Alternative Dispute Resolution
Located in the centre of Asia, the courts of Hong Kong inherit the British common law tradition, possessing a sturdy reputation for their strict maintenance of the rule of law and judiciary independence. It is thus an ideal location for conducting arbitration. Arbitration Ordinance (Cap. 609), building upon the basis of the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, unifies the rules of both Hong Kong arbitration and international arbitration systems and not unfamiliar to foreign investors, these rules are acceptable to both Chinese and foreign parties. Moreover, Hong Kong has a sterling reputation for its arbitration system: The Hong Kong International Arbitration Centre processed 514 dispute resolution cases in 2021, in which cases involving mainland claimants were of the highest ratio. Lastly, Hong Kong possesses cultural, historical, geographical advantages, and benefits from the ease of communication and wide-reaching international networks. Hong Kong citizens receive Western education, are flexible and effective, and have a thorough understanding towards the historically rich and expansive China and also foreign countries. Hong Kong is thus an arbitration spot ideal for both mainland and foreign parties.
Following the internationalization of disputes, the method for resolving disputes must also evolve to keep in pace. Modern international arbitration often requires lawyers from different jurisdictions to work closely with each other. Barristers in Hong Kong can provide legal services for foreign or mainland enterprises in the following areas:
Arbitration in Hong Kong
If foreign or mainland businesses choose Hong Kong law to be the applicable law in question, they may directly instruct barristers in Hong Kong to handle the entire arbitration process. In cases involving international arbitration, foreign or mainland businesses and law firms may also directly instruct barristers in Hong Kong. Apart from attending trials, barristers in Hong Kong may also provide legal opinion on Hong Kong law or international legal issues. Foreign or mainland businesses and law firms may instruct barristers in Hong Kong to provide legal advice prior to commencing legal proceedings. The professional opinions of barristers assist the client in analysing whether he/she has sufficient legal basis and evidence, allowing the client to determine more accurately the strengths and weaknesses of his/her case and to make the best preparation possible for the arbitration proceedings.
If foreign or mainland businesses choose foreign law to be the applicable law in question, barristers in Hong Kong may still provide legal opinion and assistance with reference to legal proceedings under Hong Kong law. Arbitration Ordinance (Cap. 609) permits the Hong Kong courts, in relation to any arbitral proceedings which have been or are to be commenced in or outside Hong Kong, to grant interim measures. [1] The most common of such measures include Mareva injunctions, orders to halt infringement behavior (such as intellectual property infringement) and orders for disclosure of documents etc. Such procedures require applications to be made to Hong Kong courts, and so foreign or mainland clients would require the assistance of barristers in Hong Kong. In addition, barristers in Hong Kong can also provide legal advice on the Hong Kong legal procedures involved in arbitration, such as whether the facts of the case in question fit the requirements of the injunction applied for, the parameters of the injunction and its actual textual content, the odds of success and whether the application is worth trying. Such professional legal advice is helpful towards foreign businesses and clients in determining what measures to take to protect their own interests, and how the arbitration process can be fairly and effectively facilitated.
Arbitration in Foreign Countries
In general, overseas clients can instruct barristers in Hong Kong to act as legal representatives in foreign arbitration courts if the applicable law in question is Hong Kong law, provided that the foreign arbitration law and rules of the arbitral tribunal permits so. According to Cap. 609, an award made outside of Hong Kong in arbitral proceedings by an arbitral tribunal is enforceable in Hong Kong. [2] An application must be made towards Hong Kong courts for such an execution, and thus barristers in Hong Kong can provide relevant assistance for their clients.
How Foreign Arbitration Awards are enforced in Hong Kong
Hong Kong is a signatory of the New York Convention (Convention on the Recognition and Enforcement of Foreign Arbitral Awards), and accordingly a foreign or mainland award is enforceable in Hong Kong. [3] In other words, regardless of where the award is handed down, the possibility of enforcement in Hong Kong is high. Moreover, whenever facing the awards handed down by foreign and mainland arbitration tribunals, Hong Kong courts adopt a policy of minimal intervention and only carry out a nominal examination of the awards. [4] As long as the arbitral awards in question do not contravene proper legal procedure, and that no sufficiently serious error is present, Hong Kong courts may still exercise discretion in enforcing awards awarded by foreign or mainland arbitral tribunals. [5] As such, it can be seen that Hong Kong courts are very supportive of arbitration in terms of enforcing arbitral awards.
The enforcement of foreign and Chinese arbitral awards in Hong Kong requires assistance from barristers. If the losing party attempts to contest foreign arbitral decisions in Hong Kong courts, they must have a trial in Hong Kong courts. At this point, the participation of barristers is imperative.
[1] Arbitration Ordinance (Cap. 609) s45(2).
[2] Ibid, s84.
[3] Ibid s92, and Arrangement Concerning Mutual Enforcement of Arbitral Awards Between the Mainland and the Hong Kong Special Administrative Region, < http://www.doj.gov.hk/eng/topical/pdf/mainlandmutual2e.pdf>.
[4] Re Petro China International (Hong Kong) Corp Ltd [2011] 4 HKLRD 604.
[5] Grand Pacific Holdings Ltd v Pacific China Holdings Ltd (in lig) (No. 1) [2012] 4 HKLRD 1.
