ARBITRATION ORDINANCE - CHAPTER 341 ARBITRATION ORDINANCE - LONG TITLE Long title VerDate:30/06/1997 ARBITRATION* To make provision for arbitration in respect of civil matters. [5 July 1963] (Originally 22 of 1963) ___________________________________________________________________ Notes: * For transitional provisions relating to previous amendments, see the Notes below- 1. Section 26 of the Arbitration (Amendment) (No. 2) Ordinance 1989 (64 of 1989) provides as follows: "26. Transitional (1) An arbitration commenced, within the meaning of section 31(1) of the principal Ordinance, after the commencement of the principal Ordinance but before the commencement@ of this Ordinance shall be governed by the principal Ordinance as if this Ordinance had not been enacted. (2) An arbitration commenced, within the meaning of section 31(1) of the principal Ordinance, after the commencement@ of this Ordinance under an agreement made before the commencement@ of this Ordinance shall be subject to sections 2B, 2E and 14(3A) of the principal Ordinance but, subject to that, shall be governed by the principal Ordinance as if this Ordinance had not been enacted.". @ Commencement date: 6 April 1990. 2. Section 18 of the Arbitration (Amendment) Ordinance 1996 (75 of 1996) provides as follows: "18. Transitional provisions (1) A provision of this Ordinance applies to and in relation to an agreement entered into before or after the commencement# of the provision. However, such a provision does not apply to or in relation to an arbitration commenced before the commencement# of the provision and in that case the provisions of the principal Ordinance that were in force immediately before that commencement continue to apply to and in relation to the arbitration in so far as it has not been completed. (2) In this section "commenced", in relation to an arbitration, means commenced within the meaning of section 31(1) of the principal Ordinance.". # Commencement date: 27 June 1997. 3. Section 12 of the Arbitration (Amendment) Ordinance 2000 (2 of 2000) provides as follows: "12. Transitional Notwithstanding the repeal of Part III of the Arbitration Ordinance (Cap 341) by section 4, an award to which that Part applied immediately before the commencement+ of that section shall be governed by the Arbitration Ordinance (Cap 341) in force immediately before that commencement, as if this Ordinance had not been enacted.". + Commencement date: 1 February 2000. ARBITRATION ORDINANCE - SECT 1 Short title VerDate:30/06/1997 PART I PRELIMINARY (Replaced 75 of 1996 s. 2) This Ordinance may be cited as the Arbitration Ordinance. ARBITRATION ORDINANCE - SECT 2 Interpretation VerDate:01/02/2000 Adaptation amendments retroactively made - 2 of 2000 s. 3 (1) In this Ordinance, unless the context otherwise requires- (Amended 64 of 1989 s. 2) "arbitral tribunal" (仲裁庭) means a sole arbitrator or a panel of arbitrators, and includes an umpire; (Added 75 of 1996 s. 3) "arbitration agreement" (仲裁協議) has the same meaning as in article 7(1) of the UNCITRAL Model Law; (Replaced 64 of 1989 s. 2) "claimant" (申索人) includes a person who makes a counter-claim; (Added 75 of 1996 s. 3) "conciliation" (調解) includes mediation; (Added 75 of 1996 s. 3) "Convention award" (公約裁決) means an award to which Part IV applies, namely, an award made in pursuance of an arbitration agreement in a State or territory, other than China or any part thereof, which is a party to the New York Convention; (Added 85 of 1975 s. 2. Amended 2 of 2000 s. 3) "Court" (法院) means the Court of First Instance; (Amended 92 of 1975 s. 59; 25 of 1998 s. 2) "dispute" (爭議) includes a difference; (Added 64 of 1989 s. 2) "domestic arbitration agreement" (本地仲裁協議) means an arbitration agreement that is not an international arbitration agreement; (Added 64 of 1989 s. 2) "function" (職能) includes a power and a duty; (Added 75 of 1996 s. 3) "HKIAC" (香港國際仲裁中心) means Hong Kong International Arbitration Centre, a company incorporated in Hong Kong under the Companies Ordinance (Cap 32) and limited by guarantee; (Added 75 of 1996 s. 3) "international arbitration agreement" (國際仲裁協議) means an arbitration agreement pursuant to which an arbitration is, or would if commenced be, international within the meaning of article 1(3) of the UNCITRAL Model Law; (Added 64 of 1989 s. 2) "the Mainland" (內地) means any part of China other than Hong Kong, Macau and Taiwan; (Added 2 of 2000 s. 3) "Mainland award" (內地裁決) means an arbitral award made on the Mainland by a recognized Mainland arbitral authority in accordance with the Arbitration Law of the People's Republic of China; (Added 2 of 2000 s. 3) "the New York Convention" (紐約公約) means the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted by the United Nations Conference on International Commercial Arbitration on 10 June 1958 the text of which is set out in the Third Schedule; (Added 85 of 1975 s. 2) "recognized Mainland arbitral authority" (認可內地仲裁當局) means an arbitral authority which is specified in the list of Mainland arbitral authorities provided from time to time for the purposes of this definition to the Government by the Legislative Affairs Office of the State Council of the People's Republic of China via the Hong Kong and Macau Affairs Office; (Added 2 of 2000 s. 3) "the UNCITRAL Model Law" (聯合國國際貿易法委員會示範法) means the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on 21 June 1985, the text of which is set out in the Fifth Schedule. (Added 64 of 1989 s. 2. Amended 56 of 1991 s. 2) (Amended 2 of 2000 s. 3) (2) (Repealed 75 of 1996 s. 3) (3) In interpreting and applying the provisions of the UNCITRAL Model Law, regard shall be had to its international origin and to the need for uniformity in its interpretation, and regard may be had to the documents specified in the Sixth Schedule. (Added 64 of 1989 s. 2) (4) In the UNCITRAL Model Law a reference to- (a) "this State" (本國) shall be treated as being a reference to Hong Kong; (b) "any agreement in force between this State and any other State or States" (本國與其他任何一國或多國之間有效力的任何協定) shall be treated as being a reference to any agreement that binds Hong Kong and any other place and that has the force of law in Hong Kong; (c) "a State" (一國) shall be treated as including a reference to Hong Kong; and (d) "different States" (不同的國家) shall be treated as including a reference to Hong Kong and any other place. (Added 64 of 1989 s. 2) (5) A note located in the text of this Ordinance is provided for information only and has no legislative effect. (Added 75 of 1996 s. 3) [cf. 1975 c. 3 s. 7(1) U.K.] "arbitral tribunal" (仲裁庭) "arbitration agreement" (仲裁協議) "claimant" (申索人) "conciliation" (調解) "Convention award" (公約裁決) "Court" (法院) "dispute" (爭議) "domestic arbitration agreement" (本地仲裁協議) "function" (職能) "HKIAC" (香港國際仲裁中心) "international arbitration agreement" (國際仲裁協議) "the Mainland" (內地) "Mainland award" (內地裁決) "the New York Convention" (紐約公約) "recognized Mainland arbitral authority" (認可內地仲裁當局) "the UNCITRAL Model Law" (聯合國國際貿易法委員會示範法) "this State" (本國) "any agreement in force between this State and any other State or States" (本國與其他任何一國或多國之間有效力的任何協定) "a State" (一國) "different States" (不同的國家) ARBITRATION ORDINANCE - SECT 2 Interpretation VerDate:01/07/1997 Adaptation amendments retroactively made - see 25 of 1998 s. 2; 2 of 2000 s. 3 (1) In this Ordinance, unless the context otherwise requires- (Amended 64 of 1989 s. 2) "arbitral tribunal" (仲裁庭) means a sole arbitrator or a panel of arbitrators, and includes an umpire; (Added 75 of 1996 s. 3) "arbitration agreement" (仲裁協議) has the same meaning as in article 7(1) of the UNCITRAL Model Law; (Replaced 64 of 1989 s. 2) "claimant" (申索人) includes a person who makes a counter-claim; (Added 75 of 1996 s. 3) "conciliation" (調解) includes mediation; (Added 75 of 1996 s. 3) "Convention award" (公約裁決) means an award to which Part IV applies, namely, an award made in pursuance of an arbitration agreement in a State or territory, other than China or any part thereof, which is a party to the New York Convention; (Added 85 of 1975 s. 2. Amended 2 of 2000 s. 3) "Court" (法院) means the Court of First Instance; (Amended 92 of 1975 s. 59; 25 of 1998 s. 2) "dispute" (爭議) includes a difference; (Added 64 of 1989 s. 2) "domestic arbitration agreement" (本地仲裁協議) means an arbitration agreement that is not an international arbitration agreement; (Added 64 of 1989 s. 2) "foreign award" (外國裁決) means an award to which Part III applies; "function" (職能) includes a power and a duty; (Added 75 of 1996 s. 3) "HKIAC" (香港國際仲裁中心) means Hong Kong International Arbitration Centre, a company incorporated in Hong Kong under the Companies Ordinance (Cap 32) and limited by guarantee; (Added 75 of 1996 s. 3) "international arbitration agreement" (國際仲裁協議) means an arbitration agreement pursuant to which an arbitration is, or would if commenced be, international within the meaning of article 1(3) of the UNCITRAL Model Law; (Added 64 of 1989 s. 2) "the New York Convention" (紐約公約) means the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted by the United Nations Conference on International Commercial Arbitration on 10 June 1958 the text of which is set out in the Third Schedule; (Added 85 of 1975 s. 2) "the UNCITRAL Model Law" (聯合國國際貿易法委員會示範法) means the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on 21 June 1985, the text of which is set out in the Fifth Schedule. (Added 64 of 1989 s. 2. Amended 56 of 1991 s. 2) (2) (Repealed 75 of 1996 s. 3) (3) In interpreting and applying the provisions of the UNCITRAL Model Law, regard shall be had to its international origin and to the need for uniformity in its interpretation, and regard may be had to the documents specified in the Sixth Schedule. (Added 64 of 1989 s. 2) (4) In the UNCITRAL Model Law a reference to- (a) "this State" (本國) shall be treated as being a reference to Hong Kong; (b) "any agreement in force between this State and any other State or States" (本國與其他任何一國或多國之間有效力的任何協定) shall be treated as being a reference to any agreement that binds Hong Kong and any other place and that has the force of law in Hong Kong; (c) "a State" (一國) shall be treated as including a reference to Hong Kong; and (d) "different States" (不同的國家) shall be treated as including a reference to Hong Kong and any other place. (Added 64 of 1989 s. 2) (5) A note located in the text of this Ordinance is provided for information only and has no legislative effect. (Added 75 of 1996 s. 3) [cf. 1975 c. 3 s. 7(1) U.K.] "arbitral tribunal" (仲裁庭) "arbitration agreement" (仲裁協議) "claimant" (申索人) "conciliation" (調解) "Convention award" (公約裁決) "Court" (法院) "dispute" (爭議) "domestic arbitration agreement" (本地仲裁協議) "foreign award" (外國裁決) "function" (職能) "HKIAC" (香港國際仲裁中心) "international arbitration agreement" (國際仲裁協議) "the New York Convention" (紐約公約) "the UNCITRAL Model Law" (聯合國國際貿易法委員會示範法) "this State" (本國) "any agreement in force between this State and any other State or States" (本國與其他任何一國或多國之間有效力的任何協定) "a State" (一國) "different States" (不同的國家) ARBITRATION ORDINANCE - SECT 2 Interpretation VerDate:30/06/1997 (1) In this Ordinance, unless the context otherwise requires- (Amended 64 of 1989 s. 2) "arbitral tribunal" (仲裁庭) means a sole arbitrator or a panel of arbitrators, and includes an umpire; (Added 75 of 1996 s. 3) "arbitration agreement" (仲裁協議) has the same meaning as in article 7(1) of the UNCITRAL Model Law; (Replaced 64 of 1989 s. 2) "claimant" (申索人) includes a person who makes a counter-claim; (Added 75 of 1996 s. 3) "conciliation" (調解) includes mediation; (Added 75 of 1996 s. 3) "Convention award" (公約裁決) means an award to which Part IV applies, namely, an award made in pursuance of an arbitration agreement in a State or territory, other than Hong Kong, which is a party to the New York Convention; (Added 85 of 1975 s. 2) "Court" (法院) means the High Court; (Amended 92 of 1975 s. 59) "dispute" (爭議) includes a difference; (Added 64 of 1989 s. 2) "domestic arbitration agreement" (本地仲裁協議) means an arbitration agreement that is not an international arbitration agreement; (Added 64 of 1989 s. 2) "foreign award" (外國裁決) means an award to which Part III applies; "function" (職能) includes a power and a duty; (Added 75 of 1996 s. 3) "HKIAC" (香港國際仲裁中心) means Hong Kong International Arbitration Centre, a company incorporated in Hong Kong under the Companies Ordinance (Cap 32) and limited by guarantee; (Added 75 of 1996 s. 3) "international arbitration agreement" (國際仲裁協議) means an arbitration agreement pursuant to which an arbitration is, or would if commenced be, international within the meaning of article 1(3) of the UNCITRAL Model Law; (Added 64 of 1989 s. 2) "the New York Convention" (紐約公約) means the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted by the United Nations Conference on International Commercial Arbitration on 10 June 1958 the text of which is set out in the Third Schedule; (Added 85 of 1975 s. 2) "the UNCITRAL Model Law" (聯合國國際貿易法委員會示範法) means the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on 21 June 1985, the text of which is set out in the Fifth Schedule. (Added 64 of 1989 s. 2. Amended 56 of 1991 s. 2) (2) (Repealed 75 of 1996 s. 3) (3) In interpreting and applying the provisions of the UNCITRAL Model Law, regard shall be had to its international origin and to the need for uniformity in its interpretation, and regard may be had to the documents specified in the Sixth Schedule. (Added 64 of 1989 s. 2) (4) In the UNCITRAL Model Law a reference to- (a) "this State" (本國) shall be treated as being a reference to Hong Kong; (b) "any agreement in force between this State and any other State or States" (本國與其他任何一國或多國之間有效力的任何協定) shall be treated as being a reference to any agreement that binds Hong Kong and any other place and that has the force of law in Hong Kong; (c) "a State" (一國) shall be treated as including a reference to Hong Kong; and (d) "different States" (不同的國家) shall be treated as including a reference to Hong Kong and any other place. (Added 64 of 1989 s. 2) (5) A note located in the text of this Ordinance is provided for information only and has no legislative effect. (Added 75 of 1996 s. 3) [cf. 1975 c. 3 s. 7(1) U.K.] "arbitral tribunal" (仲裁庭) "arbitration agreement" (仲裁協議) "claimant" (申索人) "conciliation" (調解) "Convention award" (公約裁決) "Court" (法院) "dispute" (爭議) "domestic arbitration agreement" (本地仲裁協議) "foreign award" (外國裁決) "function" (職能) "HKIAC" (香港國際仲裁中心) "international arbitration agreement" (國際仲裁協議) "the New York Convention" (紐約公約) "the UNCITRAL Model Law" (聯合國國際貿易法委員會示範法) "this State" (本國) "any agreement in force between this State and any other State or States" (本國與其他任何一國或多國之間有效力的任何協定) "a State" (一國) "different States" (不同的國家) ARBITRATION ORDINANCE - SECT 2A Appointment of conciliator VerDate:30/06/1997 Due to technical constraints, sections 2AA, 2AB, 2AC and 2AD of this Ordinance are placed after section 2A in the BLIS system. The correct sequence of the sections should be "2AA, 2AB, 2AC, 2AD, 2A". PART IA PROVISIONS APPLICABLE TO DOMESTIC AND INTERNATIONAL ARBITRATION (Replaced 75 of 1996 s. 5) (1) In any case where an arbitration agreement provides for the