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Hong Kong amends arbitration law to allow enforcement of relief granted by "emergency" arbitrators


Changes to Hong Kong's arbitration laws have come into force which will allow relief granted by 'emergency' arbitrators to be enforced in the same way as that granted by ordinary arbitrators.

The change, which came into force on 19 July, was necessary as the latest version of Hong Kong's Administered Arbitration Rules allows the appointment of emergency arbitrators, who will be able to order a variety of emergency actions. The new rules are due to take effect on 1 November 2013.

The Hong Kong Arbitration (Amendment) Ordinance will also make arbitration awards made in Macao enforceable in Hong Kong, in the same way that awards made in jurisdictions which have signed the New York Convention are enforceable in Hong Kong. Awards made in Hong Kong will similarly be enforceable in Macao. Further notice will need to be published in the Hong Kong Government Gazette before this change comes into force.

The changes distinguish between emergency relief granted within Hong Kong and relief "granted outside Hong Kong". The most recent versions of a number of sets of arbitral rules used commonly in the region also provide for emergency arbitrators and emergency relief. These include the 2012 Singapore International Arbitration Centre Rules, the 2012 ICC Rules of Arbitration and the 2005 Australian Centre for International Commercial Arbitration Rules, as amended in 2011.

Permission from the Hong Kong Courts must be granted before emergency relief becomes enforceable. If the relief was granted inside Hong Kong, it becomes enforceable in the same way as any other order or direction of the court. However, if the relief is granted outside Hong Kong the court will only be able to approve it if the party seeking to enforce the measures can demonstrate that they are "temporary" and designed to serve one or more of a number of specified purposes set out in the legislation.

"As such, the ability of a party to enforce emergency relief varies substantially depending on whether it was 'granted outside Hong Kong'," said Nicholas Brown, a Hong Kong-based international arbitration expert at Pinsent Masons, the law firm behind Out-Law.com.

"Unfortunately, it is unclear whether the words 'granted outside Hong Kong refer to arbitrations seated outside of Hong Kong, or simply to the geographical location of the emergency arbitrator when he grants his decision," he said.

Although "applying a purposive interpretation" to the words implied that they referred to arbitrations seated outside of Hong Kong, the exact meaning would need to be clarified by the courts, Brown said.

If permission to enforce emergency relief is refused by the Hong Kong courts, there is no means of appealing the decision regardless of whether the relief was granted within or outside of Hong Kong.

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