Mr (José Angelo) Estrella-Faria [Senior Legal Officer and Head,
Technical Assistance Section, UNCITRAL], Mr (Joao) Ribeiro
[Head, Regional Centre for Asia and the Pacific, UNCITRAL],
Distinguished Judges, Ladies and Gentlemen,
It is my great honour to have this opportunity to meet and
address such a distinguished gathering of judges and legal experts.
First and foremost, may I, on behalf of the Hong Kong Special
Administrative Region (“HKSAR”) Government, extend our
warmest welcome to all the speakers, judges and legal experts who
take part in this Judicial Roundtable.
The first UNCITRAL Asia-Pacific Judicial Summit was
held two years ago in this city focusing on the interpretation and
application of the New York Convention on the recognition and
enforcement of foreign arbitral awards, with participants from 39
jurisdictions. The very positive feedbacks that we have received in
respect of the first Summit have strengthened our determination to
serve as a platform, if not a hub, for legal and dispute
resolution-related experience sharing and capacity building in this
region and beyond.
The HKSAR Department of Justice (“DoJ”) is therefore
very much honored to have the privilege to co-organise this
Summit again with the Regional Centre for Asia and the Pacific of
the United Nations Commission on International Trade Law
(“UNCITRAL”) and the Hong Kong International Arbitration
Centre (“HKIAC”). Indeed, the DoJ very much look forward to
making this Summit a regular event in the HKSAR legal calendar
so that we can gather together every two years or so to discuss
matters of common interest.
Today, the objectives of this Second Judicial Roundtable
are to enhance knowledge on international trade law and to
facilitate a uniform interpretation and application of the New York
Convention and the UNCITRAL Model Law on International
Commercial Arbitration 1985 (with amendments as adopted in
2006) (“UNCITRAL Model Law”).
UNCITRAL’s contribution to the development of international
Having recently celebrated in July its 50th Anniversary in
Vienna, UNCITRAL has served as the most important legal body
of the United Nations system in the field of international trade law,
and has been making great contributions to the reduction and
removal of legal obstacles which impede cross-border trade.
Among others, UNCITRAL texts play a remarkably
significant role in the context of international trade law. They
include Conventions, Model Laws and Legislative Guides which
cover a wide range of areas, such as enforcement of arbitral awards,
facilitating electronic commerce, corporate insolvency, transport of
goods and secured transactions.
Clarity and certainty are two of the important factors that
can facilitate international trade. Accordingly, modern and
harmonized legal frameworks are extremely important to enhance
legal certainty and predictability so as to facilitate business
transactions, encourage international commerce, and contribute
towards international cooperation. In breaking down legal barriers
to trade, the wide and effective implementation of the UNCITRAL
legal instruments enable businesses to trade more extensively and at
UNCITRAL is also well-known for its inclusive and
transparent process of developing its legal texts. The
UNCITRAL’s Working Groups and Commission are attended by
UNCITRAL Member States and by observers, including other UN
Member States and relevant international organisations. The
sessions are conducted in all UN official languages. Relevant
decisions are taken by consensus after thorough discussions. These
are some of the reasons which explain why UNCITRAL texts enjoy
the reputation that they represent modern, fair and harmonized rules
for commercial transactions, acceptable to different legal systems
for adoption and implementation.
The HKSAR has benefited from the adoption and
implementation of UNCITRAL instruments in terms of maintaining
modern and internationally-accepted legal norms in key areas of
international trade and commerce.
By way of example, the New York Convention, which is
the topic of Session 1 today, forms an integral component of the
HKSAR’s legal regime for arbitration. The New York Convention
has not only made cross-border enforcement of arbitral awards
efficient and effective, but has also served as a model for
arrangements within one state. Pursuant to the “one country two
systems” policy, arbitral awards are enforceable on a reciprocal
basis pursuant to bilateral arrangements concluded between
Mainland China and HKSAR in 1999, as well as between the
HKSAR and the Macao SAR in 2013.
Another feature of the HKSAR’s arbitration regime has
largely been a result of the adoption of the latest version of the
UNCITRAL Model Law on International Commercial Arbitration.
