HKIAC Presentation

8/2/2019 HKIAC Presentation

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Alternative Dispute ResolutionAlternative Dispute ResolutionHong Kong International Arbitration CentreHong Kong International Arbitration Centre

29 December 200429 December 2004


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OverviewOverview

Origins and History of the Hong KongOrigins and History of the Hong KongInternational Arbitration Centre.International Arbitration Centre. The growing need for arbitration flowing fromThe growing need for arbitration flowing from

increasing involvement by Hong Kong andincreasing involvement by Hong Kong and

Overseas Companies in the Mainland Market.Overseas Companies in the Mainland Market. Arbitration in Hong Kong and Mainland China.Arbitration in Hong Kong and Mainland China. Enforcement of settlements in Hong Kong andEnforcement of settlements in Hong Kong and

China.China.

The role of the Hong Kong Institute ofThe role of the Hong Kong Institute ofArbitrators and the Chartered Institute ofArbitrators and the Chartered Institute ofArbitrators (East Asia Branch).Arbitrators (East Asia Branch).


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Business DisputesBusiness Disputes

Should commercial disputes be aShould commercial disputes be a hindrancehindrance totoyour companys success.your companys success.

How should youHow should you prepareprepare for the worst.for the worst. WhatWhat adviceadvice andand guidanceguidance is available.is available. How can youHow can you proactively manageproactively manage your disputesyour disputes

that could substantially save you in unnecessarythat could substantially save you in unnecessarycosts and time.costs and time.

Understanding the various dispute resolutionUnderstanding the various dispute resolution

mechanisms that are available in market placemechanisms that are available in market placecan assist you in managing your potentialcan assist you in managing your potentialdisputes in an effective and efficient mannerdisputes in an effective and efficient mannerwhile at the same timewhile at the same time minimizing yourminimizing yourexposure to potential risksexposure to potential risks..


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Common Ways to ResolveCommon Ways to Resolve

Disputes in SocietyDisputes in Society

AvoidanceAvoidance

NegotiationNegotiation

LitigationLitigation

ViolenceViolence

ArbitrationArbitration

AdjudicationAdjudication

MediationMediation


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The Advantages of Arbitration

FlexibilityFlexibility in Proceedingsin Proceedings

ConfidentialityConfidentiality of Proceedingsof Proceedings

TheThe SpeedSpeed of Resolutionof Resolution Low CostLow Cost relative to Litigationrelative to Litigation

LegallyLegally BindingBinding NatureNature InternationalInternational EnforceabilityEnforceability

ExpertiseExpertise of Arbitratorof Arbitrator


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Disadvantages of ArbitrationDisadvantages of Arbitration A major weakness of the arbitral process isA major weakness of the arbitral process is

thethe limited powerslimited powers which the arbitral tribunalwhich the arbitral tribunalmay exercise.may exercise.

Another perceived drawback of the arbitralAnother perceived drawback of the arbitralprocess lies in the fact that, in general, it isprocess lies in the fact that, in general, it isnot possible to bringnot possible to bring multi-partymulti-party disputesdisputes

together before the same arbitral tribunal.together before the same arbitral tribunal.Unlike a Court of Law, an arbitral tribunalUnlike a Court of Law, an arbitral tribunalgenerally hasgenerally has no powerno power to orderto order consolidationconsolidationof actionsof actions..

If the Arbitrator is an expert within a specifiedIf the Arbitrator is an expert within a specified

field, he/she may not have the requisitefield, he/she may not have the requisiteexpertise when the dispute hinges on difficultexpertise when the dispute hinges on difficultpoints of law.points of law.

TheThe doctrine of precedentdoctrine of precedent does not apply.does not apply.Each case is decided on its merits; and isEach case is decided on its merits; and istherefore no guide to future similar cases.therefore no guide to future similar cases.


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Types of Arbitration ProceedingsTypes of Arbitration Proceedings

InstitutionalizedInstitutionalizedAn institutional arbitration is one which isAn institutional arbitration is one which is

administeredadministered by one of the many specialistby one of the many specialist

arbitral institutions under itsarbitral institutions under its own rules ofown rules of

ArbitrationArbitration..

Ad-hocAd-hoc

Ad-hoc arbitrations often take place under theAd-hoc arbitrations often take place under the

provisions of a submission agreementprovisions of a submission agreement whichwhichitself often establishes the arbitral tribunal anditself often establishes the arbitral tribunal and

sets out the procedural rules upon which thesets out the procedural rules upon which the

parties have agreed. An ad-hoc arbitrationparties have agreed. An ad-hoc arbitration

arises under anarises under an arbitration clausearbitration clause..


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EnforcementEnforcement The New York Convention on the Recognition and

Enforcement of Foreign Arbitral Awards lays down adetailed framework for the recognition andenforcement of arbitration awards.

Over140 countries are signatories to this convention

HK adopted the convention on 21 April 1977 by virtueof the United Kingdoms accession on HKs behalf.China is also a signatory to the convention andapplied it to HK with effect from 1 July 1997

HK Courts recognize and enforce arbitration awardsmade in countries which are signatories to

the Convention in accordance with the

terms of the Convention

Arbitration awards are enforceable in the Mainland of China and vice versa.


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Why Arbitrate in Hong KongWhy Arbitrate in Hong Kong

The Worlds Freest EconomyThe Worlds Freest Economy The Rule of LawThe Rule of Law A Free and Open SocietyA Free and Open Society Accountable GovernmentAccountable Government International Business HubInternational Business Hub International Financial CentreInternational Financial Centre International Arbitration and Dispute ResolutionInternational Arbitration and Dispute Resolution

CentreCentre Update Arbitration LawUpdate Arbitration Law Available ExpertiseAvailable Expertise

( Including 3 Universities offering Postgraduate studies in Arbitration( Including 3 Universities offering Postgraduate studies in Arbitration

and Alternative Dispute Resolution courses)and Alternative Dispute Resolution courses)


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StatisticsStatistics


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HKIAC 2003 StatisticsHKIAC 2003 Statistics

ArbitrationArbitration MediationMediation

ConstructionConstruction 137137 55

CommercialCommercial 8080 22

ShippingShipping 2828 00Joint VentureJoint Venture 77 00

OthersOthers 33 00

CommunityCommunity 00 11

TotalTotal 255255 88

Domain NamesDomain Names 3232 N/AN/A


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OfOf255 Arbitrations255 Arbitrations (excluding Domain Names)(excluding Domain Names)

198198 casescases involveinvolve Hong KongHong Kong andand otherother

Countries.Countries.

3535 casescases involveinvolve non-Hong Kongnon-Hong Kong parties.parties.

2222 cases involve Hong Kong parties.cases involve Hong Kong parties.


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Of theOf the 198198casescases involving Hong Kong Partiesinvolving Hong Kong Parties::

- 18 cases from HK and Mainland of China.- 18 cases from HK and Mainland of China.

- 180 cases from HK and other countries.- 180 cases from HK and other countries.

- 166 cases involve contracts performed in- 166 cases involve contracts performed inHK.HK.

- 32 cases involve contracts performed- 32 cases involve contracts performed

elsewhere.elsewhere.

- Disputed amounts range from- Disputed amounts range from HK$ 61,000HK$ 61,000

to overto overHK$152 millionHK$152 million..


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Of theOf the 3535cases involvingcases involvingnon-Hong Kongnon-Hong KongPartiesParties::

- 14: Mainland of China/ Mainland of China- 14: Mainland of China/ Mainland of China- 1: United Kingdom/ Mainland of China- 1: United Kingdom/ Mainland of China

- 1: Australia/United States of America- 1: Australia/United States of America

- 1: Singapore/Mainland of China- 1: Singapore/Mainland of China

- 5: Korea/Japan- 5: Korea/Japan

- 9: United States of America/Mainland of China- 9: United States of America/Mainland of China

- 3 : Korea/Korea- 3 : Korea/Korea

- 1: Netherlands/Mainland of China- 1: Netherlands/Mainland of China


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Hong Kong International Arbitration CentreHong Kong International Arbitration Centre

The Hong Kong International Arbitration Centre anThe Hong Kong International Arbitration Centre anindependent non-profit making limited by guaranteeindependent non-profit making limited by guarantee waswasestablished inestablished in 19851985 to provide advisory and supportto provide advisory and supportservices for the resolution of local and international disputesservices for the resolution of local and international disputesby mediation and arbitration.by mediation and arbitration.

Twenty-six Council MembersTwenty-six Council Members Board of Directors. Board of Directors. Seven Full-time staff.Seven Full-time staff. 300 international and local arbitrators of experience and300 international and local arbitrators of experience and

distinction.distinction. An active mediation body An active mediation body Hong Kong Mediation CouncilHong Kong Mediation Council, a, a

division of the HKIAC.division of the HKIAC. SuperbSuperb facilitiesfacilities to conduct Arbitrations and other forms ofto conduct Arbitrations and other forms of

dispute resolution procedures.dispute resolution procedures. Publication of various rules and procedures for arbitrationsPublication of various rules and procedures for arbitrations

in Hong Kong including the Securities Arbitration Rules andin Hong Kong including the Securities Arbitration Rules andSmall- Claims/Documents-Only Procedures.Small- Claims/Documents-Only Procedures.


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HKIAC StructureHKIAC Structure


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HKIAC ServicesHKIAC Services Provides aProvides a free information service on dispute resolutionfree information service on dispute resolution.. Provides informationProvides information on arbitration law and procedure relating toon arbitration law and procedure relating to

international arbitrations in Hong Kong.international arbitrations in Hong Kong. Promotes Hong Kong internationallyPromotes Hong Kong internationally, as the ideal venue for dispute, as the ideal venue for dispute

resolution services.resolution services. Authority to appoint arbitratorsAuthority to appoint arbitrators under both the domestic and internationalunder both the domestic and international

regimes of the Arbitration Ordinance.regimes of the Arbitration Ordinance. Authority to decide on the number of arbitratorsAuthority to decide on the number of arbitrators under the internationalunder the international

regime of the Arbitration Ordinance.regime of the Arbitration Ordinance. Accredits mediatorsAccredits mediators for use on the Court Annexed Family Mediationfor use on the Court Annexed Family Mediation

Scheme.Scheme. Administers the mediation servicesAdministers the mediation services for Hong Kong Government contracts.for Hong Kong Government contracts. Administer gTLDs and ccTLDsAdminister gTLDs and ccTLDs as approved by ICANN under theas approved by ICANN under the

organisation of Asian Domain Name Dispute Resolution Centre organisation of Asian Domain Name Dispute Resolution Centre www.adndrc.orgwww.adndrc.org ( a joint venture between CIETAC and HKIAC), HKDNR( a joint venture between CIETAC and HKIAC), HKDNR(to handle(to handle .hk disputes.hk disputes) and CNNIC (to handle) and CNNIC (to handle .cn disputes.cn disputes).).

Administer rulesAdminister rules for the Securities and Futures Commission and the Hongfor the Securities and Futures Commission and the HongKong Society of Accountants WebTrust Programme - a third partyKong Society of Accountants WebTrust Programme - a third partyarbitration framework for the use and adoption by on-line merchants toarbitration framework for the use and adoption by on-line merchants tohandle consumer disputes on-line .handle consumer disputes on-line .
http://www.adndrc.org/http://www.adndrc.org/http://www.adndrc.org/


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Hong Kong Mediation CouncilHong Kong Mediation Council

TheThe Hong Kong Mediation CouncilHong Kong Mediation Council (HKMC) was set up within(HKMC) was set up withinHong Kong International Arbitration Centre (HKIAC) in JanuaryHong Kong International Arbitration Centre (HKIAC) in January1994 to promote the development and use of mediation as a1994 to promote the development and use of mediation as amethod of resolving disputes. The HKMC is amethod of resolving disputes. The HKMC is a division of thedivision of theHKIACHKIAC and was previously known as the Mediation Group.and was previously known as the Mediation Group.

