Jurisdiction - Hong Kong
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Hong Kong – Starting An HKIAC Arbitration.

29 September, 2014 

 

Legal News & Analysis – Asia Pacific – Hong Kong – Dispute Resolution

 

The HKIAC Administered Arbitration Rules were revised with effect from 1 November 2013. This Practice Note, written by David Hall-Jones, partner at Winston & Strawn, covers the initiation of the arbitration process under the revised rules.

 

The procedure for commencing arbitration under the HKIAC Administered Arbitration Rules (the HKIAC Rules) is similar to other international arbitration institutions such as the International Chamber of Commerce.


A claimant who wishes to initiate arbitration must submit a written Notice of Arbitration (the Notice) to the HKIAC by post, fax or email (HKIAC Rules, arts 2.1 and 4.1). The relevant contact information is:


Hong Kong International Arbitration Centre
38/F, 2 Exchange Square
8 Connaught Place
HKSAR, China
Fax: +852 2524 2171
Email: adr@hkiac.org


The claimant is required to confirm that the Notice has been received by the defendant regardless of how the Notice was communicated (HKIAC Rules, art 4.3(i)).


Notice Of Arbitration And Statement Of Claim


While there are no rules as to the form of the Notice (other than that it must be in writing), it is usually communicated by letter titled ‘Notice of Arbitration’. In any written form, the Notice must contain (HKIAC Rules, arts 4.1 and 4.3):

 

  • a demand that the dispute be referred to arbitration
  • contact information, including email addresses, telephone and fax numbers of the parties and their legal representatives
  • a copy of the arbitration agreement
  • reference to the contract(s) or other legal instruments from which the dispute arose
  • a description of the general nature of the claim and an indication of the amount involved
  • the relief or remedy sought
  • a proposal as to the number of arbitrators (if not previously 
  • agreed)
  • a proposal regarding the designation of a sole arbitrator under HKIAC Rules, art 7 or the claimant’s designation of an arbitrator under HKIAC Rules, art 8
  • confirmation that copies of the Notice and any exhibits have been or are being served simultaneously on all other parties by one or more means to be identified

The claimant may include its Statement of Claim in the Notice. Otherwise, the Statement of Claim should be filed within the time period fixed by the tribunal. The common practice is for a claimant to summarise the dispute in its Notice and provide its Statement of Claim at a later date within the time limit agreed by the parties in the provisional timetable when the tribunal is duly formed (HKIAC Rules, arts 4.6 and 16).


As a matter of strategic concern, if the claimant chooses to serve its Statement of Claim with its Notice, the respondent will have a shorter period of time to respond.


Submission Requirements


The Notice should be submitted in the language of arbitration agreed by the parties; absent agreement, it should be in English or Chinese (HKIAC Rules, art 4.5).
A registration fee must be paid at the same time that the Notice is submitted. It may be paid by cheque or transfer to the account of the HKIAC (HKIAC Rules, art 4.4 and Sch 1).
The claimant should notify and lodge documentary verification with the HKIAC of the date of receipt by the respondent of the Notice and any exhibits (HKIAC Rules, art 4.8).


Service Of The Notice 


Under previous editions of the HKIAC Rules, the parties were required to submit their Notice or Answer to the HKIAC Secretariat, who then passed the documents to the other party(2008 HKIAC Rules, art 4.1). Under the 2013 HKIAC Rules, service is no longer effected by the HKIAC Secretariat; the parties are responsible for service of their Notice or Answer (HKIAC Rules, art 4.3(i)).


Any notice (including the Notice of Arbitration) or other written communication is deemed to be served on a party, arbitrator or the HKIAC if (HKIAC Rules, art 2.1):

 

  • delivered by hand, registered post or courier service to:
    • the address of the addressee or its representative as notified in writing in the arbitration
    • otherwise, to the address specified in any applicable agreement between the relevant parties
    • otherwise, to any address which the addressee holds out to the world at the time of such delivery
    • otherwise, to any last known address of the addressee
  • transmitted by facsimile, email or any other means of telecommunication that provides a record of transmission including time and date to:
    • the facsimile number or email address (or equivalent) of that person or his or her representatives as notified in the arbitration proceedings
    • otherwise, to the facsimile number or email address or equivalent specified in any applicable agreement between the parties
    • otherwise, to any facsimile number or email address (or equivalent) which the addressee holds out to the world at the time of such transmission

Any other notice or written communication is deemed to be received on the date when it is delivered or transmitted as set out above. Where a notice or written communication is delivered or transmitted to more than one party or arbitrator, it is deemed to be received when it is delivered or transmitted to the last intended recipient (HKIAC Rules, arts 2.1(a), (b) and 2.2).


Arbitration is deemed to commence on the date on which the Notice is received by the HKIAC. It is important to ensure clarity on the date of commencement, particularly if there are limitation issues with the claim. The deemed date of receipt is calculated with reference to HKIAC Rules, arts 2.1 and 2.2 in accordance with the method of submission of the Notice (HKIAC Rules, arts 4.2 and 2).


When calculating a period of time pursuant to the HKIAC Rules, such period begins on the day following the day when a notice, notification, communication or proposal is received or deemed to be received (HKIAC Rules, art 2.3).


Incomplete Notices


If the Notice of Arbitration is incomplete or if the registration fee is not paid, the HKIAC may request the claimant to remedy the defect within the time period set by the HKIAC. If the claimant complies within the time limit, arbitration is deemed to have commenced on the date when the initial version of the Notice was received by the HKIAC (HKIAC Rules, arts 4.2 and 4.7). 


If the claimant fails to comply, the Notice is not deemed to have been validly submitted and the arbitration is not deemed to have commenced, without prejudice to the claimant’s right to resubmit the claim at a later date in a new Notice. In such event, the claimant should reconsider any potential limitations to commencing arbitration (HKIAC Rules, art 4.7).

 

This article was supplied by Lexis Practical Guidance.

 

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For more information on Lexis Practical Guidance, please click here.

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