by the Arbitration Association
RU

HKIAC—New Rules

February 6, 2019

On November 1, 2018, the Hong Kong International Arbitration Centre (HKIAC) is launching its new Arbitration Rules (the Rules). The Rules were approved by the HKIAC Rules Revision Committee which was chaired by Nils Eliasson. The following amendments to the Rules are worth special attention. 

 

Communication and Time limits

The communication and calculation of time limitsin the Rules were described in much more detail. The most significant amendment hereof concerns the recognition of the secured online repository as a valid means of service. From now on any written communication shall be deemed to be received by a party, arbitrator, emergency arbitrator or HKIAC, if uploaded to any secured online repository that the parties have agreed to use[1](their own repositories or a dedicated repository provided by HKIAC).

 

Among other significant changes, there is a provision under which the tribunal must notify the parties and HKIAC of the anticipated date of delivering an arbitral awardafter the arbitration is closed. This date of rendering the award shall be no later than three months from the date when the entire proceedings or the relevant phase of arbitration were announced closed[2]. By this provision HKIAC gives grounds to expect less time-consuming or delayed awards. 

 

Third party funding

Furthermore, a block of new provisions relating to the disclosure of the third-party funding (“TPF”)was added to the Rules. Accordingly, in case of the existence of any funding agreement and the identity of any third-party funder the relevant information should be disclosed from the very beginning — in the Notice of Arbitration[3]. The tribunal shall be duly notified of any changes concerning a funding agreement or the identity of the third-party funder[4]. TPF arrangements are also taken into account when the tribunal determines costs of the arbitration[5]. When it comes to the confidentiality issues, it is now permitted to disclose arbitration-related information to the existing or potential funder in the Rules[6].

 

Interim Measures and Emergency Relief

Interim Measures have met wider regulation. A party to a HKIAC arbitration should exercise caution when requesting interim measures, because of the risk to pay the costs and damages in case the tribunal determines that such measures should not have been granted[7].

The same effect may occur in the event theEmergency Relief is requested by a party prior to the constitution of the arbitral tribunal[8]

 

Procedural changes

The tests for the joinder of additional parties and consolidation of arbitrationswere expanded and brought in line with the test of commencement of a single arbitration under multiple contracts. Notably, HKIAC was expressly granted the power to appoint the tribunal with or without regard to any party's designation where an additional party is joined to the arbitration before arbitral tribunal is constituted[9]. Same applies to the consolidation procedure when HKIAC itself shall appoint the arbitral tribunal in respect of the consolidated proceedings.[10]

New provisions in respect of the concurrent proceedingswere also included to allow the conduct of multiple arbitrations at the same time, or one immediately after another, or suspension any of those arbitrations until after the determination any of them[11].

The Early Determination Procedure was also introduced to expressly allow an arbitral tribunal to determine a point of law or fact in a summary fashion, provided that certain conditions are met[12]. The arbitral tribunal shall make such order or award within 60 days from the date of its decision to proceed[13].

 

Mediation

It was also directly prescribed that the parties may pursuealternative means of dispute settlement after the commencement of the arbitration and resume the proceedings upon a party's request[14]. This is to say that once an arbitration started it may take a pause for mediation procedures and then re-start itself. 

To conclude, the new Rules of HKIAC are aimed to achieve more efficiency in arbitration and to meet the current needs for emergency relief and third-party funding. The time limits intend to expedite the proceedings while the growing responsibility of the parties may give additional guarantees. 

 

   Alfiya Sailaubaeva



[1]   ibidArticle 3.1. (e)


[2]   ibidArticle 31.2


[3]   ibidArticle 4.3. (i)


[4]   ibidArticle 44.3


[5]   ibidArticle 34.4


[6]   ibidArticle 45.3 (e)


[7]   ibidArticle 23.8


[8]   ibidSchedule 4.1


[9]   ibidArticle 27.13


[10]ibidArticle 28.8


[11]ibidArticle 30


[12]http://hkiac.org/news/working-group-session-hkiac-rules-revision


[13]ibidArticle 43.6


[14]ibidArticle 13.8