1 See eg Gary Born, International Commercial Arbitration (2nd edn, Kluwer Law International 2014) vol II at 2427; Nigel Blackaby, Constantine Partasides QC, Alan Redfern, and Martin Hunter, Redfern and Hunter on International Arbitration (6th edn, OUP 2015)at [5.27].
3 At the time of writing, the amount of the initial deposit is HK$250,000.
4 At the time of writing, the maximum amount set by HKIAC is HK$200,000.
5 Chiann Bao, ‘Developing the Emergency Arbitrator Procedure: The Approach of the Hong Kong International Arbitration Centre’ in Diora Ziyaeva et al (eds), Interim and Emergency Relief in International Arbitration (Jurisnet 2015) ch 14.
6 Geoffrey Ma and Denis Brock, Arbitration in Hong Kong: A Practical Guide (Sweet & Maxwell 2014) at [12.006].
7 Ibid at [12.007], [12.014]; Thomas Stipanowich, ‘Arbitration and Choice: Taking Charge of the “New Litigation” ’ (2009) De Paul Business & Commercial Law Journal 383; Edna Sussman, ‘Why Arbitrate: The Benefits and Savings’ (2010) 7 Transnational Dispute Management 2; cf Born (n 1) vol I at 85–6.
8 Ma and Brock (n 6) at [12.005]; James Castello ‘Arbitral ex parte Interim Relief’ (2003) 58(3) Dispute Resolution Journal 66.
9 Blackaby et al (n 1) at [7.30].
10 ICDR Rules (2014); SCC Rules (2017); ICC Rules (2021); SIAC Rules (2016); LCIA Rules (2020); HKIAC Rules (2018). For an examination of leading emergency arbitration rules, see Cameron Sim, Emergency Arbitration (OUP 2021).
11 While other arbitration institutions have generally had a higher number of emergency arbitrator applications, this may be explained by the retrospective application of the emergency arbitrator provisions to arbitration agreements concluded prior to the commencement of the 2013 SIAC Rules in 1 April 2013. See Michael Dunmore, ‘The Use of Emergency Arbitration Provisions’ (2015) Asian Dispute Review 130. However, as mentioned in this chapter, the HKIAC Rules (2018) also allow retrospective application of the emergency arbitrator provisions to arbitration agreements concluded on or after 1 November 2018.
12 Arbitration Ordinance, ss 22A and 22B.
13 Sim (n 10) at paras 10.43–10.54.
14 The same approach is adopted by art 29.6 of the ICC Rules (2017) and art 9.14(i) of the LCIA Rules (2014). However, the emergency arbitrator procedures under art 1.2 of the SIAC Rules (2016), art 1.1 of the ICDR Rules (2014), the preamble of the SCC Rules (2017), and arts 4.1–4.2 of the CIETAC Rules (2015) apply where the arbitration commences after the relevant rules entered into force, regardless of when the parties concluded the relevant arbitration agreement.
15 HKIAC Rules (2018), art 2.8. This does not preclude that the emergency arbitrator nevertheless serves the function of an arbitrator. On the status of the emergency arbitrator, see Sim (n 10) at paras 4.48–4.95. Sim concludes that ‘there are strong reasons to support the classification of the emergency arbitrator as an arbitrator’: ibid, para 4.94. The status of the emergency arbitrator impacts on enforceability prospects in jurisdictions where the emergency arbitrator does not have express statutory recognition: ibid at paras 10.60–10.93.
16 Sim (n 10) at para 7.40.
18 Ibid at para 1.108; see further Edgardo Muñoz, ‘How Urgent Shall an Emergency Be?—The Standards Required to Grant Urgent Relief by Emergency Arbitrators’ in Marianne Roth et al (eds), Yearbook on International Arbitration Volume IV (Brill Books 2007) 43 at 61.
19 HKIAC Rules (2018), art 2.2.
20 The time limit for appointing an emergency arbitrator ranges from one to three days under the emergency arbitrator procedures of various institutional rules. The ICC Rules (2017) specify a two-day time limit: ICC Rules (2021), appendix V, arts 1.5, 2.1. The shortest time limit is one business day from the date the institution receives the application (SCC, ICDR), or decides to accept the application (SIAC, CIETAC), which is prescribed under the SIAC Rules (2016), ICDR Rules (2014), CIETAC Rules (2015), and SCC Rules (2010): SIAC Rules (2016), sch 1, para 3; ICDR Rules (2021), art 7.2; SCC Rules (2017), appendix II, art 4.1; CIETAC Rules (2015), appendix III, para 2.1. The longest time period is three days from receipt of the application under the LCIA Rules (2020): LCIA Rules (2020), art 9.6.
