Reciprocal Enforcement of Arbitral Awards between Hong Kong and Mainland ChinaOct152015
Pre-1997, the mutual enforcement of arbitral awards between the Mainland and Hong Kong was carried out by way of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The convention ceased to apply once Hong Kong became a Special Administrative Region in 1997 as its application is limited to the enforcement of awards between sovereign states.
Due to the difficulties caused by the lack of mechanism to enforce awards between Hong Kong and the Mainland, the “Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the HKSAR” came into effect in 1999 (the “Arrangement”).
From this Arrangement came sections 92 to 98 of the Arbitration Ordinance, (Cap. 609) allowing for the enforcement of Mainland arbitral awards in Hong Kong, and the “Announcement of Arrangement of the Supreme People’s Court on Reciprocal Enforcement of Arbitration Awards between the Mainland and the Hong Kong Special Administrative Region” (the “Mainland Agreement”) in the form of judicial interpretation bringing the Arrangement into effect in the Mainland on 1 February 2000.
Conditions of enforcement
Enforcement in Hong Kong
In Hong Kong, section 94 of the Arbitration Ordinance provides that parties seeking to enforce a Mainland arbitral award must produce:
- The duly authenticated original award or a duly certified copy of it;
- The original arbitration agreement or a duly certified copy of it; and
- If the award or agreement is not in either or both of the official languages, a translation of it in either official language certified by an official or sworn translator or by a diplomatic or consular agent.
Hong Kong courts may refuse to enforce a Mainland award based on the grounds set out in section 95. For example, if the person against whom the award is invoked can prove that the arbitration agreement was not valid, or that he was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings, or if it is contrary to public policy to enforce the award, the Court may refuse to do so.
Enforcement in the Mainland
Article 7 of the Mainland Arrangement sets out the grounds for refusing to enforce an arbitral award and covers essentially the same conditions set out in section 95 of Hong Kong’s Arbitration Ordinance, which was designed to incorporate the Arrangement. In 2009, the Supreme People’s Court published a Notice of Relevant Issues on the Enforcement of Hong Kong Arbitral Awards in the Mainland. The notice addressed “whether [pursuant to the 1999 Arrangement] the parties concerned can apply for enforcement in the Mainland of ad hoc arbitral awards made in the HKSAR and the arbitral awards made in Hong Kong by the International Court of Arbitration of the International Chamber of Commerce.” The notice states that where a party has applied to the People’s Court for the enforcement of such an award, the Court will examine the application in light of the Arrangement and “in the absence of any situations set out in Article 7 of the Arrangement, the arbitral award shall be enforced in the Mainland.”
Pamela Mak / Elizabeth Seymour-Jones
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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.