There is often need for interim measures at an early stage in a dispute. In many circumstances, for all of the reasons parties chose arbitration in the first instance, having to rely on the national courts of the relevant jurisdiction for interim or conservatory measures is an unattractive prospect. In response to parties' desire for HKIAC to be able to deal efficiently and effectively with such applications even before a tribunal is appointed, HKIAC has included provisions for the appointment of emergency arbitrators in the 2013 Rules.
The short deadlines incorporated into the procedure are consistent with the urgent nature of the emergency proceedings, requiring, for example, that the emergency arbitrator is to be appointed within two days of HKIAC’s acceptance of an application for emergency relief and that a decision on the application be made as expeditiously as possible and, in any case, within 15 days from the date on which the emergency arbitrator receives the file.
According to an amendment bill to the Hong Kong Arbitration Ordinance, which entered into force on 19 July 2013, the emergency relief ordered by an emergency arbitrator is enforceable in Hong Kong in broadly the same way as orders and directions of an arbitral tribunal.
The steps involved in applying for urgent interim relief prior to the constitution of the tribunal under Article 23 and Schedule 4 of the 2013 HKIAC Administered Arbitration Rules are set out below. (PDF version available here)
* The Emergency Arbitrator Procedures are not intended to prevent any party from seeking urgent interim or conservatory measures from a competent judicial authority at any time (see Sch. 4. Para. 22). Unless otherwise agreed by the parties, the Emergency Arbitrator Procedures only apply to arbitrations commenced in accordance with an arbitration agreement entered into after 1 November 2013 (see Art. 1.4). Other procedures, such as for the joinder of additional parties, outlined in the flowchart “The Steps in an HKIAC Administered Arbitration", apply to the proceedings, unless otherwise stated.
- The requirements which must be satisfied for claims under multiple contracts to be brought in the same proceedings are set out in Art. 29. Unless otherwise agreed by the parties, Art. 29 will only apply to arbitrations commenced in accordance with an arbitration agreement entered into after 1 November 2013 (see Art. 1.4).
- Art. 4: the Notice of Arbitration must be submitted to HKIAC and also served by Claimant on all other parties; it should have certain content (see Art. 4.3) and be accompanied by payment of the Registration Fee (see Art. 4.4, Sch. 1 and the Schedule of Fees); it may include the Statement of Claim (see Art. 4.6 and 16).
- Art. 5: the Answer to the Notice of Arbitration must be submitted to HKIAC and also served by Respondent on all other parties within 30 days from Respondent’s receipt of the Notice of Arbitration; it should have certain content (see Art. 5.1) and may include the Statement of Defence (see Art. 5.3 and 17). Any counterclaim or set-off defence must, to the extent possible, be raised with Respondent’s Answer to the Notice of Arbitration (see Art. 5.4).
- Art. 40 and the Practice Notes on Arbitral Tribunal's Fees, Expenses, Terms and Conditions Based on Schedules 2 and 3 Para. 7.1: as soon as practicable, and in any event within 15 days, after receipt of the Notice of Arbitration by Respondent, HKIAC will request Claimant and Respondent to deposit an advance for costs; in principle this will be an equal amount, however, where a Respondent submits a counterclaim, or it otherwise appears appropriate in the circumstances, HKIAC may request separate deposits. HKIAC may request further deposits from each party within 15 days from receipt of a counterclaim or set-off defence (see Practice Notes on Arbitral Tribunal's Fees, Expenses, Terms and Conditions Based on Schedules 2 and 3 Para. 7.2). Supplementary deposits may be requested during the course of the arbitration.
- A party may apply for urgent interim or conservatory relief ("Emergency Relief") prior to the constitution of the Tribunal pursuant to the procedures set out in Schedule 4 ("Emergency Arbitrator Procedures").
- A party requiring Emergency Relief may, concurrent with or following the filing of a Notice of Arbitration but prior to the constitution of the Tribunal, submit to HKIAC an application (the "Application") for the appointment of an emergency arbitrator (the "Emergency Arbitrator") (see Sch. 4, Para. 1).
- Sch 4. Para. 2 and 4: two copies of the Application must be submitted to HKIAC. It must also be served on all other parties (see Sch. 4 Para, 2(i)). It should have certain content (see Sch. 4 Para. 2) but may also contain such other documents or information as the applicant considers appropriate or as may contribute to the efficient examination of the Application (see Sch. 4 Para. 3). The Application must be accompanied by payment of the Application Deposit (see Sch. 4 Para. 6 and Schedule of Fees) which consists of HKIAC's administrative expenses and the Emergency Arbitrator's fees and expenses.
- See Sch. 4 Para. 5. The Emergency Arbitrator Procedures only apply to arbitrations commenced in accordance with an arbitration agreement entered into after 1 November 2013 or where the parties have expressly agreed to the application of the Emergency Arbitrator provisions, either within the matrix contract or separately (see Art. 1.4).
- If HKIAC determines that it should accept the Application, HKIAC will seek to appoint an Emergency Arbitrator within two days after receipt of both the Application and the Application Deposit (see Sch. 4 Para 5).
- See Sch. 4 Para 5. The Emergency Arbitrator's fees will be determined by HKIAC by reference to his or her hourly rate subject to the terms set out in Schedule 2 (see Sch. 4 Para. 6 and Sch. 2). HKIAC may, at any time during the Emergency Relief proceedings, decide to increase the Emergency Arbitrator's fees or HKIAC's administrative expenses, taking into account, inter alia, the nature of the case and the nature and amount of work performed by the Emergency Arbitrator and HKIAC. If the party which submitted the Application fails to pay the increased fees and/or expenses within the time limit fixed by HKIAC, the Application will be dismissed.
- Sch. 4 Para. 7: once the Emergency Arbitrator has been appointed, HKIAC will so notify the parties to the Application and will transmit the file to the Emergency Arbitrator. Thereafter, all written communications from the parties must be submitted directly to the Emergency Arbitrator with a copy to the other party to the Application and HKIAC. A copy of any written communications from the Emergency Arbitrator to the parties must also be copied to HKIAC.
- See Sch. 4 Para. 8 and Art. 11. Article 11 of the Rules regarding the qualifications and challenge of the Tribunal will apply to the Emergency Arbitrator, except that the time limits set out in Art. 11.7 and 11.9 are shortened to three days.
- Sch. 4 Para. 10: if the parties have agreed on the seat of arbitration, such seat will be the seat of the Emergency Relief proceedings. Where the parties have not agreed on the seat of arbitration, without prejudice to the Tribunal's determination of the seat of arbitration pursuant to Art. 14.1 of the Rules, the seat of the Emergency Relief proceedings will be Hong Kong.
- See Sch. 4 Para. 11. The Emergency Arbitrator has the power to rule on objections that the Emergency Arbitrator has no jurisdiction, including any objections with respect to the existence, validity or scope of the arbitration clause(s) or of the separate arbitration agreement(s), and will resolve any disputes over the applicability of Schedule 4. The Emergency Arbitrator is also entitled to order the provision of appropriate security by the party seeking Emergency Relief (see Sch. 4 Para. 17).
- Sch. 4 Para. 13: a decision, order or award of the Emergency Arbitrator on the Application (the "Emergency Decision") may be made even if in the meantime the file has been transmitted to the Tribunal. Emergency Decisions will be in writing, fix the costs of the Emergency Relief proceedings (subject to the power of the Tribunal to finally determine the apportionment of costs in Art. 33 of the Rules) and provide summary reasons on which the Emergency Decision is based (see Sch.4 Para. 14 and 15). Any Emergency Decision has the same effect as an interim measure granted pursuant to Art. 23 of the Rules and is binding on the parties when rendered. By agreeing to arbitration under the Rules, the parties undertake to comply with any Emergency Decision without delay (see Sch. 4 Para. 16).
- Sch. 4 Para. 12: any decision, order or award of the Emergency Arbitrator must be made within fifteen days from the date on which HKIAC transmits the file to the Emergency Arbitrator. This period of time may be extended by agreement of the parties or, in appropriate circumstances, by HKIAC.
- Sch. 4 Para. 18: any Emergency Decision may, upon a reasoned request by a party, be modified, suspended or terminated by the Emergency Arbitrator or the Tribunal (once constituted).
- Sch. 4 Para. 19 sets out the additional circumstances in which an Emergency Decision ceases to be binding.
- See Art. 7, 8, 9, 10 and 11. See also flowchart “The Steps in an HKIAC Administered Arbitration" Aside from rendering the Emergency Decision, the Emergency Arbitrator has no further power to act once the Tribunal is constituted (see Sch. 4 Para. 20). The Emergency Arbitrator may not act as arbitrator in any arbitration relating to the dispute that gave rise to the Application and in respect of which the Emergency Arbitrator has acted, unless otherwise agreed by the parties to the arbitration (see Sch. 4 Para. 21).
- Art. 5.6: once the Tribunal has been confirmed, HKIAC will transmit the case file to the Tribunal.
- See flowchart “The Steps in an HKIAC Administered Arbitration".
- Art. 30.1: when it is satisfied that the parties have had a reasonable opportunity to present their case, the Tribunal will declare the proceedings closed. Thereafter, no further submission or argument may be made, or evidence produced. The Tribunal may re-open the proceedings before the award is made in exceptional circumstances (see Art. 30.2).
- See Art. 10.3 and Schedule 1. HKIAC and the Tribunal have a lien over any awards issued by the Tribunal to secure the payment of their outstanding fees and expenses, and may accordingly refuse to release any such awards to the parties until all such fees and expenses have been paid in full (see Paragraph 7 of Schedules 2 and 3).
- Art. 34: awards will be in writing and are final and binding on the parties (see Art. 34.2); by agreeing to the HKIAC Administered Arbitration Rules parties undertake to comply without delay with any award or order of the Tribunal (see Art. 34.3). Any award will state the reasons upon which it is based unless the parties have agreed that no reasons are to be given (see Art. 34.4).