Impartiality and independence of the tribunal – First-hand insights

1. International Bar Association Guidelines on Conflicts of Interest in International Arbitration (2004)

2. UNCITRAL Arbitration Rules (2021) Rt. 11, 12 1

Disclosures by and challenge of arbitrators** (articles 11 to 13)

Article 11

When a person is approached in connection with his or her possible appointment as an arbitrator, he or she shall disclose any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. An arbitrator, from the time of his or her appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties and the other arbitrators unless they have already been informed by him or her of these circumstances.

Article 12

1. Any arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality or independence.

2. A party may challenge the arbitrator appointed by it only for reasons of which it becomes aware after the appointment has been made.

3. In the event that an arbitrator fails to act or in the event of the de jure or de facto impossibility of his or her performing his or her functions, the procedure in respect of the challenge of an arbitrator as provided in article 13 shall apply.

1. Chinese Arbitration Law 1 – Articles 34 and 58

Article 34      In any of the following circumstances, an arbitrator must withdraw from the arbitration, and the parties shall have the right to apply for his withdrawal if he:

        1. is a party or a close relative of a party or of a party’s representative;

        2. has interests in the case;

        3. has other relationship with a party to the case or with a party’s agent which could possibly affect the impartiality of the arbitration;

        4. meets a party or his agent in private, accepts an invitation for dinner or gifts from a party or his representative.

Article 58     The parties may apply to the intermediate people’s court at the place where the arbitration commission is located for cancellation of an award if they provide evidence proving that the award involves one of the following circumstances:  

        3. The composition of the arbitration tribunal or the arbitration proceedings violate legal proceedings;

        6. The Arbitrator(s) has accepted bribes, resorted to deception for personal gains or perverted the law in arbitrating the case.     

2. CIETAC Arbitration Rules (2015)2  – Articles 31 and 32

Article 31

        1. An arbitrator nominated by the parties or appointed by the Chairman of CIETAC shall sign a Declaration/Statement and disclose any facts or circumstances likely to give rise to justifiable doubts as to his/her impartiality or independence.

        2. If circumstances that need to be disclosed arise during the arbitral proceedings, the arbitrator shall promptly disclose such circumstances in writing.

        3. The Statement and/or the disclosure of the arbitrator shall be submitted to the Arbitration Court to be forwarded to the parties.

Article 32

        1. A party wishing to challenge the arbitrator on the grounds of the arbitrator’s disclosure shall forward a written challenge 10 days from receipt of the arbitrator’s Declaration. Failing to challenge within the above time period, the party may not subsequently challenge the arbitrator based on the disclosure by the arbitrator.

        2. A party may challenge an arbitrator in writing within 15 days from the date it receives the Notice of Formation of the Arbitral Tribunal. Where a party becomes aware of a reason for a challenge after such receipt, the party may challenge the arbitrator in writing 15 days after such reason has become known to it, but no later than the conclusion of the last oral hearing. The challenge should be made with facts, reasons and relevant evidence.

        3. The challenge by one party shall be promptly communicated to the other party, the arbitrator being challenged and the other members of the arbitral tribunal.

        4. Where an arbitrator is challenged by one party and the other party agrees to the challenge, or the arbitrator being challenged voluntarily withdraws, such arbitrator shall no longer be a member of the arbitral tribunal. However, in neither case shall it be implied that the reasons for the challenge are sustained.

        5. The Chairman of CIETAC shall make a final decision on the challenge with or without stating the reasons. Until such a decision is made by the Chairman of CIETAC, the arbitrator being challenged shall remain on the arbitral tribunal.

3. Code of Conduct for Arbitrators (2021)3 - Code of Conduct for Arbitrators-China International Economic and Trade Arbitration Commission (cietac.org)

4. Evaluation Rules for the Behavior of Arbitrators (2021) – Articles 6 and 7

Article 6

1. The arbitrator, or the organization he or she works for, is related to the case or had business contact with a party, its arbitration agent or the affiliated organizations of a party within the past two years;

2. The arbitrator is or was a colleague of another arbitrator of the case within the past two years;

3. The arbitrator and a party, its main manager or agent hold full-time positions in the same social organization and frequently come into contact with each other;

4. The arbitrator holds or held an official position in an organization that is related to the case within the past two years;

5. The arbitrator or the arbitrator’s close relative has a close personal relationship with a party or its agent;

6. The arbitrator has been nominated as the arbitrator by the same party, agent, or law firm more than three times within the past two years, unless in related cases or cases of the same nature; and

7. Other circumstances that may raise reasonable doubt of the parties as to the independence or impartiality of the arbitrator.

Article 7 

1. The arbitrator is a party to the case or is a close relative of a party or its agent;

2. The arbitrator or his or her close relative has a personal stake in the case;

3. The arbitrator has met with a party or its agent in private or has accepted improper benefit from the latter;

4. The arbitrator has other ties with a party or its agent that may affect the impartiality of the arbitration, mainly including the following circumstances:

(1) The arbitrator has previously advised on the same case to a party or its agent;

(2) The arbitrator has recommended or introduced an agent to a party;

(3) The arbitrator has served as a witness, appraiser, forensic examiner, defense attorney, litigation or arbitration agent in the same case or a related case;

(4) The arbitrator is currently a colleague of a party or its agent or used to be a colleague thereof within the past two years;

(5) The arbitrator is currently the legal adviser or agent of a party or affiliated organizations of a party within the past two years;

(6) The close relative of the arbitrator currently works for the same organization of a party or its agent;

(7) The arbitrator or the arbitrator’s close relative has a possible right of recourse with regard to any party;

(8) The arbitrator or his or her close relative shares collective rights or obligations with a party or its agent, or has any other kind of collective interests with a party or its agent; and

(9) Other circumstances that may raise a reasonable doubt as to the impartiality of the arbitration proceeding.

5. Draft Amendment to Chinese Arbitration Law by the Ministry of Justice (2021) – Articles 52, 54, 55 and 77

Article 52

Once the tribunal is formed, the arbitrator shall sign a declaration of independence and impartiality, which shall be communicated by the arbitration institution to the parties together with the notice of formation of the tribunal.

The arbitrator shall disclose in writing if he/she knows of any circumstances likely to give rise to justifiable doubts by the parties as to his/her impartiality or independence.

A party wishing to challenge the arbitrator on the grounds of the arbitrator’s disclosure shall forward a written challenge within 10 days from receipt of the disclosure. Failing to challenge within the above time period, the party may not subsequently challenge the arbitrator based on the disclosure by the arbitrator.

Article 54

The challenge by the party shall be made before the first oral hearing and with reasons stated. Where a party becomes aware of a reason for a challenge after the first hearing or when the case is heard on documents only, the party may make the challenge within 10 days after becoming aware of such reason.

The appointing party may only challenge its appointed arbitrator based on a reason that becomes known to it after its appointment.

Article 55

A decision on the challenge shall be made by the arbitration institution with reasons stated.

Until a decision on the challenge is made, the challenged arbitrator may continue with the arbitration.

Article 77

The parties may apply to the intermediate people’s court at the place where the arbitration commission is located for cancellation of an award if they provide evidence proving that the award involves one of the following circumstances:  

        3. The composition of the arbitration tribunal or the arbitration proceedings violate legal proceedings to the extent that the right of the party is seriously damaged;

1. Arbitration Ordinance (Cap. 609) Sections 11, 25, 26, 46, 81, 86, 89, 95– Articles 4, 12, 13, 18, 34 of UNCITRAL Model Law1

11. Article 4 of UNCITRAL Model Law (Waiver of right to object)

Article 4 of the UNCITRAL Model Law, the text of which is set out below, has effect—
 

“Article 4.   Waiver of right to object

A party who knows that any provision of this Law from which the parties may derogate or any requirement under the arbitration agreement has not been complied with and yet proceeds with the arbitration without stating his objection to such non-compliance without undue delay or, if a time-limit is provided therefor, within such period of time, shall be deemed to have waived his right to object.”.

