Worldwide Recognition and Enforcement of Arbitral Awards

Arbitral awards made in Hong Kong can be enforced in all State parties to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

Arbitration Ordinance (Cap. 609)

The Arbitration Ordinance (Cap. 609) (“the Ordinance”) came into effect in June 2011 with the following salient features:

• Based on the Model Law on International Commercial Arbitration of the United Nations Commission on International Trade Law;
• Unifying the dual regimes for domestic and international arbitration;
• Enhancing confidentiality for international arbitration;
• Allowing arbitration parties to retain advisers regardless of their nationalities and professional qualifications;
• Limiting the court’s powers of intervention in arbitral proceedings;
• Retaining the status quo of domestic subcontracting agreements in the construction industry applying the domestic regime by opt-in provisions.

The Ordinance has been amended over the years to ensure that Hong Kong’s arbitration law stays abreast of international developments and maintain Hong Kong’s competitiveness as a leading international arbitration centre. Recent major amendments are set out below:

• Arbitration (Amendment) Ordinance 2017

  • Clarifying that disputes over intellectual property rights (“IPRs”) may be resolved by arbitration and it is not contrary to the public policy of Hong Kong to enforce arbitral awards involving IPRs.
  • For more details, please see the gazette version of the ordinance, a brief note setting out the main features of the amendments, a leaflet, and FAQs on IP arbitration in Hong Kong.
  
  

• Arbitration and Mediation Legislation (Third Party Funding) (Amendment) Ordinance 2017

  • Based on recommendations in a report published by the Law Reform Commission (“LRC”) on 12 October 2016.
  • Clarifying that third party funding of arbitration, mediation and related proceedings in Hong Kong is not prohibited by the common law doctrines of maintenance and champerty.
  • The provisions relating to third party funding of arbitration have commenced on 1 February 2019, with a complementary Code of Practice on Third Party Funding of Arbitration (“Code of Practice”) setting out the safeguards and regulations; whilst the provisions on third party funding of mediation is subject to further consultation with the mediation community and relevant stakeholders.
  • An advisory body has been appointed to monitor and review the operation of the relevant provisions and the Code of Practice.
  • For more details, please see LRC’s Consultation Paper, its Report, the gazette version of the ordinance and a brief note setting out the main features of the amendments.
  
  

• Arbitration and Legal Practitioners Legislation (Outcome Related Fee Structures for Arbitration) (Amendment) Ordinance 2022

  • Based on recommendations in a report published by the LRC on 15 December 2021.
  • Providing, inter alia, that certain agreements using outcome related fee structures for arbitration (“ORFSA”) are not prohibited by the common law doctrines of maintenance, champerty and barratry.
  • The ordinance was gazetted on 30 June 2022, and Divisions 1, 2, 5, 6 and 8 of Part 10B of the Arbitration Ordinance have come into operation. More detailed regulatory framework will be set out in the subsidiary legislation for the full implementation of the ORFSA regime in Hong Kong.
  • An advisory body has been appointed to monitor and review the operation of the provisions on ORFSA and exercise the power under section 98ZM of the Arbitration Ordinance.
  • For more details, please see LRC’s Consultation Paper, its Report and the gazette version of the ordinance.

Recognition and Enforcement of Arbitral Awards

To provide for a mechanism on reciprocal recognition and enforcement of arbitral awards, the HKSAR has respectively entered into arrangements with the Mainland and the Macao SAR in 1999 and 2013, namely:

• Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the HKSAR (“Enforcement Arrangement”); and
• Arrangement Concerning Reciprocal Recognition and Enforcement of Arbitral Awards Between the HKSAR and the Macao SAR.

The Supplemental Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the HKSAR was signed between the HKSAR Government and the Supreme People’s Court on 27 November 2020 and fully implemented on 19 May 2021 to further refine the Enforcement Arrangement in line with the practice of international arbitration.

To commemorate the 20th anniversary of the implementation of the Enforcement Arrangement, the Supreme People’s Court and the Department of Justice have jointly published a “Compendium of Notable Cases relating to the Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the HKSAR” in December 2020.

Mutual Assistance in Interim Measures

Under the Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the HKSAR (“Interim Measures Arrangement”) signed on 2 April 2019, Hong Kong has become the first jurisdiction outside the Mainland where, as a seat of arbitration, parties to arbitral proceedings administered by designated arbitral institutions may apply to the Mainland courts for interim measures, including property preservation, evidence preservation and conduct preservation.