This Model Law has virtually been adopted in its entirety, and has
also been reproduced in a user-friendly manner in our Arbitration
Ordinance. We will hear presentation on how judicial support is
given under the Model Law in Session 2 today.
Nowadays an ever-growing portion of business is done
online. We have modelled the HKSAR’s Electronic Transactions
Ordinance upon the UNCITRAL Model Law on Electronic
Commerce, which provides the basic framework for modern
cross-border electronic commerce. Having the appropriate legal
infrastructure for electronic transactions can also assist small and
medium-sized enterprises to do business in a cost-effective
environment and help small businesses across the world to grow.
We will enjoy experts’ sharing regarding the UNCITRAL Model
Law on Electronic Commerce in Session 3 today.
Relevance of the interpretation of UNCITRAL texts and
HKSAR’s collaboration with UNCITRAL
The adoption of an international legal instrument in
domestic law is only the first step. The next and significant step, in
order to achieve the goal of harmonization and modernization of the
laws and regulations governing international trade, is to ensure the
effective use and implementation of such legal instruments.
Obviously, harmonization cannot be achieved if different
jurisdictions interpret or implement those legal instruments
One example is this regard is Article V of the New York
Convention, which sets out the grounds on which recognition and
enforcement of an arbitral award may be refused. However, the
question of whether an arbitration award that has been set aside by
the courts at the seat of arbitration can be enforced in another
jurisdiction receives divergent views.
In the Hilmarton case, the French Court of Cassation
decided that the arbitral award set aside in Switzerland could be
enforced. The reason given is that the decision by a national court
annulling the award only extinguished it in that particular national
system, and the award “survives” in the international legal order1
. On the other hand, in the recent decision of Maximov v NMLK, the
English Court decided that the award set aside in Russia could not
be enforced since it was not enough for the set-aside decisions to be
wrong or even manifestly wrong. They have to be “so extreme and
perverse that they can only be ascribed to bias”2.
Given the important role played by judicial interpretation
in implementing an international legal instrument, the preparation
of UNCITRAL texts should be complemented by programmes
which can assist parties in implementing and using them in a
manner that reflects the true legislative intent of the legal
instrument in question and thereby enhance consistency among the
Contracting Parties. The objective is to achieve and preserve a
uniform interpretation of the legal instruments, so as to avoid
domestic-oriented interpretations which may be unduly narrow or
even at times conflicting.
Thanks again to the efforts of UNCITRAL, much
assistance can now be derived from the database known as Case
Law on UNCITRAL Texts (“CLOUT”), which collects and
disseminates information relating to court decisions and arbitral
awards relating to UNCITRAL legal instruments, with the target of
achieving uniformity in the interpretation and application of those
instruments for use by judges, arbitrators, lawyers, and all
Another way to promote a better understanding and the
uniform interpretation of the UNCITRAL legal instruments is
through capacity building and technical assistance. The HKSAR
Government, for good reasons, is a keen supporter of such activities.
For instance, pursuant to an agreement between the Chinese Central
People’s Government and the United Nations, the HKSAR
Government seconds legal counsel to the Regional Centre for Asia
and the Pacific of the UNCITRAL to assist in its work in technical
assistance and capacity building particularly to developing
countries in the Asia-Pacific region.
The HKSAR Government has also been participating in
various conferences and workshops which aimed at raising the
capacity of government officials and judicial officers of countries in
the region in the field of international trade and commercial law.
We have had the UNCITRAL’s support to the DoJ in co-organising
a number of workshops in the past two years during the meetings of
Asia-Pacific Economic Cooperation (“APEC”) in the Philippines,
Peru and Vietnam in 2015 to 2017. In recognition of the benefits of
UNCITRAL’s work, the APEC’s Economic Committee has
recently granted 3-year guest status to UNCITRAL to facilitate its
participation in the work of the APEC Economic Committee. We
are also planning to organize another APEC workshop on the use of
modern technology for dispute resolution and electronic agreement
management in early 2018 in Papua New Guinea.
