Insights into International Commercial Arbitration Mechanics and Hot Topics
Delve into the intricacies of international commercial arbitration with a focus on drafting institutional arbitration rules, addressing challenging issues, and understanding the arbitration process. Explore key topics such as the legal framework, appointment of arbitrators, and the enforcement of arbitral awards.
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1 International Commercial Arbitration: The Mechanics & Hot Topics Winnie Jo-Mei Ma & Prof. Lawrence Boo 6 June 2017
2 Seminar Outline Introduction to international commercial arbitration Lessons from drafting institutional arbitration rules Tips for dealing with gaps in arbitration rules and other challenging issues Q & A Winnie Ma 26/09/2024
3 What is arbitration? A process in which parties submit their dispute to one or more persons for a binding decision dispute and arbitration agreement between parties, arbitral award made by arbitrator(s) Arbitrators appointment and arbitral proceedings are private (akin to mediation) Arbitrators decisions are binding and enforceable as court judgments (akin to litigation) Winnie Ma 26/09/2024
4 What is international commercial arbitration? International: parties places of business or habitual residence or subject matter of arbitration agreement or dispute involve different States Commercial: all relationships of a commercial nature, whether contractual or not Commencement of arbitration (notice/request) appointment of arbitrators exchange of submissions & documents meetings & hearings award-making Winnie Ma 26/09/2024
5 Legal framework International: New York Convention (enforcement of arbitration agreements and arbitral awards) and UNCITRAL Model Law (plus arbitral procedures etc.) National: laws of place of arbitration and place(s) of enforcement (157 New York Convention countries; 75 Model Law countries) Contractual/Institutional: arbitration rules of the institution (if institutional arbitration) OR rules for ad hoc arbitration (e.g. UNCITRAL Arbitration Rules) Winnie Ma 26/09/2024
6 Drafting institutional arbitration rules CAA International Arbitration Rules 2017 Separate entity of CAA (Chinese Arbitration Association, Taiwan) to be established in Hong Kong Potential users? Targeted market? Scope of application? Applicable legal regimes? Default seat/place of arbitration? Enforceability? Light touch (party autonomy and arbitral discretion) or scrutiny? Winnie Ma 26/09/2024
7 Drafting institutional arbitration rules (continued) International benchmarks, standards, consensus and trends? ICC (International Chamber of Commerce), LCIA (London Court of International Arbitration), SCC (Stockholm Chamber of Commerce), HKIAC, SIAC (Singapore International Arbitral Centre), ACICA (Australian Centre for International Commercial Arbitration), CIETAC (China International Economic & Trade Center), BAC (Beijing Arbitration Commission) Hong Kong Arbitration Ordinance/UNCITRAL Model Law Creative & ambitious OR conservative & cautious? Linguistic and cultural diversity/complexity? Winnie Ma 26/09/2024
8 Seat/place of arbitration The parties may agree on the seat of arbitration. Absent such an agreement, the seat of arbitration shall be Hong Kong, unless the arbitral tribunal determines that another seat is more appropriate in the circumstances after consulting with the parties. Default seat despite increasing delocalisation of arbitration CAA International Rules do not apply if the parties or arbitral tribunal designate Taiwan as the seat of arbitration Winnie Ma 26/09/2024
9 Language(s) of arbitration The parties may agree on the language of the arbitration. Absent such an agreement, the language of the arbitration shall be either Mandarin Chinese or English in accordance with CAA s notification of preliminary decision on language [within seven days after receiving the notice of arbitration], unless the arbitral tribunal determines that another language is more appropriate in the circumstances after consulting with the parties. Winnie Ma 26/09/2024
10 Challenging jurisdiction and/or arbitrators Objection to the existence, validity, effectiveness, scope or termination of an arbitration agreement arbitral tribunal s competence to rule on its own jurisdiction Challenge of arbitrators: (a) lack of impartiality or independence; (b) lack of requisite qualifications; (c) inability to perform or refusal to act CAA to decide on the challenge and may suspend arbitration Winnie Ma 26/09/2024
11 Question for Lawrence How do you deal with fellow arbitrator who has been compromised ? Winnie Ma 26/09/2024
12 Time limits for closure & award-making Within six months from the date of its constitution, the arbitral tribunal shall declare the proceedings closed and state the date of such closure in writing. The arbitral tribunal shall make its final award within six weeks from the date of its closure of proceedings as stated Winnie Ma 26/09/2024
13 Drafting institutional arbitration rules (continued) Modified adoption Single arbitration and consolidation of arbitrations Joinder of additional parties Interim measures and emergency arbitration Confidentiality Expedited procedure Wait and see Summary procedure or early dismissal Third party funding Combination with mediation etc. Investment arbitration Apportionment of costs Winnie Ma 26/09/2024
14 More questions for Lawrence Do s and don t s in discovery/disclosure? Measuring success when apportioning costs? Third party funding? Summary procedure or early dismissal? Confidentiality vs transparency? Institutionalisation of ad hoc arbitration (hybrid system)? Winnie Ma 26/09/2024
