures⁶⁸ and make a decision within fourteen days from the date on which HKIAC transmitted the case file to the emergency arbitrator.⁶⁹ The total fees of the emergency arbitrator are subject to a maximum amount set by HKIAC on its website, unless the parties agree or HKIAC determines otherwise in exceptional circumstances.⁷⁰ A decision issued by an emergency arbitrator is enforceable under the Arbitration Ordinance in the same manner as an order or direction of the Court of First Instance (CFI) that has the same effect.⁷¹

3.48  HKIAC introduced its expedited procedure in the HKIAC Rules (2008) and such procedure is available in all versions of the Administered Arbitration Rules.⁷² Under the HKIAC Rules (2018), any party may apply for the expedited procedure prior to the constitution of the arbitral tribunal where (i) the total amount in dispute does not exceed the amount set by HKIAC on its website;⁷³ (ii) all parties so agree; or (iii) in cases of exceptional urgency.⁷⁴ If HKIAC decides to apply the expedited procedure, the case shall be referred to a sole arbitrator unless the parties have agreed to three arbitrators. The number of party submissions may be limited, the arbitral tribunal shall by default decide the dispute based on documents only, and the arbitral award shall be communicated to the parties within six months from the date of transmission of the case file to the arbitral tribunal unless HKIAC extends this time limit.⁷⁵ Upon a party’s request and after consulting with the parties and the arbitral tribunal, HKIAC may discontinue the expedited procedure having considered any new circumstances that have arisen.⁷⁶

3.49  A new feature introduced in the HKIAC Rules (2018) is the Early Determination Procedure.⁷⁷ This procedure empowers an arbitral tribunal to determine a point of law or fact that is manifestly without merit or manifestly outside of the arbitral tribunal’s jurisdiction, or a point of law or fact that, assuming it is correct, would not result in an award being rendered in favour of the party that submitted such point.⁷⁸

(p. 41) 3.50  The Early Determination Procedure envisages a two-stage process that by default operates within a time period of ninety days. The arbitral tribunal must decide whether to proceed with a request for early determination within thirty days from the date of the request.⁷⁹ If the request is allowed to proceed, the arbitral tribunal must issue an order or award, which may be in summary form, on the relevant point within sixty days from the date of its decision to proceed.⁸⁰ These time limits may be extended by HKIAC or party agreement.⁸¹ Pending the determination of the request, the arbitral tribunal may decide how to proceed with the underlying arbitration.⁸²

3.51  A party that receives third party funding is required to promptly disclose the existence of the funding agreement, the identity of the funder, and any subsequent changes to such information.⁸³ The funded party is allowed to disclose arbitration-related information to its existing and potential funder.⁸⁴ These provisions broadly reflect the relevant amendments to the Arbitration Ordinance. In addition, the HKIAC Rules (2018) expressly allow an arbitral tribunal to take into account any third party funding arrangement in fixing and apportioning the costs of arbitration.⁸⁵

3.52  After the commencement of an arbitration, where the parties agree to pursue alternative means of settling their dispute (including mediation, conciliation, or negotiation) a party may request HKIAC, the arbitral tribunal, or emergency arbitrator to suspend the arbitration or emergency arbitrator procedure, as applicable. A party may request that the arbitration or emergency arbitrator procedure resume at any time during or after the alternative process. Upon such request, the arbitration or emergency arbitrator procedure shall proceed.⁸⁶

3.53  The HKIAC Rules have for the first time introduced a default time limit for issuing an arbitral award. After the arbitral proceedings are declared closed, the arbitral tribunal shall notify the parties and HKIAC of the anticipated date of delivering an arbitral award. The date of delivering the award shall be within three months from the closure of the proceedings or relevant phase of the proceedings, as applicable. This time limit may be extended by HKIAC or party agreement.⁸⁷

3.54  HKIAC does not have formal procedures for scrutinizing arbitral awards,⁸⁸ although the Secretariat routinely proofreads and reviews the non-substantive part of an arbitral award (p. 42) upon receipt of a draft on an informal basis. This approach ensures that the arbitral tribunal makes its decisions independently without interference from the arbitral institution and minimizes any delay from the time the arbitral tribunal completes the award to the time when the parties receive the award.

3.55  In addition to the Administered Arbitration Rules, HKIAC has published a number of other arbitration rules which parties can adopt to suit their particular needs. These other rules include the Domestic Arbitration Rules (2014), the Electronic Transaction Arbitration Rules (2002), the Small Claims and ‘Documents Only’ Procedures (2000), the Securities Arbitration Rules (1993), and the Short Form Arbitration Rules (1992).⁸⁹ HKIAC plays a relatively limited role in proceedings under these rules compared to those under the Administered Arbitration Rules.