appointment of a conciliator by a person who is not one of the parties and that person refuses to make the appointment or does not make it within the time specified in the agreement or, if no time is so specified, within a reasonable time of being requested by any party to the agreement to make the appointment, the Court or a judge thereof may, on the application of any party to the agreement, appoint a conciliator who shall have the like powers to act in the conciliation proceedings as if he had been appointed in accordance with the terms of the agreement. (Amended 64 of 1989 s. 4) (2) Where an arbitration agreement provides for the appointment of a conciliator and further provides that the person so appointed shall act as an arbitrator in the event of the conciliation proceedings failing to produce a settlement acceptable to the parties- (a) no objection shall be taken to the appointment of such person as an arbitrator, or to his conduct of the arbitration proceedings, solely on the ground that he had acted previously as a conciliator in connection with some or all of the matters referred to arbitration; (b) if such person declines to act as an arbitrator any other person appointed as an arbitrator shall not be required first to act as a conciliator unless a contrary intention appears in the arbitration agreement. (3) Unless a contrary intention appears therein, an arbitration agreement which provides for the appointment of a conciliator shall be deemed to contain a provision that in the event of the conciliation proceedings failing to produce a settlement acceptable to the parties within 3 months, or such longer period as the parties may agree to, of the date of the appointment of the conciliator or, where he is appointed by name in the arbitration agreement, of the receipt by him of written notification of the existence of a dispute the proceedings shall thereupon terminate. (4) (Repealed 64 of 1989 s. 4) ARBITRATION ORDINANCE - SECT 2AA Objective and principles of Ordinance VerDate:30/06/1997 Due to technical constraints, sections 2AA, 2AB, 2AC and 2AD of this Ordinance are placed after section 2A in the BLIS system. The correct sequence of the sections should be "2AA, 2AB, 2AC, 2AD, 2A". (1) The object of this Ordinance is to facilitate the fair and speedy resolution of disputes by arbitration without unnecessary expense. (2) This Ordinance is based on the principles that- (a) subject to the observance of such safeguards as are necessary in the public interest, the parties to a dispute should be free to agree how the dispute should be resolved; and (b) the Court should interfere in the arbitration of a dispute only as expressly provided by this Ordinance. (Added 75 of 1996 s. 4) ARBITRATION ORDINANCE - SECT 2AB Ordinance to apply to statutory arbitrations VerDate:30/06/1997 Due to technical constraints, sections 2AA, 2AB, 2AC and 2AD of this Ordinance are placed after section 2A in the BLIS system. The correct sequence of the sections should be "2AA, 2AB, 2AC, 2AD, 2A". (1) This Ordinance (other than the provisions specified in subsection (3)) applies to arbitrations under every other Ordinance, whether passed before or after the commencement of this section, as if- (a) the arbitration were under a domestic arbitration agreement; and (b) the other enactment were such an agreement. (2) Subsection (1) has effect only in so far as this Ordinance is consistent with that other enactment and with any rules or procedure authorized or recognized by that other enactment. (3) The provisions referred to in subsection (1) are sections 2GD, 2GJ(3), 4(1), 5, 7, 26 and 27. (Amended 80 of 1997 s. 102) (Added 75 of 1996 s. 4) ARBITRATION ORDINANCE - SECT 2AC Arbitration agreement to be in writing VerDate:30/06/1997 Due to technical constraints, sections 2AA, 2AB, 2AC and 2AD of this Ordinance are placed after section 2A in the BLIS system. The correct sequence of the sections should be "2AA, 2AB, 2AC, 2AD, 2A". (1) An agreement is not an arbitration agreement for the purposes of this Ordinance unless it is in writing. (2) An agreement is in writing for the purposes of subsection (1) if- (a) the agreement is in a document, whether signed by the parties or not; or (b) the agreement is made by an exchange of written communications; or (c) although the agreement is not itself in writing, there is evidence in writing of the agreement; or (d) the parties to the agreement agree otherwise than in writing by referring to terms that are in writing; or (e) the agreement, although made otherwise than in writing, is recorded by one of the parties to the agreement, or by a third party, with the authority of each of the parties to the agreement; or (f) there is an exchange of written submissions in arbitral or legal proceedings in which the existence of an agreement otherwise than in writing is alleged by one party against another party and is not denied by the other party in response to the allegation. (3) A reference in an agreement- (a) to a written form of arbitration clause; or (b) to a document containing an arbitration clause, constitutes an arbitration agreement if the reference is such as to make that clause part of the agreement. (4) In this section "writing" (書面) includes any means by which information can be recorded. (5) This section applies to all agreements that would, if they were arbitration agreements, be either domestic arbitration agreements or international arbitration agreements and applies to those agreements to the exclusion of article 7(2) of the UNCITRAL Model Law. (Added 75 of 1996 s. 4) "writing" (書面) ARBITRATION ORDINANCE - SECT 2AD Application (Part IA) VerDate:30/06/1997 Due to technical constraints, sections 2AA, 2AB, 2AC and 2AD of this Ordinance are placed after section 2A in the BLIS system. The correct sequence of the sections should be "2AA, 2AB, 2AC, 2AD, 2A". Application of Part This Part applies to arbitration proceedings conducted under both domestic arbitration agreements and international arbitration agreements. (Added 75 of 1996 s. 6) ARBITRATION ORDINANCE - SECT 2B Power of arbitrator to act as conciliator VerDate:30/06/1997 (1) If all parties to a reference consent in writing, and for so long as no party withdraws in writing his consent, an arbitrator or umpire may act as a conciliator. (2) An arbitrator or umpire acting as conciliator- (a) may communicate with the parties to the reference collectively or separately; (b) shall treat information obtained by him from a party to the reference as confidential, unless that party otherwise agrees or unless subsection (3) applies. (3) Where confidential information is obtained by an arbitrator or umpire from a party to the reference during conciliation proceedings and those proceedings terminate without the parties reaching agreement in settlement of their dispute, the arbitrator or umpire shall, before resuming the arbitration proceedings, disclose to all other parties to the reference as much of that information as he considers is material to the arbitration proceedings. (4) No objection shall be taken to the conduct of arbitration proceedings by an arbitrator or umpire solely on the ground that he had acted previously as a conciliator in accordance with this section. (Added 64 of 1989 s. 5) ARBITRATION ORDINANCE - SECT 2C Settlement agreements VerDate:30/06/1997 If the parties to an arbitration agreement reach agreement in settlement of their dispute and enter into an agreement in writing containing the terms of settlement (the "settlement agreement") the settlement agreement shall, for the purposes of its enforcement, be treated as an award on an arbitration agreement and may, by leave of the Court or a judge thereof, be enforced in the same manner as a judgment or order to the same effect and, where leave is so given, judgment may be entered in terms of the agreement. (Added 64 of 1989 s. 5) ARBITRATION ORDINANCE - SECT 2D Proceedings to be heard otherwise than in open court VerDate:30/06/1997 Proceedings under this Ordinance in the Court or Court of Appeal shall on the application of any party to the proceedings be heard otherwise than in open court. (Added 64 of 1989 s. 5) ARBITRATION ORDINANCE - SECT 2E Restrictions on reporting of proceedings heard otherwise than in open court VerDate:30/06/1997 (1) This section applies to proceedings under this Ordinance in the Court or Court of Appeal heard otherwise than in open court. (2) A court in which proceedings to which this section applies are being heard shall, on the application of any party to the proceedings, give directions as to what information, if any, relating to the proceedings may be published. (3) A court shall not give a direction under subsection (2) permitting information to be published unless- (a) all parties to the proceedings agree that such information may be published; or (b) the court is satisfied that the information, if published in accordance with such directions as it may give, would not reveal any matter, including the identity of any party to the proceedings, that any party to the proceedings reasonably wishes to remain confidential. (4) Notwithstanding subsection (3), where a court gives a judgment in respect of proceedings to which this section applies and considers that judgment to be of major legal interest, it shall direct that reports of the judgment may be published in law reports and professional publications but, if any party to the proceedings reasonably wishes to conceal any matter, including the fact that he was such a party, the court shall- (a) give directions as to the action that shall be taken to conceal that matter in those reports; and (b) if it considers that a report published in accordance with directions given under paragraph (a) would be likely to reveal that matter, direct that no report shall be published until after the end of such period, not exceeding 10 years, as it considers appropriate. (Added 64 of 1989 s. 5) ARBITRATION ORDINANCE - SECT 2F Representation and preparation work VerDate:30/06/1997 For the avoidance of doubt, it is hereby declared that sections 44, 45 and 47 of the Legal Practitioners Ordinance (Cap 159) do not apply to- (a) arbitration proceedings; (b) the giving of advice and the preparation of documents for the purpose of arbitration proceedings; (c) any other thing done in relation to arbitration proceedings except where it is done in connection with court proceedings arising out of an arbitration agreement or arising in the course of, or resulting from, arbitration proceedings. (Added 64 of 1989 s. 5) ARBITRATION ORDINANCE - SECT 2G Costs in respect of unqualified person VerDate:30/06/1997 Section 50 of the Legal Practitioners Ordinance (Cap 159), (which provides that no costs in respect of anything done by an unqualified person acting as a solicitor shall be recoverable in any action, suit or matter) shall not apply to the recovery of costs directed by an award. (Added 64 of 1989 s. 5) ARBITRATION ORDINANCE - SECT 2GA General responsibilities of arbitral tribunal VerDate:30/06/1997 Conduct of Arbitration Proceedings (1) When conducting arbitration proceedings or exercising any of the powers conferred on it by this Ordinance or by the parties to any such proceedings, an arbitral tribunal is required- (a) to act fairly and impartially as between the parties, giving them a reasonable opportunity to present their cases and to deal with the cases of their opponents; and (b) to use procedures that are appropriate to the particular case, avoiding unnecessary delay and expense, so as to provide a fair means for resolving the dispute to which the proceedings relate. (2) When conducting arbitration proceedings, an arbitral tribunal is not bound by the rules of evidence and can receive any evidence that it considers relevant to the proceedings, but must give such weight to the evidence adduced in the proceedings as it considers appropriate. (Added 75 of 1996 s. 7) ARBITRATION ORDINANCE - SECT 2GB General powers exercisable by arbitral tribunal VerDate:30/06/1997 (1) When conducting arbitration proceedings, an arbitral tribunal may make orders or give directions dealing with any of the following matters- (a) requiring a claimant to give security for the costs of the arbitration; (b) requiring money in dispute to be secured; (c) directing the discovery of documents or the delivery of interrogatories; (d) directing evidence to be given by affidavit; (e) in relation to relevant property- (i) directing the inspection, photographing, preservation, custody, detention or sale of the property by the tribunal, a party to the proceedings or an expert; or (ii) directing samples to be taken from, observations to be made of, or experiments to be conducted on the property; (f) granting interim injunctions or directing other interim measures to be taken. (2) Property is relevant property for the purposes of subsection (1)(e) if- (a) the property is owned by or is in the possession of a party to the proceedings; and (b) the property is subject to the proceedings, or any question relating to the property arises in the proceedings. (3) An arbitral tribunal must not make an order requiring a claimant to provide security for costs only on the ground that the claimant- (a) is a natural person who is ordinarily resident outside Hong Kong; or (b) is a body corporate that is incorporated, or an association that is formed, under a law of a place outside Hong Kong, or whose central management and control is exercised outside Hong Kong. (4) An arbitral tribunal- (a) must, when making an order to provide security for costs, specify a period within which the order is to be complied with; and (b) may extend that period or an extended period. (5) An arbitral tribunal may dismiss or stay a claim if it has made an order requiring the claimant to provide security for costs and the order has not been complied with within the period allowed under subsection (4). (6) In conducting arbitration proceedings, an arbitral tribunal may decide whether and to what extent it should itself take the initiative in ascertaining the facts and the law relevant to those proceedings. (7) An arbitral tribunal may- (a) administer oaths to, or take the affirmations of, witnesses and parties; and (b) examine witnesses and parties on oath or affirmation; and (c) direct the attendance before the tribunal of witnesses in order to give evidence or to produce documents or other material evidence. (8) A person cannot be required to produce in arbitration proceedings any document or other material evidence that the person could not be required to produce in civil proceedings before a court. (9) Subsections (6) and (7) are subject to any agreement to the contrary of the parties to the relevant arbitration proceedings. (Added 75 of 1996 s. 7) ARBITRATION ORDINANCE - SECT 2GC Special powers of Court in relation to arbitration proceedings VerDate:30/06/1997 (1) The Court or a judge of the Court may, in relation to a particular arbitration proceeding, do any of the following- (a) make an order directing an amount in dispute to be secured; (b) in relation to relevant property- (i) make