HKIAC’s Post

Rising to the challenge https://lnkd.in/dCQuxTcn Joanne Lau, who took over as secretary-general of the Hong Kong International Arbitration Centre (HKIAC) in late February, explains to China Business Law Journal that why concerns over the city’s future as a leading Asian hub for alternative dispute resolution are misplaced, with the total amount under dispute more than doubling to a record USD11.9 billion in 2023.  In this video, Joanne Lau introduces her new role as the Secretary-General of HKIAC, her thoughts on comparing the HKIAC with the Singapore International Arbitration Centre, the recent trends in arbitration and her plans to ensure Hong Kong’s future as a dispute resolution hub.   👉 Join our membership: https://lnkd.in/gi5sZaTn   #lawdotasia #cblj #iblj #ablj #china #hongkong #arbitration #disputeresolution #business #legaladvice #legalprofession #lawfirms #lawyers #legal #law

𝗖𝗮𝗻 𝗮 𝗰𝗼𝘂𝗿𝘁 𝘃𝗮𝗹𝗶𝗱𝗮𝘁𝗲 𝗮𝗻 𝗮𝗿𝗯𝗶𝘁𝗿𝗮𝘁𝗶𝗼𝗻 𝗮𝗴𝗿𝗲𝗲𝗺𝗲𝗻𝘁 𝘁𝗵𝗮𝘁 𝗱𝗼𝗲𝘀 𝗻𝗼𝘁 𝘀𝗽𝗲𝗰𝗶𝗳𝘆 𝗮𝗻 𝗮𝗿𝗯𝗶𝘁𝗿𝗮𝗹 𝗶𝗻𝘀𝘁𝗶𝘁𝘂𝘁𝗶𝗼𝗻? 𝗜𝘀 𝗶𝘁 𝗽𝗼𝘀𝘀𝗶𝗯𝗹𝗲 𝗳𝗼𝗿 𝗲𝘅𝗰𝗹𝘂𝘀𝗶𝘃𝗲 𝗰𝗼𝘂𝗿𝘁 𝗷𝘂𝗿𝗶𝘀𝗱𝗶𝗰𝘁𝗶𝗼𝗻 𝗰𝗹𝗮𝘂𝘀𝗲𝘀 𝗮𝗻𝗱 𝗮𝗿𝗯𝗶𝘁𝗿𝗮𝘁𝗶𝗼𝗻 𝗽𝗿𝗼𝘃𝗶𝘀𝗶𝗼𝗻𝘀 𝘁𝗼 𝗰𝗼𝗲𝘅𝗶𝘀𝘁 𝘄𝗶𝘁𝗵𝗶𝗻 𝗮 𝘀𝗶𝗻𝗴𝗹𝗲 𝗰𝗼𝗻𝘁𝗿𝗮𝗰𝘁𝘂𝗮𝗹 𝗳𝗿𝗮𝗺𝗲𝘄𝗼𝗿𝗸? In the case of 𝘛𝘰𝘯𝘨𝘤𝘩𝘦𝘯𝘨 𝘛𝘳𝘢𝘷𝘦𝘭 𝘏𝘰𝘭𝘥𝘪𝘯𝘨𝘴 𝘓𝘪𝘮𝘪𝘵𝘦𝘥 𝘷. 𝘖𝘖𝘖 𝘚𝘦𝘤𝘶𝘳𝘪𝘵𝘪𝘦𝘴 (𝘏𝘒) 𝘎𝘳𝘰𝘶𝘱 𝘓𝘪𝘮𝘪𝘵𝘦𝘥 [2024] HKCFI 2710, the Hong Kong courts delivered a clear "yes" to both questions. 𝗧𝗵𝗲 𝗖𝗮𝘀𝗲 𝗶𝗻 𝗕𝗿𝗶𝗲𝗳 • 𝗣𝗮𝗿𝘁𝗶𝗲𝘀: Mainland China’s Tongcheng entrusted ~USD 30 million to Hong Kong-based OOO under an Investment Management Agreement (IMA). • 𝗗𝗶𝘀𝗽𝘂𝘁𝗲: Tongcheng alleged an oral agreement allowed asset withdrawal after two years, while the IMA required mutual written consent for termination. Tongcheng requested a partial withdrawal. OOO did not respond. Tongcheng terminated the IMA in writing. • 𝗟𝗶𝘁𝗶𝗴𝗮𝘁𝗶𝗼𝗻 & 𝗔𝗿𝗯𝗶𝘁𝗿𝗮𝘁𝗶𝗼𝗻 𝗖𝗹𝗮𝘀𝗵: Both parties initiated court actions, but OOO sought to set aside a default judgment made in the Tongcheng action, in favor of arbitration. 𝗞𝗲𝘆 𝗖𝗹𝗮𝘂𝘀𝗲 𝗶𝗻 𝗤𝘂𝗲𝘀𝘁𝗶𝗼𝗻 The IMA contained dual clauses: 1. 𝗘𝘅𝗰𝗹𝘂𝘀𝗶𝘃𝗲 𝗝𝘂𝗿𝗶𝘀𝗱𝗶𝗰𝘁𝗶𝗼𝗻: Hong Kong courts have jurisdiction. 2. 𝗔𝗿𝗯𝗶𝘁𝗿𝗮𝘁𝗶𝗼𝗻: Disputes to be arbitrated by a “𝘭𝘦𝘨𝘢𝘭𝘭𝘺 𝘢𝘶𝘵𝘩𝘰𝘳𝘪𝘻𝘦𝘥 𝘣𝘰𝘥𝘺 𝘪𝘯 𝘏𝘰𝘯𝘨 𝘒𝘰𝘯𝘨” under prevailing arbitration rules. 𝗧𝗵𝗲 𝗖𝗼𝘂𝗿𝘁’𝘀 𝗙𝗶𝗻𝗱𝗶𝗻𝗴𝘀 🔹 𝗩𝗮𝗹𝗶𝗱 𝗔𝗿𝗯𝗶𝘁𝗿𝗮𝘁𝗶𝗼𝗻 𝗔𝗴𝗿𝗲𝗲𝗺𝗲𝗻𝘁: Despite lacking a specific arbitral institution, the Court interpreted the clause broadly. It identified HKIAC as a “𝘭𝘦𝘨𝘢𝘭𝘭𝘺 𝘢𝘶𝘵𝘩𝘰𝘳𝘪𝘻𝘦𝘥 𝘣𝘰𝘥𝘺” or, alternatively, upheld the agreement based on the express intent to arbitrate in Hong Kong, and that it would be “𝘴𝘶𝘧𝘧𝘪𝘤𝘪𝘦𝘯𝘵 𝘢𝘯𝘥 𝘢𝘥𝘦𝘲𝘶𝘢𝘵𝘦 𝘧𝘰𝘳 𝘵𝘩𝘦𝘳𝘦 𝘵𝘰 𝘣𝘦 𝘢 𝘷𝘢𝘭𝘪𝘥 𝘢𝘯𝘥 𝘰𝘱𝘦𝘳𝘢𝘣𝘭𝘦 𝘢𝘳𝘣𝘪𝘵𝘳𝘢𝘵𝘪𝘰𝘯 𝘢𝘨𝘳𝘦𝘦𝘮𝘦𝘯𝘵 𝘸𝘩𝘪𝘤𝘩 𝘤𝘢𝘯 𝘣𝘦 𝘱𝘦𝘳𝘧𝘰𝘳𝘮𝘦𝘥 𝘪𝘯 𝘏𝘰𝘯𝘨 𝘒𝘰𝘯𝘨.” 🔹 𝗥𝗲𝗰𝗼𝗻𝗰𝗶𝗹𝗶𝗻𝗴 𝗖𝗹𝗮𝘂𝘀𝗲𝘀: Exclusive jurisdiction and arbitration can coexist. The court's jurisdiction is supervisory, supporting arbitration rather than replacing it. 🔹 𝗠𝗮𝗻𝗱𝗮𝘁𝗼𝗿𝘆 𝗦𝘁𝗮𝘆 𝗼𝗳 𝗣𝗿𝗼𝗰𝗲𝗲𝗱𝗶𝗻𝗴𝘀: The Court stayed litigation to respect the arbitration agreement, and arbitration should proceed as agreed in the IMA. #ArbitrationInsights #LegalUpdates #LitigationVsArbitration #InternationalArbitration #DisputeResolution #ArbitrationLaw #CommercialArbitration