3.56  Among these rules, the Domestic Arbitration Rules are a relatively common choice, particularly for construction disputes in Hong Kong. HKIAC established the Domestic Arbitration Rules in 1993 for domestic disputes involving the public and private sectors in Hong Kong. In 2012, these rules were revised to reflect the changes to the Arbitration Ordinance. Further revisions were subsequently made, which led to the issuance of the Domestic Arbitration Rules 2014. The Domestic Rules (2014) came into force on 1 November 2014 and were intended for use by parties seeking a set of procedures for ad hoc arbitrations in Hong Kong. The purpose of the Domestic Rules (2014) is to provide a framework for the resolution of domestic disputes through a procedure which is as short and inexpensive as practicable. These rules were only intended for arbitrations seated in Hong Kong and should be read in conjunction with HKIAC’s Guide to Arbitration under the Domestic Arbitration Rules 2014.⁹⁰

3.57  HKIAC has a long history of handling arbitrations under the UNCITRAL Rules, having begun to administer such arbitrations in 1986. Over the years, HKIAC has acted as appointing authority, administering body, or fund-holder in commercial and investment treaty arbitrations under the UNCITRAL Rules. HKIAC has also been designated by the Secretary-General of the Permanent Court of Arbitration (PCA) as appointing authority in numerous cases.

3.58  Parties who seek the benefits of an administered arbitration while maintaining the flexibility afforded by the UNCITRAL Rules may agree that HKIAC administer an arbitration under the UNCITRAL Rules. For this purpose, in 1986, HKIAC introduced a set of procedures enabling it to administer arbitrations under the UNCITRAL Rules.⁹¹ These procedures were (p. 43) amended in 2005⁹² and revised again in 2015. The current version is entitled the Procedures for the Administration of Arbitration under the UNCITRAL Arbitration Rules (2015 Procedures) which came into force on 1 January 2015.⁹³

3.59  The 2015 Procedures can be adopted for both commercial and investment treaty arbitrations.⁹⁴ The 2015 Procedures apply to arbitrations commenced on or after 1 January 2015 pursuant to an arbitration agreement or an investment treaty, which either: (1) provides for these procedures to apply; or (2) provides for arbitration administered by HKIAC under the UNCITRAL Rules or words to similar effect.⁹⁵ While the 2005 Procedures may be interpreted to apply only to arbitrations under the UNCITRAL Rules (1976), the 2015 Procedures are compatible with all versions of the UNCITRAL Rules, that is the 1976 and 2010 versions (with or without paragraph 4 of Article 1 as introduced in 2013).

3.60  In an arbitration under the 2015 Procedures and the UNCITRAL Rules, HKIAC will perform the functions of the appointing authority⁹⁶ and the administering body,⁹⁷ which include the following:

1. (1)  registering a new case and assigning a case reference number;

2. (2)  examining the compliance of a Notice of Arbitration with the UNCITRAL Rules and the 2015 Procedures and checking payment of the registration fee;⁹⁸

3. (3)  interpreting all provisions of the 2015 Procedures including any associated schedules;⁹⁹

4. (4)  amending the time limits provided for in the 2015 Procedures and any time limits set by HKIAC;¹⁰⁰

5. (5)  appointing an arbitrator in the event of a default; following the list-procedure provided for in the UNCITRAL Rules for the appointment of a sole or presiding arbitrator unless the parties agree or HKIAC determines otherwise;¹⁰¹

6. (6)  determining a challenge to an arbitrator;¹⁰²

7. (7)  deciding whether and to what extent an arbitration shall proceed if a jurisdictional question arises before the arbitral tribunal is constituted;¹⁰³

8. (8)  upon the parties’ request, consulting with the arbitral tribunal to establish its hourly or daily rates applicable to the arbitration;¹⁰⁴

9. (9)  assessing whether a fee proposal provided by the arbitral tribunal is reasonable, and making any appropriate adjustments in accordance with the UNCITRAL Rules;

10. (10)  at the parties’ request, assisting in arranging hearing rooms, transcription, translation, interpretation, and other logistical services at additional cost;¹⁰⁵

11. (p. 44) (11)  holding funds including deposits for the costs of the arbitration, security for costs and security for the amount in dispute; processing payments to arbitrators;¹⁰⁶ and

12. (12)  upon any party’s request, assisting in the filing or registration of an arbitral award in countries where such filing or registration is required by law.¹⁰⁷

3.61  HKIAC charges registration and administrative fees for administering an arbitration under the UNCITRAL Rules and the 2015 Procedures. These fees are set out in a fee schedule published on HKIAC’s website.¹⁰⁸

3.62  As a qualified arbitral institution under the Interim Measures Arrangement, HKIAC may provide assistance in facilitating a party’s application for interim measures under the Interim Measures Arrangement in an arbitration seated in Hong Kong and administered by HKIAC under its Administered Arbitration Rules, other rules issued by HKIAC or the UNCITRAL Rules. HKIAC’s assistance includes the following:

1. (1)  issuing a letter certifying HKIAC’s acceptance of the arbitration for the purposes of Articles 3 or 4.4 of the Interim Measures Arrangement (Letter of Acceptance);