25. Article 12 of UNCITRAL Model Law (Grounds for challenge)

Article 12 of the UNCITRAL Model Law, the text of which is set out below, has effect—

“Article 12.   Grounds for challenge

(1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties unless they have already been informed of them by him.

(2) An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties. A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.”.

26. Article 13 of UNCITRAL Model Law (Challenge procedure)

(1) Article 13 of the UNCITRAL Model Law, the text of which is set out below, has effect subject to section 13(4)—
 

“Article 13.   Challenge procedure

(1) The parties are free to agree on a procedure for challenging an arbitrator, subject to the provisions of paragraph (3) of this article.

(2) Failing such agreement, a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance referred to in article 12(2), send a written statement of the reasons for the challenge to the arbitral tribunal. Unless the challenged arbitrator withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.

(3) If a challenge under any procedure agreed upon by the parties or under the procedure of paragraph (2) of this article is not successful, the challenging party may request, within thirty days after having received notice of the decision rejecting the challenge, the court or other authority specified in article 6 to decide on the challenge, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award.”.

(2) During the period that a request for the Court to decide on a challenge is pending, the Court may refuse to grant leave under section 84 for the enforcement of any award made during that period by the arbitral tribunal that includes the challenged arbitrator.

(3) An arbitrator who is challenged under article 13(2) of the UNCITRAL Model Law, given effect to by subsection (1), is entitled, if the arbitrator considers it appropriate in the circumstances of the challenge, to withdraw from office as an arbitrator.

(4) The mandate of a challenged arbitrator terminates under article 13 of the UNCITRAL Model Law, given effect to by subsection (1), if—

(a) the arbitrator withdraws from office;

(b) the parties agree to the challenge;

(c) the arbitral tribunal upholds the challenge and no request is made for the Court to decide on the challenge; or

(d) the Court, upon request to decide on the challenge, upholds the challenge.

(5) If the Court upholds the challenge, the Court may set aside the award referred to in subsection (2).

46. Article 18 of UNCITRAL Model Law (Equal treatment of parties)

(1) Subsections (2) and (3) have effect in substitution for article 18 of the UNCITRAL Model Law.

(2) The parties must be treated with equality.

(3) When conducting arbitral proceedings or exercising any of the powers conferred on an arbitral tribunal by this Ordinance or by the parties to any of those arbitral proceedings, the arbitral tribunal is required—

(a) to be independent;

(b) to act fairly and impartially as between the parties, giving them a reasonable opportunity to present their cases and to deal with the cases of their opponents; and

(c) to use procedures that are appropriate to the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for resolving the dispute to which the arbitral proceedings relate.

81. Article 34 of UNCITRAL Model Law (Application for setting aside as exclusive recourse against arbitral award)

(1) Article 34 of the UNCITRAL Model Law, the text of which is set out below, has effect subject to section 13(5)—

“Article 34.   Application for setting aside as exclusive recourse against arbitral award

(1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (3) of this article.

(2) An arbitral award may be set aside by the court specified in article 6 only if:

(a) the party making the application furnishes proof that:

(i) a party to the arbitration agreement referred to in article 7 was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of this State; or

(ii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or

(iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Law; or

(b) the court finds that:

(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of this State; or

(ii) the award is in conflict with the public policy of this State.

(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the award or, if a request had been made under article 33, from the date on which that request had been disposed of by the arbitral tribunal.

(4) The court, when asked to set aside an award, may, where appropriate and so requested by a party, suspend the setting aside proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal’s opinion will eliminate the grounds for setting aside.”.

(2) Subsection (1) does not affect—

(a) the power of the Court to set aside an arbitral award under section 26(5);

(b) the right to challenge an arbitral award under section 4 of Schedule 2 (if applicable); or

(c) the right to appeal against an arbitral award on a question of law under section 5 of Schedule 2 (if applicable).

(3) Subject to subsection (2)(c), the Court does not have jurisdiction to set aside or remit an arbitral award on the ground of errors of fact or law on the face of the award.

(4) The leave of the Court is required for any appeal from a decision of the Court under article 34 of the UNCITRAL Model Law, given effect to by subsection (1).

