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Decisions Over Seats of Arbitration Demand Careful Consideration

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Decisions Over Seats of Arbitration Demand Careful Consideration CHINA DAILY | HONG KONG EDITION Thursday, February 4, 2021 | 9 COMMENTHK TO THE POINT Decisions over seats STAFF WRITER of arbitration demand ‘Asia’s fi nest’ gets stronger and mightier Driven by ideological bigotry, Western anti- ated accusations of “police brutality” while turn- China politicians and their mainstream media ing a blind eye to the jaw-dropping criminal acts have relentlessly vilifi ed the Hong Kong Police of the black-clad rioters, who attacked front-line careful consideration Force over the past 18 months with a ferocity police o¨ cers with petrol bombs, arrows, cata- unseen before. pults, steel bars and laser pointers, and whose But Trump supporters’ storming of the Capi- extended insurgency was much worse than the Teresa Cheng says elements such as judicial tol in Washington on Jan 6 and subsequent Capitol siege, or what US President Joe Biden events have not only exposed the sheer hypoc- called an insurrection, domestic terrorism and sophistication, integrity should be thoroughly risy and double-think of those Western politi- an assault on the rule of law. cians and media outlets, signifi cantly reduced The Hong Kong Police Force faced unprec- examined to ensure enforceability, flexibility their credibility, neutralized the toxicity of their edented challenges and hardships in the past vilifi cation, and therefore derailed their smear couple of years, particularly in the second half aking a rational decision campaign against the Hong Kong Police Force, of 2019. But the headwinds they endured are means placing emphasis but more importantly, cemented the force’s long- not without a silver lining. The force has devel- on objective evaluation and standing reputation as “Asia’s fi nest”. oped from urban security police into a strong, selecting among possible Hong Kong police o¨ cers consistently exer- reliable and trustworthy law enforcement unit choices based on reason and cised maximum restraint and demonstrated that e ectively safeguards national security and fact, not popular opinion or Teresa Cheng unrivaled professionalism in their bitter battle maintains Hong Kong’s stability “after a year of sentiment. In terms of arbi- The author is secretary for justice of the Hong to restore law and order in the city over six hammering in blood and fi re”, in the words of tration, rational decisions have to be made regarding Kong Special Administrative Region government. months of violent rampages perpetrated by Luo Huining, director of the Liaison O¨ ce of Mthe legal seat of arbitration, whether the arbitration is black-clad rioters in the second half of 2019. the Central People’s Government in the Hong ad hoc or institutional, and if the latter, which institu- For arbitrations seated in Hong Thanks to the police’s restraint and professional- Kong Special Administrative Region. His visit tion is to be chosen. ism, not a single rioter was killed in law enforce- and tribute to the force on Sunday rea¨ rms the I trust many of you are familiar with the basic Kong, interim relief can be granted ment actions during the six-month social unrest. central government’s recognition and support advantages of arbitration, such as the enforceability of by tribunals or the courts not just at In sharp contrast, several people died as a result for its work, and will boost morale signifi cantly. awards, the fl exibility of procedures and party auton- the seat in the city but also in other of the single-day Capitol confl ict between law The force enjoys strong public support for omy including the choice of arbitrators. Hong Kong enforcers and mobs, including one police o¨ cer its work, as shown by police chief Chris Tang awards are enforceable in the Mainland as well as all jurisdictions, such as England and and a female Trump supporter shot by police at Ping-keung’s revelation on Tuesday that it has New York Convention States. These are the common the Mainland. Under “One Country, close range. received over 40,000 messages from the public denominators and are not germane to the choice of Yet China-bashing Western politicians and through the national security hotline set up on the legal seat of arbitration, or in simple terms, where Two Systems”, Hong Kong enjoys a media outlets have gone all out to discredit the Nov 5, and gained useful information for further to arbitrate. The areas that come to mind when decid- unique position. Hong Kong Police Force, making unsubstanti- operations. ing the legal seat include the following: (1) Whether the arbitration laws of the seat are up- to-date and in compliance with international norms. system. Arbitrators have all the power they need Hong Kong adopts the latest UNCITRAL Model Law under the arbitration laws of Hong Kong to manage and makes no distinction between domestic and inter- and adjudicate the disputes before them. The govern- national arbitration, ensuring a regime that meets ment does not interfere