2. (2)  submitting the application together with the Letter of Acceptance to the relevant mainland Chinese court upon request of the court, pursuant to Article 3 of the Interim Measures Arrangement; and

3. (3)  any other assistance requested by the relevant mainland Chinese court to the extent that HKIAC is in a position to provide such assistance.¹⁰⁹

3.63  Since the Interim Measures Arrangement came into force on 1 October 2019, HKIAC has processed numerous applications made by mainland and non-mainland parties to various mainland Chinese courts. HKIAC has published information on its practice of processing applications under the Interim Measures Arrangement on its website.¹¹⁰

3.64  In September 2016, Russian arbitration legislation was amended to introduce the concept of the ‘permanent arbitral institution’ (PAI).¹¹¹ On 29 March 2019, further amendments to (p. 45) Russian arbitration legislation came into force in respect of PAIs.¹¹² Under the law, Russian and foreign arbitral institutions may apply to the Russian Ministry of Justice to operate as a PAI and certain types of disputes may only be administered by PAIs.

3.65  On 25 April 2019, HKIAC became the first non-Russian arbitral institution to receive the permission by the Russian Ministry of Justice to operate as a PAI. HKIAC’s PAI status has significant consequences under Russian law. In summary, it means that HKIAC is authorized to administer certain types of corporate disputes seated in Russia in respect of a legal entity in Russia¹¹³ and certain procurement disputes seated in Russia.¹¹⁴ In addition, HKIAC may administer certain domestic Russian disputes.¹¹⁵ Where the seat is in Russia, there are important differences between arbitrations administered by an institution with PAI status (which are considered to be ‘institutional’ arbitrations) and those administered by an institution without PAI status (which are considered to be ‘ad hoc’ arbitrations).¹¹⁶ Parties to institutional arbitrations in Russia enjoy certain procedural advantages and curial support that ad hoc arbitrations do not.¹¹⁷

3.66  Over the years, HKIAC has taken the necessary steps to offer parties in Russian-related disputes access to the services of an international recognized arbitral institution, and has emerged as a preferred arbitral institution for disputes involving Russian parties. The HKIAC Rules (2018) are available in the Russian language and multiple Russian-speaking arbitrators are listed on HKIAC’s various panels of arbitrators. HKIAC operates primarily from a jurisdiction that has not imposed sanctions against Russian individuals or entities, and Hong Kong does not require visas for Russian visitors. With the PAI status, HKIAC has the requisite authorization under Russian law to administer more Russian-related disputes.

3.67  HKIAC has experience providing administrative support in investor-State arbitrations, having administered two investor-State arbitrations under the UNCITRAL Rules and hosted numerous hearings involving investor-State disputes. One of the two investor-State arbitrations administered by HKIAC was commenced by a US investor against South Korea under the Free Trade Agreement between the United States of America and the Republic of Korea and was seated in Seoul.¹¹⁸ The other investor-State arbitration was seated in Hong Kong.

3.68  HKIAC’s legal staff are highly experienced in investor-State arbitration, having worked at the PCA, ICSID, or in private practice at law firms active in investor-State arbitration. HKIAC’s governing bodies are also populated by experts in investor-State arbitration. HKIAC is further supported by the International Advisory Board which includes many leading arbitrators in investor-State arbitration.

(p. 46) 3.69  HKIAC has extensive experience administering cases under the UNCITRAL Rules having done so since 1986. In particular, HKIAC has introduced a set of procedures for its administration of UNCITRAL arbitrations, the most recent set being the 2015 Procedures. The 2015 Procedures cover both commercial and investment treaty arbitrations arising under all versions of the UNCITRAL Rules.

3.70  HKIAC is able to provide full administrative support in investor-State arbitrations under the UNCITRAL Rules. These services include the following:

1. (1)  designating a member of HKIAC’s legal staff with investor-State arbitration experience to act as tribunal secretary and/or to provide general case management services to the arbitral tribunal and the parties;

2. (2)  maintaining an archive of filings with respect to correspondence and submissions;

3. (3)  managing party deposits to cover the costs of the arbitration (which can be held in major currencies including HKD, USD, EUR, GBP, and SGD), subject to the arbitral tribunal’s directions and supervision;

4. (4)  assisting with the arrangement of interpretation and translation services;

5. (5)  assisting with the organization of hearings and meetings in Hong Kong or any other locations as required by the arbitral tribunal and the parties; and

6. (6)  any other administrative tasks as instructed by the arbitral tribunal or requested by the parties.

3.71  In cases in which at least one party is a State listed on the OECD DAC List of ODA assistance¹¹⁹ and in which the parties have agreed to HKIAC providing administrative support, HKIAC will provide its hearing and meeting facilities in Hong Kong to the arbitral tribunal and the parties free of charge for the duration of the arbitration.

