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ADR In Asia Conference – Emergency Arbitrator Application, Expedited Procedures, And Joinder And Consolidation.

11 December, 2013

 

Legal News & Analysis – Asia Pacific

 

ADR In Asia Conference

 

International Arbitration In Asia: A Behind The Scenes Review

 

Session II: Parts i, ii, & iii – Emergency Arbitrator Application, Expedited Procedures, And Joinder And Consolidation

 

Hong Kong Arbitration Week – 23 October 2013

 

Session II: parts i, ii, & iii covered the new 2013 HKIAC Administered Arbitration Rules (hereinafter “2013 HKIAC Rules”) regarding emergency arbitrator applications, expedited procedures, and joinder and consolidation by way of a mock arbitration allowing the audience to not only learn more about these new rules, but to also see the rules in action as they are intended to be applied moving forward. The mock arbitration was staged by the following persons: Matthew Gearing of Allen & Overy, David Brynmor Thomas of Thirty Nine Essex Street, Liz Chung of Kim & Chang, Claudia Salomon from Latham & Watkins, Christopher Moger QC from Pump Court International, Craig Celniker from Morrison Foerster, Kathryn Sanger of Clifford Chance, Ariel Ye of King & Wood Mallesons, Tortsen Lorcher CMS Hasche Sigle, Kevin Kim of Bae, Kim & Lee, Brendan Horrigan from Herbert Smith Freehills, Yu-Jin Tay of DLA Piper, Vincent Connor from Pinsent Masons, and Ruth Stackpool-Moore from HKIAC.

 

With a complex set of facts involving a contract for the construction of a custom-built luxury private jet and ultimately four different parties, the mock arbitrators were able to both explain and demonstrate how the 2013 HKIAC Rules pertained to emergency arbitrator applications, expedited procedures, and joinder apply. In an effort to ensure HKIAC can more effectively handle applications for interim relief prior to the appointment of a tribunal, the 2013 HKIAC Rules allow a party requiring emergency relief to, concurrent with or following the filing of the arbitral tribunal, submit an application for the appointment of an emergency arbitrator (“the Application”) to HKIAC. Moreover, the timeline for appointment of an emergency arbitrator and deciding on the relief sought is short allowing for a more efficient process.

 

The mock arbitration presented a situation where the Application was filed after a notice of arbitration was sent from the claimant to the respondent, but before the arbitral tribunal had been constituted. The emergency relief sought was to prevent the respondent from pursuing proceedings in another court against a bank that served as a guarantee for the claimant. After concluding, for the purposes of the mock arbitration, that the emergency arbitrator application was proper, the presentation turned to the expedited procedures rules and process.

 

2013 HKIAC Rules Section VI 41.1 broadens the basis for seeking emergency relief by allowing a party to seek expedited procedures after that party has filed a written application for the arbitration where the amount in dispute does not exceed HKD $25,0000,000, or the parties so agree, or in cases of exceptional urgency. The mock arbitration focused on the exceptional urgency basis since the contract required for an airplane to be built by the claimant before the respondent’s planned “Around the World by Private Jet” tour was set to commence. Hence, the respondent had a need for an airplane to be built and operational by the time the tour they advertised and sold began. While no definition is provided for “exceptional urgency,” the mock arbitrators here looked at the facts surrounding the dispute to determine if an exceptional urgency existed.  According to Stackpool-Moore who was playing the part of the HKIAC Secretariat, “exceptional urgency comes down to timing.”

 

Next, the mock arbitrators looked at an interesting scenario involving joinder of a party in arbitration. The two questions presented in any joinder request is (1) can a party be joined and (2) if it can, should it be joined? The 2013 HKIAC Rules give the arbitral tribunal the power to join a party provided that, prima facie, the additional party is bound by an arbitration agreement under these rules. The mock arbitration presented an interesting question of whether a party may be joined if it was not a signatory to the contract, but was connected to one of the parties and had some part in the basis for the dispute. Those arguing against joinder in this scenario made a good point when it was said that it would be inconceivable that all parties involved in the manufacturing of an item are parties to the contract between a buyer and seller. However, there was an obvious connection between the claimant and the party the respondent sought to join, and an inference that easily could have been drawn that both parties shouldered some responsibility. The twist that the facts presented demonstrated how the issue of joinder is not always clear cut.

 

In sum, while it is clear that arbitrators have the power to join a party under the 2013 HKIAC Rules, the issue of whether the specific party sought to be joined can and should be joined is not always as clear. There are grey areas that remain that make a decision by the arbitrator on the issue of joinder difficult.

 

The mock arbitration as a whole was a spin on the standard method of discussing new and revised rules. It highlighted some of the bigger additions and revisions to the previous HKIAC rules. While the facts of the mock arbitration displayed some of the grey areas arbitrators may encounter, it is clear that the purpose of the new and revised 2013 HKIAC Rules is to make Hong Kong and in particular HKIAC a more attractive international arbitration forum for parties world-wide.

 

 

Overview

 

Session I: Debate – Every Arbitral Tribunal Should Have the Power to Remove Counsel When the Integrity of the Process is Jeopardized

 

Session II: Emergency Arbitrator Application, Expedited Procedures, and Joinder and Consolidation

 

Session III: “Follow the Money” – Third Party Funding

 

Session IV: In-House Counsel Session

 

Official Logo

 

For further information, please contact:

 

Tara Shah, Reporter, Conventus Law

[email protected]

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