How to Contract for a Hong Kong Arbitration Clause in Contracts
As a Hong Kong lawyer dealing with arbitration law, when drafting and reviewing contracts for clients, it is important to consider clearly whether to contract for a Hong Kong arbitration clause and, if so, how to draft the arbitration clause. The following are the recommended arbitration clauses for arbitration at the Hong Kong International Arbitration Centre.
I. Arbitration under the HKIAC Administered Arbitration Rules
(1) Sample Arbitration Clause for Commercial Contracts
“Any dispute, controversy, difference or claim arising out of or relating to this contract, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non- contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (HKIAC) under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted.
The law of this arbitration clause shall be … (Hong Kong law). The seat of arbitration shall be … (Hong Kong). The number of arbitrators shall be … (one or three). The arbitration proceedings shall be conducted in … (insert language). The fees and expenses of the arbitral tribunal shall be determined on the basis of … (Schedule 2 or Schedule 3) of these Rules.”
(2) Terms on which parties agree to arbitrate after a dispute has arisen
Parties to an existing dispute in which neither an arbitration clause nor a previous agreement with respect to arbitration exists, who wish to refer such dispute to arbitration under the HKIAC Administered Arbitration Rules, may agree to do so in the following terms:
“We, the undersigned, agree to refer to arbitration administered by the Hong Kong International Arbitration Centre (HKIAC) under the HKIAC Administered Arbitration Rules any dispute, controversy, difference or claim (including any dispute regarding non-contractual obligations) arising out of or relating to:
The law of this arbitration agreement shall be … (Hong Kong law). The seat of arbitration shall be … (Hong Kong). The number of arbitrators shall be … (one or three). The arbitration proceedings shall be conducted in … (insert language). The fees and expenses of the arbitral tribunal shall be determined on the basis of … (Schedule 2 or Schedule 3) of these Rules.
Signed: _________ (Claimant)
Signed: _________ (Respondent)
Date: ___________”
II. Arbitration administered by HKIAC under the UNCITRAL Rules
Parties to a contract who wish to have any future disputes referred to arbitration administered by the HKIAC under the UNCITRAL Rules may insert in the contract an arbitration clause in the following form:
“Any dispute, controversy, difference or claim arising out of or relating to this contract, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (HKIAC) under the UNCITRAL Arbitration Rules in force when the Notice of Arbitration is submitted, as modified by the HKIAC Procedures for the Administration of Arbitration under the UNCITRAL Arbitration Rules.
The law of this arbitration clause shall be … (Hong Kong law).
The place of arbitration shall be … (Hong Kong).
The number of arbitrators shall be … (one or three). The arbitration proceedings shall be conducted in … (insert language).”
III. Ad hoc arbitration under the UNCITRAL Rules
Parties to a contract who wish to have any future disputes referred to arbitration under the UNCITRAL Rules may insert in the contract an arbitration clause in the following form:
“Any dispute, controversy, difference or claim arising out of or relating to this contract, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration under the UNCITRAL Arbitration Rules in force when the Notice of Arbitration is submitted.
The law of this arbitration clause shall be … (Hong Kong law).
The appointing authority shall be … (Hong Kong International Arbitration Centre).
The place of arbitration shall be … (Hong Kong).
The number of arbitrators shall be … (one or three). The arbitration proceedings shall be conducted in … (insert language).”
Source: The above Recommended Arbitration Clause is reproduced from the official website of HKIAC.
(Bob Yan, principal solicitor of Yan Lawyers, solicitors. Email: [email protected], Tel: +852 31881995, +86 15018939249, WhatsApp: +852 5103 9249)