3.72  Since 1997, HKIAC has served as the statutory appointing authority under the Arbitration Ordinance. In that role, HKIAC exercises the following functions:

1. (1)  Determining the number of arbitrators where the parties have not agreed on the number pursuant to section 23(3) of the Arbitration Ordinance.

2. (2)  Appointing an arbitrator where the applicable appointment procedure fails to result in an appointment pursuant to section 24 of the Arbitration Ordinance.

3. (3)  Appointing a mediator where the procedure specified in the arbitration agreement fails to result in an appointment pursuant to section 32(1) of the Arbitration Ordinance.

3.73  Pursuant to section 13(3) of the Arbitration Ordinance, HKIAC may, with the approval of the Chief Justice of Hong Kong, issue rules to facilitate its exercise of the functions as the statutory appointing authority. The current version of these rules is entitled the ‘Arbitration (Appointment of Arbitrators and Mediators and Decision on Number of Arbitrators) Rules (Cap 609C)’ (Cap 609C Rules), which came into force on 1 August 2019.¹²⁰

(p. 47) 3.74  The Cap 609C Rules prescribe the procedures for a party to request a decision or an appointment by HKIAC as well as the process for HKIAC to make a decision or an appointment under the Arbitration Ordinance including the procedural steps, factors to be considered, and applicable fees.

3.75  Under the 609C Rules, any party that seeks a decision or an appointment from HKIAC must complete and submit the applicable form listed below:

1. (1)  Form 1—Request for Appointment of Arbitrator.¹²¹

2. (2)  Form 2—Application for Decision on Number of Arbitrator.¹²²

3. (3)  Form 3—Application for Appointment of Mediator.¹²³

3.76  HKIAC normally charges HK$8,000 for processing one request under the Cap 609C Rules.¹²⁴ However, HKIAC may from time to time vary its fee¹²⁵ or, if it considers reasonable in any particular case, waive its fee.¹²⁶ Since 1 August 2019, HKIAC has decided to charge a one-off fee of HK$8,000 for performing all its functions under the Arbitration Ordinance in an arbitration in which the total amount in dispute is less than HK$2.5 million, unless HKIAC determines otherwise in appropriate circumstances. Further details of this policy are available on HKIAC’s website.¹²⁷

3.77  Upon receipt of a request and any applicable fee submitted under the Cap 609C Rules, HKIAC will follow the process specified in Rule 9 to determine the number of arbitrators, Rule 7 for appointing an arbitrator, and Rule 11 for appointing a mediator. A notable feature is that HKIAC will consult with at least three members of the Appointment Advisory Board (AAB)¹²⁸ before making a decision or an appointment under the Arbitration Ordinance.¹²⁹ HKIAC must consider AAB’s advice but is not bound by it.¹³⁰

3.78  Parties or arbitral tribunals may request HKIAC to appoint or recommend an expert. For that purpose, a written application to HKIAC shall include the following:

1. (1)  a request for HKIAC to appoint or recommend an expert;

2. (2)  particulars of the parties and their representatives (if any), including their names, addresses, telephone and facsimile numbers, email addresses, and nationalities;

3. (p. 48) (3)  particulars of any arbitrators already appointed;

4. (4)  particulars of any experts who have already participated in the proceedings, and who are experts in the same field in respect of which the application is made;

5. (5)  a copy of the contract(s) or agreement(s) in respect of which the dispute has arisen;

6. (6)  a copy of the parties’ agreement under which the appointment or recommendation of an expert by HKIAC is to be made;

7. (7)  any agreed qualifications of the expert and any other information relevant to the kind of expertise required;

8. (8)  a description of the nature of the dispute including the amount in dispute; and

9. (9)  confirmation that copies of the application and any supporting documents included therewith have been or are being served simultaneously on all other parties and the arbitral tribunal when appropriate by one or more means of service to be identified in such confirmation.¹³¹

3.79  The application shall be accompanied by payment of HK$8,000 to HKIAC. HKIAC may charge additional fees where the circumstances so require.¹³²

3.80  HKIAC provides mediation services in a variety of disputes including commercial, investment, and family disputes by appointing mediators and/or providing administrative support in mediation proceedings.

3.81  HKIAC may appoint a mediator based on the parties’ agreement. Any or all parties to a dispute may apply to HKIAC for the appointment of a mediator by way of joint application or based on an agreement to mediate under the HKIAC Mediation Rules (Mediation Rules).

3.82  To request HKIAC to appoint a mediator, any or all parties must submit a Form M—Application for the Appointment of a Mediator¹³³ to HKIAC with copy to all other parties. Form M includes information about the parties, dispute, any underlying contract and mediation agreement, language of the mediation, and any other information which the parties wish to provide to HKIAC. At the time of application, the parties are also required to pay a fixed administrative fee to HKIAC,¹³⁴ which is in principle split by each party in equal shares.

