• +86 188-0018-6806
  • harveyyan@zhongyinlawyer.com



HKIAC Administered Arbitration Rules:

Submitting a Dispute to Arbitration



Caveat 前言

The information provided below concerns the requirements for initiating an arbitration under the 2018 HKIAC Administered Arbitration Rules (the “Rules“) only. It is therefore subject to the parties’ agreement as well as any applicable laws, including those of the seat of arbitration, the arbitration agreement and the intended jurisdiction of enforcement, all of which may add a further layer of requirements on top of the Rules.



Introduction 导读

The commencement of an arbitration represents the starting point for the arbitral process. This is a critical step as the commencement is relevant to timing issues (including limitation periods) and a party commencing an arbitration generally precludes the possibility of referring the same dispute to a court.



To initiate an arbitration under the Rules, a party or its legal representative must submit a Notice of Arbitration (the “Notice“) to HKIAC under Article 4.1 of the Rules. The Notice of Arbitration serves several important functions, including: (a) setting out the claims to be determined in the arbitration which in turn determines the scope of the arbitral tribunal’s jurisdiction; (b) putting the respondent and HKIAC on notice that the arbitral proceedings have commenced; and (c) giving the respondent an initial opportunity to consider its defence and any counterclaim.



This article provides a brief overview with respect to the commencement of an HKIAC arbitration under the Rules.



Form and Content Requirements for Submitting a Notice of Arbitration


Form 形式要求

Pursuant to Articles 2.16 and 4.1 of the Rules, the Notice must be in writing. However, Article 4 of the Rules does not require a Notice to be submitted in any particular form, nor does it require the Notice to be signed or notarized. A Notice may vary in style and format as long as it includes the required content set out in Article 4.3. Further, the claimant can decide how to present its case in the Notice and which supporting documents to attach. In practice, most Notices are relatively short documents in which the claimant reserves the right to particularize its case in subsequent written submissions.



The Notice must 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.



Content 内容要求


Article 4.3 details the information required in the Notice. This content ensures that the Notice contains sufficient detail to enable HKIAC and the respondent to proceed to the next step of the arbitration. In particular, Article 4.3 of the Rules provides that the Notice shall include:



(a)   a request that the dispute be referred to arbitration; 将争议提交仲裁的请求;


(b)   the names and (in so far as known) the addresses, facsimile numbers and/or email addresses of the parties and of their representatives; 各方当事人及其代理人的名称、(所能知道的)地址、传真号码及/ 或电子邮件地址;


(c) a copy of the arbitration agreement(s) invoked; 所援引的仲裁协议的复本;


(d) a copy of the contract(s) or other legal instrument(s) out of or in relation to which the dispute arises, or reference thereto; 引发争议或与争议有关的一份或多份合同或其他法律文件的复本,或指明该合同或其他法律文件;


(e)   a description of the general nature of the claim and an indication of the amount involved, if any; 仲裁请求的基本性质的描述及所涉金额(如有);


(f)    the relief or remedy sought; 寻求的救济或补救;


(g)   a proposal as to the number of arbitrators (i.e. one or three), if the parties have not previously agreed thereon; 若当事人事先未约定仲裁员人数,建议的仲裁员人数(即一名或三名);


(h) the Claimant’s proposal and any comments regarding the designation of a sole arbitrator under Article 7, or the Claimant’s designation of an arbitrator under Article 8; 申请人有关提名第7条所述的独任仲裁员的建议或任何评述,或根据第8条提名的一位仲裁员;


(i) the existence of any funding agreement and the identity of any third party funder pursuant to Article 44; and 根据第44条的规定,披露是否存在资助协议和任何出资第三方的身份;及


(j) confirmation that copies of the Notice of Arbitration and any supporting materials included with it have been or are being communicated simultaneously to the respondent by one or more means of service to be identified in such confirmation. 确认仲裁通知及其所附的辅助材料的复本已经或正在依注明的一种或几种方式同时向被申请人传送。


Normally HKIAC will require the Notice to include all the information listed in Article 4.3 in order to consider a Notice complete. However, in some circumstances, HKIAC may proceed despite the absence of certain information and will communicate this to the claimant. An incomplete Notice will face the consequences set out in Article 4.6 of the Rules.



The Rules do not require a party representative to furnish proof of his or her authority (e.g., a power of attorney) unless the arbitral tribunal or HKIAC directs him or her to do so. In practice, an arbitral tribunal and HKIAC rarely ask a party’s counsel to provide proof of authority.



Delivery of the Notice to HKIAC


HKIAC will accept a Notice sent to its postal address, facsimile number, or email address.