22 HKIAC’s initial deposit compares favourably with fees charged by other major arbitral institutions. The ICC charges an initial fee of US$40,000 (approx HK$310,000), consisting of US$10,000 (approx HK$77,500) for administrative fees and US$30,000 (approx HK$232,500) for the emergency arbitrator’s fees. The fee for the LCIA’s emergency arbitrator procedures is GBP28,000 (approx HK$327,000), including GBP8,000 (approx HK$94,000) for the application fee and GBP20,000 (approx HK$233,000) for the emergency arbitrator’s fee, which may be increased by the LCIA Court. The SIAC charges a fixed fee of SG$5,000 (approx. HK$29,000) for its administrative fees. The emergency arbitrator’s fees are determined by the Registrar with a minimum of SG$20,000 (HK$115,000) (subject to the Registrar’s discretion) and a maximum of 20 per cent of a sole arbitrator’s fee based on its ad valorem schedule.
23 HKIAC Rules (2018), art 11.
25 Practice Note on Appointment of Arbitrators (effective 1 November 2018), paras 1.2 and 3.4.
26 The ICC Rules (2021) appendix V, art 3 do not expressly state the grounds on which an arbitrator may be challenged but art 14.1 provides that arbitrators may be challenged on broad grounds, including a ‘lack of impartiality or independence, or otherwise’. The LCIA Rules (2020) provide that an emergency arbitrator can be challenged on the grounds that he or she is seriously ill, refuses to act, becomes unable to act, or the existence of circumstances giving rise to justifiable doubts as to his or her impartiality or independence: LCIA Rules (2020), art. 10.1. The SCC Rules (2017) expressly permit an emergency arbitrator to be challenged on the basis of circumstances giving rise to justifiable doubts as to the arbitrator’s independence and impartiality or where the arbitrator does not possess the qualifications required by the parties: SCC Rules (2017), art 19(1), appendix II art 4(3). The SIAC Rules (2016) sch 1, para 5 do not expressly state the grounds on which an emergency arbitrator may be challenged. Under the CIETAC Rules (2015) and ICDR Rules (2021), a party may only challenge an emergency arbitrator on the basis of justifiable doubts as to the impartiality or independence of the emergency arbitrator: CIETAC Rules (2015), appendix III, art 5; ICDR Rules (2021), art 14.1.
27 The ICC Rules (2021) require the challenge to be submitted within three days of the notification of appointment and a challenge must be determined within a suitable period of time: ICC Rules (2021), appendix V, arts 3.1–3.2. The SIAC Rules (2016) and ICDR Rules (2021) require a challenge to be made within two and one day respectively of the communication of the appointment to the parties of the emergency arbitrator, but there are no express constraints on the time within which the decision on the challenge must be rendered: SIAC Rules (2016), sch 1, para 5; ICDR Rules (2021), art 7(2). The SCC Rules (2017) require a challenge to be made within twenty-four hours of the party discovering the circumstances giving rise to the challenge but they provide a maximum of fifteen days for the determination of the challenge: SCC Rules (2017), art 19 and appendix II, art 4(3). CIETAC prescribes that a challenge to an emergency arbitrator must be submitted within one day of the declaration of independence by the emergency arbitrator, and that the President of the Arbitration Court must determine the challenge within one day.
28 Whether the party intending to challenge an emergency arbitrator can do so in the courts of the seat of the emergency arbitration will likely depend on whether an emergency arbitrator falls within the definition of arbitrator or arbitral tribunal under the applicable arbitration law. Under the Hong Kong Arbitration Ordinance, it appears that, as the ‘emergency arbitrator’ is expressly defined in section 22A of the Hong Kong Arbitration Ordinance and the provisions on challenges only reference ‘arbitrator’, an emergency arbitrator challenge may not be taken to the courts.
29 On the legal significance of the seat of emergency arbitration, see Sim (n 10) at paras 6.57–6.72.
30 Sim (n 10) at paras 5.07–5.65.
31 For further discussions on the distinction between ‘reasonable opportunity’ and ‘full opportunity’, see Chapter 9.
32 The HKIAC Rules (2018) are among a handful of emergency arbitration rules which set out specific standards the emergency arbitrator may apply to determine the application: see Sim (n 10) at paras 7.14–7.21.
