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A number of model clauses which may be used to site a mediation or arbitration in Hong Kong are set out below. Legal advice should,
however, be sought on the choice of suitable clause and applicable law.
"Any dispute or difference arising out of or in connection with this contract shall first be referred to mediation at Hong Kong
International Arbitration Centre (HKIAC) and in accordance with its Mediation Rules. If the mediation is abandoned by the mediator or is otherwise
concluded without the dispute or difference being resolved, then such dispute or difference shall be referred to and determined by arbitration
at HKIAC and in accordance with its Domestic Arbitration Rules."
"Any dispute or difference arising out of or in connection with this contract shall be referred to and determined by arbitration
at Hong Kong International Arbitration Centre and in accordance with its Domestic Arbitration Rules."
"Any dispute, controversy or claim arising out of or relating to this contract, or the breach termination or invalidity thereof,
shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as at present in force and as may be amended by the rest
of this clause.
The appointing authority shall be Hong Kong International Arbitration Centre.
The place of arbitration shall be in Hong Kong at Hong Kong International Arbitration Centre (HKIAC).
There shall be only one arbitrator.*
Any such arbitration shall be administered by HKIAC in accordance with HKIAC Procedures for Arbitration in force at the date of
this contract including such additions to the UNCITRAL Arbitration Rules as are therein contained."#
Notes:
*This sentence must be amended if a panel of three arbitrators is required.
#This sentence may be deleted if administration by HKIAC is not required. If it is retained the Centre will then act as a clearing
house for communications between the parties and the arbitral tribunal and will liaise with the arbitral tribunal and the parties on timing
of meetings etc, will hold deposits from the parties and assist the tribunal with any other matters required.
If the language to be used in arbitration proceedings is likely to be in question, it may also be useful to include in contracts:
"The language(s) to be used in the arbitral proceedings shall be......"
“Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in Hong Kong under the Hong
Kong International Arbitration Centre Administered
Arbitration Rules in force when the Notice of
Arbitration is submitted in accordance with these
Rules.
* The number of arbitrators shall be ... (one or three). The arbitration proceedings shall be conducted in ....
(insert language)."
Note:
*Optional
As Hong Kong has adopted the UNCITRAL Model Law for international arbitrations,
parties not wishing to arbitrate under that law can opt out of it and into the domestic regime which is set out in Part II of the Arbitration
Ordinance (see section 2M of the Arbitration Ordinance). Parties who have done this can, if they wish, also opt out of any judicial review
of the award pursuant to the terms of section 23B of the Arbitration Ordinance.
Clauses to cover both situations are set out below.
"The parties to this agreement hereby agree that this agreement is or is to be treated as a domestic arbitration agreement notwithstanding
the provisions of the Arbitration Ordinance Chapter 341 of the Laws of Hong
Kong. The parties further agree that all or any dispute that may arise under the terms of this agreement are to be arbitrated as a domestic
arbitration."
Note:
This clause could be adapted for use by parties to domestic arbitrations for opting-in to the Model Law.
"In relation to all matters referred to arbitration by this agreement, the right of appeal under section 23 of the Arbitration
Ordinance Chapter 341 of the Laws of Hong Kong and the right to make an application under section 23A thereof are hereby excluded."
"Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination,
shall be referred to and finally resolved by arbitration under the Rules of the London Court of International Arbitration, which Rules are
deemed to be incorporated by reference into this clause. The place of arbitration shall be in Hong Kong at Hong Kong International Arbitration
Centre."
Parties are also reminded by the LCIA that difficulties and expense may be avoided
if they expressly specify the law governing their contract. The parties may if they wish also specify the number of arbitrators, and the language
of the arbitration. The following provisions may be suitable:
"The governing law of this contract shall be the substantive law of ... The number of arbitrators shall be (one/three). The language
to be used in the arbitral proceedings shall be ..."
"All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration
of the International Chamber of Commerce by one or more arbitrators appointed in accordance
with the said Rules.
The place of arbitration shall be in Hong Kong at Hong Kong International Arbitration Centre."
"Any controversy or claim arising out of or relating to this contract shall be determined by arbitration in accordance with the
International Arbitration Rules of the American Arbitration Association. The place of arbitration shall be in Hong Kong at Hong Kong International
Arbitration Centre."
Note:
The American Arbitration Association also recommends that among other things parties agree in advance whether to use one or three
arbitrators and that they specify the language of the arbitration. |
