60 TH UIA CONGRESS BUDAPEST/HUNGARY - OCTOBER 28 - NOVEMBER 1, 2016

Transcription

1 60 TH UIA CONGRESS BUDAPEST/HUNGARY - OCTOBER 28 - NOVEMBER 1, 2016 ARBITRATION COMMISSION: Hong Kong Bar Association/Shanghai Bar Association: FOREIGN INVESTMENT DISPUTE RESOLUTION BETWEEN CHINESE AND EUROPEAN PARTIES AND THE ADVANTAGES OF HONG KONG AS THE PLACE OF ARBITRATION International Arbitration in Hong Kong Legal Framework and Advantages Kim M. Rooney Arbitrator and Barrister Gilt Chambers Hong Kong Budapest, 31 October 2016 Kim Rooney 1

2 1. INTRODUCTION Shift in Leading International Arbitration Centres Queen Mary s 2015 International Arbitration Survey - Top 4 arbitrations seats New York Paris Switzerland London London Paris Hong Kong Singapore Budapest, 31 October 2016 Kim Rooney 2

3 1. INTRODUCTION (CONT D) Hong Kong common law system Relationship between o o Hong Kong s common law system Mainland China s civil law system Hong Kong s Arbitration Regime Types of Disputes Commonly Arbitrated in Hong Kong Budapest, 31 October 2016 Kim Rooney 3

4 1. INTRODUCTION (CONT D) Distinctive Features of Sino/foreign investment disputes The advantages of conducting arbitration of Sino/European investment disputes in Hong Kong Recent Legal Developments in Hong Kong, including: o Third party funding of arbitration Budapest, 31 October 2016 Kim Rooney 4

5 2. THE NATURE OF THE HONG KONG LEGAL SYSTEM Hong Kong s Common Law System o Based on the English common law o Rule of Law o Independent Judiciary o Independent Legal Profession o Continues to develop post 1 July 1997 Constitutionally guaranteed No end date Budapest, 31 October 2016 Kim Rooney 5

6 3. RELATIONSHIP BETWEEN HONG KONG LEGAL SYSTEM AND CHINA S LEGAL SYSTEM One Country Two Systems o Basic Law Constitution Separate systems impact on o Substantive law o Arbitration o Interim relief o Recognition and enforcement ofarbitral Awards Mutual Arrangement with Mainland China Budapest, 31 October 2016 Kim Rooney 6

7 4. HONG KONG S ARBITRATION REGIME Sources of Hong Kong Arbitration law o Arbitration Ordinance Cap 609 UNITARY system based on the UNCITRAL Model Law 2006 (the UNCITRAL Model Law ) o Common law (case law) o International Law Regularly updated o Best international practice and Hong Kong s needs Budapest, 31 October 2016 Kim Rooney 7

8 4. HONG KONG S ARBITRATION REGIME (CONT D) Arbitration Ordinance Cap 609 o Party autonomy recognized Choice of applicable law Contract Arbitration Agreement Procedural Choice of venue Choice of arbitrators Choice of representatives Budapest, 31 October 2016 Kim Rooney 8

9 4. HONG KONG S ARBITRATION REGIME (CONT D) o Limited Court Role o Effective Enforcement o Efficient and fair proceedings Budapest, 31 October 2016 Kim Rooney 9

10 4. HONG KONG S ARBITRATION REGIME (CONT D) o International Law UNCITRAL Model Law Convention on the Recognition and Enforcement of Foreign Arbitral Awards Bilateral Investment Treaties and Free Trade Agreements Customary International law Other Budapest, 31 October 2016 Kim Rooney 10

11 4. HONG KONG S ARBITRATION REGIME (CONT D) Regularly updated o Best international practice and Hong Kong s needs o Recent amendments implemented/proposed Emergency Arbitrator proceedings Interim Relief in aid of foreign arbitrations Third Party Funding Arbitrability of Intellectual Property Disputes Budapest, 31 October 2016 Kim Rooney 11

12 5. THE TYPES OF DISPUTES THAT COMMONLY ARISE arbitration cases filed at the Hong Kong International Arbitration Centre (HKIAC): o Commercial disputes - 50% o Construction disputes % o Maritime disputes - 18% o Corporate disputes - 8.9% o Insurance disputes - 0.9% Budapest, 31 October 2016 Kim Rooney 12

13 5. THE TYPES OF DISPUTES THAT COMMONLY ARISE (CONT D) The 2015 parties came from 41 different jurisdictions o Hong Kong and Mainland China ranked 1 st and 2 nd Budapest, 31 October 2016 Kim Rooney 13

14 6. DISTINCTIVE FEATURES OF SINO-FOREIGN DISPUTES Institutional v ad hoc arbitration Representation Governing law Applicable procedural rules Seat of arbitration Hearing Venues Interim Relief Review of Awards Setting Aside/Enforcement Other Budapest, 31 October 2016 Kim Rooney 14

15 7. THE ADVANTAGES OF ARBITRATING IN HONG KONG Party autonomy Freedom of Choice of Arbitrators and Counsel Rule of law Hong Kong s judiciary o Independent o Experienced in cross border disputes o Cross fertilization (Court of Final Appeal Overseas Non-Permanent Judges sitting with Permanent Judges) Budapest, 31 October 2016 Kim Rooney 15

16 7. THE ADVANTAGES OF ARBITRATING IN HONG KONG (CONT D) Hong Kong s Expertise in Dispute Resolution Complex, cross border, multijurisdictional Common law and civil law Multilingual Hong Kong, PRC & International practitioners Open Door Geographical location Infrastructure Budapest, 31 October 2016 Kim Rooney 16

17 7. THE ADVANTAGES OF ARBITRATING IN HONG KONG (CONT D) Independent and neutral dispute resolution centres o HKIAC o ICC Asian ICC Court Secretariat o CIETAC HK, CMAC HK Innovation and policy development in Hong Kong Effective Enforcement of Awards and Orders Budapest, 31 October 2016 Kim Rooney 17

18 7. THE ADVANTAGES OF ARBITRATING IN HONG KONG (CONT D) Effective Enforcement of Awards and Orders o New York Convention o Mutual Arrangements Mainland China Macau o Other Budapest, 31 October 2016 Kim Rooney 18

19 8. RECENT HONG KONG ARBITRATION DEVELOPMENTS Third Party Funding for Arbitration Emergency Arbitrators Interim Relief in Aid of Foreign Arbitration Intellectual Property Costs Time Alternative Dispute Resolution Dispute Prevention Budapest, 31 October 2016 Kim Rooney 19

20 9. Conclusion Thank you! Budapest, 31 October 2016 Kim Rooney 20