HKIAC and Latest Developments of Arbitration Law in the
Allow me also to say a few words about the HKSAR’s
position in respect of international arbitration and international law,
as well as the opportunities ahead of us.
The HKSAR is an international and cosmopolitan city. It is
also an international financial and commercial centre. Being
international is one of the key attributes of the HKSAR; another is
our respect for the rule of law (both in the domestic and
It is against this background that we place great emphasis
on, among others, two aspects. The first aspect is international
arbitration and international law including international trade law,
as both are essential elements that strengthen the foundation of
international trade, which plays a vital role in this globalized world.
The second aspect is collaboration and co-operation with the
international community, which we believe are in our mutual
interest and more important than ever.
International arbitration, as a form of dispute resolution, is
a means to ensure protection of commercial and property rights, as
well as a form of access to justice. This is why the HKSAR
Government has all along been a strong supporter of international
As early as in the 1980s, we established the HKIAC
(which is the other co-organizer of this event). Over these 30 odd
years, the HKIAC has been instrumental in promoting arbitration
both within the Asia-Pacific region and beyond. With its modern
arbitration rules, experienced international secretariat and
top-quality facilities, the HKIAC is ranked the most preferred
arbitration institution outside Europe in the 2015 International
Arbitration Survey conducted by the Queen Mary University of
Over the years, the DoJ has been working closely with the
HKIAC and other stakeholders to continuously enhance our
arbitration regime. In June this year, two important sets of
legislative amendments were passed by our legislature:
(a) First, the Arbitration Ordinance has been amended to
clarify that disputes over intellectual property (“IP”)
rights are capable of resolution by arbitration, and it
would not be contrary to public policy to enforce an
award solely because the award involves a dispute over
(b) Second, both the Arbitration Ordinance and the
Mediation Ordinance have been amended to clarify that
third-party funding for arbitration and mediation is not
prohibited by the common law doctrines of maintenance
Looking ahead, the visionary Belt and Road Initiative
announced by China in 2013 will no doubt open up immense
business opportunities for economies along the route and beyond.
As more and more governments and enterprises around the world
are participating in this Initiative, the related economic activities
will generate a huge demand for cross-border legal and dispute
By reason of the “one country, two systems” policy which
guarantees the continuation of our common law legal system, the
HKSAR is well-placed to play the role of facilitator and promotor
for trade and investment between Mainland China and the rest of
the world, including the economies along the Belt and Road route.
Further, we have established dynamic collaborative
relationship with various international organisations, including the
International Monetary Fund, the Bank for International
Settlements and the Hague Conference on Private International Law
(“HCCH”). All of them have set up offices in the HKSAR.
The DoJ from time to time sends representatives to
participate in, as well as support, events organized by relevant
international organisations. We participated, for instance, actively
in the Special Commission Meeting on the Hague Apostille
Convention in November 2016. With the support of the Central
People’s Government and the Hague Conference on Private
International Law, a colleague from the DoJ was elected as the
Chair of the Special Commission. In April 2018, we are going to
co-organise with the Hague Conference on Private International
Law a global event in the HKSAR to celebrate its 125th anniversary.
Further, as I said earlier, we have collaborated with the
UNCITRAL in its technical assistance and capacity building
activities, including those through the APEC platform.
Distinguished judges, ladies and gentlemen, history tells us
that the world has always been changing. However, globalization,
technological changes, the economic growth taking place in the
Asia-Pacific region, together with the propelling force of the Belt
and Road Initiative, will definitely reshape the world at such a
speed that we have never seen before.
Faced with this global phenomenon, no jurisdiction can
isolate itself from the rest of the world. Speaking for the HKSAR,
we welcome and treasure opportunities to work with international
organizations and indeed the entire international community. We
believe that there is a lot we can learn from each other, and that
joint efforts is the key to find effective solutions to overcome
challenges that we all face.
On this note, it remains for me to wish this Second Summit
every success, and I look forward to welcome you back to the
HKSAR at the Third and many more UNCITRAL Asia-Pacific
Summits in the years to come as well as other occasions.
1 The European & Middle Eastern Arbitration Review 2009 – France, Global Arbitration Review, 10 December 2008,