Singapore flags key role in settling PRC’s global disputes https://lnkd.in/gYj-9Tgz Against the backdrop of rising international disputes involving PRC companies, Singapore’s dispute resolution authorities spoke of the role the Lion City’s legal sector will play in resolving contentious matters.     Ministerial authorities and the heads of dispute resolution centres shared their thoughts during the opening ceremony of Rajah & Tann Asia’s Shenzhen office on 25 November.     Edwin Tong SC, Singapore’s Minister for Culture, Community, and Youth and Second Minister for Law, said Sino-Singapore trade had always been high on the Lion City’s agenda, as China and Asean had been each other’s largest trading partners for many years.    Gloria Lim, CEO of the Singapore International Arbitration Centre, said more than 90% of the arbitration cases that the SIAC handled were international.     SIMC’s CEO Wee Meng Chuan said, “Over the last 10 years, what we’ve seen is a growing interest in mediation as a way to complement and supplement litigation and arbitration. I want to be clear that mediation is not here to replace arbitration and certainly not here to replace litigation … it’s a way in which we can preserve relationships.”   As China plays an increasingly important role in Singapore’s dispute resolution business, Charlene Chang, Singapore’s Deputy Secretary of the Ministry of Law, welcomed Chinese arbitration organisations to set up offices in the Lion City.    The event’s focus was to celebrate the Shenzhen office opening of Rajah & Tann, which is one of Singapore’s Big Four law firms. It had also obtained the mainland’s stamp of approval to establish an office in Qianhai in July this year.     The firm’s managing partner, Patrick Ang, said Shenzhen was a digital and green economy hub, with young and innovative talents that could bring advanced technology to the world. Check out China Business Law Journal for more legal news updates. 📢 Sign up for the latest updates in the legal industry: https://lnkd.in/g-jNNdGT   #cblj #china #singapore #litigation #arbitration #disputeresolution #capitalmarkets #inhousecounsel #business #legalprofession #lawfirms #lawyers #legal #law #lawdotasia

