Jurisdiction - Hong Kong
Reports and Analysis
Hong Kong – Arbitration (Amendment) Ordinance 2013.
9 August, 2013

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

 

Emergency Relief:

 

  • Amendments facilitate enforcement of emergency relief, interfacing with emergency arbitrator provisions in recent arbitration rules in the region.
  • Emergency relief is enforceable in the same manner as an order or direction of the court if leave is granted by Hong Kong courts. However, only certain categories of relief “granted outside Hong Kong” are enforceable.

 

Enforcement of Macao Arbitration Awards:

 

  • Arbitral award made in Macao will be recognised and enforced in Hong Kong in the same manner as a New York Convention award.

 

The Hong Kong Arbitration (Amendment) Ordinance 2013 came into effect on 19 July 2013. This Ordinance amends the Hong Kong Arbitration Ordinance to make provision for the enforcement of emergency relief granted by emergency arbitrators, and to allow for reciprocal enforcement of arbitration awards with the Macao SAR (though the latter provisions still need to be implemented by further notice in the Hong Kong Government Gazette).

 

Emergency Relief

 

These amendments relating to emergency relief are particularly timely considering that the latest version of the Hong Kong Administered Arbitration Rules (2013) (due to come into effect on 1 November 2013) make provision for the appointment of emergency arbitrators, empowering them to order a wide variety of emergency relief. The most recent versions of other arbitration rules in the region (e.g. Singapore International Arbitration Centre Rules 2012, ICC Rules of Arbitration 2012, and the Australian Centre for International Commercial Arbitration Rules 2005, as amended in 2011) also provide for emergency arbitrators and emergency relief.

 

The new provisions added by the Hong Kong Arbitration (Amendment) Ordinance 2013 differentiate between emergency relief granted within Hong Kong, and emergency relief “granted outside Hong Kong”.

 

In order to enforce emergency relief, leave must first be sought from the Hong Kong Courts. If leave is granted, the emergency relief becomes enforceable in the same manner as an order or direction of the Court, and has the same effect.

 

However, if the emergency relief was “granted outside Hong Kong”, the Court may not grant leave unless the party seeking to enforce the award can demonstrate that the relief consists of temporary measures designed to serve only one or more of the following purposes:

 

  • (a) Maintain or restore the status quo pending the determination of the dispute concerned
  • (b) Take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself
  • (c) Provide a means of preserving assets out of which a subsequent award made by an arbitral tribunal may be satisfied
  • (d) Preserve evidence that may be relevant and material to resolving the dispute
  • (e) Give security in connection with anything to be done under (a), (b), (c) or (d)
  • (f) Give security for the costs of arbitration.

 

As such, the ability of a party to enforce emergency relief varies substantially depending on whether it was “granted outside Hong Kong”. Unfortunately, it is unclear whether the words “granted outside Hong Kong” refer to arbitrations seated outside of Hong Kong, or simply to the geographical location of the emergency arbitrator when he grants his decision.

 

Applying a purposive interpretation to these words, they seem to refer to arbitrations seated outside Hong Kong because differentiating based on the geographical location of the emergency arbitrator does not further any of the objects listed in s.3 of the Hong Kong Arbitration Ordinance (Cap. 609). Interpreting “granted outside Hong Kong” as a reference to the location of the juridical seat (on the other hand) would at least justify a less stringent regime being applied in the case of Hong Kong-seated emergency arbitrators, on the basis that the mandatory principles of Hong Kong law under the Arbitration Ordinance (such as equal treatment of parties under s. 46) would apply.

 

However, the exact meaning of “granted outside Hong Kong”, is still unclear, and will need to await elucidiation by the Courts. 

 

If leave is refused by the Court, whether for emergency relief granted within or without Hong Kong, there is no appeal.

 

Reciprocal Enforcement of Macao Awards

 

The provisions relating to Enforcement of Macao Awards, when they come into effect, will mean that an arbitral award made in Macao will be recognised and enforced in the same manner as a New York Convention award in Hong Kong.

 

 

For further information, please contact:
 
Vincent Connor, Partner, Pinsent Masons
 

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