33 The ICC Rules (2021) require a decision within fifteen days of the date on which the file was transmitted to the emergency arbitrator, and the CIETAC Rules (2015) require a determination within fifteen days of the emergency arbitrator’s acceptance of appointment: ICC Rules (2021), appendix V, art 6.4; CIETAC Rules (2015), appendix III, para 6.2. The SIAC Rules (2016) and LCIA Rules (2020) require a decision within fourteen or fifteen days respectively of the arbitrator’s appointment, but the SCC Rules (2017) prescribe the shortest time limit, which is five days from the application being referred to the emergency arbitrator: LCIA Rules (2020), arts 22.5, 9.8; SIAC (2016), sch 1, para. 9; SCC Rules (2017), appendix II, para 8.1.
34 See eg the ICDR Rules (2021). See further Sim (n 10) at para 9.13.
35 Sim (n 10) at paras 4.98–4.104.
36 HKIAC Rules (2018), Sch 4, para 18.
39 This is distinguishable from the position for ordinary arbitrators, where parties may elect to use either an hourly rate or a rate determined by the amount in dispute.
41 Sim (n 10) at paras 10.19–10.35.
42 Arbitration Ordinance, s 22B(1).
45 To date, there has been one occasion where HKIAC was asked by a party to extend the time limit on the basis of ‘appropriate circumstances’ under the 2018 Rules.
46 See eg SIAC Rules (2016), sch 1, para 10; ICDR Rules (2021), art 7.5; CIETAC Rules (2015), appendix III, para 5.3; SCC Rules (2017), appendix II, para 1.2.
47 On the tensions which may arise as a result of the concurrent jurisdiction of emergency arbitrators and courts, see Sim (n 10) at paras 3.166–3.213.
48 HKIAC Rules (2008), art 24.
49 UNCITRAL Model Law (2006), art 17(1), given effect by Arbitration Ordinance, s 35(1).
50 See the ICC Rules (2021), SIAC Rules (2016), SCC Rules (2013), and ICDR Rules (2021); HKIAC Rules (2008).
51 Official Records of the General Assembly, Sixty-First Session, Supplement No 17, A/61/17 at ; John Choong and Romesh Weeramantry, Arbitration Ordinance: Commentary and Annotations (Sweet & Maxwell 2011) at 198–200.
52 UNCITRAL Secretariat, 2012 Digest of Case Law on the Model Law of International Commercial Arbitration (United Nations 2012) at 87, citing Safe Kids in Daily Supervision Ltd v McNeill  NZHC 605,  1 NZLR 714.
53 See eg Born (n 1) vol II at 2426–7; Blackaby et al (n 1) at [5.27].
54 Choong and Weeramantry (n 51) at 198.
55 Ibid at 199, citing Official Records of the General Assembly, Sixty-First Session, Supplement No 17, A/61/17 at –.
57 See eg Born (n 1) at 2444–5; Blackaby et al (n 1) at [7.21].
58 Peter Binder, Analytical Commentary to the UNCITRAL Arbitration Rules (Sweet & Maxwell 2013) at [4A–034]; IBA Rules on Evidence (2010), art 4(9), art 3(11). See further Choong and Weeramantry (n 51) at 200.
59 Arbitration Ordinance, ss 35(2) and 56(1)(a), (2)–(4).
60 See Section D below for further discussion on security for costs.
61 Ali Yesilirmak, Provisional Measures in International Commercial Arbitration (Kluwer Law International 2005) at [4–4]. See further Raja Bose and Ian Meredith, ‘Emergency Arbitration Procedures: A Comparative Analysis’ (2012) 15 International Arbitration Law Review 187 at 192.
62 Yesilirmak (n 61) at [4–4].
63 Arbitration Ordinance, s 37. See s 38 of the Arbitration Ordinance for the specific regime on preliminary orders.
64 See Section D below for further discussion on security for costs.
65 Arbitration Ordinance, s 56(8).
66 Choong and Weeramantry (n 51) at 202–4.
67 Ibid at 203, citing Report on the Working Group on the Work of its 40th Session, New York, 23–27 February 2004, A/CN.9/547 at –.
