The HKIAC 2013 Arbitration Rules, HKIAC Administered Arbitration Rules 2013 (the “Rules”), came into effect on November 1st. The new HKIAC arbitration rules will take place of the 2008 version of arbitration rules.

The new arbitration rules continues the “light touch” approach, providing effective institutional assistance on the basis that party autonomy is substantially respected. While maintaining traditional strength, meanwhile, the new version of arbitration rules have taken some innovations and made some breakthroughs.

The major changes in the new Rules are as follows:

-Joinder and consolidation

With the gradual increase of complexity of commercial disputes, new Rules try to provide the arbitration center and arbitral tribunal the power to tackle multi parties or multi contractual disputes to the greatest extent. The new Rules expand the power of the arbitral tribunal to join parties and allow a party to actively apply to be joined into the arbitration, which strengthened the joinder mechanism of parties. If the application is made before the constitution of arbitration tribunals, the arbitration center itself has the power to make preliminary decisions concerning the joinder of parties. The 2013 Rules authorize the arbitration center to consolidate two or more arbitration upon application of parties in certain circumstances, or allow submissions concerning arising out of or in connection with more than one contract to be made in one arbitration proceeding. The arbitration center can appoint an arbitrator on behalf of a party to facilitate the post joinder or consolidation procedure.

– Improvement of Expedited Procedure

Compared to the old rules, the new Rules expanded the scope of application of expedited procedure by parties. Although the expedited procedure will be applicable by choice (rather than applies automatically now),the monetary threshold for invoking the expedited procedures under the New Rules has now been revised upwards to HK$25 million (approximately US$3 million).Parties can agree to adopt the expedited procedure or apply to adopt the expedited procedure in extraordinarily emergent situations. If the expedited procedure is adopted, a sole arbitrator should preside on principle, and except for extraordinary circumstances, the award should be rendered six months within the submission of files to the arbitral tribunal.

– Change of Qualification to be Arbitrators and Reducing Arbitrator Appointment Procedures

There are two special innovations in the new Rules concerning appointment of arbitrators: maximum billable hour rate and standard qualification of arbitrators. Since its management of arbitration cases from 2008, the arbitration center has been helping parties to predict and control expenses through unique method, allowing parties to decide whether fees and expenses of the arbitral tribunal are charged by hour or by the monetary claim of the dispute. If the latter is chosen, the new Rules stipulate that the fees of arbitrator cannot exceed the maximum cap in the Rules, unless parties agree otherwise. The new Rules also adopt standard qualification conditions of arbitrators (can be changed by agreements of parties or by the arbitration center). All arbitrators appointed according to the Rules must be recognized. The two standardized measures can reduce negotiations among parties and arbitrators and expedite the arbitration proceeding into the substantive procedure.

– Emergency Measures

Due to the unwillingness to submit the disputes to courts and trust in the gradually developing arbitration proceedings, parties are more and more willing that arbitration institutions can effectively deal with interim measure applications made before the constitutions of the arbitration tribunal. To respond to the need, the new Rules grant parties the right to apply for emergency measures at the same time or after they submit the notice of arbitration. Considering that the urgency of emergency measures, the new Rules set out a rather short time limit to appoint an emergency arbitrator and to decide on the emergency measures application. In the meantime, the Arbitration Ordinance of Hong Kong is to be amended so as to clarify that the emergency measures granted in an award can be enforced in Hong Kong, which will offer assurance for the emergency arbitrator procedure.

(Source:HKIAC website www.hkiac.org)

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