Winnie JoMei Ma amp Prof Lawrence Boo 6 June 2017 6062017 Winnie Ma 1 Seminar Outline Introduction to international commercial arbitration Lessons from drafting institutional arbitration rules ID: 1033764
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1. International Commercial Arbitration: The Mechanics & Hot TopicsWinnie Jo-Mei Ma & Prof. Lawrence Boo6 June 20176/06/2017Winnie Ma1
2. Seminar OutlineIntroduction to international commercial arbitrationLessons from drafting institutional arbitration rulesTips for dealing with gaps in arbitration rules and other challenging issuesQ & A6/06/2017Winnie Ma2
3. What is arbitration?A process in which parties submit their dispute to one or more persons for a binding decisiondispute and arbitration agreement between parties, arbitral award made by arbitrator(s)Arbitrators’ appointment and arbitral proceedings are private (akin to mediation)Arbitrators’ decisions are binding and enforceable as court judgments (akin to litigation)6/06/2017Winnie Ma3
4. What is international commercial arbitration?International: parties’ places of business or habitual residence or subject matter of arbitration agreement or dispute involve different StatesCommercial: “all relationships of a commercial nature, whether contractual or not”Commencement of arbitration (notice/request) appointment of arbitrators exchange of submissions & documents meetings & hearings award-making6/06/2017Winnie Ma4
5. Legal frameworkInternational: New York Convention (enforcement of arbitration agreements and arbitral awards) and UNCITRAL Model Law (plus arbitral procedures etc.)National: laws of place of arbitration and place(s) of enforcement (157 New York Convention countries; 75 Model Law countries)Contractual/Institutional: arbitration rules of the institution (if institutional arbitration) OR rules for ad hoc arbitration (e.g. UNCITRAL Arbitration Rules) 6/06/2017Winnie Ma5
6. Drafting institutional arbitration rulesCAA International Arbitration Rules 2017Separate entity of CAA (Chinese Arbitration Association, Taiwan) to be established in Hong KongPotential users? Targeted market? Scope of application?Applicable legal regimes? Default seat/place of arbitration? Enforceability? Light touch (party autonomy and arbitral discretion) or scrutiny?6/06/2017Winnie Ma6
7. Drafting institutional arbitration rules (continued)International benchmarks, standards, consensus and trends?ICC (International Chamber of Commerce), LCIA (London Court of International Arbitration), SCC (Stockholm Chamber of Commerce), HKIAC, SIAC (Singapore International Arbitral Centre), ACICA (Australian Centre for International Commercial Arbitration), CIETAC (China International Economic & Trade Center), BAC (Beijing Arbitration Commission)Hong Kong Arbitration Ordinance/UNCITRAL Model LawCreative & ambitious OR conservative & cautious?Linguistic and cultural diversity/complexity?6/06/2017Winnie Ma7
8. Seat/place of arbitration“The parties may agree on the seat of arbitration. Absent such an agreement, the seat of arbitration shall be Hong Kong, unless the arbitral tribunal determines that another seat is more appropriate in the circumstances after consulting with the parties.”Default seat despite increasing delocalisation of arbitrationCAA International Rules do not apply if the parties or arbitral tribunal designate Taiwan as the seat of arbitration6/06/2017Winnie Ma8
9. Language(s) of arbitration“The parties may agree on the language of the arbitration. Absent such an agreement, the language of the arbitration shall be either Mandarin Chinese or English in accordance with CAA’s notification of preliminary decision on language [within seven days after receiving the notice of arbitration], unless the arbitral tribunal determines that another language is more appropriate in the circumstances after consulting with the parties.” 6/06/2017Winnie Ma9
10. Challenging jurisdiction and/or arbitratorsObjection to the “existence, validity, effectiveness, scope or termination of an arbitration agreement” arbitral tribunal’s competence to rule on its own jurisdictionChallenge of arbitrators: (a) lack of impartiality or independence; (b) lack of requisite qualifications; (c) inability to perform or refusal to actCAA to decide on the challenge and may suspend arbitration 6/06/2017Winnie Ma10
11. Question for LawrenceHow do you deal with fellow arbitrator who has been “compromised”?6/06/2017Winnie Ma11
12. Time limits for closure & award-making“Within six months from the date of its constitution, the arbitral tribunal shall declare the proceedings closed and state the date of such closure in writing.”“The arbitral tribunal shall make its final award within six weeks from the date of its closure of proceedings as stated…”6/06/2017Winnie Ma12
13. Drafting institutional arbitration rules (continued)Modified adoptionWait and seeSingle arbitration and consolidation of arbitrationsSummary procedure or early dismissalJoinder of additional partiesThird party fundingInterim measures and emergency arbitrationCombination with mediation etc.Confidentiality Investment arbitrationExpedited procedureApportionment of costs6/06/2017Winnie Ma13
14. More questions for LawrenceDo’s and don’t’s in discovery/disclosure?Measuring “success” when apportioning costs?Third party funding?Summary procedure or early dismissal?Confidentiality vs transparency?Institutionalisation of ad hoc arbitration (hybrid system)?6/06/2017Winnie Ma14