an order directing the inspection, photographing, preservation, custody, detention or sale of the property by the tribunal, a party to the proceedings or an expert; or (ii) make an order directing samples to be taken from, observations to be made of, or experiments to be conducted on the property; (c) grant an interim injunction or direct any other interim measure to be taken. (2) Property is relevant property for the purposes of subsection (1)(b) if- (a) the property is owned by or is in the possession of a party to the arbitration proceedings concerned; and (b) the property is subject to the proceedings, or any question relating to the property has arisen in those proceedings. (3) The Court or a judge of the Court may order a person to attend proceedings before an arbitral tribunal to give evidence or to produce documents or other material evidence. (4) The Court or a judge of the Court may also order a writ of habeas corpus ad testificandum to be issued requiring a prisoner to be taken for examination before an arbitral tribunal. (5) The powers conferred by this section can be exercised irrespective of whether or not similar powers may be exercised under section 2GB in relation to the same dispute. (6) The Court or a judge of the Court may decline to make an order under this section in relation to a matter referred to in subsection (1) on the ground that- (a) the matter is currently the subject of arbitration proceedings; and (b) the Court or the judge considers it more appropriate for the matter to be dealt with by the relevant arbitral tribunal. (Added 75 of 1996 s. 7) ARBITRATION ORDINANCE - SECT 2GD Power to extend time for arbitration proceedings VerDate:30/06/1997 (1) This section applies to an arbitration agreement to refer future disputes to arbitration that provides for a claim to be barred, or for a claimant's right to be extinguished, unless the claimant, before a time or within a period fixed by the agreement, takes a step- (a) to commence arbitration proceedings; or (b) to commence some other dispute resolution procedure that must be exhausted before arbitration proceedings can be commenced. (2) On the application of a party to an arbitration agreement to which this section applies, an arbitral tribunal may, in accordance with this section, make an order extending the period for taking a step of the kind referred to in subsection (1). (3) An application may be made only after a claim has arisen and after exhausting any available arbitral procedure for obtaining an extension of time. (4) An applicant must give notice of the application to the other parties within 7 days after making it. Those other parties are entitled to be heard when the application is determined. (5) An arbitral tribunal may make an order under this section extending a period only if it is satisfied that- (a) the circumstances were such as to be outside the reasonable contemplation of the parties when they entered into the arbitration agreement, and that it would be just to extend the period; or (b) the conduct of one party makes it unjust to hold the other parties to the strict terms of the agreement. (6) An arbitral tribunal may extend a period for such further period and on such terms as it thinks fit, and may do so even though the period previously fixed (whether by agreement or by a previous order) has expired. (7) This section does not affect the operation of any enactment that limits the period for commencing arbitration proceedings. (8) The power conferred on an arbitral tribunal by this section is exercisable by the Court or a judge of the Court if at the relevant time there is not in existence an arbitral tribunal that is capable of exercising it. (Added 75 of 1996 s. 7) ARBITRATION ORDINANCE - SECT 2GE Delay in prosecuting claims VerDate:30/06/1997 (1) There is an implied term in every arbitration agreement that a party who has a claim under the agreement will prosecute the claim without delay if the claim relates to a dispute that is capable of settlement by arbitration. This subsection is subject to any express term in the agreement to the contrary. (2) In arbitration proceedings before an arbitral tribunal, the tribunal may make an order- (a) dismissing a party's claim; and (b) prohibiting the party from commencing further arbitration proceedings in respect of the claim, if satisfied that the party or the party's adviser has unreasonably delayed in bringing or prosecuting the claim. (3) Such an order may be made either on the initiative of the arbitral tribunal or on the application of another party to the arbitration proceedings before the tribunal. (4) For the purposes of subsection (2), delay is unreasonable if- (a) it gives rise, or is likely to give rise, to a substantial risk that the issues in the claim will not be resolved fairly; or (b) it has caused, or is likely to cause, serious prejudice to the other parties to the arbitration proceedings. (5) The power conferred on an arbitral tribunal by this section is exercisable by the Court or a judge of the Court if at the relevant time there is not in existence an arbitral tribunal that is capable of exercising it. (Added 75 of 1996 s. 7) ARBITRATION ORDINANCE - SECT 2GF Decision of arbitral tribunal VerDate:30/06/1997 In deciding a dispute, an arbitral tribunal may award any remedy or relief that could have been ordered by the Court if the dispute had been the subject of civil proceedings in the Court. This section is subject to section 17. (Added 75 of 1996 s. 7) ARBITRATION ORDINANCE - SECT 2GG Enforcement of decisions of arbitral tribunal VerDate:23/06/2000 (1) An award, order or direction made or given in or in relation to arbitration proceedings by an arbitral tribunal is enforceable in the same way as a judgment, order or direction of the Court that has the same effect, but only with the leave of the Court or a judge of the Court. If that leave is given, the Court or judge may enter judgment in terms of the award, order or direction. (Added 75 of 1996 s. 7. Amended 38 of 2000 s. 2) (2) Notwithstanding anything in this Ordinance, this section applies to an award, order and direction made or given whether in or outside Hong Kong. (Added 38 of 2000 s. 2) ARBITRATION ORDINANCE - SECT 2GG Enforcement of decisions of arbitral tribunal VerDate:30/06/1997 An award, order or direction made or given in or in relation to arbitration proceedings by an arbitral tribunal is enforceable in the same way as a judgment, order or direction of the Court that has the same effect, but only with the leave of the Court or a judge of the Court. If that leave is given, the Court or judge may enter judgment in terms of the award, order or direction. (Added 75 of 1996 s. 7) ARBITRATION ORDINANCE - SECT 2GH Arbitral tribunal may award interest VerDate:30/06/1997 Interest (1) An arbitral tribunal may, in arbitration proceedings before it, award simple or compound interest from such dates, at such rates, and with such rests as the tribunal considers appropriate for any period ending not later than the date of payment- (a) on money awarded by the tribunal in the proceedings; or (b) on money claimed in, and outstanding at the commencement of, the proceedings but paid before the award is made. (2) Subsection (1) does not affect any other power of an arbitral tribunal to award interest, but is subject to any agreement of the parties to the contrary. (Added 75 of 1996 s. 7) ARBITRATION ORDINANCE - SECT 2GI Rate of interest on money awarded in arbitration proceedings VerDate:30/06/1997 Interest is payable on the amount of an award from the date of the award at the same rate as for a judgment debt, except when the award otherwise provides. (Added 75 of 1996 s. 7) ARBITRATION ORDINANCE - SECT 2GJ Costs of arbitration proceedings VerDate:30/06/1997 Costs, Fees and Expenses (1) An arbitral tribunal may include in an award directions with respect to the costs of the relevant arbitration proceedings (including the fees and expenses of the tribunal) and in so doing may do all or any of the following- (a) direct to whom and by whom and in what manner costs of arbitration proceedings are to be paid; (b) tax and settle the amount of costs to be so paid; (c) direct costs to be paid on any basis on which the Court can award costs in civil proceedings before the Court. This subsection is subject to any contrary provision of the relevant arbitration agreement. (2) Costs awarded in respect of arbitration proceedings (other than the fees or expenses of the arbitral tribunal) are taxable by the Court, unless the award otherwise directs. This subsection does not limit the operation of section 21(1). (3) A provision of an arbitration agreement to the effect that the parties, or any of the parties, to the agreement must pay their own costs in respect of arbitration proceedings arising under the agreement is void. However, such a provision is not void if it is part of an agreement to submit to arbitration a dispute that had arisen before the agreement was made. (4) If an award does not provide for payment of the costs of the relevant arbitration proceedings, any party to the proceedings may apply to the arbitral tribunal for an order directing by whom and to whom those costs are to be paid. Such an application must be made within 30 days after the notification of the award or within such further period as the arbitral tribunal allows. (5) On receiving an application under subsection (4) and after hearing any of the parties who wish to be heard, the arbitral tribunal may amend the award by adding such directions with respect to the payment of the costs of the arbitration proceedings as the tribunal considers appropriate. (6) Section 70 of the Legal Practitioners Ordinance (Cap 159) applies to arbitration proceedings under this Ordinance in the same way as it applies to proceedings before the Court. Note: Section 70 of the Legal Practitioners Ordinance (Cap 159) empowers a court before which proceedings are being heard or are pending to declare a solicitor employed in connection with the proceedings to be entitled to a charge on property recovered or preserved in the proceedings. (Added 75 of 1996 s. 7) ARBITRATION ORDINANCE - SECT 2GK Liability to pay fees of arbitral tribunal VerDate:30/06/1997 (1) The parties to proceedings before an arbitral tribunal are jointly and severally liable to pay to the tribunal such reasonable fees and expenses (if any) of the tribunal as are appropriate in the circumstances. (2) Subsection (1) has effect subject to any order of the Court under this Ordinance relating to fees (if any) payable to an arbitrator or umpire who has resigned or has been removed from office or whose authority as an arbitrator or umpire has been revoked. (3) Nothing in this section affects- (a) the liability of the parties to arbitration proceedings as among themselves to pay the costs of the proceedings; or (b) any contractual right or obligation relating to payment of the fees and expenses of the arbitral tribunal. (4) In this section, a reference to an arbitral tribunal includes- (a) a reference to a member of the tribunal who has ceased to act; and (b) a reference to an umpire who has not yet replaced members of the tribunal. (Added 75 of 1996 s. 7) ARBITRATION ORDINANCE - SECT 2GL Arbitral tribunal may limit amount of recoverable costs VerDate:30/06/1997 (1) An arbitral tribunal may direct that the recoverable costs of arbitration proceedings before it are limited to a specified amount, unless the parties have agreed to the contrary. (2) Such a direction can be varied at any stage of the arbitration proceedings, but only if the variation can be made sufficiently in advance of when the relevant costs are incurred, or the relevant steps in the proceedings are taken, so that the limit can be taken into account. (3) In this section "arbitration proceedings" (仲裁程序) includes any part of those proceedings. (Added 75 of 1996 s. 7) (3) In this section "arbitration proceedings" (仲裁程序) includes any part of those proceedings. ARBITRATION ORDINANCE - SECT 2GM Arbitral tribunal to be liable for certain acts and omissions VerDate:30/06/1997 Liability for Certain Acts and Omissions (1) An arbitral tribunal is liable in law for an act done or omitted to be done by the tribunal, or by its employees or agents, in relation to the exercise or performance or the purported exercise or performance of the tribunal's arbitral functions only if it is proved that the act was done or omitted to be done dishonestly. (2) An employee or agent of an arbitral tribunal is liable in law for an act done or omitted to be done by the employee or agent in relation to the exercise or performance or the purported exercise or performance of the tribunal's arbitral functions only if it is proved that the act was done or omitted to be done dishonestly. (Added 75 of 1996 s. 7) ARBITRATION ORDINANCE - SECT 2GN Appointors and administrators to be liable only for certain acts and omissions VerDate:30/06/1997 (1) A person- (a) who appoints an arbitral tribunal; or (b) who exercises or performs any other function of an administrative nature in connection with arbitration proceedings, is liable in law for the consequences of doing or omitting to do an act in the exercise or performance or the purported exercise or performance of the function only if it is proved that the act was done or omitted to be done dishonestly. (Amended 80 of 1997 s. 102) (2) Subsection (1) does not apply to an act done or omitted to be done by the parties to the arbitration proceedings or to their legal representatives or advisers in the exercise or performance or the purported exercise or performance, of a function of an administrative nature in connection with those proceedings. (3) An employee or agent of a person who has done or omitted to do an act referred to in subsection (1) is liable in law for the consequence of the act done or omission only if it is proved- (a) that the act or omission was committed dishonestly; and (b) that the employee or agent was a party to the dishonesty. (4) Neither a person to whom subsection (1) applies nor an employee or agent of the person is liable in law for the consequences of any act or omission of the arbitral tribunal concerned, or by its employees or agents, in the exercise or performance or the purported exercise or performance of the tribunal's arbitral functions merely because the person, employee or agent has exercised or performed a function referred to in that subsection. (5) In this section "appointing" (委任) includes nominating and designating. (Added 75 of 1996 s. 7) "appointing" (委任) ARBITRATION ORDINANCE - SECT 2H (Repealed) VerDate:30/06/1997 (Repealed 75 of 1996 s. 8) ARBITRATION ORDINANCE - SECT 2I (Repealed ) VerDate:30/06/1997 (Repealed 75 of 1996 s. 8) ARBITRATION ORDINANCE - SECT 2J (Repealed ) VerDate:30/06/1997 (Repealed 75 of 1996 s. 8) ARBITRATION ORDINANCE - SECT 2K (Repealed ) VerDate:30/06/1997 (Repealed 75 of 1996 s. 8) ARBITRATION ORDINANCE - SECT 2L Application to domestic arbitration agreements VerDate:30/06/1997 PART II DOMESTIC ARBITRATION (Amended 64 of 1989 s. 6) Application This Part applies to a domestic arbitration agreement and to an arbitration pursuant to a domestic arbitration agreement, except where a dispute has arisen and the parties to the dispute have subsequently agreed in writing- (a) that Part IIA is to apply; or (b) that the agreement is, or is to be treated as, an international arbitration agreement; or (c) that the dispute is to be arbitrated as an international arbitration. (Added 64 of 1989 s. 7) ARBITRATION ORDINANCE - SECT 2M Application to international arbitration agreements VerDate:30/06/1997 This Part applies to an international arbitration agreement and to an arbitration pursuant to an international arbitration agreement if, but only if, the agreement provides or the parties to the reference agree in writing- (a) that this Part is to apply; or (b) that agreement is, or is to be treated as, a domestic arbitration agreement; or (c) that a dispute is to be arbitrated as a domestic arbitration. (Added 64 of 1989 s. 7) ARBITRATION ORDINANCE - SECT 3 Authority of arbitrators and umpires to be irrevocable VerDate:30/06/1997 Effect of Arbitration Agreements, etc. The authority of an arbitrator or umpire appointed by or by virtue of an arbitration agreement shall, unless a contrary intention is expressed in the agreement, be irrevocable except by leave of the Court or a judge thereof. [cf. 1950 c. 27 s. 1 U.K.] ARBITRATION ORDINANCE - SECT 4 Death of party VerDate:30/06/1997 (1) An arbitration agreement shall not be discharged by the death of any party thereto, either as respects the deceased or any other party, but shall in such an event be enforceable by or against the personal representative of the deceased. (2) The authority of an arbitrator shall not be revoked by the death of any party by whom he was appointed. (3) Nothing in this section shall be taken to affect the operation of any enactment or rule of law by virtue of which any right of action is extinguished by the death of a person. [cf. 1950 c. 27 s. 2 U.K.] ARBITRATION ORDINANCE - SECT 5 Bankruptcy VerDate:30/06/1997 (1) Where it is provided by a term in a contract to which a bankrupt is a party that any disputes arising thereout or in connection therewith shall be referred to arbitration, the said term shall, if the trustee in bankruptcy adopts the contract, be enforceable by or against him so far as relates to any such disputes. (Amended 64 of 1989 s. 8) (2) Where a person who has been adjudged bankrupt had, before the commencement of the bankruptcy, become a party to an arbitration agreement, and any matter to which the agreement applies requires to be determined in connection with or for the purposes of the bankruptcy proceedings, then, if the case is one to which subsection (1) does not apply, any other party to the agreement, or, with the consent of the committee of inspection, the trustee in bankruptcy, may apply to the Court for an order directing that the matter in question shall be referred to arbitration in accordance with the agreement, and the Court may, if it is of opinion that, having regard to all the circumstances of the case, the matter ought to be determined by arbitration, make an order accordingly. [cf. 1950 c. 27 s. 3 U.K.] ARBITRATION ORDINANCE - SECT 6 Court to refer matter to arbitration in certain cases VerDate:30/06/1997 (1) Subject to subsections (2) and (3), article 8 of the UNCITRAL Model Law (Arbitration agreement and substantive claim before court) applies to a matter that is the subject of a domestic arbitration agreement in the same way as it applies to a matter that is the subject of an international arbitration agreement. (2) Subject to subsection (3), if a party to an arbitration agreement that provides for the arbitration of a dispute involving a claim or other matter this is within the jurisdiction of the Labour Tribunal or a person claiming through or under such a party, commences legal proceedings in any court against any other party to the agreement or any person claiming through or under that other party, in respect of any matter agreed to be referred, and any party to those legal proceedings applies to that court after appearance and before delivering any pleadings or taking any other step in the proceedings, to stay the proceedings, the court or a judge of that court may make an order staying the proceedings, if satisfied that- (a) there is no sufficient reason why the matter should not be referred in accordance with the agreement; and (b) the applicant was ready and willing at the time the proceedings were commenced to do all things necessary for the proper conduct of the arbitration, and remains so. (3) Subsections (1) and (2) have effect subject to section 15 of the Control of Exemption Clauses Ordinance (Cap 71). (Replaced 75 of 1996 s. 9) ARBITRATION ORDINANCE - SECT 6A (Repealed) VerDate:30/06/1997 (Repealed 64 of 1989 s. 9) ARBITRATION ORDINANCE - SECT 6B Consolidation of arbitrations VerDate:30/06/1997 (1) Where in relation to two or more arbitration proceedings it appears to the Court- (a) that some common question of law or fact arises in both or all of them, or (b) that the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions, or (c) that for some other reason it is desirable to make an order under this section, the Court may order those arbitration proceedings to be consolidated on such terms as it thinks just or may order them to be heard at the same time, or one immediately after another, or may order any of them to be stayed until after the determination of any other of them. (2) Where the Court orders arbitration proceedings to be consolidated under subsection (1) and all parties to the consolidated arbitration proceedings are in agreement as to the choice of arbitrator or umpire for those proceedings the same shall be appointed by the Court but if all parties cannot agree the Court shall have power to appoint an arbitrator or umpire for those proceedings. (3) Where the Court makes an appointment under subsection (2) of an arbitrator or umpire for consolidated arbitration proceedings, any appointment of any other arbitrator or umpire that has been made for any of the arbitration proceedings forming part of the consolidation shall for all purposes cease to have effect on and from the appointment under subsection (2). (Added 75 of 1985 s. 2) (Added 10 of 1982 s. 3) ARBITRATION ORDINANCE - SECT 7 Reference of interpleader issues to arbitration VerDate:30/06/1997 Where relief by way of interpleader is granted and it appears to the Court that the claims in question are matters to which an arbitration agreement, to which the claimants are parties, applies, the Court may direct the issue between the claimants to be determined in accordance with the agreement. [cf. 1950 c. 27 s. 5 U.K.] ARBITRATION ORDINANCE - SECT 8 When reference is to a single arbitrator VerDate:30/06/1997 Arbitrators and Umpires Unless a contrary intention is expressed therein, every arbitration agreement shall, if no other mode of reference is provided, be deemed to include a provision that the reference shall be to a single arbitrator. [cf. 1950 c. 27 s. 6 U.K.] ARBITRATION ORDINANCE - SECT 9 Power of parties in certain cases to supply vacancy VerDate:30/06/1997 Where an arbitration agreement provides that the reference shall be to 2 arbitrators, one to be appointed by each party, then, unless a contrary intention is expressed therein- (a) if either of the appointed arbitrators refuses to act, or is incapable of acting, or dies, the party who appointed him may appoint a new arbitrator in his place; (b) if, on such a reference, one party fails to appoint an arbitrator, either originally, or by way of substitution as aforesaid, for 7 clear days after the other party, having appointed his arbitrator, has served the party making default with notice to make the appointment, the party who has appointed an arbitrator may appoint that arbitrator to act as sole arbitrator in the reference and his award shall be binding on both parties as if he had been appointed by consent: Provided that the Court or a judge thereof may set aside any appointment made in pursuance of this section. [cf. 1950 c. 27 s. 7 U.K.] ARBITRATION ORDINANCE - SECT 10 Umpires VerDate:30/06/1997 (1) Unless a contrary intention is expressed therein, every arbitration agreement shall, where the reference is to 2 arbitrators, be deemed to include a provision that the 2 arbitrators may appoint an umpire at any time after they are themselves appointed and shall do so forthwith if they cannot agree. (Amended 10 of 1982 s. 4) (2) Unless a contrary intention is expressed therein, every arbitration agreement shall, where such a provision is applicable to the reference, be deemed to include a provision that if the arbitrators have delivered to any party to the arbitration agreement, or to the umpire, a notice in writing stating that they cannot agree, the umpire may forthwith enter on the reference in lieu of the arbitrators. (3) At any time after the appointment of an umpire, however appointed, the Court may, on the application of any party to the reference and notwithstanding anything to the contrary in the arbitration agreement, order that the umpire shall enter upon the reference in lieu of the arbitrators and as if he were a sole arbitrator. [cf. 1950 c. 27 s. 8 U.K.; 1979 c. 42 s. 6(1) U.K.] ARBITRATION ORDINANCE - SECT 11 Majority award of 3 arbitrators VerDate:30/06/1997 Unless the contrary intention is expressed in the arbitration agreement, in any case where there is a reference to 3 arbitrators, the award of any 2 of the arbitrators shall be binding and in the event that no 2 of the arbitrators agree the award, the award of the arbitrator appointed by the arbitrators to be chairman shall be binding. (Replaced 10 of 1982 s. 5) [cf. 1979 c. 42 s. 6(2) U.K.] ARBITRATION ORDINANCE - SECT 12 Power of HKIAC in certain cases to appoint an arbitrator or umpire VerDate:30/06/1997 (1) In any of the following cases- (a) where an arbitration agreement provides that the reference shall be to a single arbitrator, and all the parties do not, after disputes have arisen, concur in the appointment of an arbitrator; (Amended 64 of 1989 s. 10) (b) if an appointed arbitrator refuses to act, or is incapable of acting, or dies, and the arbitration agreement does not show that it was intended that the vacancy should not be supplied and the parties do not supply the vacancy; (c) where a party or an arbitrator is required or is at liberty to appoint, or concur in the appointment of, an umpire or an arbitrator and does not do so; (Replaced 17 of 1984 s. 2) (d) where an appointed umpire or third arbitrator refuses to act, or is incapable of acting, or dies, and the arbitration agreement does not show that it was intended that the vacancy should not be supplied, and the parties or arbitrators do not supply the vacancy, any party may serve the other parties or the arbitrators, as the case may be, with a written notice to appoint, or, as the case may be, concur in appointing, an arbitrator, umpire or third arbitrator, and if the appointment is not made within 7 clear days after the service of the notice, HKIAC may, on application by the party who gave the notice, appoint an arbitrator, umpire or third arbitrator who shall have the like powers to act in the reference and make an award as if he had been appointed by consent of all parties. (Amended 75 of 1996 s. 10) (2) In any case where- (a) an arbitration agreement provides for the appointment of an arbitrator or umpire by a person who is neither one of the parties nor an existing arbitrator (whether the provision applies directly or in default of agreement by the parties or otherwise); and (b) that person refuses to make the appointment or does not make it within the time specified in the agreement or, if no time is so specified, within a reasonable time, any party to the agreement may serve the person in question with a written notice to appoint an arbitrator or umpire and, if the appointment is not made within 7 clear days after the service of the notice, HKIAC may, on the application of the party who gave the notice, appoint an arbitrator or umpire who shall have the like powers to act in the reference and make an award as if he had been appointed in accordance with the terms of the agreement. (Added 10 of 1982 s. 6. Amended 75 of 1996 s. 10) (3) HKIAC may make rules to facilitate the performance of its functions under this section. Any such rules take effect only when the Chief Justice has approved them. (Added 75 of 1996 s. 10) [cf. 1950 c. 27 s. 10 U.K.; 1979 c. 42 s. 6(3) & (4) U.K.] ARBITRATION ORDINANCE - SECT 13 (Repealed) VerDate:30/06/1997 (Repealed 52 of 1987 s. 45) ARBITRATION ORDINANCE - SECT 13A Power of judges to take arbitrations VerDate:01/07/1997 (1) Subject to the following provisions of this section a judge, District Judge, magistrate or public officer, may, if in all the circumstances he thinks fit, accept appointment as a sole or joint arbitrator, or as umpire, by or by virtue of an arbitration agreement. (2) A judge, District Judge or magistrate shall not accept appointment as an arbitrator or umpire unless the Chief Justice has informed him that, having regard to the state of business in the courts, he can be made available to do so. (3) A public officer shall not accept appointment as an arbitrator or umpire unless the Secretary for Justice has informed him that he can be made available to do so. (Amended L.N. 362 of 1997) (4) The fees payable for the services of a judge, District Judge, magistrate or public officer as an arbitrator or umpire shall be paid into the general revenue. (Amended 64 of 1989 s. 11) (5) The Fourth Schedule shall have effect for modifying, and in certain cases replacing, provisions of this Ordinance in relation to arbitration by a judge as a sole arbitrator or umpire and, in particular, for substituting the Court of Appeal for the Court in provisions whereby arbitrators and umpires, their proceedings and awards, are subject to control and review by the Court. (6) Subject to section 23C(3) any jurisdiction which is exercisable by the Court in relation to arbitrators and umpires otherwise than under this Ordinance shall, in relation to a judge appointed as a sole arbitrator or umpire, be exercisable instead by the Court of Appeal. (Added 10 of 1982 s. 7) [cf. 1970 c. 31 s. 4 U.K.] ARBITRATION ORDINANCE - SECT 13A Power of judges to take arbitrations VerDate:30/06/1997 (1) Subject to the following provisions of this section a judge, District Judge, magistrate or public officer, may, if in all the circumstances he thinks fit, accept appointment as a sole or joint arbitrator, or as umpire, by or by virtue of an arbitration agreement. (2) A judge, District Judge or magistrate shall not accept appointment as an arbitrator or umpire unless the Chief Justice has informed him that, having regard to the state of business in the courts, he can be made available to do so. (3) A public officer shall not accept appointment as an arbitrator or umpire unless the Attorney General has informed him that he can be made available