ICCA Congress Miami After Party
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I. INTRODUCTORY RULES
Article 1 - Scope of Application
1.1 These Procedures for Administration of Arbitration under the UNCITRAL Arbitration Rules (the “Procedures”) shall apply to arbitrations where an agreement to arbitrate (whether entered into before or after a dispute has arisen) or a treaty providing for the protection of investments or investors (“investment treaty”) either: (a) provides for these Procedures to apply; or (b) provides for arbitration under the UNCITRAL Arbitration Rules (the “UNCITRAL Rules”) administered by HKIAC or words to similar effect.
1.2 Subject to Article 1.3, these Procedures shall replace HKIAC’s previous procedures for the administration of arbitration under the UNCITRAL Rules, including the Procedures for the Administration of International Arbitration (effective 31 March 2005).
1.3 These Procedures shall come into force on 1 January 2015 and, unless the parties have agreed otherwise, shall apply to all arbitrations falling within Article 1.1 in which the Notice of Arbitration is submitted on or after that date.
1.4 Nothing in these Procedures shall prevent the parties to a dispute, an arbitration agreement or an investment treaty from naming HKIAC as appointing authority, or from requesting certain administrative services from HKIAC, without subjecting the arbitration to the provisions contained in these Procedures.
1.5 Where these Procedures are in conflict with a provision of the law or investment treaty applicable to the arbitration from which the parties cannot derogate, that provision shall prevail.
The applicable version of the UNCITRAL Rules, with such modifications as noted herein, shall be the rules for any arbitration conducted under these Procedures.
Article 3 - Appointing Authority
Unless otherwise agreed by the parties, HKIAC shall perform the functions of the appointing authority as set out in the UNCITRAL Rules.
HKIAC will administer the arbitration as set out in these Procedures and shall be entitled to charge Administrative Fees for its services as set out in Schedule 1 attached to these Procedures.
Article 5 – Interpretation of the Procedures
5.1 HKIAC shall have the power to interpret all provisions of these Procedures including any Schedule attached thereto.
5.2 If the circumstances of the case so justify, HKIAC may amend the time limits provided for in the Procedures, as well as any time limits that it has set. HKIAC shall not amend any time limits set by the arbitral tribunal unless the arbitral tribunal directs otherwise.
5.3 HKIAC has no obligation to give reasons for any decision it makes in respect of any arbitration commenced under these Procedures. All decisions made by HKIAC under the UNCITRAL Rules and these Procedures are final and, to the extent permitted by any applicable law, not subject to appeal.
5.4 References in the Procedures to “HKIAC” are to the Council of HKIAC or any committee, sub-committee or other body or person specifically designated by it to perform the functions referred to herein, or, where applicable, to the Secretary General of HKIAC for the time being and other staff members of the Secretariat of HKIAC.
5.5 These Procedures include any Schedule attached thereto as amended from time to time by HKIAC, in force on the date the Notice of Arbitration is submitted.
5.6 HKIAC may from time to time issue practice notes to supplement, regulate and implement these Procedures for the purpose of facilitating the administration of arbitrations governed by the UNCITRAL Rules.
5.7 English is the original language of these Procedures. In the event of any discrepancy or inconsistency between the English version and the version in any other language, the English version shall prevail.
Article 6 – Notice of Arbitration
6.1 The party or parties initiating recourse to arbitration (the “Claimant”) shall submit a Notice of Arbitration to HKIAC at its address, facsimile number or email address.
6.2 An arbitration shall be deemed to commence on the date on which the Notice of Arbitration is received by HKIAC.
6.3 In addition to the information that is required to be included in the Notice of Arbitration under the UNCITRAL Rules, the Notice of Arbitration shall include confirmation that copies of the Notice of Arbitration and any exhibits included therewith have been or are being served on all other parties (the “Respondent”) by one or more means of service to be identified in such confirmation.
6.4 The Notice of Arbitration shall be accompanied by payment, by cheque or transfer to the account of HKIAC, of the Registration Fee as required by Schedule 1.
6.5 The Notice of Arbitration shall be submitted in the language of the arbitration as agreed by the parties. If no agreement has been reached between the parties, the Notice of Arbitration shall be submitted in either English or Chinese.
6.6 The Claimant shall notify and lodge documentary verification with HKIAC of the date of receipt by the Respondent of the Notice of Arbitration and any exhibits included therewith.
Article 7 – Response to the Notice of Arbitration
7.1 Where the Respondent is required to file a Response to the Notice of Arbitration (the “Response”) under the UNCITRAL Rules, it shall submit the Response to HKIAC within 30 days of the receipt of the Notice of Arbitration.
7.2 In addition to the information that is required to be included in the Response under the UNCITRAL Rules, the Response shall include confirmation that copies of the Response and any exhibits included therewith have been or are being served on all other parties to the arbitration by one or more means of service to be identified in such confirmation.
7.3 The Response shall be submitted in the language of the arbitration as agreed by the parties. If no agreement has been reached between the parties, the Response shall be submitted in either English or Chinese.
7.4 If no counterclaim or set-off defence is raised with the Response, or if there is no indication of the amount of the counterclaim or set-off, HKIAC shall rely upon the information provided in the Notice of Arbitration for its determination of its Administrative Fees referred to in Schedule 1, unless HKIAC determines otherwise.
7.5 Once the Registration Fee has been paid and the arbitral tribunal has been constituted, HKIAC shall transmit the file to the arbitral tribunal.
All communications, notices, documents, orders, decisions and awards transmitted pursuant to the UNCITRAL Rules shall at the same time be served on HKIAC or promptly thereafter.