3.83  Upon receipt of a completed Form M and the administrative fee, HKIAC will proceed to identify suitable candidates having considered the following factors:

1. (1)  the nature of the dispute;

2. (2)  the amount in dispute;

3. (3)  the language of the mediation and any underlying contract;

4. (4)  the identity and nationality of the parties;

5. (5)  the availability of the mediator;

6. (6)  the independence and impartiality of the mediator;

7. (p. 49) (7)  the proposed fee of the mediator; and

8. (8)  any qualification of the mediator agreed or suggested by the parties.

3.84  HKIAC will first propose at least one candidate to the parties and set a time limit for comments. If no party objects to or raises any justifiable concerns about the proposed candidate, HKIAC will generally proceed to appoint that candidate as mediator. In general, HKIAC is able to appoint a mediator within one week after receipt of the completed Form M and the administrative fee.

3.85  As noted at paragraphs 3.72–3.77 above, HKIAC may exercise its function as the statutory appointing authority to appoint a mediator under an arbitration agreement pursuant to section 32(1) of the Arbitration Ordinance. To exercise that function, HKIAC will follow the procedure in Rule 11 of the Cap 609C Rules.

3.86  HKIAC also administers mediation proceedings under its Mediation Rules.¹³⁵ Where the parties have stipulated in their contract, or by subsequent agreement, to adopt the Mediation Rules, they will notify HKIAC if they have agreed on a mediator and if the proposed mediator is willing to serve. If the parties fail to agree within the time period stipulated in the Mediation Rules, they will request HKIAC to appoint a qualified mediator. Upon receipt of an application pursuant to the Mediation Rules, HKIAC shall appoint a suitable mediator.

3.87  In HKIAC mediations, a mediator typically charges by hourly rate subject to any fee arrangement agreed by the parties. In HKIAC’s experience, the normal range of hourly rates charged by a mediator is between HK$1,000 and HK$4,000.

3.88  HKIAC currently maintains three panels of mediators, that is the General Panel, the Family Panel, and the Panel of Family Supervisors, comprising a total of over 1,000 mediators.¹³⁶ Mediators admitted onto those panels must satisfy the relevant requirements of HKIAC. Mediators on the General Panel can handle mediations of a wide variety of disputes. Mediators on the Family Panel are trained to facilitate separating/divorcing couples to reach agreements regarding any ongoing arrangements for their children and/or the resolution of any related financial matters. The Family Supervisors are experienced family mediators who assist in family mediation training.

3.89  On 14 December 2018, HKIAC’s Hong Kong Mediation Council (HKMC)¹³⁷ was designated as a Hong Kong Mediation Institution pursuant to Article 1.5 of the Mediation Mechanism of the Investment Agreement under the Mainland and Hong Kong Closer Economic Partnership Arrangement (Investment Agreement). Under the Investment Agreement, HKMC may administer mediations between a mainland Chinese investor and the relevant authorities or institutions of Hong Kong. For that purpose, the Department of Justice of Hong Kong has published a set of mediation rules for investment disputes between a mainland investor and the relevant Hong Kong authorities or institutions (Investment Mediation Rules).¹³⁸ Under the Investment Mediation Rules, HKIAC’s role includes the following:

(p. 50)

1. (1)  determining whether the conditions for submission of a dispute to mediation by a mainland Chinese investor are satisfied;¹³⁹

2. (2)  delivering an invitation to mediate to all parties and notifying the investor whether the other party consents to mediate (Mediation Notification);¹⁴⁰

3. (3)  upon the issuance of a Mediation Notification, assisting in communications between the parties to appoint a Commission of three arbitrators from the list of ‘Designated Mediators’;¹⁴¹

4. (4)  appointing any missing mediators if the Commission is not constituted within twenty days from the issuance of the Mediation Notification or if a position subsequently becomes vacant;¹⁴²

5. (5)  determining a party’s objection to a mediator if the other members of the Commission fail to decide;¹⁴³ and

6. (6)  affixing HKIAC’s seal to any mediated settlement agreement and authenticating the mediation report before providing a certified copy to the parties.¹⁴⁴

3.90  To promote the development and use of mediation as an alternative method of resolving disputes, and to meet the increasing demand for mediation services, HKMC was set up within HKIAC in January 1994. HKMC is run by a committee responsible for coordinating activities and promoting the use of mediation in a wide variety of areas. HKMC has set up various mediation interest groups concentrating their mediation activities in specialist areas such as commercial, construction, family, and general matters. HKMC and its mediation interest groups regularly hold seminars, training, and meetings on various aspects of mediation. In 2020, HKMC changed its name to the Hong Kong International Mediation Society (HKIMS).