In practice, the claimant often emails a copy of the Notice to HKIAC, followed by a hard copy which can be delivered by hand, registered post or courier. Delivery through email is increasingly used to avoid any delay of service. In addition to email delivery, some parties still provide hard copies by post or fax to ensure effective delivery of the Notice.



In general, HKIAC will process the Notice and send a first letter to the parties within one to two business days.



Delivery of the Notice to the Respondent


After the claimant provides the confirmation of service required by Article 4.3(j), it must submit documentary evidence to prove the date of receipt by the respondent. This particular date is required to establish: (a) the due date for the respondent to submit the Answer; and (b) the due date for the parties to agree on the method for paying the arbitral tribunal’s fees.



The types of documentary evidence submitted by claimants in practice include: (a) email delivery or read receipts; (b) fax transmission reports; (c) courier delivery status reports; and (d) acknowledgement slips for hand delivery. These documents must state clearly the date of receipt, the identity of the recipient, and the number or address used for delivery.



HKIAC Registration Fee


When submitting the Notice, the claimant must pay the registration fee in the amount set by HKIAC on its website on the date the Notice is submitted. At the time of writing, HKIAC’s Registration Fee is HK$8,000.


The Registration Fee is to cover primarily the work undertaken by HKIAC to review the Notice and provide instructions to the parties regarding the next steps in the arbitration. Pursuant to paragraph 1.2 of Schedule 1 of the Rules, the Registration Fee is not refundable save in exceptional circumstances as determined by HKIAC in its sole discretion. HKIAC will not refund the fee if the claimant subsequently withdraws its Notice.



The claimant can pay the Registration Fee through three methods: that is, cheque, bank transfer, or PayPal. Further details about these payment methods are available on HKIAC’s website. After making the payment, the claimant should provide proof with the identity of the payer, the names of the parties, and any other information that will help track the payment.



If the claimant fails to pay the Registration Fee at the time of filing the Notice, it will be given a short period of time to make the payment. If the Registration Fee remains unpaid after this time period expires, HKIAC will notify the parties that the Notice will be deemed to not be validly submitted pursuant to Article 4.6 and the arbitration will be deemed not to have commenced.



Deposits for HKIAC’s Adminitrative Fees and the fees and Expense of the Arbitral Tribunal


As soon as practicable after receipt of the Notice of Arbitration by the respondent, HKIAC shall, in principle, request the claimant and the respondent each to deposit with HKIAC an equal amount as an advance for (a) HKIAC’s Administrative Fees and (b) the Fees and Expenses of the Arbitral Tribunal.



As a general rule, HKIAC will request the initial deposits from each side in equal shares within fifteen days from receipt of the Notice by the respondent. This practice is to ensure that HKIAC holds sufficient funds at the earliest possible stage of the proceedings, so there is security to pay the fees, if any, of HKIAC and the arbitral tribunal even if the parties settle at a very early stage of the arbitration. HKIAC may refuse to transmit the case file to the arbitral tribunal until all deposits requested have been paid (see Article 5.4).



HKIAC’s Administrative Fees are calculated based on percentage of the total amount in dispute, in accordance with the Fee Schedule set out at Schedule 1 of the Rules (HKIAC also provides an online calculator on its website). As a large part of HKIAC’s work is undertaken at the early stage of the arbitration (i.e. from the commencement of the arbitration to and including the constitution of the arbitral tribunal), HKIAC asks for the full amount of its Administrative Fees as part of the initial deposits to cover this work.



At the time of writing, time of writing, HKIAC will normally request each side to pay HK$50,000 in deposits to cover the initial fees and expenses of a sole arbitrator. For a three-member arbitral tribunal, HKIAC will usually ask each side to pay HK$100,000.


p style=”text-align: justify”>本中心现今通常会向当事人每一方收取50,000港元作为预付款用以支付独任仲裁庭的费用。同时,若碰到由三位仲裁员组成的合议庭时,本中心通常会向每一方收取100,000港元作为预付款。


About the Author 作者简介

Jun DU 杜俊

Jun is Deputy Counsel in HKIAC’s arbitration team. She administers cases in English and Chinese.


Before joining HKIAC, she worked for four years as a case manager and tribunal secretary at a major Chinese arbitration commission in Shanghai that specialises in the administration of commercial and financial disputes.



Othmane Benlafkih

Othmane is Counsel in HKIAC’s arbitration team. Prior to joining HKIAC, Othmane gained work experience in cross-border disputes at leading international law firms and barristers’ chambers in Hong Kong.



阅读全文 →
Harvey Yan


%d 博主赞过: