Arbitration in Hong Kong: An Overview

The list of non-Mandatory provisions in Schedule 2 of the Arbitration Ordinance is relatively long. Parties can opt to alter default positions in respect of, for example, multiple or sole arbitrators, consolidation of arbitrations by the court, preliminary issue determination and the right to challenge or appeal an arbitral award on specific grounds. 

One of the notable features of arbitration in Hong Kong is the availability of both institutional arbitration and ad hoc arbitration. The Hong Kong International Arbitration Centre ("HKIAC") is one of the most prominent and well-regarded institutions in Asia. The jurisdiction also allows ad hoc arbitration by other rules, such as the Hong Kong Maritime Arbitration Group ("HKMAG") rules. 

The burden typically rests on the Claimant to prove its case on a balance of probabilities. However, there are circumstances where the burden of proof can shift, such as where res ipsa loquitur applies in negligence claims, or specific contractual provisions. 

Parties are expected to disclose documents in their possession, custody, and power. While privileged documents are generally protected from disclosure, Hong Kong law does not allow privilege to be used as a cloak for "perjury, blackmail or other unambiguous impropriety". Witness testimony and documentary evidence are generally treated with equal importance, but the weight of any individual piece of evidence will be assessed by reference to a range of factors. Strictly speaking, expert evidence is seen as a breed of hearsay, but is an admissible exception.  

Hong Kong is a signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), which facilitates the enforcement of arbitral awards across jurisdictions. This international recognition enhances the attractiveness of Hong Kong as an arbitration venue. Enforcing an arbitral award in Hong Kong can be done either by pursuing a claim in debt or, if certain conditions are met, by registering the award as a local court judgment. 

The New York Convention does not apply to enforcement between Hong Kong and Mainland China. Instead, a reciprocal enforcement mechanism was agreed between Hong Kong and Mainland China to mirror the New York Convention measures (with some enhancements).  Also unique to Hong Kong arbitration is the ability to invoke, pre-award, interim measures in Mainland China for the preservation of assets, evidence, etc.

Appeals from arbitral awards to the Court of First Instance in Hong Kong are possible only where the parties have opted into the relevant provisions of the Arbitration Ordinance. Appeals can be made on questions of law or on grounds of serious irregularity. However, Hong Kong courts are generally arbitration-friendly and are slow to disrupt arbitral awards. Successful challenges to arbitral awards are rare.