Ling Yang: HKIAC Working with CICC to Provide World-Class Dispute Resolution ServiceFrom: Updated: 2022-09-21
Editor's Note: The Third Seminar of the International Commercial Expert Committee of the Supreme People's Court and Reappointment Ceremony of the First Group of Expert Members was held successfully on Augest 25, 2022. Over 40 experts from more than 20 countries and regions focused on the theme of the Development, Challenges and Countermeasures of Cross-Border Commercial Disputes during the seminar. Extensive and in-depth discussions were held within the framework of four specific issues. The texts of speeches delivered by the participants would be posted on the CICC's website.
HKIAC WORKING WITH CICC TO PROVIDE WORLD-CLASS DISPUTE RESOLUTION SERVICE
Deputy Secretary-General and the ChiefRepresentative (Shanghai Office), HKIAC
Honourable Chief Justice Zhou Qiang, Justice He Rong, Justice Tao Kaiyuan,
Members of the International Commercial Expert Committee, scholars, and colleagues,
I am Yang Ling, from Hong Kong International Arbitration Centre ("HKIAC"). I am very grateful for the invitation from Supreme People's Court and the China International Commercial Court ("CICC"). It is a great honour for me, on behalf of the HKIAC, to participate in this significant event. Also, please allow me to express my gratitude again to Supreme People's Court for its support of HKIAC, which made HKIAC the first, and the only arbitral institution outside the Mainland to be included in the "One-Stop" Platform for Diversified International Commercial Dispute Resolution ("One-Stop Platform") of the CICC.
First of all, I would like to take this opportunity to give a brief introduction of HKIAC. HKIAC is a non-profit organization established under Hong Kong law in 1985, providing arbitration, mediation, adjudication, and domain name dispute resolution services. With 37 years of experience, HKIAC has become one of the leading dispute resolution centres in Asia, and the world. According to a 2021 global survey, Hong Kong SAR is the third most preferred seat in the world and HKIAC is the third most preferred arbitral institution.
In addition to administering a significant number of institutional arbitrations, HKIAC is the only default appointing authority for ad hoc arbitrations seated in Hong Kong under the Hong Kong Arbitration Ordinance. HKIAC also operates as the Hong Kong Office and Permanent Secretariat of the Asian Domain Name Dispute Resolution Centre. Hong Kong Mediation Council, a division of the HKIAC, is designated as a mediation institution to administer disputes between a e investor form Chinese Mainland and the Government of Hong Kong pursuant to the Investment Agreement under the Mainland and Hong Kong Closer Economic Partnership Arrangement (the "CEPA").
Internationality is the key feature of the arbitration cases submitted to the HKIAC. Parties from over 100 jurisdictions participated in HKIAC arbitrations. Over the past 5 years, 82% of all arbitrations submitted to HKIAC were international in nature, i.e., at least one party was not from Hong Kong SAR; 40% involved no Hong Kong parties and 6% involved no Asian parties. In the administered arbitrations, Hong Kong SAR is the most frequently chosen seat. In the remaining arbitrations, the seats were London, Singapore, England & Wales, Moscow, etc. 80% of the administered arbitrations conducted in English and 20% involved Chinese. As for the governing law, Hong Kong law is the most commonly selected governing law, followed by English law then Chinese law, New York state law, Cayman Islands law, California state law, CISG, etc.
Benefitting from multiple mutual arrangements between Chinese Mainland and Hong Kong SAR, HKIAC has demonstrated its advantages in handling disputes with Chinese interests. In recent years, about 40% of HKIAC administered arbitrations involve at least one Mainland Chinese party. Chinese law is the third most chosen governing law. Hong Kong law and English law, and Chinese have gradually been selected more often by the parties as the language of arbitration. HKIAC arbitration rules serve as rare instances of arbitration rules under which both English and Chinese are listed as the language of the arbitration. The HKIAC Secretariat has backgrounds in both common law and civil law with extensive experience in international commercial and investment arbitrations and can work in 10 languages. 6 of the 12 counsel of the arbitration team are native speakers of Mandarin.
Since the handover of Hong Kong in 1997, the Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region ("Enforcement Arrangement") signed in 1999 marks the first mutual judicial assistance arrangement between Chinese Mainland and Hong Kong SAR, which was amended in 2020 by the Supplemental Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region. Under the Enforcement Arrangement, HKIAC is aware that, to date, there are approximately 83 applications for recognition and enforcement of arbitral awards before Mainland Courts, 70% of which are HKIAC awards. HKIAC maintains a strong record of enforcement in Chinese Mainland.