The Hong Kong Court of Appeal has issued twin decisions applying the seminal 2023 CFA decision in Re Lam Kwok Hung Guy ([2023] HKFCA 9) to applications to stay winding up petitions involving claims subject to arbitration. In Guy Lam, the CFA applied a “multi factorial approach” when staying a bankruptcy petition subject to a New York exclusive jurisdiction clause (ECJ). Parties are generally to be held to their contracts and agreed dispute resolution, and no summary judgment exercise should be undertaken. But an ECJ cannot exclude the courts’ jurisdiction and the public element in insolvency situations is taken into account. In Re Simplicity [2024] HKCA 299 the HKCA applied Guy Lam to the winding up petition claim, calling it an even stronger case given the statutory footing of the (pro) arbitration regime. Any requirement for the debtor to show a genuine intention to arbitration is applied flexibly. Applying that to the facts, the appeal against the winding up order was dismissed, given a history of delay and non compliance with conditions. In Arjowiggins v Shandong Chenming [2024] HKCA 352 the HKCA applied Guy Lam to the more complex situation where the debtor does not dispute the petition debt but raises a set-off or cross claim seeks to stay to that to arbitration, affirming the stay.   Re Simplicity https://lnkd.in/dsb2CgNz    Shandong Chenming https://lnkd.in/dSb4Rw9E   #arbitration #commerciallitigation #internationalarbitration #hongkonglaw

[📖 Hong Kong Lawyer – Features] Reconciling Conflicting Arbitration Clauses: Try to Make the Worst Seem Better International commercial and financial transactions are becoming increasingly complex due to the formation of series of inter-related contracts. Unfortunately, parties often overlook the significance of the design of dispute resolution clauses in various related contracts, leading to inconsistencies and potential complications. Reconciling such inconsistent dispute resolution clauses, to the extent possible, is key to avoiding increased costs, inconvenience and delays associated with separate, satellite litigations and arbitrations. More importantly, it helps prevent conflicting rulings that breed injustice. In AAA, BBB and CCC v DDD [2024] HKCFI 513, the Hong Kong Court of First Instance attempted to reconcile such inconsistent arbitration clauses by resorting to the “centre of gravity” approach (the “COG Approach”) in AmTrust Europe Ltd. v Trust Risk Group SpA [2015] EWCA 437. Unfortunately, the inconsistent arbitration clauses in AAA could not be reconciled, leaving an undesirable risk of contradictory outcomes. This feature article of the November issue of Hong Kong Lawyer aims to examine the COG Approach. A brightline party-based approach, drawing from the one-stop shop presumption in Fiona Trust & Holding Corporation v Privalov [2007] UKHL 40, will be proposed to determine a single forum for the resolution of issues inter-related in a series of contracts. It will be further argued that where conflicting arbitration clauses in the same series of contracts are of equal force and effect, they shall be held as invalid arbitration clauses insofar as overlapping issues are concerned for failing to give binding rulings. 🌐 Read more: https://buff.ly/3O5J89D #TheLawSocietyOfHongKong #香港律師會 #HongKongLawyer #香港律師會會刊 #Feature #Arbitration