The Council is run by a committee who are responsible forThe Council is run by a committee who are responsible foractivity co-ordination and who represent mediation interest in aactivity co-ordination and who represent mediation interest in awide variety of areas. In addition, there arewide variety of areas. In addition, there are specialist sub-specialist sub-committeescommittees who concentrate their mediation activities inwho concentrate their mediation activities inspecialist areas namely commercial, community, constructionspecialist areas namely commercial, community, construction

and family.and family.

The Mediation Council aims toThe Mediation Council aims to promote the use of mediationpromote the use of mediationand other forms of ADRand other forms of ADR, encourage collaboration amongst its, encourage collaboration amongst itsmembers and with similar professional bodies, facilitatemembers and with similar professional bodies, facilitateexchange of information and provide education/training onexchange of information and provide education/training on

ADR.ADR.


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Hong Kong Institute of ArbitratorsHong Kong Institute of Arbitrators Hong Kong Institute of Arbitrators (HKIArb) was set up inHong Kong Institute of Arbitrators (HKIArb) was set up in

SeptemberSeptember 19961996 by a group of Hong Kong professionalsby a group of Hong Kong professionalsinterested in arbitration, mediation and other kinds of disputeinterested in arbitration, mediation and other kinds of disputeresolution. The Instituteresolution. The Institute enjoys charitable status and is non-enjoys charitable status and is non-profit makingprofit making. It is funded by annual membership fees and is. It is funded by annual membership fees and isfinancially independent.financially independent.

The administration of the Institute is conducted through aThe administration of the Institute is conducted through a

Council comprising of professionals of different nationalities andCouncil comprising of professionals of different nationalities andwith a diversity of skills and experience. The Council, which iswith a diversity of skills and experience. The Council, which iselected annually, has a number of committees covering suchelected annually, has a number of committees covering suchareas as membership, finance, institutional development,areas as membership, finance, institutional development,education and training programmes.education and training programmes.

A main objective of the Institute is toA main objective of the Institute is to promote arbitration andpromote arbitration andother alternative methods of dispute resolution (ADR) in Hongother alternative methods of dispute resolution (ADR) in HongKongKong. HKIArb is involved in the. HKIArb is involved in the training of arbitrators andtraining of arbitrators andmediatorsmediators, the setting of, the setting of appropriate standardsappropriate standards of conduct forof conduct forarbitrators and mediators in Hong Kong andarbitrators and mediators in Hong Kong and law reformlaw reform relevantrelevantboth to arbitration and mediation. It is working to forge ties withboth to arbitration and mediation. It is working to forge ties with

other organizations involved in arbitration and ADR, particularlyother organizations involved in arbitration and ADR, particularlythose within China and in the Asia region.those within China and in the Asia region.


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Chartered Institute of ArbitratorsChartered Institute of Arbitrators

(East Asia Branch)(East Asia Branch)

The Chartered Institute of Arbitrators (CIArb) wasThe Chartered Institute of Arbitrators (CIArb) wasfounded infounded in 19151915 with the aim of promoting Arbitrationwith the aim of promoting Arbitrationas an alternative method of dispute resolution toas an alternative method of dispute resolution tolitigation. It was incorporated in 1925, granted a Royallitigation. It was incorporated in 1925, granted a Royal

Charter in 1979 and charitable status in 1990.There areCharter in 1979 and charitable status in 1990.There arebranchesbranches of the Institute throughout the Unitedof the Institute throughout the UnitedKingdom and overseas. TheKingdom and overseas. The East Asia BranchEast Asia Branch,,previously known as The Hong Kong Branch, waspreviously known as The Hong Kong Branch, wasformed in 1972 which covers geographical area offormed in 1972 which covers geographical area of