3.91  Adjudication is intended to provide a quick process for the resolution of disputes which arise during the currency of a contract, with any decision being binding until any further consideration in subsequent arbitration or litigation.¹⁴⁵ HKIAC administers adjudication proceedings under its Adjudication Rules.¹⁴⁶ Under the Adjudication Rules, the dispute shall be adjudicated by a sole adjudicator,¹⁴⁷ the venue of adjudication shall be HKIAC, and the language of the adjudication shall be English.¹⁴⁸ The parties may agree on the appointment of an adjudicator within the specified time limit, failing which HKIAC shall appoint the adjudicator following a list procedure.¹⁴⁹ The adjudicator, once appointed, shall reach a decision within fifty-six days from the date of the referring party’s referring submissions or within a longer period as agreed by the parties.¹⁵⁰

(p. 51) 3.92  HKIAC has a Panel of Adjudicators comprising individuals who have demonstrated experience and expertise in resolving technical engineering and construction disputes. The current members of the panel and its listing requirements are published on HKIAC’s website.¹⁵¹

3.93  At present, Hong Kong has no legislation to govern adjudication. In June 2015, the Development Bureau of Hong Kong (Development Bureau) published a consultation paper on a proposed security of payment legislation which was intended to regulate certain aspects of payment practice in the construction industry and to provide for rapid interim dispute resolution through adjudication.¹⁵² In April 2016, the Development Bureau published its report on the public consultation noting a general public support but divergent views relating to some aspects of the proposed legislative framework.¹⁵³ The Development Bureau intended to finalize the proposed framework and prepare a bill for submission to the Legislative Council.¹⁵⁴

3.94  HKIAC provides comprehensive online dispute resolution services for resolving domain name disputes.

3.95  Since 2001, HKIAC has been appointed by various managers of country code Top-Level Domains (ccTLDs), that is in 2001, HKIAC accepted appointment from the Hong Kong Internet Registration Corporation Limited (HKIRC) to resolve disputes concerning domain names registered under the.hk and. 香港‎ and subsequently in 2002, HKIAC accepted appointment from the China Internet Network Information Center (CNNIC) to resolve disputes filed in accordance with ccTLD Dispute Resolution Policy (CNDRP).

3.96  In 2002, HKIAC entered into a joint venture with the China International Economic and Trade Arbitration Commission (CIETAC) to establish the Asian Domain Name Dispute Resolution Centre (ADNDRC). The ADNDRC is a charitable institution registered in Hong Kong and has four offices, that is HKIAC (Hong Kong office), CIETAC (Beijing office), the Korean Internet Address Dispute Resolution Committee (Seoul office), and the Asian International Arbitration Centre (Kuala Lumpur office). ADNDRC provides a variety of domain name dispute resolution services and is one of the five dispute resolution service providers appointed by Internet Corporation for Assigned Names and Numbers (ICANN).¹⁵⁵

3.97  As the Hong Kong office of ADNDRC, HKIAC supports the management of ADNDRC’s Secretariat and operates the Hong Kong office administering domain name disputes arising under various ICANN’s policies. The permanent Secretariat of the ADNDRC returned to HKIAC from 1 January 2021.

(p. 52) 3.98  HKIAC’s domain name proceedings are conducted via a fully web-based online dispute resolution platform. Between 2001 and 2019, HKIAC administered a total of 2,484 domain name disputes.¹⁵⁶

3.99  The implementation of the UDRP was approved by ICANN in 1999, which sets forth the terms and conditions in connection with a third party (usually a holder of trademark rights or a licensee) and a domain name registrant concerning abusive registration of domain names. It applies to all gTLDs, including new gTLDs which are introduced to the root after 1 January 2013.¹⁵⁷ Under the UDRP, a trademark right holder may seek transfer or cancellation of the registration of the disputed domain name in a cost-effective and speedy manner.

3.100  There is a case filing fee¹⁵⁸ for filing a UDRP complaint at ADNDRC which comprises an administrative fee and panelist fee.¹⁵⁹ Under normal circumstances, a decision can be expected within thirty-five days after the submission of the complaint.¹⁶⁰

3.101  URS applies to all new gTLDs and several ccTLDs.¹⁶¹ As a complement to the UDRP, URS provides a lower-cost and faster process for rights holders to remove a website by suspending the resolution of the disputed domain name without having the domain name transferred. URS is designed for clear-cut cases, which do not involve a genuine contestable issue as to whether a domain name registration and the use of it are made in bad faith or not. In comparison with UDRP, a higher burden of proof rests on the complainant in URS proceedings. In URS proceedings, a determination can be expected within twenty-five days after the submission of the complaint¹⁶² and the cost is about one-third of that in UDRP proceedings.¹⁶³

3.102  Since the launch of URS in March 2014, HKIAC has handled thirty-four URS requests to date.

3.103  Trademark-PDDRP is a higher-level right protection mechanism adopted by ICANN for resolving complaints submitted by a trademark holder as to whether a new gTLD registry (p. 53) operator is intentionally and systematically infringing trademarks either on the top level or second level. Under the Trademark-PDDRP, the language of all submissions and proceedings will be English and parties may submit supporting evidence in their original language accompanied by an English translation, unless the Expert Panel determines otherwise.¹⁶⁴ All complaints are reviewed by a Threshold Review Panel which is composed of a sole panelist appointed by a Trademark-PDDRP service provider to determine whether the complaint satisfies certain criteria set out in section 9 of the Trademark-PDDRP.¹⁶⁵ To that end, HKIAC has been designated as one of the three ICANN-accredited Trademark-PDDRP service providers. An Expert Panel will be constituted to determine whether a registry operator is at fault and recommend remedies to ICANN for consideration.¹⁶⁶

3.104  Disputes between two ICANN-accredited registrars concerning inter-registrar domain name transfers may be resolved under TDRP. Since the launch of TDRP on 28 February 2002, HKIAC has been designated as one of the two ICANN-accredited TDRP service providers.

3.105  In addition to gTLD dispute resolution, HKIAC also provides dispute resolution services to major ccTLDs in the region, which include, .hk and. 香港‎ (Hong Kong), .cn and, .中国‎ (Mainland China), and .ph (the Philippines).

3.106  Dispute resolution proceedings for ccTLDs conducted in HKIAC are largely similar to UDRP proceedings and they are also cost-effective and speedy. However, there are several minor but salient procedural issues in proceedings for resolving disputes on .cn and .中国‎ domain names and .hk and .香港‎ domain names.

3.107  On 18 June 2019, the CNNIC promulgated its current version of the CNDRP, which governs disputes relating to .cn and .中国‎ domain names. To succeed in its complaint, the complainant in a CNDRP proceeding must satisfy the following three conditions: (a) the disputed domain name is identical or confusingly similar to the complainant’s name or mark in which the complainant has civil rights or interests; (b) the disputed domain name holder has no right or legitimate interest in respect of the domain name or major part of it; and (c) the respondent has registered or has been using the domain name in bad faith. Under the CNDRP, complaints concerning .cn and .中国‎ domain names with registration term of over three years cannot be accepted by a dispute resolution provider, such as HKIAC.¹⁶⁷

3.108  According to Article 4 of the Hong Kong Domain Name Dispute Resolution Policy (HKDRP),¹⁶⁸ filing a complainant under the HKDRP is considered as initiating a mandatory arbitration proceeding against the other party, and a HKDRP proceeding is therefore governed by the Arbitration Ordinance. As a result, an award rendered in accordance with the HKDRP is not subject to appeal in any court, and is considered as (p. 54) an arbitration award rendered in Hong Kong for the purpose of enforcement under the New York Convention.

3.109  Internet keywords and wireless keywords are aliases for a domain name or URL (Universal Resource Locator, commonly known as a website address) which facilitates easier access to network names by establishing a corresponding relationship between the keyword (which may be in English and/or Chinese characters) and the corresponding URL. These technologies were originally launched by CNNIC and HKIAC has been appointed as the dispute resolution provider for disputes concerning Internet keywords since 2005 and for disputes relating to wireless keywords since 2009.

3.110  HKIAC provides world-class physical and virtual hearing facilities including a virtual hearing room. Equipped with state-of-the-art technology and modern furnishings, HKIAC’s seventeen custom-built rooms can accommodate up to 180 people and can be configured to suit the requirements of any event, meeting, or hearing. In addition, HKIAC provides a wide range of individualized services including hotel and airline reservations and onsite catering.

3.111  As noted in paragraph 3.41 above, HKIAC also offers a range of virtual hearing services which comprise the following:¹⁶⁹

1. (1)  IP-based video conferencing system supporting multiple locations and cloud-based video conferencing system that is compatible with all major video conferencing platforms.

2. (2)  Audio conferencing system with high-speed connectivity to over eighty countries supporting up to thirty lines.

3. (3)  Online and offline electronic bundles services.

4. (4)  Assembly of evidence from multiple media sources into a logical and user-friendly format to present evidence at a hearing.

5. (5)  Onsite and remote real-time transcription services across different locations.

6. (6)  Simultaneous and consecutive interpretation services with onsite or remote attendance.

7. (7)  A dedicated room fully equipped for virtual hearings.

3.112  HKIAC’s facilities are located in a prime office building in the central business district of Hong Kong, overlooking the famous Victoria Harbour. The building is within a five-minute walk or taxi ride from most major law firms, financial institutions, companies, and hotels, and above Hong Kong’s airport express train station which takes twenty-four minutes to reach the airport.

(p. 55) 3.113  Hong Kong’s hearing facilities are available for HKIAC and non-HKIAC cases. The facilities have been used to host high profile investment treaty cases, such as Michael McKenzie’s US$3.75 billion claim against Vietnam, the Cambodia Power Company’s ICSID claim against Cambodia and Tethyan Copper Company Pty Ltd’s ICSID claim against Pakistan. One of HKIAC’s investor-State arbitrations was heard at the Seoul International Dispute Resolution Centre (Seoul IDRC) which provided its hearing facilities free of charge. These arrangements have been made possible pursuant to the cooperation agreements which HKIAC has entered into with various arbitral institutions including ICSID, PCA, and Seoul IDRC.¹⁷⁰

3.114  HKIAC’s hearing facilities have received global recognition including high rankings in GAR’s hearing centres surveys.¹⁷¹ In particular, GAR’s 2020 ‘hearing centres “preferences” survey’ notes that:¹⁷²

The HKIAC’s ‘excellent location at the heart of Central [a district in Hong Kong]’ saw it emerge as apparently the most convenient of all the centres evaluated then. As one participant noted, the HKIAC is about as perfect as it gets: close to a large number of business hotels, within walking distance of the major law firms (it’s in the same building as several), and right above the high-speed train to the airport—Hong Kong’s Airport Express.

