8 April 2021
In our previous article, we reported on the Supplemental Arrangement Concerning Mutual Enforcement of Arbitral Awards between Mainland China and the HKSAR (Supplemental Arrangement) made on 27 November 2020, which made certain revisions to the Arrangement Concerning Mutual Enforcement of Arbitral Awards between Mainland China and the HKSAR, as follows:
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(1) |
Recognition of arbitral awards -The Supplemental Arrangement clarified that the procedures set out in the Arrangement shall be interpreted as applying to both recognition and enforcement of arbitral awards. |
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(2) |
Interim Measures – The Supplemental Arrangement provided that the Courts may grant interim measures before or after accepting an application for enforcement of an arbitral award. Whilst the Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of Mainland China and the HKSAR (which came into force 1 October 2019) empowered the Hong Kong and Mainland Courts to grant interim measures in aid of arbitral proceedings, it only applied to applications for interim relief made before the making of arbitral awards. The Supplemental Agreement provides that the Courts may grant interim measures before or after accepting an application for enforcement of an arbitral award. |
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(3) |
Removal of the “mainland arbitration authorities” requirement– In respect of enforcement of Mainland awards in Hong Kong, the Supplemental Arrangement removed the reference to enforcement of only those awards made by certain recognised Mainland arbitral authorities. |
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(4) |
Concurrent enforcement proceedings – The Supplemental Arrangement allows for concurrent enforcement applications in the Mainland and Hong Kong |
The revisions at (1) and (2) above came into effect on 27 November 2020, when the Supplemental Arrangement was signed. The revisions at (3) and (4) above required amendments to be made to the Arbitration Ordinance before they could be brought into effect. Those amendments have now been enacted in the Arbitration (Amendment) Ordinance 2021, which will come into effect on 19 May 2021. So from 19 May 2021:
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In respect of enforcement of Mainland awards in Hong Kong, the reference in the Arbitration Ordinance to enforcement of only those awards made by certain recognised Mainland arbitral authorities is removed, so that all arbitral awards made in the Mainland will be enforceable in Hong Kong.
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Section 93 of the Arbitration Ordinance is repealed and a party who has a Mainland arbitration award will be able to simultaneously enforce that award in both Hong Kong and the Mainland.
The revisions will undoubtedly go a long way to further facilitate the use of arbitration in cross-border civil and commercial disputes.
For further information, please contact:
Stanley Lo, Deacons
stanley.lo@deacons.com.hk
