HONG KONG SAR, CHINA Law and Practice Contributed by: Frederick Hui and Samuel Li, Zhong Lun Law Firm
5. Jurisdiction 5.1 Challenges to Jurisdiction
If a tribunal renders a negative ruling on jurisdiction, there is no equivalent statutory route compelling the tribunal to proceed; a party seeking arbitration must typically commence appropriate new legal proceed - ings or seek other relief. Jurisdictional issues can still be considered by the court indirectly (eg, on a stay application in related litigation). 5.3 Timing of Challenge Section 34 (2) of the AO provides that a plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the state- ment of defence and a plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. After the tribunal issues a preliminary positive ruling that it has jurisdiction under Section 34 (3) of the AO (based on Article 16 (3) of the Model Law), a party may apply to the Court of First Instance within 30 days for review. The arbitration may continue while the court considers the application. 5.4 Standard of Judicial Review for Jurisdiction/Admissibility Hong Kong differentiates between “jurisdiction” and “admissibility”. True jurisdictional questions (exist - ence, validity, scope of the arbitration agreement, proper constitution of the tribunal) receive de novo judicial review via the permitted gateways. Examples include a court’s review of a tribunal’s preliminary positive ruling on jurisdiction under Section 34 (4) of the AO (based on Article 16 (3) of the Model Law), and set-aside or enforcement resistance on jurisdictional grounds. In these settings, the court does not defer to the tribunal’s conclusions on jurisdictional facts or law, though it remains mindful of the pro-arbitration poli - cy and the parties’ procedural choices. By contrast, objections that pertain to admissibility (eg, time bars, pre-arbitration steps such as negotiation/mediation, multi-tier clauses, abuse of process, consolidation/ joinder mechanics) are generally treated as matters for the tribunal, not the courts, and are not a basis for setting aside/enforcement refusal unless they overlap with due process or excess of mandate.
The kompetenz - kompetenz principle applies in Hong Kong under Section 34 of the AO. An arbitral tribunal may rule on its own jurisdiction, including objections to the existence or validity of the arbitration agree - ment, and the separability doctrine means the arbitra - tion clause is treated as independent from the main contract. 5.2 Circumstances for Court Intervention If the tribunal issues a preliminary ruling affirming jurisdiction, a party may apply to the Court of First Instance for review within the statutory time limit; the court’s role is supervisory and narrowly framed, and the arbitration may continue while the court consid - ers the challenge. If jurisdiction is addressed in the final award, judicial intervention may occur at the set- aside or enforcement stage. Hong Kong courts adopt a pro-arbitration, minimal-intervention approach and generally allow tribunals to decide jurisdictional issues in the first instance. Hong Kong courts can only address tribunal jurisdic - tion in limited, defined contexts under the AO. Key gateways include: • review of a preliminary positive ruling on jurisdic - tion under Section 34 of the AO (based on Article 16 (3) of the Model Law) upon timely application; • application to set aside an arbitral award on juris - dictional grounds (eg, tribunal exceeded author - ity, no valid arbitration agreement or due process violations); • stay application where a party sues in court despite an arbitration clause; and • enforcement/resistance to enforcement of awards, where jurisdictional objections can be raised. The judiciary displays a strong pro‑arbitration, mini - mal‑intervention stance, generally deferring to tribu - nals to rule on jurisdiction first and construing clauses to uphold arbitration. On review of a preliminary posi - tive jurisdiction ruling, the court conducts a de novo assessment but within the narrow statutory pathway; the arbitration may proceed meanwhile.
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