For more information, please see:

• Guidance Note on the Interim Measures Arrangement
• Outcome of application to qualify under Article 2 of the Interim Measures Arrangement
• List of institutions and permanent offices qualified under Article 2(1) of the Interim Measures Arrangement and their contact details
• Application for interim measures in Hong Kong by parties to arbitral proceedings
• Sample court document templates in relation to making applications for interim measures to the Mainland courts under the Arrangement (available in simplified Chinese only)
• Other reference materials (article by the Supreme People’s Court) (available in simplified Chinese only)

Over the last ten years, there has been an increasing number of reputable international legal and dispute resolution institutions setting up offices in Hong Kong, reinforcing our position as a leading international arbitration centre in the Asia Pacific region:

• AALCO Hong Kong Regional Arbitration Centre (“AALCO HK”): AALCO HK was established in November 2021 as the sixth regional arbitration centre under the auspices of the Asian-African Legal Consultative Organization (AALCO), functioning as an international institution promoting international commercial arbitration in the Asian-African regions and providing services for conducting international arbitrations. It also has a specific focus on the use and promotion of online dispute resolution (ODR).
• China International Economic and Trade Arbitration Commission (“CIETAC”): CIETAC was established in 1956 and is China’s oldest and most experienced arbitration institution, accepting the majority of foreign-related arbitration cases in China. In September 2012, CIETAC established its first branch outside the Mainland in Hong Kong, namely the CIETAC Hong Kong Arbitration Centre.
• China Maritime Arbitration Commission (“CMAC”): CMAC was established in 1959 and is the sole maritime arbitration institution in China. In November 2014, CMAC established a branch in Hong Kong, namely the CMAC Hong Kong Arbitration Centre.
• eBRAM International Online Dispute Resolution Centre (“eBRAM”): eBRAM was established in June 2018 and is an independent and not-for-profit organisation under Hong Kong law. It provides a new online dispute resolution platform in Hong Kong.
• Hong Kong International Arbitration Centre (“HKIAC”): HKIAC is Hong Kong’s own home-grown arbitration body established in the 1980’s and is totally independent, free from governmental interference. HKIAC has been designated under the Ordinance to appoint arbitrators and to determine the number of arbitrators where the parties to a dispute are unable to agree.
• Hong Kong Maritime Arbitration Group (“HKMAG”): HKMAG was originally formed in February 2000 as a division of HKIAC and became an independent organization in March 2019. HKMAG has the specific aim of the promotion of the development and use of maritime arbitration and mediation in Hong Kong.
• Secretariat of the International Court of Arbitration of the International Chamber of Commerce (“ICC-ICA”): In November 2008, the Paris-based ICC-ICA has opened the first overseas branch of its Secretariat in Hong Kong to serve ICC arbitration in the Asia-Pacific Region, namely ICC-ICA Asia Office.
• South China International Arbitration Center (HK) (“SCIAHK”): SCIAHK was established in 2019 in accordance with the laws of Hong Kong. It provides impartial, efficient and flexible arbitration, mediation and other diversified dispute resolution services for parties from different jurisdictions around the world.

For other law-related organisations housed in the Hong Kong Legal Hub, please visit the Legal Hub’s website.

To further promote Hong Kong as a leading centre for international arbitration services in the Asia-Pacific region, the Secretary for Justice has set up an Advisory Committee on Promotion of Arbitration, comprising representatives from the DoJ and the legal, arbitration and relevant sectors in Hong Kong. Overseas arbitration experts may also be appointed from time to time to assist in the work of the Advisory Committee either generally or on specific issues.

Advisory Body on Third Party Funding of Arbitration and Mediation

The Advisory Body, appointed pursuant to section 98X(1) of Part 10A of the Arbitration Ordinance (Cap. 609), is responsible for monitoring and reviewing the operation of the provisions on third party funding of arbitration and mediation, and the Code of Practice for Third Party Funding of Arbitration.

Advisory Body on Outcome Related Fee Structures for Arbitration

The Advisory Body, appointed pursuant to section 98ZT(1) of Part 10B of the Arbitration Ordinance (Cap. 609), is responsible for monitoring and reviewing the operation of the provisions on outcome related fee structures for arbitration and exercising the power under section 98ZM of the Arbitration Ordinance.