HONG KONG SAR, CHINA Law and Practice Contributed by: Lianjun Li, Matthew Townsend, Patrick Chong and Max Lam, Reed Smith
4.5 Arbitrator Requirements The relevant provision is Section 25 of the AO (incor- porating Article 12 of the Model Law) which states the disclosure obligations of an arbitrator. When a person is approached in relation to a pos- sible appointment as an arbitrator, that person “shall disclose any circumstances likely to give rise to justifi- able doubts as to his impartiality or independence”. Throughout the arbitral proceedings, an arbitrator “shall without delay disclose any such circumstances to the parties unless they have already been informed of them by him”. An arbitral tribunal has power under Section 35 of the AO (incorporating Article 17 of the Model Law) to order interim measures on a party’s application. Under Section 35 of the AO, an interim measure is any temporary measure in the form of an award or in another form by which an arbitral tribunal orders a party to (amongst other things) maintain or restore the status quo pending determination of the dispute, take action to prevent current or imminent harm to the arbitral process, preserve assets out of which a sub- sequent award may be satisfied or preserve relevant and material evidence. 5. Preliminary and Interim Relief 5.1 Types of Relief Under Section 36 of the AO (which gives effect to Arti- cle 17A of the Model Law), an applicant for an interim relief must generally show that (i) harm inadequately remedied by damages is likely to result if the measure is not granted, and such harm substantially outweighs the harm that the measure would cause to the party against whom the measure is directed (if the measure is granted), and (ii) there is a reasonable prospect the applicant will succeed on the merits of the claim. Interim measures ordered under Section 35 of the AO may be enforced in the same manner as an order or direction of the court, but only with leave of the court.
5.2 Role of Domestic Courts The court can grant interim measures in support of arbitration under Section 21 of the AO (incorporating Article 9 of the Model Law). The court typically grants interim relief on an urgent basis to prevent destruc- tion of documents, restrain dissipation of assets, or preserve the status quo. Section 45 of the AO also sets out the requirements in relation to court-ordered interim measures. Section 45 (3) of the AO specifically provides that the court may grant interim measures regardless of whether or not the arbitral tribunal may exercise similar powers in relation to the same dispute. The power of the court to grant interim measures under Section 45 of the AO is not confined to arbitra- tions in Hong Kong, although additional requirements must be satisfied for arbitrations commenced (or to be commenced) outside Hong Kong. Specifically, Section 45 (5) of the AO sets out those requirements, namely that (i) the arbitration can give rise to an interim or final award which may be enforced in Hong Kong, and (ii) the type of interim measure sought is one that the court may grant in Hong Kong in relation to arbitration. Further, the court may enforce interim relief granted during arbitral proceedings, including emergency measures. Under Sections 22B and 61 of the AO, any interim measure or emergency relief granted (whether in or outside Hong Kong) is enforceable in the same manner as a court order that has the same effect, albeit only with the leave of the court. 5.3 Security for Costs Under Section 56 (1)(a) of the AO, the arbitral tribunal may order a claimant to give security for costs of the arbitration. The parties may also opt into Schedule 2 to the AO, Section 7 of which provides that the court may order security for costs in case of an application to chal- lenge or appeal against arbitral awards.
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