to do so. (4) The fees payable for the services of a judge, District Judge, magistrate or public officer as an arbitrator or umpire shall be paid into the general revenue. (Amended 64 of 1989 s. 11) (5) The Fourth Schedule shall have effect for modifying, and in certain cases replacing, provisions of this Ordinance in relation to arbitration by a judge as a sole arbitrator or umpire and, in particular, for substituting the Court of Appeal for the Court in provisions whereby arbitrators and umpires, their proceedings and awards, are subject to control and review by the Court. (6) Subject to section 23C(3) any jurisdiction which is exercisable by the Court in relation to arbitrators and umpires otherwise than under this Ordinance shall, in relation to a judge appointed as a sole arbitrator or umpire, be exercisable instead by the Court of Appeal. (Added 10 of 1982 s. 7) [cf. 1970 c. 31 s. 4 U.K.] ARBITRATION ORDINANCE - SECT 13B Arbitral tribunal may determine own jurisdiction VerDate:30/06/1997 Jurisdiction of Domestic Arbitral Tribunals Article 16 of the UNCITRAL Model Law applies to an arbitral tribunal that is conducting arbitration proceedings under a domestic arbitration agreement in the same way as it applies to an arbitral tribunal that is conducting arbitration proceedings under an international arbitration agreement. (Added 75 of 1996 s. 11) ARBITRATION ORDINANCE - SECT 14 (Repealed) VerDate:30/06/1997 Conduct of Proceedings, Witnesses, etc. (Repealed 75 of 1996 s. 12) ARBITRATION ORDINANCE - SECT 14A (Repealed) VerDate:30/06/1997 (Repealed 64 of 1989 s. 13) ARBITRATION ORDINANCE - SECT 15 Time for making award VerDate:30/06/1997 Provisions as to Awards (1) Subject to the provisions of section 24(2) and anything to the contrary in the arbitration agreement, an arbitrator or umpire shall have power to make an award at any time. (2) The time, if any, limited for making an award, whether under this Ordinance or otherwise, may from time to time be enlarged by order of the Court or a judge thereof, whether that time has expired or not. (3) The Court may, on the application of any party to a reference, remove an arbitrator or umpire who fails to use all reasonable dispatch in entering on and proceeding with the reference and making an award, and an arbitrator or umpire who is removed by the Court under this subsection shall not be entitled to receive any remuneration in respect of his services. For the purposes of this subsection, the expression "proceeding with a reference" (處理所提交的仲裁) includes, in a case where 2 arbitrators are unable to agree, giving notice of that fact to the parties and to the umpire. [cf. 1950 c. 27 s. 13 U.K.] For the purposes of this subsection, the expression "proceeding with a reference" (處理所提交的仲裁) includes, in a case where 2 arbitrators are unable to agree, giving notice of that fact to the parties and to the umpire. ARBITRATION ORDINANCE - SECT 16 Interim awards VerDate:30/06/1997 Unless a contrary intention is expressed therein, every arbitration agreement shall, where such a provision is applicable to the reference, be deemed to contain a provision that the arbitrator or umpire may, if he thinks fit, make an interim award, and any reference in this Part to an award includes a reference to an interim award. [cf. 1950 c. 27 s. 14 U.K.] ARBITRATION ORDINANCE - SECT 17 Specific performance VerDate:30/06/1997 Unless a contrary intention is expressed therein, every arbitration agreement shall, where such a provision is applicable to the reference, be deemed to contain a provision that the arbitrator or umpire shall have the same power as the Court to order specific performance of any contract other than a contract relating to land or any interest in land. [cf. 1950 c. 27 s. 15 U.K.] ARBITRATION ORDINANCE - SECT 18 Awards to be final VerDate:30/06/1997 Unless a contrary intention is expressed therein, every arbitration agreement shall, where such a provision is applicable to the reference, be deemed to contain a provision that the award to be made by the arbitrator or umpire shall be final and binding on the parties and the persons claiming under them respectively. [cf. 1950 c. 27 s. 16 U.K.] ARBITRATION ORDINANCE - SECT 19 Power to correct slips VerDate:30/06/1997 Unless a contrary intention is expressed in the arbitration agreement, the arbitrator or umpire shall have power to correct in an award any clerical mistake or error arising from any accidental slip or omission. [cf. 1950 c. 27 s. 17 U.K.] ARBITRATION ORDINANCE - SECT 20 (Repealed ) VerDate:30/06/1997 Costs, Fees and Interest (Repealed 75 of 1996 s. 12) ARBITRATION ORDINANCE - SECT 21 Taxation of arbitrator's or umpire's fees VerDate:30/06/1997 (1) If in any case an arbitrator or umpire refuses to deliver his award except on payment of the fees demanded by him, the Court may, on an application for the purpose, order that the arbitrator or umpire shall deliver the award to the applicant on payment into court by the applicant of the fees demanded, and further that the fees demanded shall be taxed by the taxing officer and that out of the money paid into court there shall be paid out to the arbitrator or umpire by way of fees such sum as may be found reasonable on taxation and that the balance of the money, if any, shall be paid out to the applicant. (2) An application for the purposes of this section may be made by any party to the reference unless the fees demanded have been fixed by a written agreement between him and the arbitrator or umpire. (3) A taxation of fees under this section may be reviewed in the same manner as a taxation of costs. (4) The arbitrator or umpire shall be entitled to appear and be heard on any taxation or review of taxation under this section. [cf. 1950 c. 27 s. 19 U.K.] ARBITRATION ORDINANCE - SECT 22 (Repealed) VerDate:30/06/1997 (Repealed 75 of 1996 s. 12) ARBITRATION ORDINANCE - SECT 22A (Repealed ) VerDate:30/06/1997 (Repealed 75 of 1996 s. 12) ARBITRATION ORDINANCE - SECT 23 Judicial review of arbitration awards VerDate:30/06/1997 Judicial Review, Determination of Preliminary Point of Law, Exclusion Agreements, Interlocutory Orders, Remission and Setting aside of Awards, etc. (1) Without prejudice to the right of appeal conferred by subsection (2) the Court shall not have jurisdiction to set aside or remit an award on an arbitration agreement on the ground of errors of fact or law on the face of the award. (2) Subject to subsection (3) an appeal shall lie to the Court on any question of law arising out of an award made on an arbitration agreement; and on the determination of such an appeal the Court may by order- (a) confirm, vary or set aside the award; or (b) remit the award to the reconsideration of the arbitrator or umpire together with the Court's opinion on the question of law which was the subject of the appeal; and where the award is remitted under paragraph (b) the arbitrator or umpire shall, unless the order otherwise directs, make his award within 3 months after the date of the order. (3) An appeal under this section may be brought by any of the parties to the reference- (a) with the consent of all the other parties to the reference; or (b) subject to section 23B, with the leave of the Court. (4) The Court shall not grant leave under subsection (3)(b) unless it considers that, having regard to all the circumstances, the determination of the question of law concerned could substantially affect the rights of one or more of the parties to the arbitration agreement; and the Court may make any leave which it gives conditional upon the applicant complying with such conditions as it considers appropriate. (5) Subject to subsection (6), if an award is made and, on an application made by any of the parties to the reference- (a) with the consent of all the other parties to the reference; or (b) subject to section 23B, with the leave of the Court, it appears to the Court that the award does not or does not sufficiently set out the reasons for the award, the Court may order the arbitrator or umpire concerned to state the reasons for his award in sufficient detail to enable the Court, should an appeal be brought under this section, to consider any question of law arising out of the award. (6) In any case where an award is made without any reason being given, the Court shall not make an order under subsection (5) unless it is satisfied- (a) that before the award was made one of the parties to the reference gave notice to the arbitrator or umpire concerned that a reasoned award would be required; or (b) that there is some special reason why such a notice was not given. (7) No appeal shall lie to the Court of Appeal from a decision of the Court on an appeal under this section unless the Court or the Court of Appeal gives leave. (8) Where the award of an arbitrator or umpire is varied on appeal, the award as varied shall have effect (except for the purposes of this section) as if it were the award of the arbitrator or umpire. (Replaced 10 of 1982 s. 9) [cf. 1979 c. 42 s. 1 U.K.] ARBITRATION ORDINANCE - SECT 23A Determination of preliminary point of law by Court VerDate:01/07/1997 Amendments retroactively made - see 25 of 1998 s. 2 (1) Subject to subsection (2) and section 23B, on an application to the Court made by any of the parties to a reference- (a) with the consent of an arbitrator who has entered on the reference or, if an umpire has entered on the reference, with his consent, or (b) with the consent of all the other parties, the Court shall have jurisdiction to determine any question of law arising in the course of the reference. (2) The Court shall not entertain an application under subsection (1)(a) with respect to any question of law unless it is satisfied that- (a) the determination of the application might produce substantial savings in costs to the parties; and (b) the question of law is one in respect of which leave to appeal would be likely to be given under section 23(3)(b). (3) A decision of the Court under subsection (1) shall be deemed to be a judgment of the Court within the meaning of section 14 of the High Court Ordinance (Cap 4) (appeals to the Court of Appeal), but no appeal shall lie from such a decision unless the Court or the Court of Appeal gives leave. (Amended 25 of 1998 s. 2) (4) (Repealed 64 of 1989 s. 15) (Added 10 of 1982 s. 10) [cf. 1979 c. 42 s. 2 U.K.] ARBITRATION ORDINANCE - SECT 23A Determination of preliminary point of law by Court VerDate:30/06/1997 (1) Subject to subsection (2) and section 23B, on an application to the Court made by any of the parties to a reference- (a) with the consent of an arbitrator who has entered on the reference or, if an umpire has entered on the reference, with his consent, or (b) with the consent of all the other parties, the Court shall have jurisdiction to determine any question of law arising in the course of the reference. (2) The Court shall not entertain an application under subsection (1)(a) with respect to any question of law unless it is satisfied that- (a) the determination of the application might produce substantial savings in costs to the parties; and (b) the question of law is one in respect of which leave to appeal would be likely to be given under section 23(3)(b). (3) A decision of the Court under subsection (1) shall be deemed to be a judgment of the Court within the meaning of section 14 of the Supreme Court Ordinance (Cap 4) (appeals to the Court of Appeal), but no appeal shall lie from such a decision unless the Court or the Court of Appeal gives leave. (4) (Repealed 64 of 1989 s. 15) (Added 10 of 1982 s. 10) [cf. 1979 c. 42 s. 2 U.K.] ARBITRATION ORDINANCE - SECT 23B Exclusion agreements affecting rights under sections 23 and 23A VerDate:30/06/1997 (1) Subject to the following provisions of this section and section 23C- (a) the Court shall not, under section 23(3)(b), grant leave to appeal with respect to a question of law arising out of an award; and (b) the Court shall not, under section 23(5)(b), grant leave to make an application with respect to an award; and (c) no application may be made under section 23A(1)(a) with respect to a question of law, if the parties to the reference in question have entered into an agreement in writing (in this section referred to as an "exclusion agreement") which excludes the right of appeal under section 23 in relation to that award or, in a case falling within paragraph (c), in relation to an award to which the determination of the question of law is material. (2) If the parties to an exclusion agreement subsequently enter into an agreement in writing to revoke the exclusion agreement the provisions of subsection (1) shall cease to apply to the reference or references in question until such time as a further exclusion agreement is entered into by the parties. (3) An exclusion agreement may be expressed so as to relate to a particular award, to awards under a particular reference or to any other description of awards, whether arising out of the same reference or not; and an agreement may be an exclusion agreement for the purposes of this section whether it is entered into before or after the passing of this Ordinance and whether or not it forms part of an arbitration agreement. (4) (Repealed 64 of 1989 s. 16) (5) Except as provided by subsection (1), sections 23 and 23A shall have effect notwithstanding anything in any agreement purporting- (a) to prohibit or restrict access to the Court; or (b) to restrict the jurisdiction of that Court; or (c) to prohibit or restrict the making of a reasoned award. (6) An exclusion agreement shall be of no effect in relation to an award made on, or a question of law arising in the course of a reference under, a statutory arbitration, that is to say, such an arbitration as is referred to in section 2AB. (Amended 80 of 1997 s. 102) (7) An exclusion agreement shall be of no effect in relation to an award made on, or a question of law arising in the course of a reference under, an arbitration agreement unless the exclusion agreement is entered into after the commencement of the arbitration in which the award is made or, as the case may be, in which the question of law arises. (Amended 64 of 1989 s. 16) (8) (Repealed 64 of 1989 s. 16) (Added 10 of 1982 s. 10) [cf. 1979 c. 42 s. 3 U.K.] ARBITRATION ORDINANCE - SECT 23C Interlocutory orders VerDate:30/06/1997 (1) If any party to a reference under an arbitration agreement fails within the time specified in the order or, if no time is so specified, within a reasonable time to comply with an order made by the arbitrator or umpire in the course of the reference, then, on the application of the arbitrator or umpire or of any party to the reference, the Court may make an order extending the powers of the arbitrator or umpire as mentioned in subsection (2). (2) If an order is made by the Court under this section, the arbitrator or umpire shall have power, to the extent and subject to any conditions specified in that order, to continue with the reference in default of appearance or of any other act by one of the parties in like manner as a judge of the Court might continue with