with the operation of arbitral Police officers lauded international standards. Interim relief can be obtained institutions in administering their arbitrations. from arbitration tribunals and the courts. (6) The track record of the quality and enforceability (2) Whether restrictions are in place on the choice of arbitral awards is also of importance. Awards made of the arbitrators who adjudicate the dispute. In Hong in Hong Kong have generally been upheld by local Kong, parties are free to appoint arbitrators of their courts and enforced in other jurisdictions, including own choice, allowing total party autonomy with no the Mainland. This ensures fi nality and enforceability restriction on nationality. of awards, a much cherished advantage of arbitration. (3) Whether parties are able to use lawyers from (7) Third party funding in arbitration is permissible. their own jurisdiction if they so wish. Hong Kong This has been provided for in the laws in Hong Kong. explicitly permits the choice of lawyers without any (8) There is no issue on arbitrability of IP disputes. restriction, irrespective of the applicable law to be Since 2018, the laws in Hong Kong make clear that IP argued before the tribunal. disputes may be resolved by arbitration and will not (4) Whether parties can seek e ective and enforce- be a ground for setting aside or refusing enforcement. able interim relief at the place of arbitration and The next area to consider is whether this is an ad abroad. Interim relief that is enforceable is sometimes hoc or institutional arbitration. Assuming that an pivotal. For arbitrations seated in Hong Kong, interim institutional arbitration is preferred, one then looks at relief can be granted by tribunals or the courts not the suitability of the rules and whether they are gener- just at the seat in the city but also in other jurisdic- ally in line with international practice. Nowadays, the tions, such as England and the Mainland. Under “One rules of di erent arbitration bodies are generally simi- Country, Two Systems”, Hong Kong enjoys a unique lar. The choice of an institution therefore depends on position. Parties to arbitral proceedings which are the services that could be rendered by the secretariat seated in Hong Kong and administered by designated and the fees of the arbitral institution. Again, it is arbitral institutions (HKIAC, ICC, eBRAM, CIETAC, advisable to look at the track record, namely the num- HKMAG, SCIAC) are able to seek assistance from the ber of cases from a particular institution that have relevant People’s Courts in the Mainland, to obtain been set aside by the court of the place of arbitration interim measures such as injunctions or freezing of or refused enforcement in overseas jurisdictions. The assets. Hong Kong is the only jurisdiction outside provision of well-trained tribunal secretary services to the Mainland where, as a seat of arbitration, parties the tribunal is also an attraction to arbitrators. to arbitral proceedings administered by its arbitral These are some of the main factors that should be institutions are able to apply to Mainland courts for carefully considered before arriving at a rational and Daisy Chan Oi-ching (left), president of the Kowloon West Chaoren Association, poses for a photo interim measures. informed decision on the choice of the seat of arbitra- with Rupert Dover, the district’s assistant police commissioner and regional commander, at the (5) Whether there is intervention by national courts tion. regional police headquarters on Wednesday. Representatives of the organization paid tribute to the or government. Arbitrations in Hong Kong are con- disciplinary forces with gifts and festival greetings ahead of the Chinese New Year, which falls on ducted truly as an alternate dispute resolution process The views do not necessarily refl ect those of China Feb 12 this year. EDMOND TANG / CHINA DAILY for commercial parties, independent from the court Daily. Yang Sheng E ective system needed to ensure ‘patriots governing Hong Kong’ resident Xi Jinping, after hear- After all, taking the oath or exercise overall jurisdiction over the Hong are confi dent the great majority of civil step up education and training of civil ing Chief Executive Carrie Lam Kong SAR e ectively. It is the only way for servants will take the oath of allegiance by servants in correctly understanding the Cheng Yuet-ngor’s work report signing the written declara- Hong Kong to maintain its constitutional signing the written declaration willingly Constitution of the PRC, the Basic Law via video link last Wednesday, tion is merely a formality order enshrined in the Constitution of and sincerely. It is hoped that most if not of the Hong Kong SAR and the National Pemphasized yet again the importance the PRC and the Basic Law of the Hong all district councilors would do the same Security Law implemented in the SAR, and an effective system of always ensuring “patriots governing Kong SAR; resolve deep-rooted structural after the amended Oaths and Declarations and enhance their awareness of the politi- Hong Kong”.
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