THE AUTHOR:
Hasit B. Seth, Independent Arbitrator, Mediator, and Counsel
Introduction
In 2024, Hong Kong International Arbitration Centre (HKIAC) updated its Administered Arbitration Rules 2024 (“HKIAC Rules”) . The 2024 update to the HKIAC’s Rules is a successor to the earlier versions released first in 2008 followed by versions in 2013 and 2018. This review considers the changes in 2024 edition over the older 2018 edition. The 2024 HKIAC Rules came into force on 1 June 2024. The 2024 HKIAC Rules provide a few significant updates such as the inclusion of specific diversity and information security provisions.
The Legacy of HKIAC Administered Arbitration Rules
The HKIAC Rules since its first edition in 2008 have followed a stated “light touch” approach in administering arbitrations. The 2024 HKIAC Rules maintain the successful tradition of light touch. A few changes also indicate a general theme of reserving corrective powers for the HKIAC and the tribunal in some specific situations.
Changes In 2024 Rules as Compared to 2018 Rules
Some of the key changes in the 2024 Rules in contrast with the 2018 Rules are listed next:
Diversity
- A new Rule 9-A titled “Diversity” makes its entry in the 2024 HKIAC Rules. Both parties and arbitrators are encouraged under Rule 9A.1 to taking into account considerations of diversity when appointing an arbitrator. Similarly, under Rule 9A.2, HKIAC also has to account for diversity considerations when appointing an arbitrator but while considering all other relevant factors.
Arbitration’s Efficiency
- Under Rule 9.1, HKIAC must confirm an arbitrator’s appointment whether the arbitrator be selected by the parties or by HKIAC. Rule 9.3 now adds criteria for confirmation that include consideration of “…factors that may affect the efficiency or integrity of the arbitration, any information…”. Hence, HKIAC may have more latitude in confirming an arbitrator after considering overarching factors of efficiency and integrity of the arbitration.
- Changes to Art.13.6 now enable an arbitrator to decide on preliminary issues after consultation with the parties. The tribunal can also bifurcate proceedings and conduct the proceedings in sequential stages. The tribunal can also decide at what stage any issue will be determined. Further, apart from the guidance in the rule, the tribunal can decide on procedure to be adopted for efficient resolution of disputes.
- The Rule 13.10 is an overarching power to HKIAC to “…preserve the efficiency or integrity of the arbitration…” and measures it could take include, though exceptionally, removal of arbitrators at any time. The grounds for 13.10 actions are based on the arbitrator being prevented or fails to perform functions under the rules or within the set time limits.
- Any proposed changes to party representatives need to be promptly communicated to the tribunal under Rule 13.8. Under Rule 13.9, the tribunal can take measures after consulting parties to avoid a conflict of interest due to change in the party representatives.
- A new rule 29.2 states that once HKIAC decides that the arbitration has been properly commenced, the parties are deemed to have waived their right of arbitrator designation. Thereafter, HKIAC shall appoint the tribunal which may be with or without taking note of the parties’ arbitrator designation.
- Under Rule 31.1 now, a limit has been set for closing proceedings. The milestone is set as forty-five days from the last directed oral or written submission excluding cost submissions. The closure milestone may be achieved for entire proceedings or a discrete part of the proceeding.
Costs
- Costs of emergency arbitration can now be included under costs as per Rule 34.1(e).
- For apportionment of costs, Rule 34.4 provides more detailed guidance. The arbitral tribunal determining costs may take factors like the relative success of the parties, scale and complexity of the dispute, conduct of the parties, third-party funding arrangements, and any outcome-based fee-based arrangements.
Information Security
- A new Rule 45-A titled “Information Security” makes its appearance in the 2024 HKIAC Rules. The Rule 45.A1 keeping in line with party autonomy principles, permits the parties to decide on reasonable security measures for the information shared in the arbitration.
Emergency Arbitration
- In the emergency arbitrator procedure under Schedule 4, the Rule 10 has an added paragraph. The emergency arbitrator can issue preliminary or interim orders when required before the “Emergency Decision”.
- In the emergency arbitrator rules in Schedule 4, a new rule (numbered 14 and with an exception) is included to end the emergency arbitrator’s power to act specifically when the tribunal is constituted.
Fee
- The model clause now includes a suggested arbitral tribunal fee option for a schedule-based fee calculated using either the sum in dispute (Schedule 3) or hourly rates (Schedule 2).
- In Schedule 3, which concerns the arbitral tribunal’s fees, expenses, terms and conditions, Rule 6.1 had a table of fees which is now linked to the fee schedule published on HKIAC website.
General
- Rule 3.1 now allows communication by agreed means. Under the added Rule 3.1(f), the HKIAC rules reads to cover any other approved electronic communication.
- Minor textual improvements. e.g., removal of the phrase “time to time” in Art.2.18. There are changes across the rules related to “telephone” and “facsimile”.
Conclusion
HKIAC Rules 2024 provides a set of robust institutional arbitral rules. Wisely, the rules build on the legacy of 2018 Rules rather than any radical departure. There is a welcome addition of rules of diversity and also information security in the 2024 HKIAC Rules.
ABOUT THE AUTHOR
Hasit B. Seth is an international arbitrator, mediator, and counsel with an international legal career spanning 25+ years. He actively arbitrates and mediates disputes in the fields of technology, construction, commercial transactions, logistics, and international trade disputes. His research interests cover transnational contract law with a focus on damages, behavioural economics, and game theory.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
