Are arbitral hearings prohibited by the group gathering restriction?

According to section 3(1) of the Prevention and Control of Disease (Prohibition on Group Gathering) Regulation (Regulation) (Cap.599G), no group gathering of more than four persons may take place in any public place during a specified period, unless it falls within one of the exceptions set out in Schedule 1 to the Regulation. The specified period will last until 7 May 2020, but may be further extended depending on the rapid changes in the public health situation.

Many arbitral hearings involve more than four people. Does that mean the Regulation prohibits such arbitral hearings from taking place?

Meaning of “Public Place”

The first question to ask is whether the venue is a public place. If not, then section 3(1) of the Regulation does not apply and there is no need to look into the exceptions.

Under the Regulation, “public place” means a place to which the public or a section of the public may or are permitted to have access from time to time, whether by payment or otherwise. Strictly, this definition covers not only public facilities but also private properties, such as restaurants, cinemas and shops, as members of the public are permitted to have access to them from time to time.

Do arbitration venues, like the Hong Kong International Arbitration Centre, fall within this definition? There is no clear answer from the Regulation. Some legal practitioners argue that the HKIAC is a public place since the public can have access to it by walking in, payment or otherwise. We do not share this view. Technically, arbitral hearings do not take place in the common areas of the HKIAC, but in private meeting rooms rented by and reserved solely for the use of the parties to the arbitration, to the exclusion of all other people. Arbitration is confidential in nature and is protected by section 18 of the Arbitration Ordinance (Cap. 609). Some arbitration rules even expressly provide that “Hearings shall be held in private unless the parties agree otherwise” (see Article 22.7 of the HKIAC Administered Arbitration Rules 2018). As such, we believe that unless otherwise agreed by all parties to the arbitration, the general public, who are unrelated to the arbitral proceedings, should not be permitted to have access to the private meeting rooms for the arbitral hearings; the arbitral hearing venue is not a public place and section 3(1) of the Regulation is not applicable.

Our view is supported by case law, albeit in a slightly different context. In Kwok Cheuk Kin v Commissioner of Police and Another (HCAL 55/2017), the court was required to consider whether a meeting held at the Police Sports and Recreation Club was a “public meeting”, which is defined to mean any meeting held or to be held in a “public place” under section 2(1) of the Public Order Ordinance (Cap. 245). The court was of the view that “the critical question is whether the meeting is open to the public or any section of the public, and not whether the meeting takes place in public or private premises, although the fact that the meeting takes place in private premises would obviously be relevant to the former question”. The court held that “private premises to which access is restricted to the lawful occupiers’ invitees or licensees (in addition to…the lawful occupiers themselves) would not generally be regarded as ‘public places’ under the Public Order Ordinance” and that the Police Sports and Recreation Club is not a “public place”.

Exempted Group Gatherings                      

The group gathering restriction is new and it remains to be seen how the court will interpret the Regulation. For prudence sake, we will assume that the arbitral hearing venue is a public place for discussion purposes and look into the exceptions to section 3(1) set out in Schedule 1 to the Regulation.

It is suggested that among the 12 exceptions, the 4th and 7th ones are most relevant, i.e. (4) group gathering at a place of work for the purposes of work, and (7) group gathering necessary for the conduct of proceedings in a court, magistrates’ court or tribunal. Relevant though they may seem, we have reservations about their application.

For exception (4), there is no definition of “work” in the Regulation. While there is little doubt that arbitrators and lawyers attend the arbitral hearing venue for the purposes of work, it is unclear whether the venue can be deemed as their common place of work. Further, it is doubtful that the parties to arbitration and their witnesses (especially factual witnesses) also attend the venue for the purposes of work and the venue can be deemed their common place of work.

For exception (7), it covers group gatherings necessary for the conduct of proceedings in a court or tribunal. It is noteworthy that it does not say “legal proceedings”. On the face of the provision, it is also not clear whether “tribunal” covers an arbitral tribunal. In Re UDL Contracting Limited (HCCW 762/1999), the court was required to determine whether it had jurisdiction under section 181(b) of the predecessor Companies Ordinance (Cap.32) to restrain further proceedings in an arbitration. The section provided that “At any time after the presentation of a winding-up petition and before a winding-up order has been made, the company…may…where any action or proceeding against the company is pending in any court or tribunal other than the Court of First Instance or the Court of Appeal, apply to…restrain further proceedings in the action or proceeding” (underline added). Eventually, the court preferred a “wider interpretation” and held that “an arbitration is a ‘proceeding’ for the purposes of section 181(b)”. It might therefore be arguable that exception (7) is intended to cover arbitral hearings.