HONG KONG SAR, CHINA Law and Practice Contributed by: Frederick Hui and Samuel Li, Zhong Lun Law Firm
9. Confidentiality 9.1 Extent of Confidentiality
The above-mentioned approaches apply to both domestic and international arbitrations seated in Hong Kong. There is no separate set of evidentiary rules for domestic arbitration. If an arbitration‑related issue is brought before the Hong Kong courts (for example, an application for evidence‑related assistance or interim relief), the usual court procedures and evidence rules In Hong Kong-seated arbitrations, arbitral tribu - nals have broad procedural powers to manage evi - dence between the parties. They can direct parties to produce documents, submit evidence in writing (for example, by affidavit or witness statement), and arrange for witnesses to attend and give evidence at the hearing. Tribunals may also administer oaths, draw adverse inferences where a party does not comply with evidential directions, and reflect non‑compliance in costs awards. However, tribunal directions are not self‑enforcing in the way court orders are. Their practi - cal effect against an unco-operative party lies mainly in these procedural and costs consequences unless court assistance is sought. apply to that court application. 8.3 Powers of Compulsion True legal compulsion comes from the courts. Under the AO (which incorporates Model Law concepts), the arbitral tribunal, or a party with the tribunal’s approval, may apply to the Hong Kong courts for assistance in taking evidence. The court may, subject to its discre - tion and ordinary privileges and protections, order a person within Hong Kong to attend to give evidence and/or to produce documents, whether before the hearing or at the hearing itself. These court powers apply to both parties and non‑parties. By contrast, a tribunal cannot directly compel a non‑party to pro - duce documents or attend as a witness without a court order. Court powers are territorial. The summoning of evi - dence or witnesses located outside Hong Kong gen - erally requires the co-operation of the relevant foreign courts. In practice, tribunals manage disclosure and evidence directly as between the parties, while court assistance is used where compulsory measures are needed, particularly in relation to non‑parties or seri - ous party non‑compliance.
Hong Kong-seated arbitrations are subject to a strong default position of confidentiality under the AO. As a general rule, the arbitration itself and materials gener - ated in it – such as pleadings, evidence, transcripts and the award – are not to be disclosed or used out - side the arbitration, unless an exception under the AO applies. Parties may agree to broaden or relax con - fidentiality, and where institutional rules such as the 2024 HKIAC Rules are adopted, these may impose additional confidentiality and information‑security obligations. The AO allows disclosure in defined and limited cir - cumstances. These include disclosure where it is necessary to enforce or challenge an award in court, to comply with a legal obligation, or to protect or pursue a party’s legal rights or legitimate interests. Disclosure may also be made on a confidential basis to persons such as professional advisers, insurers, auditors, funders, affiliates, witnesses or regulators. Any disclosure must be limited to what is reasonably necessary for the permitted purpose. When arbitration‑related matters come before the Hong Kong courts, the courts generally seek to pre - serve confidentiality so far as practicable, for example by holding hearings in private or issuing anonymised or redacted judgments. However, the court retains dis - cretion to permit open hearings or publication where the interests of justice or the public interest require it. In short, confidentiality is the default for Hong Kong arbitrations, but targeted disclosure is permitted in subsequent proceedings within clearly defined statu - tory and judicial limits.
10. The Award 10.1 Legal Requirements Legal Requirements for Arbitral Awards
In Hong Kong, an arbitral award must meet certain basic requirements under the AO (based on Article 31 of the Model Law). The award must: • be in writing;
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