69 Born (n 1) vol II at 2478–9.
70 Ma and Brock (n 6) at 458; Wing Corporation v another v Density Industrial Ltd  HKCFI 563.
71 UNCITRAL, Report of the Working Group II on the Work of its 39th Session, Vienna, 10–14 November 2003, A/CN.9/545.
72 Ma and Brock (n 6) at 458.
73 Wong Chung Development Fund Co Ltd v Profit Surplus Ltd  HKCFI 821.
74 Hiew Sook Fung and others v Fung Tak Keung and others  HKCFI 936.
75 See eg Born (n 1) vol II at 2478–9; Muñoz (n 18) 43, at 58.
76 BG Capital Markets (Hong Kong) Ltd v James Priest and another  HKCFI 1272 at ; Time Success Profits Ltd v Andrew Lam  HKCFI 769 at .
77 For further discussion on interim relief from the Hong Kong courts, see Choong and Weeramantry (n 51) 230–5.
78 Company A and others v Company B and others  HKCU 3735, 3 October 2018 (confirming that Hong Kong courts can order interim relief in support of an arbitration, even against a person or entity which is not a party to the arbitration).
79 Arbitration Ordinance, s 45(9).
80 Ibid. Such injunctive relief includes anti-suit injunctions. The CFI reportedly issued its first anti-suit injunction in Ever Judger Holding Co v Korman Celik Sanayii Anonim Sirketi  HKCFI 602.
81 Arbitration Ordinance, s 45(3).
83 See Blackaby et al (n 1) at [7.26]–[7.27], citing Swiss Federal Statute on Private International Law, ch 12, s 183(1) and (2) (application for interim measures must first be made to the arbitral tribunal and if the respondent does not voluntarily comply with these measures then the arbitral tribunal may request the assistance of the Swiss courts to grant interim measures); Gerard Metals SA v Timis  EWHC 2327 (Ch) (applying s 44(3) of the English Arbitration Act 1996, and holding that where there is sufficient time for an applicant to obtain relief from an expedited tribunal or emergency arbitrator under the rules, the court does not have power to grant urgent relief); SA Clinique de Champagne v Enrico Ambrosini Reims Cour d’Appel, 1ere Ch Civ, 3 July 2012  Rev Arb 681 (application for interim measures to assist in the taking of evidence cannot be made to domestic courts after constitution of the tribunal).
84 Arbitration Ordinance, s 45(5).
87 Arbitration Ordinance, s 60.
92 Arbitration Ordinance, s 35(2).
93 Ibid, s 56(2) is a mandatory provision.
94 Keary Developments Ltd v Tarmac Construction Ltd  3 All ER 534.
96 La Dolce Vita Fine Dining Group Holdings Ltd v Zhang Lan  HKCFI 622 (sanctioning a party’s misconduct by issuing order for security).
97 Noah Rubins, ‘In God We Trust, All Others Pay Cash: Security for Costs in International Commercial Arbitration’ (2000) 11 American Review of International Arbitration 307.
98 This is subject to the limitations expressed in relation to avoiding pre-judgment in Glencore International AG v Tianjin Huarong Minerals Products Co Ltd  3 HKC 68 at 72.
99 Alastair Henderson, ‘Security for Costs in Arbitration in Singapore’ (2005) 7(1) Asian International Arbitration Journal 54 at 74; Weixia Gu, ‘Security for Costs in International Commercial Arbitration’ (2005) 22(3) Journal of International Arbitration 167 at 186.
100 See eg Bernhard Berger, ‘Arbitration Practice: Security for Costs’ (2010) 28(1) ASA Bulletin 7.
101 See eg Born (n 1) vol II at 2496; RSM Production Corp v Saint Lucia ICSID Case No ARB/12/10, Decision on St Lucia’s Request for Security for Costs, 13 August 2014.
102 Otto Sandrock, ‘The Cautio Judicatum Solvi in Arbitration Proceedings or the Duty of an Alien Claimant to Provide Security for the Costs of the Defendant’ (1997) 14 Journal of International Arbitration 17.
103 Henderson (n 99); Marc Veit, ‘Security for Costs in International Arbitration—Some Comments to Procedural Order No 14 of 27 November 2002’ (2005) 23 ASA Bull 116.
106 Keary Developments Ltd v Tarmac Construction Ltd  3 All ER 534 at 540.
107 China Smart Properties Ltd v Manson Holdings Ltd and others, HCA 13913/2007; Keary Developments Ltd v Tarmac Construction Ltd  3 All ER 534, 540; Glencore International AG v Tianjin Huarong Minerals Products Co Ltd  3 HKC 68 at 72.
108 Arbitration Ordinance, s 56(3).