China, Thailand, Vietnam, Philippines, Korea,China, Thailand, Vietnam, Philippines, Korea,Singapore and Indonesia. Changes to the RoyalSingapore and Indonesia. Changes to the RoyalCharter in 1999 means that the Institute now activelyCharter in 1999 means that the Institute now activelyencourages theencourages the use of ADRuse of ADR to achieve the early andto achieve the early andprivate settlement of disputes.private settlement of disputes.


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Chartered Institute of ArbitratorsChartered Institute of Arbitrators

(East Asia Branch)(East Asia Branch)

The objectives of the Branch are toThe objectives of the Branch are to provide a regionalprovide a regionalorganizationorganization for Members of the Institute who arefor Members of the Institute who areresident in East Asia generally. The purpose is toresident in East Asia generally. The purpose is topromote, encourage and facilitatepromote, encourage and facilitate the practice ofthe practice of

settlement of disputes by arbitration and other meanssettlement of disputes by arbitration and other meansof dispute resolution, and toof dispute resolution, and to support and promote thesupport and promote thestatus and interests of the Chartered Institute ofstatus and interests of the Chartered Institute ofArbitratorsArbitrators..

The East Asia Branch is committed to providingThe East Asia Branch is committed to providing

education and training in areas of law and practiceeducation and training in areas of law and practicerelating to arbitrationrelating to arbitration, holding demonstration, holding demonstrationarbitrations, disseminating useful informationarbitrations, disseminating useful informationconnected with arbitration and protecting the publicconnected with arbitration and protecting the publicinterest in relation to the conduct of arbitrations as ainterest in relation to the conduct of arbitrations as a

means of resolving disputes.means of resolving disputes.


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QuoteQuote

With a good man in the saddle, the unrulyWith a good man in the saddle, the unruly

horse can be kept in control. It can jump overhorse can be kept in control. It can jump over

obstacles. It can leap the fences put up byobstacles. It can leap the fences put up by

frictions and come down on the side of justice.frictions and come down on the side of justice.

Enderby Town Football Club Ltd. V. The Football Association Ltd. [1971] AC 591Enderby Town Football Club Ltd. V. The Football Association Ltd. [1971] AC 591

By Lord DenningBy Lord Denning


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Another QuoteAnother Quote

World Peace, like community peace, does notWorld Peace, like community peace, does not

require that each man love his neighbor itrequire that each man love his neighbor it

requires only that they live together with mutualrequires only that they live together with mutual

tolerance, submitting their disputes to a just andtolerance, submitting their disputes to a just andpeaceful settlement.peaceful settlement.

By John F. KennedyBy John F. Kennedy


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Hong KongHong Kong

the City of Lifethe City of LifeThe City where East greets West thatThe City where East greets West that

offers you a truly offers you a truly Can-doCan-do attitude attitude

which ultimately leads you towardswhich ultimately leads you towards

success year after yearsuccess year after year

Your Partner in AsiaYour Partner in Asia


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Should you have any questionsShould you have any questions

please feel free to discuss them now orplease feel free to discuss them now or

refer to the HKIAC website atrefer to the HKIAC website atwww. hkiac.org

38/F, Two Exchange Square Central, Hong Kong38/F, Two Exchange Square Central, Hong KongTel 852 25252381 Fax 852 25242171Tel 852 25252381 Fax 852 25242171

E-mail: [email protected]

Thank YouThank You


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Hong Kong International Arbitration CentreHong Kong International Arbitration Centre

3838thth Floor, Two Exchange SquareFloor, Two Exchange Square

CentralCentral

Hong KongHong Kong

www.hkiac.orgwww.hkiac.orgadradr@@hkiachkiac.org.org

Tel 852 25252381Tel 852 25252381

Fax 852 25242171Fax 852 25242171
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]