In addition, the Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and the Hong Kong Special Administrative Region (the "Interim Measures Arrangement") came into force on 1 October 2019, under which HKIAC was one of the six qualified arbitral institutions, jointly confirmed by the SPC and Department of Justice of Hong Kong SAR, and the only arbitral institution has relevant practice to date. By virtue of the Arrangement, Hong Kong is under the first jurisdiction outside of Chinese Mainland in respect of interim measures (a similar arrangement came into effect in respect of the Macao SAR in 2022). The Interim Measures Arrangements facilitate the parties to arbitration seated in Hong Kong or Macao to obtain interim measures before Mainland Courts. In such circumstance, it will enhance the preference of Hong Kong and Macao as the seat of arbitration. Meanwhile, the Interim Measures Arrangement provides a new model for cross-border assistance of interim measures in international arbitration.
As of 5 August 2022, HKIAC has issued Letters of Acceptance in respect of 79 applications to 28 different Intermediate People's Courts ("IPC") in 23 cities, for the preservation of evidence, assets, and conduct. The total value of assets requested to be preserved amounted to RMB 17.8 billion or approximately USD 2.7 billion. It is worth noting that both Chinese Mainland's parties and international parties benefit from the arrangement in that approximately 20% of applicants under it are from Chinese Mainland. For the convenience of our users and in light of providing them with a better understanding of the practice of the Interim Measures Arrangement, HKIAC prepared the "PRC-HK Interim Measures Arrangement: Frequently Asked Questions" in 6 languages and has kept it updated monthly. The practice of the Interim Measures Arrangements has enabled our users to continuously gain from IPCs on Chinese Mainland their experiences and knowledge in respect of interim measures. Besides, the IPCs have demonstrated to the international arbitration community their pro-arbitration policies in this way.
Pursuant to the Notice of the General Office of the SPC on Inclusion of the Second Group of International Commercial Arbitration Institutions in the "One-Stop" Diversified International Commercial Dispute Resolution Mechanism, HKIAC is the first arbitral institution outside the Mainland to be included in the One-Stop Platform. Under Articles 34 and 35 of the Procedural Rules for the China International Commercial Court of the Supreme People's Court (For Trial Implementation), this means that parties to cases administered by HKIAC with an amount in a dispute over RMB 300 million or with a significant impact, may apply for interim relief and/or the enforcement of arbitral awards directly to the CICC. In appropriate cases, this is a more effective alternative to the current arrangements between Chinese Mainland and Hong Kong SAR for interim relief and enforcement of arbitral awards.
Under the Interim Measures Arrangement, parties to arbitral proceedings seated in Hong Kong and administered by HKIAC can already apply to the competent IPC on Chinese Mainland for interim relief in the form of preservation of evidence, assets, and conduct. In terms of enforcement, currently, parties seeking to enforce a foreign award (including a Hong Kong-seated award) on Chinese Mainland should apply to the competent IPC. Before refusing enforcement, an IPC should report the case to the SPC and obtain the SPC's endorsement of any decision not to enforce the award. HKIAC is also aware of users' comments on this internal report mechanism.
With HKIAC joining the One-Stop Platform, parties in qualifying HKIAC cases will benefit from direct access to the CICC for interim relief and enforcement of arbitral awards on the Mainland. Although no cases reported from CICC on interim relief or enforcement of arbitral awards, we have confidence that this new arrangement can save considerable time and costs. Direct access to the SPC/CICC being a part of this highest calibre on the Mainland, for large and significant cases will improve the efficiency, transparency, and predictability of outcomes in arbitrations. Meanwhile, the confidence in HKIAC and CICC for dispute resolution will be enhanced among parties around the world.
In fact, users' response keeps positive since the announcement of HKIAC's inclusion in the "One-Stop" Platform. Also, the HKIAC Secretariat received a lot of inquiries in respect of applying preservation and enforcement before the CICC. Meanwhile, it is expected that our users comprehend the operation of CICC through interaction and practice, and we look forward to working with the CICC and other institutions to provide world-class dispute resolution service to parties to cross-border disputes.
That's all for my speech, thank you again for hosting.
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*The original text is Chinese and has been translated into English for reference only. If there is any inconsistency or ambiguity between the Chinese version and the English version, the Chinese version shall prevail.