#StevensonWongHKLawUpdates: The HK Court of First Instance affirms its jurisdiction to order security for costs in arbitration proceedings, including from a party seeking to set aside an arbitral award in Hong Kong.    TLDR: ◾ For the first time, the Court has decided a challenge to its jurisdiction to order security for costs from a party (the award debtor) seeking to set aside an award made in an arbitration in Hong Kong. This situation is in contrast to where security is sought against a party (the award debtor) opposing enforcement of a Hong Kong award, where the other party (the award creditor) has obtained leave to enforce the award in Hong Kong. ◾ The Court emphasised that Order 73 of the Rules of the High Court (RHC) (relating to arbitration-related court proceedings specifically) does not exclude the more general provisions of Order 23 (dealing with security for costs in litigation generally). The general provisions of the RHC thus apply unless overridden by specific provisions of Order 73 (which was not the case here). This confirms the Court’s jurisdiction to order security for costs in arbitration-related proceedings.   ◾ Factors considered for ordering security include the plaintiff’s residence outside the jurisdiction, assets within the jurisdiction, merits of the case, any delays in applying for security, factors that make it unjust to order security and other relevant circumstances. ◾ Arbitrability issues should ideally be raised at the earliest stage in an arbitration to avoid waiver, estoppel, or breach of good faith arguments preventing the issues from being raised in subsequent litigation.    Case details: SA, Y and J v BH and GC [2024] HKCFI 1357 (30 May 2024)    Subscribe to #StevensonWongHKLawUpdates for bite-sized updates on the latest Hong Kong updates you should know.    For arbitration-related queries, contact Heidi Chui, Elizabeth Chan (陳曉彤) and Justin SY Kim. SA, Y and J v BH and GC [2024] HKCFI 1357 (30 May 2024): https://lnkd.in/gadE6dAM #swhk #swdisputeresoluion #hongkong #lawfirm #arbitration #arbitrationlaw

SHIAC scores record-high foreign arbitration cases https://lnkd.in/gtqDxi85 The Shanghai International Arbitration Center (SHIAC) has set a record for accepting 240 foreign-related cases in the first three quarters of this year, involving 50 countries and regions. Han Gang, the deputy secretary-general of the SHIAC, revealed the news during W&H Law Firm’s Hong Kong office opening ceremony. Get the latest legal news updates on China Business Law Journal. 📢 Sign up for the latest updates in the legal industry: https://lnkd.in/g3brrPdM #lawdotasia #cblj #iblj #ablj #china #arbitration #expansion #legalnews #generalcounsel #inhousecounsel #business #legalprofession #lawfirms #lawyers #legal #law

DIS@Hongkong: International and German Perspectives on Post M&A Disputes On May 5, 2024, DIS organized a side event during ICCA 2024 Hong Kong, focusing on International and German Perspectives on Post M&A Disputes. In a Sunday lunch session hosted by CMS, participants delved into current issues and recent experiences in resolving disputes arising from M&A transactions. After a welcome by Mariel Dimsey, Torsten Lörcher provided an overview of DIS, followed by a discussion involving seasoned arbitration lawyers from Asia and Germany moderated by Dr. Nicolas Wiegand. Dr. Dorothee Ruckteschler opened the dialogue by exploring the typical nature of post M&A disputes and the specific challenges they present in arbitration practice. Nils Eliasson offered insights from his practice across Asian and European jurisdictions, comparing the approaches to post-M&A disputes between continental European civil law and Hong Kong and Singapore’s common law practices. The panelists further explored specific aspects of M&A deals prone to generating consequential disputes, such as pre-closing conditions, material adverse events, warranties, and earn-out clauses. Dominique Yong provided an overview comparing from a Hong Kong common law perspective contractual warranties with common law and statutory remedies. Yunsoo Shin shared the Korean experience in M&A-related disputes, focusing on fraud allegations concerning representations and warranties. Overall, the session provided a highly informative overview of the complexities faced by arbitration practitioners in M&A-related disputes, setting the stage for many more discussions in the course of ICCA 2024 in Hong Kong. #DIS #GermanArbitrationInstitute #Arbitration #InternationalArbitration #MADisputes

Recently, the 4th Singapore-China International Commercial Dispute Resolution Conference, co-organised by the Ministry of Law, Singapore and the China Council for the Promotion of International Trade (CPPIT), was held in Beijing. Since its inaugural edition in 2019, the Conference has become a key platform for practitioners, businesses, government officials, and academics from Singapore and China to discuss how the two countries can collaborate to resolve cross-border commercial disputes fairly, efficiently, and effectively. Our Head of International Arbitration Practice, Koh Swee Yen, S.C., participated in a panel discussion titled “The Game among Time, Cost, and Quality – How to Optimise International Arbitration”. During the session, Swee Yen focused on two key themes: flexibility and adaptability. She shared insights on the rules, procedures, and tools that arbitration users can employ to enhance time and cost efficiency in arbitration, including early dismissal, preliminary determination, documents-only arbitration, and dispensing with cross-examination. Swee Yen also explained how third-party funding can decouple time and costs, particularly aiding Chinese parties in resolving their disputes.

Shaping the Future of Hong Kong Arbitration: Legislative advancements, technology, and legal infrastructure are transforming Hong Kong's arbitration landscape. This insightful article from Opus 2 and Kate Wyllie highlights three pivotal factors driving this change: the HK-Mainland China interim measures arrangement, updates to the HKIAC’s Arbitration Rules, and the rise of virtual and hybrid proceedings. Erin V. #lawdotasia #Arbitration #HongKong #Opus2 #Innovation #LegalTech #ablj https://lnkd.in/g_eV-XTQ