proceedings in that court where a party fails to comply with an order of that court or a requirement of rules of court. (3) Section 13A(6) shall not apply in relation to the power of the Court to make an order under this section, but in the case of a reference to a judge-arbitrator or judge-umpire that power shall be exercisable as in the case of any other reference to arbitration and also by the judge-arbitrator or judge-umpire himself. (4) Anything done by a judge-arbitrator or judge-umpire in the exercise of the power conferred by subsection (3) shall be done by him in his capacity as judge of the Court and have effect as if done by that court. (5) The preceding provisions of this section have effect notwithstanding anything in any agreement but do not derogate from any powers conferred on an arbitrator or umpire, whether by an arbitration agreement or otherwise. (6) In this section "judge-arbitrator" (法官仲裁員) and "judge-umpire" (法官公斷人) have the same meaning as in the Fourth Schedule. (Added 10 of 1982 s. 10) [cf. 1979 c. 42 s. 5 U.K.] "judge-arbitrator" (法官仲裁員) and "judge-umpire" (法官公斷人) ARBITRATION ORDINANCE - SECT 24 Power to remit award VerDate:30/06/1997 (1) In all cases of reference to arbitration the Court or a judge thereof may from time to time remit the matters referred, or any of them, to the reconsideration of the arbitrator or umpire. (2) Where an award is remitted, the arbitrator or umpire shall, unless the order otherwise directs, make his award within 3 months after the date of the order. [cf. 1950 c. 27 s. 22 U.K.] ARBITRATION ORDINANCE - SECT 25 Removal to arbitrator and setting aside of award VerDate:30/06/1997 (1) Where an arbitrator or umpire has misconducted himself or the proceedings, the Court may remove him. (2) Where an arbitrator or umpire has misconducted himself or the proceedings, or an arbitration or award has been improperly procured, the Court may set the award aside. (3) Where an application is made to set aside an award, the Court may order that any money made payable by the award shall be brought into court or otherwise secured pending the determination of the application. [cf. 1950 c. 27 s. 23 U.K.] ARBITRATION ORDINANCE - SECT 26 Power of Court to give relief where arbitrator is not impartial or the dispute involves question of fraud VerDate:30/06/1997 (1) Where an agreement between any parties provides that disputes which may arise in the future between them shall be referred to an arbitrator named or designated in the agreement, and after a dispute has arisen any party applies, on the ground that the arbitrator so named or designated is not or may not be impartial, for leave to revoke the authority of the arbitrator or for an injunction to restrain any other party or the arbitrator from proceeding with the arbitration, it shall not be a ground for refusing the application that the said party at the time when he made the agreement knew, or ought to have known, that the arbitrator, by reason of his relation towards any other party to the agreement or of his connection with the subject referred, might not be capable of impartiality. (2) Where an agreement between any parties provides that disputes which may arise in the future between them shall be referred to arbitration, and a dispute which so arises involves the question whether any such party has been guilty of fraud, the Court shall, so far as may be necessary to enable that question to be determined by the Court, have power to order that the agreement shall cease to have effect and power to give leave to revoke the authority of any arbitrator or umpire appointed by or by virtue of the agreement. (3) In any case where by virtue of this section the Court has power to order that an arbitration agreement shall cease to have effect or to give leave to revoke the authority of an arbitrator or umpire, the Court may refuse to stay any action brought in breach of the agreement. [cf. 1950 c. 27 s. 24 U.K.] ARBITRATION ORDINANCE - SECT 27 Power of Court where arbitrator is removed or authority of arbitrator is revoked VerDate:30/06/1997 (1) Where an arbitrator, not being a sole arbitrator, or 2 or more arbitrators, not being all the arbitrators, or an umpire who has not entered on the reference is or are removed by the Court, the Court may, on the application of any party to the arbitration agreement, appoint a person or persons to act as arbitrator or arbitrators or umpire in place of the person or persons so removed. (2) Where the authority of an arbitrator or arbitrators or umpire is revoked by leave of the Court, or a sole arbitrator or all the arbitrators or an umpire who has entered on the reference is or are removed by the Court, the Court may, on the application of any party to the arbitration agreement, either- (a) appoint a person to act as sole arbitrator in place of the person or persons removed; or (b) order that the arbitration agreement shall cease to have effect with respect to the dispute referred. (3) A person appointed under this section by the Court as an arbitrator or umpire shall have the like power to act in the reference and to make an award as if he had been appointed in accordance with the terms of the arbitration agreement. (4) Where it is provided, whether by means of a provision in the arbitration agreement or otherwise, that an award under an arbitration agreement shall be a condition precedent to the bringing of an action with respect to any matter to which the agreement applies, the Court, if it orders, whether under this section or under any other enactment, that the agreement shall cease to have effect as regards any particular dispute, may further order that the provision making an award a condition precedent to the bringing of an action shall also cease to have effect as regards that dispute. [cf. 1950 c. 27 s. 25 U.K.] ARBITRATION ORDINANCE - SECT 28 (Repealed) VerDate:30/06/1997 Enforcement of Award (Repealed 64 of 1989 s. 17) ARBITRATION ORDINANCE - SECT 29 (Repealed ) VerDate:30/06/1997 Miscellaneous (Repealed 75 of 1996 s. 12) ARBITRATION ORDINANCE - SECT 29A (Repealed ) VerDate:30/06/1997 (Repealed 75 of 1996 s. 12) ARBITRATION ORDINANCE - SECT 30 Terms as to costs, etc. VerDate:30/06/1997 Any order made under this Part may be made on such terms as to costs or otherwise (including, in the case of an order under section 6B or 2GE, the remuneration of the arbitrator or umpire in respect of his services as the authority making the order thinks just. (Amended 85 of 1975 s. 5; 10 of 1982 s. 12; 75 of 1985 s. 3; 75 of 1996 s. 13) [cf. 1950 c. 27 s. 28 U.K.] ARBITRATION ORDINANCE - SECT 31 Commencement of arbitration VerDate:30/06/1997 (1) An arbitration shall be deemed to be commenced when one party to the arbitration agreement serves on the other party or parties a notice requiring him or them to appoint or concur in appointing an arbitrator, or, where the arbitration agreement provides that the reference shall be to a person named or designated in the agreement, requiring him or them to submit the dispute to the person so named or designated. (2) Any such notice as is mentioned in subsection (1) may be served either- (a) by delivering it to the person on whom it is to be served; or (b) by leaving it at the usual or last known place of abode in Hong Kong of that person; or (c) by sending it by post in a registered letter addressed to that person at his usual or last known place of abode in Hong Kong, as well as in any other manner provided in the arbitration agreement, and where a notice is sent by post in manner prescribed by paragraph (c), service thereof shall, unless the contrary is proved, be deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of post. (Amended 64 of 1989 s. 23) [cf. 1950 c. 27 s. 29 U.K.] ARBITRATION ORDINANCE - SECT 32 (Repealed) VerDate:30/06/1997 (Repealed 64 of 1989 s. 18) ARBITRATION ORDINANCE - SECT 33 (Repealed) VerDate:30/06/1997 (Repealed 64 of 1989 s. 19) ARBITRATION ORDINANCE - SECT 34 Transitional - Part II VerDate:30/06/1997 This Part shall not affect any arbitration commenced, within the meaning of section 31(1), before the commencement of this Ordinance, but shall apply to an arbitration so commenced after the commencement of this Ordinance under an agreement made before the commencement of this Ordinance. [cf. 1950 c. 27 s. 33 U.K.] ARBITRATION ORDINANCE - SECT 34A Application to international arbitration agreements VerDate:30/06/1997 PART IIA INTERNATIONAL ARBITRATION Application (1) Subject to subsection (2), this Part applies to an international arbitration agreement and to an arbitration pursuant to an international arbitration agreement. (2) This Part does not apply to an international arbitration agreement, or to an arbitration pursuant to an international arbitration agreement, to which, by virtue of section 2M, Part II applies. (Added 64 of 1989 s. 20) ARBITRATION ORDINANCE - SECT 34B Application to domestic arbitration agreements VerDate:30/06/1997 This Part applies to a domestic arbitration agreement, and to an arbitration pursuant to a domestic arbitration agreement, to which, by virtue of section 2L, Part II does not apply. (Added 64 of 1989 s. 20) ARBITRATION ORDINANCE - SECT 34C Application of UNCITRAL Model Law VerDate:01/07/1997 Amendments retroactively made - see 25 of 1998 s. 2 Application of the UNCITRAL Model Law (1) An arbitration agreement and an arbitration to which this Part applies are governed by Chapters I to VII of the UNCITRAL Model Law. (2) Article 1(1) of the UNCITRAL Model Law shall not have the effect of limiting the application of the UNCITRAL Model Law to international commercial arbitrations. (3) HKIAC is the court or other authority competent to perform the functions referred to in article 11(3) and (4) of the UNCITRAL Model Law and may make rules to facilitate the performance of those functions. Any such rules take effect only when the Chief Justice has approved them. (Replaced 75 of 1996 s. 14) (4) The Court of First Instance is the court or other authority competent to perform the functions referred to in articles 13(3), 14, 16(3) and 34(2) of the UNCITRAL Model Law. (Added 75 of 1996 s. 14. Amended 25 of 1998 s. 2) (5) If the parties to an arbitration agreement to which this Part applies fail to agree as to the number of arbitrators that is to determine a dispute arising under the agreement, the number of arbitrators is to be either 1 or 3 as decided by HKIAC in the particular case. This subsection applies to the exclusion of article 10(2) of the UNCITRAL Model Law. (Added 75 of 1996 s. 14) ARBITRATION ORDINANCE - SECT 34C Application of UNCITRAL Model Law VerDate:30/06/1997 Application of the UNCITRAL Model Law (1) An arbitration agreement and an arbitration to which this Part applies are governed by Chapters I to VII of the UNCITRAL Model Law. (2) Article 1(1) of the UNCITRAL Model Law shall not have the effect of limiting the application of the UNCITRAL Model Law to international commercial arbitrations. (3) HKIAC is the court or other authority competent to perform the functions referred to in article 11(3) and (4) of the UNCITRAL Model Law and may make rules to facilitate the performance of those functions. Any such rules take effect only when the Chief Justice has approved them. (Replaced 75 of 1996 s. 14) (4) The High Court is the court or other authority competent to perform the functions referred to in articles 13(3), 14, 16(3) and 34(2) of the UNCITRAL Model Law. (Added 75 of 1996 s. 14) (5) If the parties to an arbitration agreement to which this Part applies fail to agree as to the number of arbitrators that is to determine a dispute arising under the agreement, the number of arbitrators is to be either 1 or 3 as decided by HKIAC in the particular case. This subsection applies to the exclusion of article 10(2) of the UNCITRAL Model Law. (Added 75 of 1996 s. 14) ARBITRATION ORDINANCE - SECT 34D (Repealed ) VerDate:30/06/1997 (Repealed 75 of 1996 s. 15) ARBITRATION ORDINANCE - SECT 34E (Repealed ) VerDate:30/06/1997 (Repealed 75 of 1996 s. 15) ARBITRATION ORDINANCE - SECT 35 (Repealed 2 of 2000 s. 4) VerDate:01/02/2000 PART III* ___________________________________________________________________ Note: * Section 12 of the Arbitration (Amendment) Ordinance 2000 (2 of 2000) provides as follows: "12. Transitional Notwithstanding the repeal of Part III of the Arbitration Ordinance (Cap 341) by section 4, an award to which that Part applied immediately before the commencement+ of that section shall be governed by the Arbitration Ordinance (Cap 341) in force immediately before that commencement, as if this Ordinance had not been enacted.". + Commencement date: 1 February 2000. ARBITRATION ORDINANCE - SECT 35 Awards to which Part III applies VerDate:30/06/1997 PART III ENFORCEMENT OF CERTAIN FOREIGN AWARDS This Part shall apply to any award made after 28 July 1924- (a) in pursuance of an agreement for arbitration to which the protocol set out in the First Schedule applies; and (b) between persons of whom one is subject to the jurisdiction of some one of such Powers as Her Majesty, being satisfied that reciprocal provisions have been made, may by Order in Council declare to be parties to the convention set out in the Second Schedule, and of whom the other is subject to the jurisdiction of some other of the Powers aforesaid; and (c) in one of such territories as Her Majesty, being satisfied that reciprocal provisions have been made, may by Order in Council declare to be territories to which the said convention applies. [cf. 1950 c. 27 s. 35 U.K.] ARBITRATION ORDINANCE - SECT 36 (Repealed 2 of 2000 s. 4) VerDate:01/02/2000 ARBITRATION ORDINANCE - SECT 36 Effect of foreign awards VerDate:30/06/1997 (1) A foreign award shall, subject to the provisions of this Part, be enforceable in Hong Kong either by action or in the same manner as the award of an arbitrator is enforceable by virtue of section 2GG. (Amended 64 of 1989 s. 21; 80 of 1997 s. 102) (2) Any foreign award which would be enforceable under this Part shall be treated as binding for all purposes on the persons as between whom it was made, and may accordingly be relied on by any of those persons by way of defence, set off or otherwise in any legal proceedings in Hong Kong, and any references in this Part to enforcing a foreign award shall be construed as including references to relying on an award. (Amended 64 of 1989 s. 23) [cf. 1950 c. 27 s. 36 U.K.] ARBITRATION ORDINANCE - SECT 37 (Repealed 2 of 2000 s. 4) VerDate:01/02/2000 ARBITRATION ORDINANCE - SECT 37 Conditions for enforcement of foreign awards VerDate:30/06/1997 (1) In order that a foreign award may be enforceable under this Part it must have- (a) been made in pursuance of an agreement for arbitration which was valid under the law by which it was governed; (b) been made by the tribunal provided for in the agreement or constituted in manner agreed upon by the parties; (c) been made in conformity with the law governing the arbitration procedure; (Amended L.N. 387 of 1987) (d) become final in the country in which it was made; (e) been in respect of a matter which may lawfully be referred to arbitration under the law of Hong Kong; and the enforcement thereof must not be contrary to the public policy or the law of Hong Kong. (Amended 64 of 1989 s. 23) (2) Subject to the provisions of this subsection, a foreign award shall not be enforceable under this Part if the court dealing with the case is satisfied that- (a) the award has been annulled in the country in which it was made; or (b) the party against whom it is sought to enforce the award was not given notice of the arbitration proceedings in sufficient time to enable him to present his case, or was under some legal incapacity and was not properly represented; or (c) the award does not deal with all the questions referred or contains decisions on matters beyond the scope of the agreement for arbitration: Provided that, if the award does not deal with all the questions referred, the Court may, if it thinks fit, either postpone the enforcement of the award or order its enforcement subject to the giving of such security by the person seeking to enforce it as the Court may think fit. (3) If a party seeking to resist the enforcement of a foreign award proves that there is any ground other than the non-existence of the conditions specified in subsection (1)(a), (b) and (c), or the existence of the conditions specified in subsection (2)(b) and (c), entitling him to contest the validity of the award, the Court may, if it thinks fit, either refuse to enforce the award or adjourn the hearing until after the expiration of such period as appears to the Court to be reasonably sufficient to enable that party to take the necessary steps to have the award annulled by the competent tribunal. [cf. 1950 c. 27 s. 37 U.K.] ARBITRATION ORDINANCE - SECT 38 (Repealed 2 of 2000 s. 4) VerDate:01/02/2000 ARBITRATION ORDINANCE - SECT 38 Evidence VerDate:01/07/1997 Amendments retroactively made - see 25 of 1998 s. 2 (1) The party seeking to enforce a foreign award must produce- (a) the original award or a copy thereof duly authenticated in manner required by the law of the country in which it was made; and (b) evidence proving that the award has become final; and (c) such evidence as may be necessary to prove that the award is a foreign award and that the conditions mentioned in section 37(1)(a), (b) and (c) are satisfied. (2) In any case where any document required to be produced under subsection (1) is in a foreign language, it shall be the duty of the party seeking to enforce the award to produce a translation certified as correct by a diplomatic or consular agent of the country to which that party belongs, or certified as correct in such other manner as may be sufficient according to the law of Hong Kong. (Amended 64 of 1989 s. 23) (3) Subject to the provisions of this section, rules of court may be made under the High Court Ordinance (Cap 4) with respect to the evidence which must be furnished by a party seeking to enforce an award under this Part. (Amended 92 of 1975 s. 58; 25 of 1998 s. 2) [cf. 1950 c. 27 s. 38 U.K.] ARBITRATION ORDINANCE - SECT 38 Evidence VerDate:30/06/1997 (1) The party seeking to enforce a foreign award must produce- (a) the original award or a copy thereof duly authenticated in manner required by the law of the country in which it was made; and (b) evidence proving that the award has become final; and (c) such evidence as may be necessary to prove that the award is a foreign award and that the conditions mentioned in section 37(1)(a), (b) and (c) are satisfied. (2) In any case where any document required to be produced under subsection (1) is in a foreign language, it shall be the duty of the party seeking to enforce the award to produce a translation certified as correct by a diplomatic or consular agent of the country to which that party belongs, or certified as correct in such other manner as may be sufficient according to the law of Hong Kong. (Amended 64 of 1989 s. 23) (3) Subject to the provisions of this section, rules of court may be made under the Supreme Court Ordinance (Cap 4) with respect to the evidence which must be furnished by a party seeking to enforce an award under this Part. (Amended 92 of 1975 s. 58) [cf. 1950 c. 27 s. 38 U.K.] ARBITRATION ORDINANCE - SECT 39 (Repealed 2 of 2000 s. 4) VerDate:01/02/2000 ARBITRATION ORDINANCE - SECT 39 Meaning of "final award" (最終裁決) VerDate:30/06/1997 For the purposes of this Part, an award shall not be deemed final if any proceedings for the purpose of contesting the validity of the award are pending in the country in which it was made. [cf. 1950 c. 27 s. 39 U.K.] ARBITRATION ORDINANCE - SECT 40 (Repealed 2 of 2000 s. 4) VerDate:01/02/2000 ARBITRATION ORDINANCE - SECT 40 Saving for other rights, etc. VerDate:30/06/1997 Nothing in this Part shall- (a) prejudice any rights which any person would have had of enforcing in Hong Kong any award or of availing himself in Hong Kong of any award if this Part had not been enacted; or (b) apply to any award made on an arbitration agreement governed by the law of Hong Kong. (Amended 64 of 1989 s. 23) [cf. 1950 c. 27 s. 40 U.K.] ARBITRATION ORDINANCE - SECT 40A Awards to which Part IIIA applies VerDate:01/02/2000 PART IIIA ENFORCEMENT OF MAINLAND AWARDS (1) Subject to subsection (2), this Part shall have effect with respect to the enforcement of Mainland awards. (2) Where- (a) a Mainland award was at any time before 1 July 1997 a Convention award within the meaning of Part IV as then in force; and (b) the enforcement of that award had been refused at any time before the commencement of section 5 of the Arbitration (Amendment) Ordinance 2000 (2 of 2000) under section 44 as then in force, then sections 40B to 40E shall have no effect with respect to the enforcement of that award. <* Note - Exp. X-Ref.: Sections 40B, 40C, 40D, 40E *> (Part IIIA Added 2 of 2000 s. 5) ARBITRATION ORDINANCE - SECT 40B Effect of Mainland awards VerDate:01/02/2000 (1) A Mainland award shall, subject to this Part, be enforceable in Hong Kong either by action in the Court or in the same manner as the award of an arbitrator is enforceable by virtue of section 2GG. (2) Any Mainland award which is enforceable under this Part shall be treated as binding for all purposes on the persons between whom it was made, and may accordingly be relied on by any of those persons by way of defence, set off or otherwise in any legal proceedings in Hong Kong, and any references in this Part to enforcing a Mainland award shall be construed as including references to relying on a Mainland award. (Part IIIA Added 2 of 2000 s. 5) ARBITRATION ORDINANCE - SECT 40C Restrictions on enforcement of Mainland awards VerDate:01/02/2000 (1) A Mainland award shall not, subject to subsection (2), be enforceable under this Part if an application has been made on the Mainland for enforcement of the award. (2) Where- (a) an application has been made on the Mainland for enforcement of a Mainland award; and (b) the award has not been fully satisfied by way of that enforcement, then, to the extent that the award has not been so satisfied, the award may be enforceable under this Part. (Part IIIA Added 2 of 2000 s. 5) ARBITRATION ORDINANCE - SECT 40D Evidence VerDate:01/02/2000 The party seeking to enforce a Mainland award must produce- (a) the duly authenticated original award or a duly certified copy of it; (b) the original arbitration agreement or a duly certified copy of it; and (c) where the award or agreement is in a language or languages other than either or both of the official languages, a translation of it in either of the official languages certified by an official or sworn translator or by a diplomatic or consular agent. (Part IIIA Added 2 of 2000 s. 5) ARBITRATION ORDINANCE - SECT 40E Refusal of enforcement VerDate:01/02/2000 (1) Enforcement of a Mainland award shall not be refused except in the cases mentioned in this section. (2) Enforcement of a Mainland award may be refused if the person against whom it is invoked proves- (a) that a party to the arbitration agreement was (under the law applicable to him) under some incapacity; or (b) that the arbitration agreement was not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the Mainland; or (c) that he was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or (d) subject to subsection (4), that the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration or contains decisions on matters beyond the scope of the submission to arbitration; or (e) that the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, with the law of the Mainland; or (f) that the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the Mainland or under the law of the Mainland. (3) Enforcement of a Mainland award may also be refused if the award is in respect of a matter which is not capable of settlement by arbitration under the law of Hong Kong, or if it would be contrary to public policy to enforce the award. (4) A Mainland award which contains decisions on matters not submitted to arbitration may be enforced to the extent that it contains decisions on matters submitted to arbitration which can be separated from those on matters not so submitted. (Part IIIA Added 2 of 2000 s. 5) ARBITRATION ORDINANCE - SECT 40F Publication of list of recognized Mainland arbitral authorities VerDate:01/02/2000 (1) The Secretary for Justice shall from time to time publish in the Gazette a list of the recognized Mainland arbitral authorities. (2) A list published under subsection (1) is not subsidiary legislation. (Part IIIA Added 2 of 2000 s. 5) ARBITRATION ORDINANCE - SECT 40G Saving VerDate:01/02/2000 Notwithstanding that enforcement of a Mainland award had been refused in Hong Kong at any time during the period between 1 July 1997 and the commencement of section 5 of the Arbitration (Amendment) Ordinance 2000 (2 of 2000), the award may, subject to section 40A(2), be enforceable under this Part as if enforcement of the award had not previously been so refused. (Part IIIA Added 2 of 2000 s. 5) ARBITRATION ORDINANCE - SECT 41 Awards to which Part IV applies VerDate:01/02/2000 PART IV ENFORCEMENT OF CONVENTION AWARDS This Part shall have effect with respect to the enforcement of Convention awards. (Replaced 2 of 2000 s. 6) ARBITRATION ORDINANCE - SECT 41 Replacement of former provisions VerDate:30/06/1997 PART IV ENFORCEMENT OF CONVENTION AWARDS This Part shall have effect with respect to the enforcement of Convention awards; and where a Convention award would, but for this section, be also a foreign award within the meaning of Part III, that Part shall not apply to it. [cf. 1975 c. 3 s. 2 U.K.] ARBITRATION ORDINANCE - SECT 42 Effect of Convention awards VerDate:30/06/1997 (1) A Convention award shall, subject to this Part, be enforceable either by action or in the same manner as the award of an arbitrator is enforceable by virtue of section 2GG. (Amended 64 of 1989 s. 22; 80 of 1997 s. 102) (2) Any Convention award which would be enforceable under this Part shall be treated as binding for all purposes on the persons as between whom it was made, and may accordingly be relied on by any of those persons by way of defence, set off or otherwise in any legal proceedings in Hong Kong and any reference in this Part to enforcing a Convention award shall be construed as including references to relying on such an award. [cf. 1975 c. 3 s. 3(1)(a) & (2) U.K.] ARBITRATION ORDINANCE - SECT 43 Evidence VerDate:30/06/1997 The party seeking to enforce a Convention award must produce- (a) the duly authenticated original award or a duly certified copy of it; (b) the original arbitration agreement or a duly certified copy of it; and (c) where the award or agreement is in a foreign language, a translation of it certified by an official or sworn translator or by a diplomatic or consular agent. [cf. 1975 c. 3 s. 4 U.K.] ARBITRATION ORDINANCE - SECT 44 Refusal of enforcement VerDate:30/06/1997 (1) Enforcement of a Convention award shall not be refused except in the cases mentioned in this section. (2) Enforcement of a Convention award may be refused if the person against whom it is invoked proves- (a) that a party to the arbitration agreement was (under the law applicable to him) under some incapacity; or (b) that the arbitration agreement was not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the country where the award was made; or (c) that he was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or (d) subject to subsection (4), that the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration or contains decisions on matters beyond the scope of the submission to arbitration; or (e) that the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, with the law of the country where the arbitration took place; or (f) that the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made. (3) Enforcement of a Convention award may also be refused if the award is in respect of a matter which is not capable of settlement by arbitration, or if it would be contrary to public policy to enforce the award. (4) A Convention award which contains decisions on matters not submitted to arbitration may be enforced to the extent that it contains decisions on matters submitted to arbitration which can be separated from those on matters not so submitted. (5) Where an application for the setting aside or suspension of a Convention award has been made to such a competent authority as is mentioned in subsection (2)(f), the court before which enforcement of the award is sought may, if it thinks fit, adjourn the proceedings and may, on the application of the party seeking to enforce the award, order the other party to give security. [cf. 1975 c. 3 s. 5 U.K.] ARBITRATION ORDINANCE - SECT 45 Saving VerDate:01/02/2000 Nothing in this Part shall prejudice any right to enforce or rely on an award otherwise than under this Part. (Amended 2 of 2000 s. 7) [cf. 1975 c. 3 s. 6 U.K.] ARBITRATION ORDINANCE - SECT 45 Saving VerDate:30/06/1997 Nothing in this Part shall prejudice any right to enforce or rely on an award otherwise than under this Part or Part III. [cf. 1975 c. 3 s. 6 U.K.] ARBITRATION ORDINANCE - SECT 46 Order to be conclusive evidence VerDate:01/07/1997 Adaptation amendments retroactively made - see 2 of 2000 s. 8 If the Chief Executive by Order declares that any State or territory specified in the Order is a party to the New York Convention the Order shall, while in force, be conclusive evidence that that State or territory is a party to that Convention. (Amended 2 of 2000 s. 8) [cf. 1975 c. 3 s. 7(2) U.K.] (Part IV added 85 of 1975 s. 8) ARBITRATION ORDINANCE - SECT 46 Order to be conclusive evidence VerDate:30/06/1997 If the Governor by Order declares that any State or territory specified in the Order is a party to the New York Convention the Order shall, while in force, be conclusive evidence that that State or territory is a party to that Convention. [cf. 1975 c. 3 s. 7(2) U.K.] (Part IV added 85 of 1975 s. 8) ARBITRATION ORDINANCE - SECT 47 Government to be bound VerDate:01/02/2000 PART V GENERAL This Ordinance (other than Part IV) binds the Government. (Amended 2 of 2000 s. 9) (Part V added 75 of 1996 s. 16) ARBITRATION ORDINANCE - SECT 47 Government to be bound VerDate:30/06/1997 PART V GENERAL This Ordinance (other than Parts III and IV) binds the Government. (Part V added 75 of 1996 s. 16) ARBITRATION ORDINANCE - SECT 48 Chief Executive in Council may amend Sixth Schedule VerDate:01/07/1997 Adaptation amendments retroactively made - see 2 of 2000 s. 10 The Chief Executive in Council may, by order published in the Gazette, amend the Sixth Schedule. (Amended 2 of 2000 s. 10) (Part V added 75 of 1996 s. 16) ARBITRATION ORDINANCE - SECT 48 Governor in Council may amend Sixth Schedule VerDate:30/06/1997 The Governor in Council may, by order published in the Gazette, amend the Sixth Schedule. (Part V added 75 of 1996 s. 16) ARBITRATION ORDINANCE - SCHEDULE 1 (Repealed 2 of 2000 s. 11) VerDate:01/02/2000 ARBITRATION ORDINANCE - SCHEDULE 1 PROTOCOL ON ARBITRATION CLAUSES SIGNED ON BEHALF OF HIS MAJESTY AT A MEETING OF THE ASSEMBLY OF THE LEAGUE OF NATIONS HELD ON 24 SEPTEMBER 1923 VerDate:30/06/1997 [section 35] The undersigned, being duly authorized, declare that they accept, on behalf of the countries which they represent, the following provisions- 1. Each of the Contracting States recognizes the validity of an agreement whether relating to existing or future differences between parties, subject respectively to the jurisdiction of different Contracting States by which the parties to a contract agree to submit to arbitration all or any differences that may arise in connection with such contract relating to commercial matters or to any other matter capable of settlement by arbitration, whether or not the arbitration is to take place in a country to whose jurisdiction none of the parties is subject. Each Contracting State reserves the right to limit the obligation mentioned above to contracts which are considered as commercial under its national law. Any Contracting State which avails itself of this right will notify the Secretary-General of the League of Nations, in order that the other Contracting States may be so informed. 