II. COMPOSITION OF THE ARBITRAL TRIBUNAL
Article 9 – The List-Procedure
Where HKIAC is to appoint a sole or presiding arbitrator in accordance with the list- procedure as referred to in the UNCITRAL Rules, the list of names will be communicated by HKIAC to the parties taking into account any particular requirements of each case and any conditions agreed upon by the parties.
Article 10– Challenge of Arbitrators
Where HKIAC is to decide a challenge to an arbitrator under the UNCITRAL Rules, such challenge shall be determined by HKIAC in accordance with the procedures set out in the applicable practice note.
III. ARBITRAL PROCEEDINGS
Article 11 – HKIAC’s Prima Facie Power to Proceed
11.1 If a question arises as to the existence, validity or scope of the arbitration agreement(s) or to the competence of HKIAC to administer the arbitration before the constitution of the arbitral tribunal, HKIAC may decide whether and to what extent the arbitration shall proceed. The arbitration shall proceed if and to the extent that HKIAC is satisfied, prima facie, that an arbitration agreement under these Procedures may exist. Any question as to the jurisdiction of the arbitral tribunal shall be decided by the arbitral tribunal once constituted.
11.2 HKIAC’s decision pursuant to Article 11.1 is without prejudice to the admissibility or merits of any party’s pleas.
12.1 All hearings shall be held at the premises of HKIAC in Hong Kong unless the parties agree or the arbitral tribunal directs that any hearing shall be held elsewhere, whether in or outside Hong Kong.
12.2 The parties or the arbitral tribunal may determine the place of arbitration in accordance with the UNCITRAL Rules at a place different from the place or places of hearings. The arbitration shall be treated for all purposes as an arbitration conducted at the place of arbitration.
Article 13 – HKIAC’s Assistance on Procedural Matters
HKIAC will assist the arbitral tribunal and the parties in fixing the time limits for the arbitration, as well as establishing the date, time and place of meetings, hearings, or otherwise, as required.
IV. COSTS AND AWARDS
Article 14 – Fees of Arbitrators
For an arbitration conducted under these Procedures, arbitrators will be remunerated according to their hourly or daily rates for all work reasonably carried out in connection with the arbitration, unless the parties agree otherwise. Upon the parties’ request, HKIAC will consult with the arbitral tribunal to establish the rates applicable to the arbitration.
Article 15 – HKIAC’s Administrative Fees
15.1 The costs of the arbitration shall include all fees charged by HKIAC for administration of the arbitration as set out in Schedule 1.
15.2 HKIAC’s Administrative Fees do not cover the costs of hearing rooms, transcription, translation, interpretation and costs of any other facilities or services which are not covered in these Procedures. However HKIAC can, at the request of the parties, assist with the making of necessary arrangements for the provision of such services.
Article 16 – Deposits of Costs
16.1 In lieu of the provisions regarding deposits of costs of the UNCITRAL Rules, the following provisions shall apply.
16.2 As soon as practicable after receipt of the Notice of Arbitration, HKIAC shall, in principle, request the Claimant and the Respondent each to deposit with HKIAC an equal amount as advance for the costs of the arbitration. HKIAC shall provide a copy of such request to the arbitral tribunal.
16.3 During the course of the arbitration, HKIAC may request the parties to make supplementary deposits with HKIAC after consulting with the arbitral tribunal. HKIAC shall provide a copy of such request(s) to the arbitral tribunal.
16.4 If the required deposits are not paid in full to HKIAC within 30 days after receipt of the request, HKIAC shall so inform the parties in order that one or another of them may make the required payment. If such payment is not made, the arbitral tribunal, after consultation with HKIAC, may order the suspension or termination of the arbitration. If the required payment is made by a party on behalf of another party, the arbitral tribunal may, at the request of the paying party, make a separate award for reimbursement of the payment.
16.5 HKIAC may apply the deposits towards disbursements for the costs of the arbitration.
16.6 After a termination order or final award has been made, HKIAC shall render an accounting to the parties of the deposits received and return any unexpended balance to the parties.
16.7 HKIAC shall place the deposits made by the parties in deposit account(s) at a reputable licensed Hong Kong deposit-taking institution. In selecting the account(s), HKIAC shall have due regard to the possible need to make the deposited funds available immediately.
Article 17 – Release of Award(s)
Subject to any lien, originals of the award(s) signed by the arbitral tribunal and affixed with the seal of HKIAC shall be communicated to the parties by the arbitral tribunal. HKIAC shall be supplied with an original copy of the award(s).
Article 18 – Registration of Award(s)
Upon request by any party, HKIAC will assist in the filing or registration of the arbitral award(s) in countries where such filing or registration is required by law. The cost of any such filing or registration shall not be included in HKIAC’s Administrative Fees and shall be paid by the requesting party to HKIAC.
V. OTHER PROVISIONS
Article 19 – Exclusion of Liability
19.1 None of the Council of HKIAC nor any committee, sub-committee or other body or person specifically designated by it to perform the functions referred to in these Procedures, nor the Secretary General of HKIAC or other staff members of the Secretariat of HKIAC, the arbitral tribunal, any tribunal-appointed expert or secretary of the arbitral tribunal shall be liable for any act or omission in connection with the arbitration, save where such act was done or omitted to be done dishonestly.
19.2 After an arbitral award has been made and the possibilities of correction, interpretation and additional awards have lapsed or been exhausted, neither HKIAC nor the arbitral tribunal, any tribunal-appointed expert or secretary of the arbitral tribunal shall be under an obligation to make statements to any person about any matter concerning the arbitration, nor shall a party seek to make any of these persons a witness in any legal or other proceedings arising out of the arbitration.
