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IN THE first half of 2011 the Hong Kong Arbtration Ordinance was enacted, amid much fanfare, 13 years after a government committee was formed and
tasked with the issue of reformation. Chief among the
reformations was the introduction of a unitary regime for
domestic and international arbitrations, segregated
under the previous legislation, bringing all disputes
under one banner of UNCITRAL Model Law. Also significant was the introduction of an express duty of confidentiality to proceedings, something common to a relatively small number of other arbitration centres. Thirdly,
the new Ordinace provides an “Opt-In” system, giving
parties greater flexibiity in agreeing how the arbitration
will be structured. All this and more to establish, or, as
most would agree, protect Hong Kong’s status as the
region’s pre-eminent arbitration venue. Keeping ahead
of the game is key to keeping ahead of the chasing pack.
Competition regionally lies primarily in Singapore.
The award of local law practicing licences to six overseas
firms in Singapore recently opened the local transactional market to international firms. Previously the only way
to get close to that activity was the Joint Law Venture
scheme which allowed global firms to pair with local
operations, many of which have since dissolved in flur-ries of in-fighting. Tellingly however the Singapore government did previously permit non-local firms to practice arbitration in Singapore in a move generally regarded as being led by the recognition that for Singapore to
become recognised as a leading arbitration centre it
would need the clout and expertise of the world leading
firms and practitioners.
It seems to be working. Disputes partners are in high
demand in Hong Kong, in particular among recently-
opened US firms. Arbitration experience is widely cited
as a priority for any senior disputes lateral hire, possibly
and unusually taking priority over Chinese language
skills as a fundamental requirement. While disputes
lawyers across the market may argue that the basic skills
necessary remain the same in litigation head before a
court, arbitration or even mediation, those at the top
end will vouch for the value of experience and, perhaps
more importantly, profile. One leading Hong Kong liti-
gator says: “What the market has done is create a self-
perpetuating oligarchy of leading arbitration specialists
who recognize each other. This is also popular with
clients so we have taken the decision to have certain
individuals focus on that area. Whether the skill sets are
radically different, I’m not so sure.”
Paul Starr, head of dispute resolution at Mallesons in
Hong Kong, begs to differ, emphasising that familiarity
gained through experience is a huge asset: “I think it is
a mistake to equate litigation with arbitration.
Arbitration is a specialty which includes the ability to
make the procedure more efficient and less formal for
the client.”
His colleague at Mallesons, David Bateson, is also
keen to stress the benefits of less formality in arbitration:
“The courts will always have a role in support of arbitra-
tion cases but successful arbitration is based on the
agreement and autonomy of the two parties who want
finality. They prevail. The previous domestic regime
included lots of provisions for intervention such as right
of appeals on point of law. The new unitary Ordinance
has expanded the user friendliness of the process.”
Efficiency is fundamental to a successful arbitration,
and by extension to arbitration practices and arbitration
centres. Hong Kong’s new Ordinance may have been
long in gestation but it’s clear that its intention is to
ensure that cases heard in that jurisdiction are anything
but. Such forward thinking and bold initiatives are what
is hoped to promote Hong Kong as one of the leading
arbitration centres not just in Asia, but globally. ■
