In October 2012, the Hong Kong International Arbitration Centre (“HKIAC”) published a revised version of the HKIAC Administered Arbitration Rules (the “Revised Rules”) on its website, for public consultation. Depending on progress, the Revised Rules may come into effect as early as 1 March 2013. The consultation paper includes a Briefing Note, highlighting the following proposed key changes:-
Joinder of additional parties (Articles 8.3 and 26)
The arbitral tribunal will have power to allow additional parties to be joined to an existing arbitration, provided there are one or more valid arbitration agreements under the Revised Rules that bind all parties.
If a request for joinder of additional parties is submitted before the arbitral tribunal is constituted, the HKIAC will have power to grant the request and, once constituted, can hear and decide any objection to jurisdiction.
If an additional party is joined before the tribunal is constituted, all parties will be deemed to have waived their right to designate an arbitrator and the HKIAC may revoke any existing appointment. The HKIAC will appoint all arbitrators, and the termination of any existing appointment is without prejudice to the validity of any act done by the arbitrator before termination, and to the arbitrator’s entitlement to be paid his fees and expenses.
Consolidation of arbitrations (Articles 8.4 and 27)
The HKIAC will be able to consolidate two or more HKIAC arbitrations into the arbitration that commenced first, in which case, the parties to all the arbitrations will be deemed to have waived their right to designate an arbitrator and the HKIAC may revoke any existing appointment and will appoint the tribunal.
The termination of any arbitrator’s appointment will be without prejudice to the validity of any act done by him or by the court in support of the arbitration before termination, and to the arbitrator’s entitlement to be paid his fees and expenses. It is also without prejudice to the date on which any claim or defence was raised for the purposes of applying any limitation bar.
The parties waive any objection to the validity and enforcement of any award made by the arbitral tribunal in the consolidated proceedings, based on the HKIAC’s decision to consolidate.
Fees of arbitral tribunal (Articles 9.2 and 10, Schedules 2 and 3)
The parties will have the option of having an arbitral tribunal’s fees calculated in accordance with either the HKIAC’s schedule of fees, based on the sum in dispute (Schedule 2), or the schedule based on agreed hourly rates (Schedule 3), subject to a cap at HK$6500, with the latter option being the default position, if the parties cannot agree.
Interim measures of protection (Article 23)
The provisions on interim measures are expanded to cover the meaning and purpose of an interim measure, and factors to be taken into account when deciding whether to grant such. Arbitral tribunals will have express power to order security for costs. The revised provisions are in line with the Arbitration Ordinance (Cap. 609).
Emergency arbitrators (Article 23.2 and Schedule 4)
There will be a procedure for appointing an emergency arbitrator to deal with applications for urgent relief before constitution of an arbitral tribunal.
An emergency arbitrator will normally be appointed within two days following the HKIAC’s acceptance of an application for the appointment of such arbitrator. A decision on the application will normally be made within 15 days from the date on which the emergency arbitrator received the file from the HKIAC.
There are also provisions on an emergency arbitrator’s powers, the effect of his decision, his ability to act as arbitrator in subsequent proceedings and availability of judicial remedies in addition to any urgent relief sought.