2. The arbitral procedure, including the constitution of the arbitral tribunal, shall be governed by the will of the parties and by the law of the country in whose territory the arbitration takes place. The Contracting States agree to facilitate all steps in the procedure which require to be taken in their own territories, in accordance with the provisions of their law governing arbitral procedure applicable to existing differences. 3. Each Contracting State undertakes to ensure the execution by its authorities and in accordance with the provisions of its national laws of arbitral awards made in its own territory under the preceding articles. 4. The tribunals of the Contracting Parties, on being seized of a dispute regarding a contract made between persons to whom Article I applies and including an arbitration agreement whether referring to present or future differences which is valid in virtue of the said article and capable of being carried into effect, shall refer the parties on the application of either of them to the decision of the arbitrators. Such reference shall not prejudice the competence of the judicial tribunals in case the agreement or the arbitration cannot proceed or become inoperative. 5. The present Protocol, which shall remain open for signature by all States, shall be ratified. The ratifications shall be deposited as soon as possible with the Secretary-General of the League of Nations, who shall notify such deposit to all the signatory States. 6. The present protocol shall come into force as soon as 2 ratifications have been deposited. Thereafter it will take effect, in the case of each Contracting State, one month after the notification by the Secretary-General of the deposit of its ratification. 7. The present Protocol may be denounced by any Contracting State on giving one year's notice. Denunciation shall be effected by a notification addressed to the Secretary-General of the League, who will immediately transmit copies of such notification to all the other signatory States and inform them of the date of which it was received. The denunciation shall take effect one year after the date on which it was notified to the Secretary-General, and shall operate only in respect of the notifying State. 8. The Contracting States may declare that their acceptance of the present Protocol does not include any or all of the undermentioned territories: that is to say, their colonies, overseas possessions or territories, protectorates or the territories over which they exercise a mandate. The said States may subsequently adhere separately on behalf of any territory thus excluded. The Secretary-General of the League of Nations shall be informed as soon as possible of such adhesions. He shall notify such adhesions to all signatory States. They will take effect one month after the notification by the Secretary-General to all signatory States. The Contracting States may also denounce the Protocol separately on behalf of any of the territories referred to above. Article 7 applies to such denunciation. ARBITRATION ORDINANCE - SCHEDULE 2 (Repealed 2 of 2000 s. 11) VerDate:01/02/2000 ARBITRATION ORDINANCE - SCHEDULE 2 CONVENTION ON THE EXECUTION OF FOREIGN ARBITRAL AWARDS SIGNED AT GENEVA ON BEHALF OF HIS MAJESTY ON 26 SEPTEMBER 1927 VerDate:30/06/1997 [section 35] Article 1 In the territories of any High Contracting Party to which the present Convention applies, an arbitral award made in pursuance of an agreement, whether relating to existing or future differences (hereinafter called "a submission to arbitration") covered by the Protocol on Arbitration Clauses, opened at Geneva on 24 September 1923, shall be recognized as binding and shall be enforced in accordance with the rules of the procedure of the territory where the award is relied upon, provided that the said award has been made in a territory of one of the High Contracting Parties to which the present Convention applies and between persons who are subject to the jurisdiction of one of the High Contracting Parties. To obtain such recognition or enforcement, it shall, further, be necessary- (a) that the award has been made in pursuance of a submission to arbitration which is valid under the law applicable thereto; (b) that the subject-matter of the award is capable of settlement by arbitration under the law of the country in which the award is sought to be relied upon; (c) that the award has been made by the Arbitral Tribunal provided for in the submission to arbitration or constituted in the manner agreed upon by the parties and in conformity with the law governing the arbitration procedure; (d) that the award has become final in the country in which it has been made, in the sense that it will not be considered as such if it is open to opposition, appeal or pourvoi en cassation (in the countries where such forms of procedure exist) or if it is proved that any proceedings for the purpose of contesting the validity of the award are pending; (e) that the recognition or enforcement of the award is not contrary to the public policy or to the principles of the law of the country in which it is sought to be relied upon. Article 2 Even if the conditions laid down in Article 1 hereof are fulfilled, recognition and enforcement of the award shall be refused if the Court is satisfied- (a) that the award has been annulled in the country in which it was made; (b) that the party against whom it is sought to use the award was not given notice of the arbitration proceedings in sufficient time to enable him to present his case; or that, being under a legal incapacity, he was not properly represented; (c) that the award does not deal with the differences contemplated by or falling within the terms of the submission to arbitration or that it contains decisions on matters beyond the scope of the submission to arbitration. If the award has not covered all the questions submitted to the arbitral tribunal, the competent authority of the country where recognition or enforcement of the award is sought can, if it thinks fit, postpone such recognition or enforcement or grant it subject to such guarantee as that authority may decide. Article 3 If the party against whom the award has been made proves that, under the law governing the arbitration procedure, there is a ground, other than the grounds referred to in Article 1(a) and (c), and Article 2(b) and (c), entitling him to contest the validity of the award in a Court of Law, the Court may, if it thinks fit, either refuse recognition or enforcement of the award or adjourn the consideration thereof, giving such party a reasonable time within which to have the award annulled by the competent tribunal. Article 4 The party relying upon an award or claiming its enforcement must supply, in particular- (1) The original award or a copy thereof duly authenticated, according to the requirements of the law of the country in which it was made; (2) Documentary or other evidence to prove that the award has become final, in the sense defined in Article 1(d), in the country in which it was made; (3) When necessary, documentary or other evidence to prove that the conditions laid down in Article 1, paragraph 1 and paragraph 2(a) and (c), have been fulfilled. A translation of the award and of the other documents mentioned in this Article into the official language of the country where the award is sought to be relied upon may be demanded. Such translation must be certified correct by a diplomatic or consular agent of the country to which the party who seeks to rely upon the award belongs or by a sworn translator of the country where the award is sought to be relied upon. Article 5 The provisions of the above Articles shall not deprive any interested party of the right of availing himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon. Article 6 The present Convention applies only to arbitral awards made after the coming into force of the Protocol on Arbitration Clauses, opened at Geneva on 24 September 1923. Article 7 The present Convention, which will remain open to the signature of all the signatories of the Protocol of 1923 on Arbitration Clauses, shall be ratified. It may be ratified only on behalf of those Members of the League of Nations and non- Member States on whose behalf the Protocol of 1923 shall have been ratified. Ratifications shall be deposited as soon as possible with the Secretary-General of the League of Nations, who will notify such deposit to all the signatories. Article 8 The present Convention shall come into force 3 months after it shall have been ratified on behalf of 2 High Contracting Parties. Thereafter, it shall take effect, in the case of each High Contracting Party, 3 months after the deposit of the ratification on its behalf with the Secretary- General of the League of Nations. Article 9 The present Convention may be denounced on behalf of any Member of the League or non- Member State. Denunciation shall be notified in writing to the Secretary-General of the League of Nations, who will immediately send a copy thereof, certified to be in conformity with the notification, to all the other Contracting Parties, at the same time informing them of the date on which he received it. The denunciation shall come into force only in respect of the High Contracting Party which shall have notified it and one year after such notification shall have reached the Secretary-General of the League of Nations. The denunciation of the Protocol on Arbitration Clauses shall entail, ipso facto, the denunciation of the present Convention. Article 10 The present Convention does not apply to the Colonies, Protectorates or territories under suzerainty or mandate of any High Contracting Party unless they are specially mentioned. The application of this Convention to one or more of such Colonies Protectorates or territories to which the Protocol on Arbitration Clauses, opened at Geneva on 24 September 1923, applies, can be effected at any time by means of a declaration addressed to the Secretary-General of the League of Nations by one of the High Contracting Parties. Such declaration shall take effect 3 months after the deposit thereof. The High Contracting Parties can at any time denounce the Convention for all or any of the Colonies, Protectorates or territories referred to above. Article 9 hereof applies to such denunciation. Article 11 A certified copy of the present Convention shall be transmitted by the Secretary-General of the League of Nations to every Member of the League of Nations and to every non-Member State which signs the same. ARBITRATION ORDINANCE - SCHEDULE 3 CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS. DONE AT NEW YORK, ON 10 JUNE 1958 VerDate:30/06/1997 Article I 1. This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought. 2. The term "arbitral awards" (仲裁裁決) shall include not only awards made by arbitrators appointed for each case but also those made by permanent arbitral bodies to which the parties have submitted. 3. When signing, ratifying or acceding to this Convention, or notifying extension under article hereof, any State may on the basis of reciprocity declare that it will apply the Convention to the recognition and enforcement of awards made only in the territory of another Contracting State. It may also declare that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of the State making such declaration. Article II 1. Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration. 2. The term "agreement in writing" (書面協定) shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams. 3. The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article , at the request of one of the parties, refer the parties to arbitration unless it finds that the said agreement is null and void, inoperative or incapable of being performed. Article III Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards. Article IV 1. To obtain the recognition and enforcement mentioned in the preceding article, the party applying for recognition and enforcement shall, at the time of the application, supply- (a) the duly authenticated original award or a duly certified copy thereof; (b) the original agreement referred to in article II or a duly certified copy thereof. 2. If the said award or agreement is not made in an official language of the country in which the award is relied upon, the party applying for recognition and enforcement of the award shall produce a translation of these documents into such language. The translation shall be certified by an official or sworn translator or by a diplomatic or consular agent. Article V 1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that- (a) the parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or (b) the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or (c) the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or (d) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or (e) the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. 2. Recognition and enforcement of an arbitral award may also be refused if the competent author