HONG KONG SAR, CHINA Law and Practice Contributed by: Edwin Northover, Jan Buschmann and Tony Dymond, Debevoise & Plimpton
Intermediate People’s Court level or above and specified Basic People’s Courts); • the judgment must be final and conclusive and enforceable in the PRC; • the judgment must order the payment of a sum of money (not being a sum payable in respect of taxes, fines or penalties); and • the application to the Court of First Instance must be made within two years from the date of the judgment. 9.5 Enforcement of Arbitration Clauses Arbitration clauses in commercial insurance and reinsurance contracts can be enforced by staying or restraining litigation brought in breach of the clause, so long as they comply with the formal requirements under Section 19 of the Arbitration Ordinance (Cap 609). These include that an arbitration agreement must be in writing. An arbitration agreement may be in the form of an arbitration clause in a contract or in Under the Hong Kong Arbitration Ordinance (Cap 609), there are four main categories of arbitral awards: • convention awards (which are awards issued in states or territories that are party to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Conven- tion”) other than the PRC); • Mainland awards (which are awards issued in Mainland China); • Macao awards (which are awards issued in Macao); and • awards issued in Hong Kong and Taiwan, and any awards not captured by the first three categories. In 1997, following the PRC’s resumption of the exer- cise of sovereignty over Hong Kong, the PRC extend- ed the application of the New York Convention to Hong Kong. The PRC’s reciprocity and commercial reservations made under Article I(3) of the New York Convention are binding on Hong Kong. As a result, Hong Kong recognises awards that are issued in the territory of another contracting state to the New York Convention and arise out of commercial disputes. the form of a separate agreement. 9.6 Enforcement of Awards
Enforcement may only be refused pursuant to the limited grounds set out in the New York Convention. Arrangements in place allow for the enforcement of arbitral awards between Mainland China and Hong Kong (namely the 1999 and 2020 Arrangements Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region). All arbitral awards issued pur- suant to the Hong Kong Arbitration Ordinance can be enforced in Mainland China. All arbitral awards issued pursuant to the PRC Arbitration Law can be enforced in Hong Kong. Simultaneous enforcement applica- tions may be commenced in the courts of Hong Kong and Mainland China. There is also an arrangement providing for the mutual enforcement of arbitral awards between Hong Kong and Macao. With the leave of the court, arbitral awards (includ- ing interim awards), whether domestic or foreign, are enforceable in the same manner as a Hong Kong court judgment. 9.7 Alternative Dispute Resolution Alternative dispute resolution (ADR), including arbitra- tion, mediation and adjudication, is commonly used in insurance disputes in Hong Kong. Since the introduc- tion of the Civil Justice Reform in Hong Kong in April 2009 and Practice Direction 31 in January 2010, par- ties to litigation are required to attempt settlement by mediation. Adverse costs orders may be made against a party that unreasonably fails to engage in mediation, regardless of the outcome of the litigation. Consumer Contracts For consumer insurance disputes, the Insurance Com- plaints Bureau (ICB) provides a mechanism to assist in the resolution of insurance disputes arising from personal insurance policies. These disputes must be monetary in nature, including complaints regarding claim decisions of insurers and maladministration on the part of the insurer. The ICB handles claim-related complaints by way of adjudication under the Insurance Claims Complaints
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