3.115  Further details about HKIAC’s hearing facilities are available on HKIAC’s website.¹⁷³

3.116  HKIAC introduced a tribunal secretary service in June 2014 whereby HKIAC’s legal staff are available to act as tribunal secretary in the following types of arbitrations seated in or outside of Hong Kong:

1. (1)  arbitrations administered by HKIAC under all versions of the HKIAC Administered Arbitration Rules or UNCITRAL Rules; and

2. (2)  ad hoc arbitrations.¹⁷⁴

3.117  To accompany the tribunal secretary service, HKIAC has issued Guidelines on the Use of a Secretary to the Arbitral Tribunal (Guidelines), which took effect on 1 June 2014. The Guidelines contain detailed guidance on the appointment, challenge, duties, and remuneration of tribunal secretaries, and can be adopted by parties in arbitrations administered by HKIAC or in other cases.¹⁷⁵

(p. 56) 3.118  From 2014 to 2019, HKIAC’s legal staff were appointed on thirty-four occasions with a strong growth in the number of appointments in 2018 and 2019. Table 3.1 provides the number of appointments each year from 2014 to 2019:

Table 3.1:  Summary of tribunal secretary appointments (2014–2019)

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3.119  Tasks undertaken by the tribunal secretaries in those cases typically included making procedural arrangements; reviewing the parties’ correspondence and submissions; attending hearings, deliberations, and taking notes; assisting with the non-substantive drafting of correspondence, procedural orders, decisions, and arbitral awards; proof-reading arbitral awards; and translation work. The appointment of a tribunal secretary to undertake these tasks can offload the administrative work from the arbitral tribunal and save costs for the parties.

3.120  The tribunal secretary service has proven to be a useful feature of HKIAC’s offering in its international commercial and investment treaty cases and has met with growing demand. As the first international and only commercial arbitral institution to provide such service, HKIAC received the GAR Award for Innovation by an Individual or Organization in 2014.¹⁷⁶ The quality of the service has been widely endorsed by international arbitrators.

3.121  In addition to the tribunal secretary service, HKIAC also runs a tribunal secretary training programme which occurs over two and a half days, at the end of which participants are assessed. The programme is overseen by a Senior Advisory Board and taught by a faculty composed of individuals with extensive experience acting as tribunal secretary. If participants pass the assessment, they will be listed on HKIAC’s website (subject to consent) and can be considered by arbitral tribunals for appointment in arbitrations under any rules and seated in any jurisdictions. HKIAC generally hosts two tribunal secretary sessions every year in Hong Kong and in other jurisdictions such as London, New York, Singapore, Shanghai, Beijing, and Manila.¹⁷⁷

3.122  HKIAC provides fund-holding services to all cases administered by HKIAC at no additional cost.

3.123  HKIAC provides the following fund-holding services in proceedings not administered by HKIAC (including arbitrations, mediations, adjudications, and domain name disputes):

1. (1)  holding deposits for the costs of proceedings including the fees and expenses of the arbitral tribunal (at an administrative fee of HK$8,000 per annum); and

2. (2)  holding deposits for other matters including for security for costs (at an administrative fee of HK$10,000 per annum).¹⁷⁸

3.124  A party seeking to enforce an arbitral award may be required by the enforcing court to provide a ‘duly authenticated original award or a duly certified copy thereof’ under Article IV(1) of the New York Convention or the Arbitration Ordinance. For that purpose, a party may request HKIAC to authenticate an arbitral award in an (a) HKIAC administered arbitration; or (b) ad hoc arbitration in which HKIAC provided administrative support, for example, appointing authority services or fund-holding services. Further information about HKIAC’s authentication services is available on HKIAC’s website.¹⁷⁹

3.125  HKIAC provides secretariat support services to the following institutions:

1. (1)  Chartered Institute of Arbitrators (East Asia Branch);¹⁸⁰

2. (2)  Hong Kong Institute of Arbitrators (HKIArb);¹⁸¹

3. (3)  Society of Construction Law Hong Kong;¹⁸² and

4. (4)  Hong Kong Mediation Accreditation Association Ltd (HKMAAL).¹⁸³

3.126  Having registered over 10,500 cases since its establishment in 1985, HKIAC maintains one of the largest caseloads among international arbitral institutions in the Asia-Pacific region.¹⁸⁴ Table 3.2 summarizes HKIAC’s case statistics from 2010 to 2020: