Asia Update-1 - Jun11 Maritime News - #14 (November 05) · Grace Hou Registered Foreign Lawyer...
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Asia Update © 2011, Blank Rome Solicitors. Notice: The purpose of this Asia Update is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, the accuracy and completeness of which cannot be assured. The Update should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel. Additional information on Blank Rome may be found on our website, www.blankrome.com. 5605-07 The Center • 99 Queen's Road Central • Hong Kong • +852 3528-8300 Blank Rome comprises multiple affiliated partnerships: a limited liability partnership with the full name Blank Rome LLP, qualified in Pennsylvania and maintaining offices throughout the U.S.; Blank Rome Government Relations LLC in Washington, DC; and a Hong Kong general partnership, Blank Rome Solicitors & Notaries, which practices in Hong Kong. Blank Rome maintains appropriate registrations in the jurisdictions in which its offices are located. A list of the partners in each entity is available for inspection at any Blank Rome office. June 2011 No. 1 www.BlankRome.com Nigel J. Binnersley Partner [email protected] Edwin Chan Associate Solicitor [email protected] Martin Downey Partner [email protected] Grace Hou Registered Foreign Lawyer [email protected] Wyn Hughes Consultant [email protected] Henry M. Kuller Partner, Blank Rome LLP, and Registered Foreign Lawyer, Blank Rome Solicitors [email protected] Daniel Lee Associate Solicitor [email protected] Peter E. Mills Partner [email protected] Kristi Lynn Swartz Partner [email protected] Conor T. Warde Registered Foreign Lawyer [email protected] Blank Rome Solicitors Hong Kong has introduced a new Arbitration Ordinance which became effective on 1st June 2011. This development brings some significant changes and features in the way arbitration is to be conducted in Hong Kong. Its aim is to promote Hong Kong as a strong regional center for dispute resolution. Unitary Regime. The most significant change is the abolition of the distinction between domestic and international arbitration regimes. The new Ordinance establishes a unitary regime of arbi- tration based on the UNCITRAL Model Law. It is intended that the new Ordinance will be self-contained (although it may be possible for parties to opt in or out of the Model Law application). Confidentiality. The new Ordinance provides that the disclo- sure of information relating to any arbitral proceedings or awards is to be prohibited. There is a default provision available so that although proceedings can be heard in private, the Tribunal has a discretion to order proceedings to be heard in open court. Interim Measures. It also expressly gives arbitral tribunals the power to grant interim measures including injunction relief. Additionally, the Tribunals are now empowered to order the provi- sion of security for costs and direct the discovery of documents or the delivery of interrogatories. Med-arb. The new Ordinance is expected to assist a “hybrid” style of dispute resolution. It now allows an arbitrator to act also as a mediator after the arbitration has commenced provided that the parties consent in writing. In the event that settlement is not reached during the mediation process, the mediator can then resume acting as an arbitrator. The parties should be made aware that if confidential information is obtained by an arbitrator in his role as mediator, in the event the mediation fails, the arbitrator should disclose as much of the information as the arbitrator con- siders is material before resuming the arbitration. Costs. The new regime provides the legal costs of arbitration proceedings should be reviewed and assessed by the Tribunal itself. The Court’s role to assess costs is now only available if the parties agree. Role of Hong Kong International Arbitration Centre (HKIAC). The statutory functions such as the appointment of arbi- trators, upon the failure of the parties to do so, which usually is vested with the Courts, have been transferred to the HKIAC. Summary. The new Ordinance gives more powers to the Tribunal rather than the Courts and should be more user-friendly as the UNCITRAL Model Law is now extended to all arbitrations in Hong Kong. It is hoped this will enhance the perception of Hong Kong as a friendly Model Law jurisdiction and be more attractive for both local and international parties. New Arbitration Ordinance in Hong Kong—1st June 2011
Transcript of Asia Update-1 - Jun11 Maritime News - #14 (November 05) · Grace Hou Registered Foreign Lawyer...
Asia Update
© 2011, Blank Rome Solicitors. Notice: The purpose of this Asia Update is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, the accuracy andcompleteness of which cannot be assured. The Update should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel. Additional information on Blank Rome may be found on our website, www.blankrome.com.
5605-07 The Center • 99 Queen's Road Central • Hong Kong • +852 3528-8300
Blank Rome comprises multiple affiliated partnerships: a limited liability partnership with the full name Blank Rome LLP, qualified in Pennsylvania and maintaining offices throughout the U.S.; Blank Rome Government Relations LLC in Washington,DC; and a Hong Kong general partnership, Blank Rome Solicitors & Notaries, which practices in Hong Kong. Blank Rome maintains appropriate registrations in the jurisdictions in which its offices are located. A list of the partners in each entity isavailable for inspection at any Blank Rome office.
June 2011 No. 1www.BlankRome.com
Nigel J. BinnersleyPartner
Edwin ChanAssociate Solicitor
Martin DowneyPartner
Grace HouRegistered Foreign [email protected]
Wyn HughesConsultant
Henry M. KullerPartner, Blank Rome LLP, and
Registered Foreign Lawyer, Blank Rome [email protected]
Daniel LeeAssociate Solicitor
Peter E. MillsPartner
Kristi Lynn SwartzPartner
Conor T. WardeRegistered Foreign [email protected]
Blank Rome Solicitors
Hong Kong has introduced a new Arbitration Ordinance whichbecame effective on 1st June 2011. This development bringssome significant changes and features in the way arbitration is tobe conducted in Hong Kong. Its aim is to promote Hong Kong asa strong regional center for dispute resolution.
Unitary Regime. The most significant change is the abolitionof the distinction between domestic and international arbitrationregimes. The new Ordinance establishes a unitary regime of arbi-tration based on the UNCITRAL Model Law. It is intended that thenew Ordinance will be self-contained (although it may be possiblefor parties to opt in or out of the Model Law application).
Confidentiality. The new Ordinance provides that the disclo-sure of information relating to any arbitral proceedings or awards isto be prohibited. There is a default provision available so thatalthough proceedings can be heard in private, the Tribunal has adiscretion to order proceedings to be heard in open court.
Interim Measures. It also expressly gives arbitral tribunals thepower to grant interim measures including injunction relief.Additionally, the Tribunals are now empowered to order the provi-sion of security for costs and direct the discovery of documents orthe delivery of interrogatories.
Med-arb. The new Ordinance is expected to assist a “hybrid”style of dispute resolution. It now allows an arbitrator to act also as
a mediator after the arbitration has commenced provided that theparties consent in writing. In the event that settlement is notreached during the mediation process, the mediator can thenresume acting as an arbitrator. The parties should be made awarethat if confidential information is obtained by an arbitrator in hisrole as mediator, in the event the mediation fails, the arbitratorshould disclose as much of the information as the arbitrator con-siders is material before resuming the arbitration.
Costs. The new regime provides the legal costs of arbitrationproceedings should be reviewed and assessed by the Tribunalitself. The Court’s role to assess costs is now only available if theparties agree.
Role of Hong Kong International Arbitration Centre(HKIAC). The statutory functions such as the appointment of arbi-trators, upon the failure of the parties to do so, which usually isvested with the Courts, have been transferred to the HKIAC.
Summary. The new Ordinance gives more powers to theTribunal rather than the Courts and should be more user-friendly asthe UNCITRAL Model Law is now extended to all arbitrations inHong Kong. It is hoped this will enhance the perception of HongKong as a friendly Model Law jurisdiction and be more attractive forboth local and international parties.
New Arbitration Ordinance in Hong Kong—1st June 2011