86. Refusal of enforcement of arbitral awards

(1) Enforcement of an award referred to in section 85 may be refused if the person against whom it is invoked proves—

(a) that a party to the arbitration agreement was under some incapacity (under the law applicable to that party); (Replaced 7 of 2013 s. 10)

(b) that the arbitration agreement was not valid—

(i) under the law to which the parties subjected it; or

(ii) (if there was no indication of the law to which the arbitration agreement was subjected) under the law of the country where the award was made;

(c) that the person—

(i) was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings; or

(ii) was otherwise unable to present the person’s case;

(d) subject to subsection (3), that the award—

(i) deals with a difference not contemplated by or not falling within the terms of the submission to arbitration; or

(ii) contains decisions on matters beyond the scope of the submission to arbitration;

(e) that the composition of the arbitral authority or the arbitral procedure was not in accordance with—

(i) the agreement of the parties; or

(ii) (if there was no agreement) the law of the country where the arbitration took place; or

(f) that the award—

(i) has not yet become binding on the parties; or

(ii) has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made.

(2) Enforcement of an award referred to in section 85 may also be refused if—

(a) the award is in respect of a matter which is not capable of settlement by arbitration under the law of Hong Kong;

(b) it would be contrary to public policy to enforce the award; or

(c) for any other reason the court considers it just to do so.

(3) If an award referred to in section 85 contains, apart from decisions on matters submitted to arbitration (arbitral decisions), decisions on matters not submitted to arbitration (unrelated decisions), the award may be enforced only in so far as it relates to the arbitral decisions that can be separated from the unrelated decisions. (Replaced 7 of 2013 s. 10)

(4) If an application for setting aside or suspending an award referred to in section 85 has been made to a competent authority as mentioned in subsection (1)(f), the court before which enforcement of the award is sought—   (Amended 7 of 2013 s .10)

(a) may, if it thinks fit, adjourn the proceedings for the enforcement of the award; and

(b) may, on the application of the party seeking to enforce the award, order the person against whom the enforcement is invoked to give security.

(5) A decision or order of the court under subsection (4) is not subject to appeal.

89. Refusal of enforcement of Convention awards

(1) Enforcement of a Convention award may not be refused except as mentioned in this section.  (Amended 7 of 2013 s. 13)

(2) Enforcement of a Convention award may be refused if the person against whom it is invoked proves—

(a) that a party to the arbitration agreement was under some incapacity (under the law applicable to that party); (Replaced 7 of 2013 s. 13)

(b) that the arbitration agreement was not valid—

(i) under the law to which the parties subjected it; or

(ii) (if there was no indication of the law to which the arbitration agreement was subjected) under the law of the country where the award was made;

(c) that the person—

(i) was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings; or

(ii) was otherwise unable to present the person’s case;

(d) subject to subsection (4), that the award—

(i) deals with a difference not contemplated by or not falling within the terms of the submission to arbitration; or

(ii) contains decisions on matters beyond the scope of the submission to arbitration;

(e) that the composition of the arbitral authority or the arbitral procedure was not in accordance with—

(i) the agreement of the parties; or

(ii) (if there was no agreement) the law of the country where the arbitration took place; or

(f) that the award—

(i) has not yet become binding on the parties; or

(ii) has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made.

(3) Enforcement of a Convention award may also be refused if—

(a) the award is in respect of a matter which is not capable of settlement by arbitration under the law of Hong Kong; or

(b) it would be contrary to public policy to enforce the award.

(4) If a Convention award contains, apart from decisions on matters submitted to arbitration (arbitral decisions), decisions on matters not submitted to arbitration (unrelated decisions), the award may be enforced only in so far as it relates to the arbitral decisions that can be separated from the unrelated decisions. (Replaced 7 of 2013 s. 13)

(5) If an application for setting aside or suspending a Convention award has been made to a competent authority as mentioned in subsection (2)(f), the court before which enforcement of the award is sought—   (Amended 7 of 2013 s. 13)

(a) may, if it thinks fit, adjourn the proceedings for the enforcement of the award; and

(b) may, on the application of the party seeking to enforce the award, order the person against whom the enforcement is invoked to give security.

(6) A decision or order of the court under subsection (5) is not subject to appeal.

95. Refusal of enforcement of Mainland awards

(1) Enforcement of a Mainland award may not be refused except as mentioned in this section. (Amended 7 of 2013 s. 17)

(2) Enforcement of a Mainland award may be refused if the person against whom it is invoked proves—

(a) that a party to the arbitration agreement was under some incapacity (under the law applicable to that party);  (Replaced 7 of 2013 s. 17)

(b) that the arbitration agreement was not valid—

(i) under the law to which the parties subjected it; or

(ii) (if there was no indication of the law to which the arbitration agreement was subjected) under the law of the Mainland;

(c) that the person—

(i) was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings; or

(ii) was otherwise unable to present the person’s case;

(d) subject to subsection (4), that the award—

(i) deals with a difference not contemplated by or not falling within the terms of the submission to arbitration; or

(ii) contains decisions on matters beyond the scope of the submission to arbitration;

(e) that the composition of the arbitral authority or the arbitral procedure was not in accordance with—

(i) the agreement of the parties; or

(ii) (if there was no agreement) the law of the Mainland; or

(f) that the award—

(i) has not yet become binding on the parties; or

(ii) has been set aside or suspended by a competent authority of the Mainland or under the law of the Mainland.

(3) Enforcement of a Mainland award may also be refused if—

(a) the award is in respect of a matter which is not capable of settlement by arbitration under the law of Hong Kong; or

(b) it would be contrary to public policy to enforce the award.

(4) If a Mainland award contains, apart from decisions on matters submitted to arbitration (arbitral decisions), decisions on matters not submitted to arbitration (unrelated decisions), the award may be enforced only in so far as it relates to the arbitral decisions that can be separated from the unrelated decisions. (Replaced 7 of 2013 s. 17)

2. HKIAC Practice Note on Challenges to Arbitrators2

3. HKIAC Rules 2018 Art.9.1 and 11

9.1 All designations of any arbitrator, whether made by the parties or the arbitrators, are subject to confirmation by HKIAC, upon which the appointments shall become effective.

Article 11 – Qualifications and Challenge of the Arbitral Tribunal

11.1 An arbitral tribunal confirmed under these Rules shall be and remain at all times impartial and independent of the parties.

11.2 Subject to Article 11.3, as a general rule, where the parties to an arbitration under these Rules are of different nationalities, a sole or presiding arbitrator shall not have the same nationality as any party unless specifically agreed otherwise by all parties.

11.3 Notwithstanding the general rule in Article 11.2, in appropriate circumstances and provided that none of the parties objects within a time limit set by HKIAC, a sole or presiding arbitrator may be of the same nationality as any of the parties.

11.4 Before confirmation or appointment, a prospective arbitrator shall (a) sign a statement confirming his or her availability to decide the dispute and his or her impartiality and independence; and (b) disclose any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. An arbitrator, once confirmed or appointed and throughout the arbitration, shall disclose without delay any such circumstances to the parties unless they have already been informed by him or her of these circumstances.

11.5 No party or its representatives shall have any ex parte communication relating to the arbitration with any arbitrator, or with any candidate to be designated as arbitrator by a party, except to advise the candidate of the general nature of the dispute, to discuss the candidate’s qualifications, availability, impartiality or independence, or to discuss the suitability of candidates for the designation of a third arbitrator where the parties or party-designated arbitrators are to designate that arbitrator. No party or its representatives shall have any ex parte communication relating to the arbitration with any candidate for the presiding arbitrator.

11.6 Any arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality or independence, or if the arbitrator does not possess qualifications agreed by the parties, or if the arbitrator becomes de jure or de facto unable to perform his or her functions or for other reasons fails to act without undue delay. A party may challenge the arbitrator designated by it or in whose appointment it has participated only for reasons of which it becomes aware after the designation has been made.

11.7 A party that intends to challenge an arbitrator shall send notice of its challenge within 15 days after the confirmation or appointment of that arbitrator has been communicated to the challenging party or within 15 days after that party became aware of the circumstances mentioned in Article 11.6.

11.8 The notice of challenge shall be communicated to HKIAC, all other parties, the challenged arbitrator and any other members of the arbitral tribunal. The notice of challenge shall state the reasons for the challenge.

11.9 Unless the arbitrator being challenged resigns or the non-challenging party agrees to the challenge within 15 days from receiving the notice of challenge, HKIAC shall decide on the challenge. Pending the determination of the challenge, the arbitral tribunal (including the challenged arbitrator) may continue the arbitration.

11.10 If an arbitrator resigns or a party agrees to a challenge under Article 11.9, no acceptance of the validity of any ground referred to in Article 11.6 shall be implied.

4. Hong Kong Barristers’ Code of Conduct3 – Article 10.1

10.1       A practising barrister must not, in the course of practice, engage in conduct which constitutes unlawful discrimination or harassment.

5. Moser and Bao (2022), A Guide to the HKIAC Arbitration Rules 7.78, 7.81, 7.83

1. New York Civil Practice Laws and Rules – Article 75 – Section 7502, 7504 and 7511

SECTION 7502

Applications to the court; venue; statutes of limitation; provisional remedies

§ 7502. Applications to the court; venue; statutes of limitation; provisional remedies. (a) Applications to the court; venue. A special proceeding shall be used to bring before a court the first application arising out of an arbitrable controversy which is not made by motion in a pending action.

(i) The proceeding shall be brought in the court and county specified in the agreement. If the name of the county is not specified, proceedings to stay or bar arbitration shall be brought in the county where the party seeking arbitration resides or is doing business, and other proceedings affecting arbitration are to be brought in the county where at least one of the parties resides or is doing business or where the arbitration was held or is pending.

(ii) If there is no county in which the proceeding may be brought under paragraph (i) of this subdivision, the proceeding may be brought in any county.

(iii) Notwithstanding the entry of judgment, all subsequent applications shall be made by motion in the special proceeding or action in which the first application was made.

(iv) If an application to confirm an arbitration award made within the one year as provided by section seventy-five hundred ten of this article, or an application to vacate or modify an award made within the ninety days as provided by subdivision (a) of section seventy-five hundred eleven of this article, was denied or dismissed solely on the ground that it was made in the form of a motion captioned in an earlier special proceeding having reference to the arbitration instead of as a distinct special proceeding, the time in which to apply to confirm the award and the time in which to apply to vacate or modify the award may, notwithstanding that the applicable period of time has expired, be made at any time within ninety days after the effective date of this paragraph, and may be made in whatever form is appropriate (motion or special proceeding) pursuant to this subdivision.

(b) Limitation of time. If, at the time that a demand for arbitration was made or a notice of intention to arbitrate was served, the claim sought to be arbitrated would have been barred by limitation of time had it been asserted in a court of the state, a party may assert the limitation as a bar to the arbitration on an application to the court as provided in section 7503 or subdivision (b) of section 7511. The failure to assert such bar by such application shall not preclude its assertion before the arbitrators, who may, in their sole discretion, apply or not apply the bar. Except as provided in subdivision (b) of section 7511, such exercise of discretion by the arbitrators shall not be subject to review by a court on an application to confirm, vacate or modify the award.

(c) Provisional remedies. The supreme court in the county in which an arbitration is pending or in a county specified in subdivision (a) of this section, may entertain an application for an order of attachment or for a preliminary injunction in connection with an arbitration that is pending or that is to be commenced inside or outside this state, whether or not it is subject to the United Nations convention on the recognition and enforcement of foreign arbitral awards, but only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without such provisional relief. The provisions of articles 62 and 63 of this chapter shall apply to the application, including those relating to undertakings and to the time for commencement of an action (arbitration shall be deemed an action for this purpose), except that the sole ground for the granting of the remedy shall be as stated above. If an arbitration is not commenced within thirty days of the granting of the provisional relief, the order granting such relief shall expire and be null and void and costs, including reasonable attorney’s fees, awarded to the respondent. The court may reduce or expand this period of time for good cause shown. The form of the application shall be as provided in subdivision (a) of this section.

SECTION 7504

Court appointment of arbitrator

§ 7504. Court appointment of arbitrator. If the arbitration agreement does not provide for a method of appointment of an arbitrator, or if the agreed method fails or for any reason is not followed, or if an arbitrator fails to act and his successor has not been appointed, the court, on application of a party, shall appoint an arbitrator.

SECTION 7511

Vacating or modifying award

§ 7511. Vacating or modifying award. (a) When application made. An application to vacate or modify an award may be made by a party within ninety days after its delivery to him.

(b) Grounds for vacating.

1. The award shall be vacated on the application of a party who either participated in the arbitration or was served with a notice of intention to arbitrate if the court finds that the rights of that party were prejudiced by:

(i) corruption, fraud or misconduct in procuring the award; or

(ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; or

(iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or

(iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection.

2. The award shall be vacated on the application of a party who neither participated in the arbitration nor was served with a notice of intention to arbitrate if the court finds that:

(i) the rights of that party were prejudiced by one of the grounds specified in paragraph one; or

(ii) a valid agreement to arbitrate was not made; or

(iii) the agreement to arbitrate had not been complied with; or

(iv) the arbitrated claim was barred by limitation under subdivision (b) of section 7502.

(c) Grounds for modifying. The court shall modify the award if:

1. there was a miscalculation of figures or a mistake in the description of any person, thing or property referred to in the award; or

2. the arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or

3. the award is imperfect in a matter of form, not affecting the merits of the controversy.

(d) Rehearing. Upon vacating an award, the court may order a rehearing and determination of all or any of the issues either before the same arbitrator or before a new arbitrator appointed in accordance with this article. Time in any provision limiting the time for a hearing or award shall be measured from the date of such order or rehearing, whichever is appropriate, or a time may be specified by the court.(e) Confirmation. Upon the granting of a motion to modify, the court shall confirm the award as modified; upon the denial of a motion to vacate or modify, it shall confirm the award.

2. AAA Commercial Arbitration Rules – R 12 to R-15, R-17 and R-18

R-12. Appointment from National Roster

If the parties have not appointed an arbitrator and have not provided any other method of appointment, the arbitrator shall be appointed in the following manner:

(a) The AAA shall send simultaneously to each party to the dispute an identical list of 10 (unless the AAA decides that a different number is appropriate) names of persons chosen from the National Roster. The parties are encouraged to agree to an arbitrator from the submitted list and to advise the AAA of their agreement.

(b) If the parties are unable to agree upon an arbitrator, each party to the dispute shall have 14 calendar days from the transmittal date in which to strike names objected to, number the remaining names in order of preference, and return the list to the AAA. The parties are not required to exchange selection lists. If a party does not return the list within the time specified, all persons named therein shall be deemed acceptable to that party. From among the persons who have been approved on both lists, and in accordance with the designated order of mutual preference, the AAA shall invite the acceptance of an arbitrator to serve. If the parties fail to agree on any of the persons named, or if acceptable arbitrators are unable to act, or if for any other reason the appointment cannot be made from the submitted lists, the AAA shall have the power to make the appointment from among other members of the National Roster without the submission of additional lists.

(c) Unless the parties agree otherwise, when there are two or more claimants or two or more respondents, the AAA may appoint all the arbitrators.

R-13. Direct Appointment by a Party

(a) If the agreement of the parties names an arbitrator or specifies a method of appointing an arbitrator, that designation or method shall be followed. The notice of appointment, with the name and address of the arbitrator, shall be filed with the AAA by the appointing party. Upon the request of any appointing party, the AAA shall submit a list of members of the National Roster from which the party may, if it so desires, make the appointment.

(b) Where the parties have agreed that each party is to name one arbitrator, the arbitrators so named must meet the standards of Section R-18 with respect to impartiality and independence unless the parties have specifically agreed pursuant to Section R-18(b) that the party-appointed arbitrators are to be non-neutral and need not meet those standards.

(c) If the agreement specifies a period of time within which an arbitrator shall be appointed and any party fails to make the appointment within that period, the AAA shall make the appointment.

(d) If no period of time is specified in the agreement, the AAA shall notify the party to make the appointment. If within 14 calendar days after such notice has been sent, an arbitrator has not been appointed by a party, the AAA shall make the appointment.

R-14. Appointment of Chairperson by Party-Appointed Arbitrators or Parties

(a) If, pursuant to Section R-13, either the parties have directly appointed arbitrators, or the arbitrators have been appointed by the AAA, and the parties have authorized them to appoint a chairperson within a specified time and no appointment is made within that time or any agreed extension, the AAA may appoint the chairperson.

(b) If no period of time is specified for appointment of the chairperson, and the party-appointed arbitrators or the parties do not make the appointment within 14 calendar days from the date of the appointment of the last party-appointed arbitrator, the AAA may appoint the chairperson.

(c) If the parties have agreed that their party-appointed arbitrators shall appoint the chairperson from the National Roster, the AAA shall furnish to the party-appointed arbitrators, in the manner provided in Section R-12, a list selected from the National Roster, and the appointment of the chairperson shall be made as provided in that Section.

R-15. Nationality of Arbitrator

Where the parties are nationals of different countries, the AAA, at the request of any party or on its own initiative, may appoint as arbitrator a national of a country other than that of any of the parties. The request must be made before the time set for the appointment of the arbitrator as agreed by the parties or set by these rules.

R-17. Disclosure

(a) Any person appointed or to be appointed as an arbitrator, as well as the parties and their representatives, shall disclose to the AAA any circumstance likely to give rise to justifiable doubt as to the arbitrator’s impartiality or independence, including any bias or any financial or personal interest in the result of the arbitration or any past or present relationship with the parties or their representatives. Such obligation shall remain in effect throughout the arbitration. Failure on the part of a party or a representative to comply with the requirements of this rule may result in the waiver of the right to object to an arbitrator in accordance with Rule R-41.

(b) Upon receipt of such information from the arbitrator or another source, the AAA shall communicate the information to the parties and, if it deems it appropriate to do so, to the arbitrator and others.

(c) Disclosure of information pursuant to this Section R-17 is not an indication that the arbitrator considers that the disclosed circumstance is likely to affect impartiality or independence.

R-18. Disqualification of Arbitrator

(a) Any arbitrator shall be impartial and independent and shall perform his or her duties with diligence and in good faith, and shall be subject to disqualification for: i. partiality or lack of independence,

ii. inability or refusal to perform his or her duties with diligence and in good faith, and

iii. any grounds for disqualification provided by applicable law.

(b) The parties may agree in writing, however, that arbitrators directly appointed by a party pursuant to Section R-13 shall be non-neutral, in which case such arbitrators need not be impartial or independent and shall not be subject to disqualification for partiality or lack of independence.

(c) Upon objection of a party to the continued service of an arbitrator, or on its own initiative, the AAA shall determine whether the arbitrator should be disqualified under the grounds set out above, and shall inform the parties of its decision, which decision shall be conclusive.

A v B [2011] EWHC 2345 (Comm)
 

Elijah Saatori v Raffles Medical Group (Hong Kong) Ltd, HCMP 3224/2016, unrep., 13 September 2017
 

Gao Haiyan v Keeneye Holdings Ltd [2012] 1 HKLRD 627
 

Gong Benhai v Hong Kong International Arbitration Centre [2015] 2 HKLRD 537
 

H v L and Ors [2017] EWHC 137 (Comm) at [16]
 

Halliburton CO v Chubb [2021] AC 1083
 

Hebei Import & Export Corp v Polytek Engineering Co Ltd (1999) 2 HKCFAR 111
 

Jung Science Information Technology Co Ltd v ZTE Corporation [2008] 4 HKLRD 776
 

Laker Airways Inc v FLS Aerospace Ltd [2000] 1 WLR 113
 

Pacific China Holdings Ltd v Grand Pacific Holdings Ltd [2007] 3 HKLRD 741
 

Paloma Co Ltd v Capxon Electronic Industrial Co Ltd [2018] 2 HKLRD 1424
 

W Limited v M SDN BHD [2016] EWHC 422 (Comm) at [44]
 

W v AW [2021] 5 HKC 476
 

Ometto V. Abengoa